Education (Miscellaneous Provisions) Bill 2007: Report and Final Stages.

Amendment No. 1 is out of order while amendment No. 2 arises out of committee proceedings.

Amendment No. 1 not moved.

I move amendment No. 2:

In page 4, between lines 12 and 13, to insert the following:

"(i) in paragraph (b), by deleting “to be prescribed” and substituting “in excess of 14 days or such longer period as may be prescribed,”.

The Minister on Committee Stage indicated to me that what I am trying to achieve in this amendment can be done by regulation. I am not proposing to press this amendment.

Amendment, by leave, withdrawn.

Amendment No. 3 in the name of Deputy Crowe arises out of committee proceedings. As Deputy Crowe is not present, amendments Nos. 3 and 4 cannot be considered.

Amendments Nos. 3 and 4 not moved.

I move amendment No. 5:

In page 4, between lines 25 and 26, to insert the following:

"(b) by substituting the following subsection for subsection (2):

"(2) For the purposes of the hearing and determination of an appeal under this section, the Minister shall appoint one or more than one committee (in this section referred to as an 'appeals committee') each of which shall include in its membership an inspector and such other persons as the Minister considers appropriate including teachers and-or representatives from recognised teachers unions and a representative chosen from a panel of parents and-or representatives from recognised parent bodies.".".

I do not propose to take up too much time with this amendment. This is a very good Bill. Other aspects of the Education Act 1998 need to be examined. I ask for the Minister's opinion as to whether there should be prescription of members of committees. Parents and representatives from recognised parents' bodies, such as the National Parents' Council Post-Primary, may already be requested under the Minister's remit but, if not, I ask her to consider that it be a written condition.

Section 29 already provides for the membership of an appeals committee to include an inspector and such other persons as the Minister deems to be appropriate. I do not believe that it is right to be too prescriptive because one then has people in a representative capacity rather than having the best person for the job. It would be important to ensure the qualities the person would bring to such a board would include a good background in education and a broad range of experience. As with all the appointments I have made, I can assure the Deputy that the appropriate experience, skills and qualities will be considered when people are being appointed. I do not believe it is a good idea to be too prescriptive in the nature of those people.

Amendment, by leave, withdrawn.

Amendments Nos. 6, 7 and 11 are related and may be discussed together.

I move amendment No. 6:

In page 4, line 31, to delete ", scale and persistence" and substitute "and scale".

We debated the issue on Committee Stage. The scale and the persistence of behaviour should not be dealt with jointly on appeal. A particular form of behaviour may only happen once but it may be of such scale that it merits either suspension or expulsion. For example, if the behaviour of the child was of a criminal nature or if it was so serious that it caused significant concern to the school, it might be appropriate to suspend the child. On the other hand, persistent but not serious behaviour might not merit suspension. In order to be clear and to allow those dealing with the legislation to make the appropriate decision, we need to separate scale and persistence from each other.

In amendment No. 7, I deal specifically with behaviour prohibited by the civil or criminal law which we need to separate from what might be relatively low scale bad behaviour but which nonetheless is persistent. It is to separate the seriousness from the persistence of behaviour that the amendments are proposed.

On Committee Stage I stated I would consider the grouping of the words "nature, scale and persistence". I inquired into the matter and the advice is that whereas one must consider the nature, scale and persistence if any one of these elements is not present, the expulsion or the appeal either way can be considered on the basis of the other two elements or any one of the other two elements. It is not as if the three must be present.

I accept the Deputy's point. There could be a once-off incident where the scale is very serious and which, therefore, merited the action taken by the school. That would be upheld without the behaviour being persistent. Equally, I do not want to have a situation where somebody would be expelled just because the behaviour is persistent, although of a very low level. I understand the other elements would also have to be considered. Just because the three words are together does not mean they cannot be considered and accepted separately and in isolation.

The violent nature and seriousness of the incident that takes place has to be considered by the appeals board but it must also consider a number of other matters, including the code of behaviour in the school. The code of behaviour must indicate clearly what the approach will be to behavioural issues and specify what action the board will take as a result of various types of behaviour. As the Deputy will know from studying the legislation, the appeals board must also consider what efforts the school made, the reasonableness of any efforts made and all the other issues we discussed previously with regard to the health, safety and welfare of teachers and staff, and the rights and needs, including educational needs, of the individual child.

Taken as a whole, because a number of issues are being set out and there is a range of factors that the board must consider, the issues we are trying to address are covered in this section which is very well balanced. As I indicated, I checked the question of the grouping of the words "nature, scale and persistence". I am satisfied the three factors do not have to be present but, equally, no one factor on its own would be sufficient to be taken into consideration, for example, if behaviour had persistence but not scale.

I would like more clarity from the Minister. Does she accept that the term "have regard to" leaves a certain degree of flexibility?

It is a legal phrase meaning the board "must take into account".

Yes. It is not tied.

These are each of the elements it must consider when hearing an appeal.

Did the Minister consider including the word "or", in order that the Bill would read "nature or scale or persistence"? I suggested previously the inclusion of the term "and-or", in order that the Bill would read "nature and-or scale and-or persistence". That might solve the problem and address my concerns. Did the Minister consider this possibility before Report Stage?

The word "or" could give rise to the very situation Deputy O'Sullivan stated she would not want, namely, that the board might only consider one element. The word "and" could mean all three or, equally, that the board would have to consider each of the three. I was assured that by having the three words, the board could consider the three but, equally, if one of them did not apply, it would not preclude the board from acting on the basis of either of the other two.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 4, between lines 34 and 35, to insert the following:

"(b) whether the behaviour of the student constituted behaviour prohibited by the civil or criminal law, or both, and if so, the seriousness of the infringement,

(c) the persistence of any behaviour alleged to have given rise to, or contributed to, the decision made by or on behalf of the board,”.

Amendment put and declared lost.

Amendments Nos. 8 to 10, inclusive, are related and may be discussed together.

I move amendment No. 8:

In page 4, line 43, after "peers," to insert the following:

"subject to the requirement that the Minister shall remain responsible for securing as far as practicable the educational rights of the individual student in the event of a decision under subsection (1)(a) or (b) being upheld,”.

This amendment is very important to the Bill because what we and the Minister are trying to achieve is a balance between the rights of all of the students in the classroom or school, including the rights of the child who is subject to either suspension or expulsion. In the amendment I am seeking to ensure the rights of that child are fully upheld in any decisions made and, particularly, that the Minister's responsibility with regard to the education of children excluded from school is fully incorporated in the legislation.

Children have a constitutional right to education. I understand there may be situations where it is appropriate to either suspend or expel them but somebody must be responsible for their continuing with their education in an appropriate setting. The Minister has told us and it is a fact that the National Educational Welfare Board has a role in this regard. She indicated to us on Committee Stage that the school was obliged to inform — she might clarify this point — the board if it was excluding a child from the school. Not enough consideration has been given, in the context of the recommendations of the task force on student behaviour, to the rights and needs of these children who may well have serious learning difficulties or social issues that need to be addressed and who are entitled to an education. The Minister has indicated that they would go to another school in most cases and that they are entitled to home tuition grants if they have nowhere else to go. The task force has strongly recommended that there should be alternative provision for children who are not appropriately placed in schools and may well thrive in an alternative setting.

I know of young people who have not in any way fitted in at school. When they moved to, say, a Youthreach or Youth Encounter project, they were very successful when provided with a different approach and method and, as would be usual in such settings, a lower ratio of young people to adults. I want to ensure the rights of these children are protected. In the context of implementation of the task force's recommendations, this is one of the first being implemented. The recommendations need to be implemented in a balanced way in order that these young people will be catered for. That is the reason I propose amendment No. 8.

Amendment No. 10 is also included in this grouping. It seeks to substitute the term "welfare and other legal entitlements" for the word "welfare". I had in mind the rights of all children to an education, the rights of the other children in the class and the rights of the teacher.

My main concern is with amendment No. 8 which concerns the rights of the child being excluded from school. The Minister said it sometimes works when a child is taken out of the school where he or she has been in trouble and makes a fresh start in another. However, in my experience, it does not always work in that co-operative way. What actually happens is that certain schools are quite happy to exclude and expel children and that they expect certain other schools to take up the more difficult challenges presented by such pupils.

In return, however, they do not take in a child expelled from the other school and will find many reasons that school should cater for all the children with difficulties and particular learning needs. All schools must have the right to expel children who cause problems but, in reality, a certain school in a town or city is expected to take in children with difficulties, which is not fair. Every school needs to have a reasonable balance, both socially and in terms of children with learning difficulties. I look forward to the Minister's response as to how we will provide for the educational needs of these young people.

I concur with everything Deputy O'Sullivan said. In the debate on Second Stage, I said that some outside body was necessary, such as an enhanced Youthreach or a new centre based on the model to which I referred in Sydney, New South Wales, where there is a looser arrangement and pupils enjoy one to one or one to two tuition. If Youthreach can do that, it would be great but if it cannot we need something else. The task force report was very clear on that point.

The Minister of State at the Department of Health and Children, Deputy Brian Lenihan, answered a question of mine about the National Educational Welfare Board. He clearly expressed the Government's disagreement with the Rochford report on staffing the National Educational Welfare Board, saying there were already enough resources in place so that the report's recommendations for a full complement of approximately 20 staff and total funding of €28 million were not necessary.

The National Educational Welfare Board is the only body to have a role in placing a student who has been expelled. A disruptive child requires much more hands-on intervention than that required for a child playing truant from school. Amendment No. 11, which relates to violent behaviour, proposes that solutions be tailored to the needs of the individual child who has committed assaults or cannot return to a school environment for some of the reasons I outlined on Second Stage.

People must be present for the child and that must involve the National Educational Welfare Board. Amendment No. 9 does not tie the Minister's hands by saying she must directly look after the needs of the child concerned. Rather it recognises that it is the role of the National Educational Welfare Board but that, if it is not doing its job because of incompetence or the fact that it is not resourced, then the buck stops with the Department of Education and Science and the Minister. I have confidence in the Minister's commitment to ensure the educational needs of a child are met and it does not put any additional onus on her to write such a provision into the legislation.

I support the amendments. I echo the sentiments of many speakers present and many outside the House who are concerned at the haste with which this Bill is being put through. There is huge disappointment among those involved in the VEC system that commitments made by the Minister on this subject are not being followed through in the Bill. She promised she would institute a root and branch reform of section 29 but, while it goes a small way towards that, the Bill falls far short of the commitments given by the Minister.

I echo the points made by Deputy O'Sullivan on the difficulties in schools at the moment. There are major problems with disruptive and unruly students and others who may not be very disruptive but bully others and make ordinary children's lives very difficult. I recently came across a case of a little girl who started school last September. From day two she has had difficulties with a particular pupil who harasses and intimidates her to the extent that she has cried at school every day since then, a long time ago now. That is an appalling situation. To some extent the response seems to be to advise the girl to move to another school, instead of the bully. It is imperative we deal with those who are the cause of trouble, who interrupt the education of so many other children. This Bill will remedy the situation in part but many in the system would say it will make life even more difficult.

There are serious concerns that the powers being given to change dates and timescales in section 4 are excessive. Deputy O'Sullivan made reference to the fact that, in some areas, the vocational school was the destination for any child with whom other schools could not cope. That is not a fair way to allocate such children. There must be a system whereby they can be allocated across all schools and all schools must take responsibility for a variety of pupils. The situation should not arise where a child who cannot get in anywhere else must go to the vocational school.

The experience of the scheme among VECs across the country has been very negative. They are concerned at the willingness of both members of the appeals committee and officials of the Department of Education and Science to strictly apply procedural requirements to members of boards of management of VECs who are respondents to appeal cases, while patently failing to apply the same strictures to themselves. I will put on the record two examples. The appeals administration section of the Department of Education and Science gave advices to a VEC that it was in order to hold a particular decision over for a meeting of the committee for one extra day. Subsequently the same section of the Department of Education and Science decided that this advice was in error and used the very fact that the VEC had delayed by one day to admit an appeal against the same VEC in which the Department decided in favour of the appellant.

This legislation states there is to be a particular number of days in which to comply with procedures. It allows the Secretary General of the Department, however, to change the goalposts in respect of timescales to suit the Department. However, the VECs and other bodies must toe the line. Is that fair?

The second matter I wish to raise relates to the fact that the Department of Education and Science exceeded the statutory time limits and extensions set out in the 1998 Act. When the relevant VEC queried this, the response received was that the delay, which rendered the entire decision flawed and irregular, arose due to human error on the part of the Department. Therefore, human errors can occur in the Department and these can result in its not complying with the standards and regulations. However, if VECs miss deadlines, decisions will go against them. Which organisations are obliged to deal with these enormous difficulties on a daily basis and ensure that all pupils receive a fair standard of education? The answer is that VECs, local secondary schools, etc., are responsible for doing so. The Department wants to take the responsibility upon itself and shift the goalposts as it suits. It wants the other organisations to which I refer to comply with the relevant standards or be taken to task for not doing so. That is not good enough.

Did the Minister consider establishing an independent appeals board in respect of this matter? Would it not be worthwhile putting in place such an independent body because it could hear complaints in respect of schools taking in children and so on? Would such a body not be in a better position to hear such appeals? There is an extensive appeals system across the entire public service. The Ombudsman cannot deal with VECs because they do not come within her remit. There are appeals offices in the Departments of Social and Family Affairs and Agriculture and Food. Why not put in place an independent appeals system or a mechanism such as the Employment Appeals Tribunal to deal with complaints in this area? People could rest assured that an appeals body such as that to which I refer would examine complaints on an independent basis and build up a huge repertoire of expertise on foot of dealing with problems of this nature throughout the country. We would eventually develop a system that would be entirely fair and represent the best interests of all children.

Some VECs are of the view that the existing system is not geared towards natural justice. They also believe that, because they are State institutions, they are being subjected to heavy-handed treatment in respect of this matter.

I ask the Minister to take on board the points I have made. I am concerned about the undue haste with which this matter is being dealt. I am also concerned that the Minister did not live up to the commitments given to the VECs in respect of it. Will she consider, even at this late stage, the possibility of establishing an independent body to deal with such complaints that may arise in order that natural justice will eventually win out?

I wish to focus first on the amendments. I note that Fine Gael did not table any Report Stage amendments.

That was as a result of a technical error.

The various amendments to the Education Act 1998 that are contained in the Bill were presented to the partners and discussed with them. All of the latter indicated some pleasure in respect of these amendments.

The Bill arises out of the report of the task force on student behaviour in second level schools, which was published less than 12 months ago. Since then, the behaviour support task force has been established. This body invited every school in the country to meet its representatives and it has taken submissions from schools. It is now actively working with schools in all sectors and with varying gender mixes throughout the country. Progress is being made on a number of the recommendations — of which this Bill is one — contained in the report of the task force on student behaviour.

The Bill contains an amendment to section 29 of the Education Act 1998, in which provision is made for the establishment of an appeals committee. That is what we have been discussing since Second Stage. This Bill outlines the factors that the appeals committee should take into consideration when an appeal against an expulsion is being considered. It was felt that the balance was wrong and leaned too much in favour of the rights of the individual rather than those of other children, as well as their health, safety and welfare and that of school staff. In seeking to redress the balance, we set about laying down the criteria that would have to be considered by an appeals committee when considering an appeal before it. As Deputy O'Sullivan correctly stated, the rights of an individual student cannot be ignored when an appeal is being considered. It must be remembered that students do, after all, have constitutional rights. The Bill is aimed at trying to strike the appropriate balance between the educational rights of individual students and those of entire school communities. It is also designed to try to promote a positive learning environment.

Under the new section 29 being inserted into the 1998 Act, an appeals committee must give consideration to "the reasonableness of any efforts made by the school to enable the student to whom the appeal relates ... to participate in and benefit from education". Students remain very much to the fore. The new section 29 also states that the committee must have regard to "the educational interests of the student concerned and the desirability of enabling the student as far as practicable to participate in and benefit from education with his or her peers". We are, quite rightly, stating that individual students cannot be ignored. I am glad that some element of balance is being restored to the debate in respect of the such students.

Deputy O'Sullivan asked me to clarify the position regarding when a child is about to be expelled from a school. This relates to the point Deputy Gogarty made in respect of the National Educational Welfare Board coming on stream. The Education (Welfare) Act specifically states:

Where the board of management of a recognised school or a person acting on its behalf is of the opinion that a student should be expelled from that school it shall, before so expelling the student, notify the educational welfare officer to whom functions under this Act have been assigned . . .

As soon, therefore, as an opinion is formed that a child must be expelled, the National Educational Welfare Board must be notified. The Act also states that "A student shall not be expelled from a school before the passing of 20 school days following the receipt of a notification". Therefore, the National Educational Welfare Board has 20 school days between the notification of expulsion and that expulsion taking place to fine an alternative placement for the child involved.

What will happen if an alternative placement is not found?

Under section 27 of the Education (Welfare) Act, the National Educational Welfare Board has an obligation to make other arrangements, as it deems appropriate, if it cannot enrol a child in another school. Undoubtedly, there are some schools that are too willing to get rid of students and that expect other schools to take them. I hope that schools will engage in a form of reciprocal co-operation in respect of this matter.

The Minister might be left hoping. It does not always happen in reality.

I accept that. However, that is the value of the other education provision which is available and which we are mapping at present. Some of this provision comes directly within the remit of the Department of Education and Science. However, there are institutions that do not come within the Department's remit which are doing very good work and which are providing a service to young people. Having identified where the gaps lie, we will be seeking not only to expand Youthreach but also to cater for the needs of members of that younger age group that are vulnerable.

As I stated previously, I would be very anxious that no child should be rejected from a second level school because it is far too early to reject them at that age. Such a child should at least complete first year in a second level school to give him or her the opportunity to participate fully in mainstream education and then see in second and third year if it is not working out for them or that type of system does not suit them. That is part and parcel of what we are doing with the alternative provision.

Returning to the matter in the amendment, the National Educational Welfare Board has a statutory obligation to support the child, work with the parents, find an alternative provision and then monitor the progress of the child's education. In light of what Deputy Gogarty stated, the National Educational Welfare Board does good work but keeping a child in school obviously involves the co-operation of so many different people. It is not just a matter of the education welfare officer's role at the end. That is why there are 460 home-school-community liaison officers, with a further 80 being recruited at present, to work with parents and families and to ensure attendance.

In that light, one can also throw in the school completion co-ordinators who are organising school activities and out of school activities and, importantly, working on the transition between primary and secondary, particularly in disadvantaged schools. This is working well; they are now making the transition because they are more comfortable with it. I see the work of the National Educational Welfare Board, in the context of encouraging people in school which is what we are discussing, as part of a much bigger picture in which we reckon there are approximately 600 people who have some direct remit in this regard now working.

The rights of the individual are still protected in the legislation. It is a balance against the rights of all the others to learn as well, which is the one element that was missing from the Education Act until we came up with this amendment to section 29. The National Educational Welfare Board has the statutory obligation to ensure that suitable provision is found for the child. For those reasons, I cannot accept the amendments.

A couple of points arise from what the Minister stated. First, she said at one stage that the partners in education were consulted about these proposed amendments. I received an e-mail from Fionnuala Kilfeather of the National Parents' Council-Primary, which indicates that it was not consulted. While this may be a misunderstanding, the e-mail ends by stating that the Minister, under legislation, is required to review the operation of appeal in section 29 of the Education Act 1998 in consultation with the partners in education and that this consultation did not take place. It is a serious matter if that consultation did not take place. Perhaps it is a misunderstanding.

While we are speaking predominantly about secondary schools, a particular consideration is that children are also expelled from primary schools. Statistics I received on section 29 appeals show there were 12 expulsions from primary schools in 2005 and seven up to the end of November 2006. We must be particularly concerned about the effect of expulsions from primary schools on young children.

My other question relates to what Deputy Gogarty said. What happens in cases where the school does not inform the National Educational Welfare Board? Is the onus then on the parents to find out their rights in that regard? In some of these cases, the parents would not be well informed. I want to ensure that the National Educational Welfare Board is always informed because schools are not proactive in that area. I am still concerned that these children will be left with no school to attend. There is a strong onus on us to ensure that we cater for their educational needs in this legislation.

I will not take up too much time. I take on board what the Minister stated. I thank her for the lesson on the Education (Welfare) Act 2000. It is good to get a reminder, but the point is that Act is the legislation under which the National Educational Welfare Board will work and the trouble is that the board states it needs its full complement of staff in order to carry out its job under the remit of that Act. In that respect, notwithstanding that in certain types of schools there are home-school-community liaison officers and school completion staff, it is still the education welfare officer who holds the statutory obligation.

I concur with Deputy O'Sullivan's question on whether the school informs the National Educational Welfare Board and if the parents are aware of their rights. I ask for a response in that regard.

I stress that amendment No. 9 seeks to insert a requirement that the Minister or her Department would monitor the efforts being made by the National Educational Welfare Board and that if, after a reasonable period, nothing has happened or no alternative suitable arrangements have been put in place, a direct departmental or ministerial intervention would take place to ensure that happens.

While I again acknowledge that this Bill is about protecting the rights of the teachers and the students as much as the ones who are causing the violence or disruptive behaviour that gets them expelled, there is still an obligation to educate such children. One cannot leave the matter hanging for a period of a year at the end of which the child's educational requirements will be greater and his or her life opportunities will be diminished.

I will be quite blunt, although it is not the correct period in which to say it. The more children who end up out of the system early and end up having kids, who, in turn, end up out of the system and having kids, the more the situation worsens. It is about early intervention, as I stated on Second Stage and previously. It is most important to nip the problem in the bud as quickly as possible and give children a chance to meet their educational requirements. The buck must stop with the Minister if the National Educational Welfare Board cannot or will not do its job.

Staffing for the National Educational Welfare Board will increase by 15, as I already announced.

Some 200 to go.

There will be further increases next year and the following year.

To reassure the Deputies about the Education (Welfare) Act 2000, the Bill, in subsection (4A), states that the appeals committee can uphold a complaint in relation to a permanent exclusion of a student from a school if the student or the parent of the student can show that subsection (1) or (4) of section 24 of the 2000 Act has not been complied with, which is the bit of the Education (Welfare) Act 2000 that refers to a school notifying the National Educational Welfare Board. In other words, if a student or a parent can show that the school has not fulfilled its obligations in telling the National Educational Welfare Board that it intends to expel a student, the appeals committee can automatically act in favour of the student. That is written into the legislation.

Would the appeals committee inform the parents of the rights of the student in that regard?

The appeals committee can find in favour of the student.

That is just as bad in one sense because it is a technicality.

It is not because it puts the onus on the school to fulfil its obligations under the Education (Welfare) Act 2000 because it knows they will lose if it does not tell the parent and students what are their rights under that Act.

I wonder would the appeals committee be aware of all that. The Minister had better issue them a briefing note.

On briefing, the National Parents' Council-Primary was invited to attend the briefing and it did not attend. I understand the officials spoke to Fionnuala Kilfeather about it.

That is on the record now.

Amendment put and declared lost.

I move amendment No. 9:

In page 4, line 43, after "peers," to insert the following:

"subject to the requirement that the Minister and-or her Department shall monitor the efforts being made by the National Educational Welfare Board to secure as far as practicable the educational rights of the individual student in the event of a decision under subsection (1)(a) or (b) being upheld, and will intervene if these rights have not been addressed within a reasonable period of time,”.

Amendment put and declared lost.

I move amendment No. 10:

In page 5, line 5, to delete "and welfare" and substitute ", welfare and other legal entitlements".

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 11:

In page 5, line 28, to delete "relevant." and substitute the following:

"relevant, including whether or not violent behaviour against another pupil or teacher was the cause of the expulsion, in which case the committee will generally not recommend the reinstatement of such pupils, save for exceptional situations where there was no previous history of violence or threatening behaviour and where clear provocation, on the testimony of credible witnesses, was known to have occurred.".

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 12:

In page 5, between lines 28 and 29, to insert the following:

"(4A) In hearing and determining an appeal under this section against a decision to which subsection (1)(c) applies an appeals committee shall have regard to regulations under section 33(g), which the Minister shall make within 6 months from the enactment of the Education (Miscellaneous Provisions) Act 2007.”.

This amendment deals with regulations under section 33 of the principal Act on enrolment of children into schools. I am seeking to ensure that the Minister will introduce regulations under this section because I am concerned that, although schools are putting in place enrolment policies as required by legislation, some policies are succeeding in excluding certain children.

I am aware the Minister is also concerned about this issue because she has referred on several occasions to schools cherry-picking students or finding ways to avoid accepting certain children. In some cases, they manage to avoid refusing children outright by suggesting they might be better catered for down the road. However, other schools find ways of excluding children through their enrolment policies. A case was brought to my attention in which a Traveller child was excluded from a school even though vacancies existed. The child was excluded on the basis of the school's enrolment policy, although I do not know the exact content of that policy. I am concerned that schools are able to write enrolment policies which exclude certain children. My amendment provides that the Minister shall make regulations within six months of the enactment of this Bill.

As I noted on Committee Stage, no Minister has ever used the power available to him or her to make regulations. The former Minister for Education and Science, Deputy Noel Dempsey, suggested using that power in the context of a problem which arose in my constituency with regard certain second level schools which were not as inclusive in enrolling children as we might have hoped. He initiated a process whereby the principals of all the schools concerned were obliged to introduce a system that would ensure all children had a place. That process was not particularly effective during its first year of operation but has since improved and some other schools outside the city have also been included. Thankfully, children in Limerick have been facilitated in finding places, but considerable work had to be done to reach that point. I supported the then Minister's suggestion about introducing regulations because I believed it would prevent schools from avoiding their obligations, particularly regarding children with special needs or from certain addresses.

The problems which arose in Limerick also affect other parts of the country but the system in place in Limerick has not been established elsewhere. Children continue to be excluded by the way in which enrolment policies are written. The Minister could specify enrolment criteria in regulations, although I do not say she should write the enrolment policies for schools because a degree of flexibility should be permitted.

The section which provided for regulations to be made by a Minister was not included in the Act for nothing. While I am aware the Act is cross-referenced with the Education (Welfare) Act 2000 and has to comply with equality legislation, that does not remove the need to introduce regulations under section 33.

I support Deputy O'Sullivan's amendment. The Minister recognises the serious nature of this issue and I do not deny it will not be easy to address. Problems in respect of enrolment arise at both primary and post-primary level, particularly in areas of rapid growth. In some cases, groups of schools form unofficial committees to address accommodation crises by operating enrolment policies based on age, so that older children can be accommodated first. While such policies are being implemented out of necessity and for the right reasons, they might be found to be officially improper. In a sense, these policies assist the Department by providing a basis for making decisions on whether children can attend schools.

If the Department were more interactive on this issue, it could solve problems such as cherry-picking. As new types of schools are developed, these problems may become more apparent in some schools than in others. For various reasons, certain types of schools can automatically exclude children.

While I support the notion of giving schools flexibility in their enrolment policies, guidelines are important. Difficulties can also arise when schools change their policies at short notice. The best example of this are secondary schools which, by changing enrolment policies at short notice to address capacity issues, affect children who attended adjacent primary schools in the expectation of automatically progressing to the secondary school concerned. The result is that a student in sixth class may discover the secondary school he or she plans to attend is full and operating a lottery for places. Of all the ways of deciding on enrolment, a lottery is probably the least favourable. Clearly, such issues only arise in towns where choice is available. That problem should be addressed, although it should also be recognised that the schools concerned are not changing their policies merely to exclude students from particular backgrounds.

By introducing regulations, the Minister could put the onus on schools to operate proper enrolment policies and, for that reason, I support Deputy O'Sullivan's amendments.

I come from a constituency in which students are being blocked at second level because the traditional parish boundaries no longer make sense. A rapidly expanding part of Lucan with a high concentration of foreign national and Traveller children does not have a second level school. Challenges arise throughout the area in finding second level places. The Minister has stated in reply to parliamentary questions that it is all right for children to travel five miles by bus to the nearest available school but people should be able to walk to school in suburban areas.

The amendment seeks to address specific issues and I support it. Ministerial regulations could be introduced but I am not sure whether a six-month timeframe would tie one down too much. In response to similar amendments previously, the Minister has stated her dislike for being tied down to set periods. However, I hope she takes the spirit of the amendment on board.

The cherry-picking of students is an issue in a number of schools in different areas. Each of us has experienced this regarding children with special needs, Travellers and immigrant children. However, it should be borne in mind that all schools are not only obliged to have an enrolment policy but they are also obliged to conform with all other legislation such as that dealing with equality and they cannot discriminate against individuals. I am absolutely appalled that a girl could be excluded from a school because she is a Traveller and that the school could get away with it because that is blatant discrimination. Where cases have been taken by Travellers to the Equality Authority, they have been successful and they have ensured they cannot be discriminated against.

However, this practice is subtle. I recently came across a case where a boy wanted to attend the school his two brothers attend and he qualifies on the basis of being a sibling and a son of a past pupil. Geography did not enter the equation but he has special needs and his mother is being directed to send him to another school locally, which happens to do extraordinary work with children with special needs. While his mother has not been refused a place, she is being guided in the right direction. I would love her to take a case because it would stand up on the basis of that information. However, I indicated previously that my Department is conducting an audit through its regional offices in different areas to establish what is happening in schools so that we have proof rather than anecdotal evidence that they are refusing children on whatever basis and to examine their enrolment policies and whether they address special needs, ethnicity and so on. That would provide proper information.

The danger of introducing regulations is that they would apply to every school, even though this might not be a problem in every school. The age issue is a legitimate concern. It is compulsory to attend school between the ages of six and 16 and, therefore, a school is not obliged to take a child until he or she is six.

The schools are afraid what they are doing is illegal, even though they are doing it for all the right reasons because all the local schools come together.

They are probably covered by the provision whereby a child does not have to be taken until he or she is aged six. Traditionally, children attend school from an early age in Ireland. In small rural schools, they are sometimes taken in on their fourth birthday to ensure the numbers are maintained.

When the school enrolment issue arose, my predecessor, Deputy Noel Dempsey, took an initiative in Limerick, which has worked well, particularly this year. It probably took a year or so to bed down but 90% of students obtained their first choice school and more than 97% obtained a school in their top three. That is a significant success rate. The response to this issue was locally based and the problem was solved. Where problems arise, we may be able to address them in a similar manner rather than coming the heavy hand with regulations that will apply to all schools.

Under section 33(g) of the Education Act 1998, I am obliged to consult all the education partners, including the national association of parents, the school management association, trades unions and the staff associations. While recognising consultation is needed, the complex issues involved in going down this road and the policy issues and practices that must be examined, it is too prescriptive to state it must be done within a timeframe. However, I share Members’ concerns and I am keeping an active eye on this issue. Once the evidence has been gathered during the audit by our regional offices, I will be able to determine more directly what action should be taken on this and, therefore, I do not propose to accept the amendment.

What will be the timescale of the audit and how extensive will it be? As the Minister stated, this is not an issue in some schools but it is a major problem in others. While regulations would not be required in most areas, they would be required where it is an issue. I am concerned that the audit be conducted speedily; it should address the areas where discrimination is a problem and action should be taken, if required. I hate to see this drift into a two-tier education system where certain schools are expected to take all the children with learning difficulties while the remainder can sail along and state they are academic schools in which excellent leaving certificate results are achieved and appear in third level entry lists published in the newspapers. However, they do not provide for children with special needs for whom passing the leaving certificate would be a major achievement.

The Minister outlined a case she has come across and we teased out the issue of schools failing to formally issue refusals and passing the students on to another school on Second and Committee Stages. I have re-examined this issue and recently I had a discussion with a group of parents who also raised the matter. I do not know whether the legislation addresses this effectively but the Minister referred to the possibility of conducting an information campaign. Parents are not aware as they should be that if they do not receive a formal refusal from a school regarding a child's application to attend, the appeals committee will consider it a refusal if 21 days have lapsed without a reply. That is a live issue, which needs to be addressed. There is little point in people having rights if they are not aware that they can enforce them. While an appeal may solve the problem and it would be beneficial from a time perspective, perhaps the Minister could address that issue.

If an application is made in writing, a formal letter decreeing acceptance or refusal should issue. If the application is put on the long finger by the school and a formal reply is not issued, the appeals committee will deem that to be a refusal. I accept the point that parents should be aware of that and I will examine how information about this can be disseminated.

As Deputy O'Sullivan said, regulations will not be required everywhere but if I make regulations on a national basis, they will apply everywhere. We need to be careful about what is most appropriate in different areas to address this issue.

A number of regions were identified for the examination of different issues. For example, one regional office is examining the position of children with special needs, another is examining enrolment policies while another is examining the treatment of immigrant children. I am not sure when the work will be completed because they must examine the resources being provided to schools as well the policy of schools and so on. That is a good way of identifying the schools, for example, with all the language teachers and the resource teachers, particularly at second level, where there is not a general allocation per se. As soon as I have that information, I will make a determination. However, I assure the Deputies that the audit cannot be allowed to drift because schools should not be permitted to get away with this policy. The most sinister aspect of this is the underhand way in which they are operating. If schools were upfront about what they were doing, parents would be not as worried about this issue. However, people feel rejected and they have no come back because they do not receive a formal refusal with which they can work.

Amendment put and declared lost.

I move amendment No. 13:

In page 6, lines 1 and 2, to delete "the Secretary General may stipulate, as" and substitute "it shall be".

I will not press the amendment because the Minister was quite persuasive on Committee Stage when she said that, if included, a school might obstruct a hearing. I had intended it for the benefit of the child. However, she made a fair point.

Amendment, by leave, withdrawn.

I move amendment No. 14:

In page 6, line 40, to delete "may" and substitute "shall".

An appeal committee may refuse to hear, or continue to hear, an appeal under this section if it is of the opinion that the appeal is vexatious, frivolous, an abuse of the process or without substance or foundation. I wish to replace the word "may" with "shall". If the committee considers the appeal is vexatious, frivolous or an abuse of the process, it should not continue with it.

In some of the amendments we are looking for more flexibility but in this one, we are trying to take it away. The word "may" at least allows the appeal to continue if there is a belief there might be an issue worthy of consideration bearing in mind facilitation will have taken place before the matter ever gets to appeal. The committee might consider a number of elements of the appeal are vexatious but that there might be one which is worthy of pursuing. This allows that flexibility.

Amendment, by leave, withdrawn.

I move amendment No. 15:

In page 7, between lines 40 and 41, to insert the following:

"(a) in section 24(4), by inserting after “officer”,”, but the board of the school may if it considers that the circumstances underlying the proposal to expel the student so warrant, forthwith suspend the student without further notice for the period between notification of the educational welfare officer and the carrying out of the expulsion”.”.

There is a 20 day period in which the student cannot be expelled. That may create difficulty for a school where a very serious incident has occurred — for example, where a teacher or another student has been assaulted. It is difficult to consider that a school would have to keep the student in the school for that 20 day period. In some ways this may seem very harsh but I am talking about the extreme situation where the behaviour is violent and perhaps unlawful and about the difficulties for the school in that situation. There may be difficulties for the student who has been assaulted attending school if the individual who assaulted him or her is still in the school.

The Minister indicated other measures can be taken. However, I have resubmitted the amendment to ensure the other measures which can be taken are appropriate in terms of protecting the school in those extreme situations.

I would like clarification more than anything. Perhaps the Minister has some examples but I cannot see a situation where a student who has been expelled would sit in a classroom in a school. Perhaps the student would end up in a separate room or remain at home until the expulsion is effected. Are there cases in which schools experience difficulties in that 20 day period before the expulsion is effected? If so, what are the other measures which can be taken?

This is another one of those occasions where there is cross-reference to the Education (Welfare) Act which states, in the context of a student being expelled and the 20 day period kicking into play, it is without prejudice to the right of a board of management to take such other reasonable measures as it considers appropriate to ensure that good order and discipline are maintained in the school concerned and that the safety of students is secured. The thinking behind the 20 day period is obviously to allow the National Educational Welfare Board an opportunity to find alternative provision for the student and that his or her rights are upheld.

The Education (Welfare) Act also ensures the rights of the school, the safety of the students, etc, must also be considered. If, for the safety of students or in light of a very severe incident, the school decides it will not hold on to the child for 20 days pending the expulsion, then it can take further action.

I am a bit concerned that the language in the Education (Welfare) Act is fairly vague. It allows measures to be taken pending expulsion. That might be difficult for the school. What measures can it take? In an extreme case, stating that measures can be taken is a bit vague. In the amendment I propose, it would be quite clear that there would be a possibility that the student would be excluded totally from the school.

The obvious measure would be a suspension. One could suspend without notice whereas one can only expel with 20 days notice. One can make the decision to expel, give the 20 days notification and in the interim, decide to suspend the student forthwith.

Does that happen in practice?

It certainly can happen in practice. I cannot say I know of individual cases. Where a serious incident occurs, I can understand that a school would not want to have the student in the place. It could use suspension relying on the Education (Welfare) Act to do that.

Is there a legal basis stopping the school from doing that?

No. The Act states a school can take such reasonable measures as it considers appropriate to ensure good order and discipline are maintained and that the safety of students is secured. This would allow it to do that.

Is a school allowed to be in the process of expelling and suspending at the same time? Is there a difficulty with that?

I know what the Deputy is asking.

I refer to a case where the school decides to expel a student but provisionally suspends him or her.

My advice is that the school can expel the student and, pending the expulsion taking effect, can suspend him or her. In other words, the student is out no matter what happens.

Amendment put and declared lost.

I move amendment No. 16:

In page 9, to delete lines 20 and 21 and substitute the following:

"(2) The Education Acts 1878 to 2001 and sections 2 to 5 may be cited together as the Education Acts 1878 to 2007.”.

This was drawn to my attention by Deputy O'Sullivan on Committee Stage in regard to the citation of legislation. The provision regarding the collective citation of legislation is not as originally understood, as the Deputy pointed out. The Vocational Education (Amendment) Act 2001 introduced a new citation for the Education Act 1998 and, therefore, the amendment is necessary to reflect and continue the existing citation. I thank Mr. Humphreys and Deputy O'Sullivan for that.

I thank the Minister who is well aware of my legal adviser and his expertise in such matters. I am sure he will be pleased to know she has accepted the amendment.

I acknowledged him by name.

My former lecturer.

Amendment agreed to.
Bill, as amended, received for final consideration and passed.

The Bill will now be sent to the Seanad.