Education (Welfare) Bill, 1999: Committee Stage (Resumed). SECTION 9.

Debate resumed on Government amendment No. 18:
In page 8, subsection (1), line 35, to delete "in the Irish language" and substitute ", in the Irish language,".

My amendment does not quite cover the position and there is a statutory requirement. The Minister is referring to the specific requirements on the prescription of minimum standards. I am happy for him to come back on that amendment.

Amendment No. 41 seeks to give the Minister more power so that, not only could he deal collectively in terms of referring and prescribing matters to the board, but he could also direct the board in writing concerning individual cases. There will be individual cases, involving policy matters, relating to how the board operates in which the Minister might like to have the authority to play a part.

The Senator's amendment states "shall not relate to an individual case". That would not allow the Minister to give a direction in an individual case. Our intentions are similar. I agree that the Minister should have such a capacity in certain cases, if necessary, albeit that we would prefer not to do so. However, we cannot discount the possibility that a Minister may wish to make a direction on an individual case at some stage. The amendment as worded would not have that effect. The Bill as drafted allows the Minister to act in the manner desired by the Senator.

I accept that interpretation.

I wish to refer to amendment No. 42. I am confused as I understood that section 14 simply gave legislative effect to the constitutional requirement on minimum education. I thought "may" was the appropriate word in terms of what the section was trying to achieve. I want to ensure that I understand this properly as it could have far-reaching effects.

Section 14(1) states "The Minister may, after consultation with, the National Council for Curriculum and Assessment and such other persons (if any) as the Minister considers appropriate, prescribe a minimum education to be provided to each child . . . ". The section relates this facility to different capacities, ages and capabilities. This is very positive.

However, the Minister may find himself in a position in which he would not be able to prescribe minimum standards. We have been trying to do this for 70 years and very few people feel that they can definitively prescribe minimum education in every case. I do not suggest that one could not determine a minimum standard for a profoundly disabled child, for example – one could do so. However, I alert the House to the fact that it is not possible in all cases. The Minister may wish to do so with the best will in the world. However, there are so many different categories of children with different needs and it may be beyond us to decide an appropriate minimum standard. A caring, concerned Minister may feel it is preferable not to prescribe minimum standards as he could be wrong. The best teachers in the world could be wrong even if they worked with a child every day and thought that they knew the level of education required by that child.

I do not want to make a big deal of this. I agree with Senator Costello's objective that there should be some kind of prescription in most cases. However, the word "may" is a subjunctive as there are situations in which it will not be possible. One could prescribe minimum levels of exposure to education or minimum levels of exposure to methodologies, but I am not sure that one could decide that a specific child should receive a specified level of education. The level of the child's achievements may not be measurable in some cases. A psychologist may disagree but we are setting an almost impossible task for a Minister, a Department, a teacher or anyone else. This is best left as it is, notwithstanding what Senator Costello is attempting to achieve. I may be missing the point, but I do not believe it is possible to prescribe the appropriate minimum education for all types of children.

Section 14(2) states "Regulations under subsection (1) may prescribe different minimum standards of education in respect of children of different ages or of different capacities (including physical, mental and emotional capacities).” Every educationalist would agree with this as it anticipates the difficulties to which I refer. I do not think it is possible in all cases.

I have seen teachers working on a school plan in special schools. In some cases they spend years refining these plans and are still not happy as the plans change on a monthly basis. Teachers may conclude that children are not able for a certain level of education for which they thought they would be. The word "may" might be more appropriate unless I am missing the point.

The key issue is to provide for cases in which the State is not happy with the minimum education being received by certain children. I do not like to use the example of the home because it could be in other contexts, but parents may decide that they do not wish to send their son or daughter to a national school. The State still has an obligation to the child under the Constitution which provides that the State shall require that children receive a certain minimum moral, intellectual and social education. This is why Senator Costello is proposing to use "shall" as opposed to "may". He is looking at the constitutional imperative on the State to ensure that a child receives a minimum education. On the other hand, there is the question of what a minimum education means, as Senator Costello has outlined eloquently. There was considerable discussion in this House on the issue during the Second Stage debate. Many Senators advocated that we should be more specific and precise about what is meant but, as Senator O'Toole has said, this is not possible in legislation. However, there are recent High Court judgments relating to this issue, one of which stated that a minimum education, moral, intellectual and social, is not a static concept but can vary from time to time, and any reasonable standard of elementary education of general application which might be laid down by the State would be regarded as corresponding to "a certain minimum education" used in the Constitution. The judgment also indicates that the meaning of minimum education would differ for different classes of people and that the definition could change over time, varying with public opinion and expectations. It would not be appropriate, therefore, to prescribe in detail the standard of minimum education appropriate to each different group and category of children.

The section provides that the Minister may prescribe different minimum standards of education in respect of children of different ages or of different physical, mental or emotional capacities. It was felt that this was the appropriate mechanism because it reflects comprehensively the spirit of the High Court decision to which I have referred. Before prescribing the precise details and regulations, which will be done once the Bill is enacted, we will be advised by the Department inspectorate and the NCCA on best international practice relating to the level of education which children of compulsory school-going age are required to achieve. Obviously, the Minister of the day will be informed of this and of the ongoing needs of society.

Once the various groups or parties agree on the minimum education for a particular child, it is then provided. This is where Senator Costello's amendment comes in. One could argue that the Constitution ensures this happens anyway, but in essence if the Minister of the day says that he regards a minimum set of standards to be the minimum for a particular child, then the parents or guardians of the child would be entitled to take constitutional action if the State failed to implement this.

I will examine the matter again and take account of the views that have been articulated. The Education Act was strengthened in this House and the other House in relation to firming up on the State's implementation of constitutional rights to education. If this is in the spirit of Senator Costello's amendment, I have no difficulty with it, but I have a difficulty in relation to children in an "out of school" context.

The Minister has grasped well the point I am seeking to make, which is firming up what the Minister will do. Perhaps there should be a slight adjustment in the overall wording. The word "may" would be lacking in firmness and it is a question of how the overall phrase is put together. I wish to refer to what the Bill is intended to do. The Bill is entitled an Act to provide for the entitlement of every child in the State to a certain minimum education, and, for that purpose, to provide etc. Clearly, the purpose of the Bill is to implement the constitutional entitlement of the child to a minimum education. The Minister is responsible for that minimum education and for ensuring that that is dealt with. Under section 14(1) there is a constitutional obligation on the Minister to provide a minimum education and under section 14(2) the Minister may have discretion in that minimum education as to what the standards are and how it will operate.

The reason I wanted to firm up section 14(1) is to ensure that the Minister would exercise his constitutional duty to prescribe. Retaining the word "may" would not seem to implement the constitutional duty with any sense of strength or firmness, therefore, I sought to substitute the word "shall". This, of course, applies across the board to people educated in schools or people educated outside of schools. The real difficulty arises for the Minister with regard to people who will not be educated in the school setting and also people with particular handicaps and difficulties where there is an exceptional requirement imposed on the Minister in relation to a minimum standard of education. Both by case law and under the Constitution, that obligation is on the Minister and it is a question of how it is worded to ensure the Minister is not put under a requirement he simply cannot fulfil. I believe that including the word "shall" will cover this eventuality. Perhaps it may be worded in a different way. Rather than including in section 14(1) the wording "the Minister shall prescribe a minimum education to be provided" the wording "the Minister shall make provision for a minimum education" might be used. This might cover it and give discretion regarding the minimum standards required under section 14(2).

I am well disposed to the Senator's arguments. I would not be happy to include language that subsequently might not be the best language. I will examine the matter and bring it before the Dáil because I am anxious to try to cover the spirit of what Senator Costello has said and to cover all the other angles.

Amendment agreed to.
Section 9, as amended, agreed to.

An Leas-Chathaoirleach

In the third line of amendment No. 19 the word "child" is misspelt.

Government amendment No. 19:
In page 8, lines 40 to 42, to delete "the provision of a prescribed minimum education to each child, whether in a recognised school or otherwise," and substitute "that each child attends a recognised school or otherwise receives a prescribed minimum education,".

The purpose of amendment No. 19 is to provide clarity in the general function of the National Educational Welfare Board and in particular to emphasise the role of the board as regards school attendance. The board will be far more concerned with ensuring regular attendance in school with a far higher standard of education than minimum education applying, rather than simply with enforcing minimum education. These aspects are expressed much more clearly in the amendment than in the original drafting which gave rise to some misunderstanding.

I fully support the amendment. It strengthens immeasurably the Bill and clarifies many aspects. I want to clarify a matter which relates to the debate which has just concluded. The Minister is setting up a board whose duty will be to ensure the provision of a minimum education to each child, whether in a recognised school or otherwise. The amendment states "that each child attends a recognised school or otherwise receives a prescribed minimum education". The point I was making earlier was that there is a separation of duties here. In this legislation the Minister is keeping to himself, quite correctly, the prescription, where it is necessary, of what a minimum standard is because the expertise in this area lies with the Minister and the Department. The Minister will say that it is his duty to see that every child in the State receives a minimum standard of education as required under the Constitution and he will ask the National Education and Welfare Board to carry out this function. This is where the word "shall" comes into play. The word "shall" is correctly included in section 10. I am very clear they shall do this but there will be situations where the Minister may not be able to prescribe a minimum standard of education. In the High Court judgment mentioned, one of the aspects of evidence given by the Department was that a child who was not being educated in school was not receiving any teaching in the Irish language – ní raibh aon Ghaeilge a fáil ag an leanbh seo. That was presented by the State as the important aspect but the judge did not give it the light of day because he did not think it came under "minimum standards of education". This would be news to approximately 21,000 primary teachers. I do not think they all saw the judgment and I did not bring it to their attention. This means that despite what we might think would be an appropriate minimum, as professionals or within the Department, a judge might take a different view. As the Minister said earlier, this can change.

The important aspect of this section is that it requires the attendance of the children at school. The school is required to follow a prescribed curriculum which the Minister is obliged to compile through the NCCA. In fact, the two provisions sort out the issue for 95 per cent of children. The other 5 per cent is a combination of those who would not be educated at school and those with difficult and extraordinary disabilities, if I may use a non-PC word, where it might be difficult for the State or anybody to prescribe a curriculum.

These two elements meet the needs of everybody, although there will still be an argument. Cases will be brought to court in which people will query whether a child is receiving an education at home and if that can be checked. The Bill deals with this issue at length. The legislation is as much as is and could be required by the National Educational Welfare Board. The earlier drafting would have given the board an impossible task. Its role and duty are now clearly defined. This will go hand in hand with the Department using another aspect of influence by ensuring that the schools are following a prescribed course of study. If somebody wishes to challenge whether that is a minimum standard, they will have to take on a huge majority opinion.

I welcome the amendment. It strengthens the provision immeasurably. It deals with an issue I raised on Second Stage and on many occasions since. I am delighted with it.

I agree that this amendment is important and necessary. The Minister will prescribe the minimum education and the board will implement and make provision for it. The Minister retains the authority and obligation to prescribe the minimum required education and the board will be responsible for ensuring that a child attends a recognised school or otherwise receives a prescribed minimum education. That is perfect.

It would also underpin amendment No. 42, under which the Minister is responsible for prescribing the minimum education required but which proposes the use of the word "shall" to give the provision greater firmness.

I thank Senators for their compliments on the amendment.

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 21 to 26, inclusive, 28, 69 and 99 are related to amendment No. 20 and they may be discussed together. Is that agreed? Agreed.

I move amendment No. 20:

In page 9, subsection (1)(c), lines 12 and 13, to delete "truancy" and substitute "consistent non-attendance".

These amendments deal with the tone of the legislation. As I listened to the Minister's contribution on Second Stage, it was clear that he was trying to be positive, forward looking and constructive by having a broad rather than a narrow focus on this area. With other Senators I welcomed that attitude.

The aim is to replace a pure policing role with regard to school attendance with a more wide-ranging role through encouragement, incentive and concentration on attacking the root causes of non-attendance at school. This is in preference to providing for a new way to whip children into school. That was my interpretation of the Minister's and other Senators' contributions on Second Stage. However, the people who drafted the legislation appear not to have understood that. We have ended up with a whiff of the workhouse.

I never used the word "truancy" at school. I read the word in the Beano and Dandy comics. I am old and the Minister would not remember them but they were—

I do – every Christmas morning.

"Truancy" is a negative word. It smacks of Dickens and of crime, delinquency and a negative attitude. That is why I used the word "workhouse" earlier. Truancy is not a forward looking word unlike the other terms used by the Minister on Second Stage.

I am delighted that my Labour Party colleagues have put down a similar amendment. The amendment seeks to take a positive attitude by referring to consistent attendance and consistent non-attendance at school. If it is possible to remove any semblance of the delinquency and juvenile crime connotations of truancy, we will send a message to the board to look at this matter in a positive way.

I am worried about the use of the word "truancy". It is a word that carries a certain value judgment. It is a biased term and that is my reason for putting down these amendments. I hope to convince the Minister that it would send a different message. We are talking about consistent attendance and non-attendance, not an old-fashioned terms that smacks of a different era. I do not seek to be politically correct and I hope nobody would think that. The word "truancy" injects a judgmental tone into the Bill and that is not the Minister's intention. He is objective, positive and forward looking.

Since our overall purpose is prevention, not retribution, a judgmental tone is not appropriate. Replacing the word "truancy" will not dilute the strength of the Bill but its removal would display a better understanding of the problem. If I am not making my point as strongly as I would like, I urge the Minister to consider using a different word. "Consistent attendance" and "consistent non-attendance" might not be the right words but "truancy" occurs ten times in a Bill that is positive, forward looking and worthy of support. I would hate the Bill to be dampened by that usage so I urge the Minister to consider another word. My suggestions are included in the amendments.

When I examined the amendment, my first impulse was to define the word "truancy" and what constituted consistent non-attendance. I also referred to the title of the Bill, which includes the word "welfare".

Based on my knowledge of working in this area and the meaning of "truancy", the word must be included. Consistent non-attendance might be due to illness in the home or other such reasons. One cannot use "consistent non-attendance" because "truancy" refers to staying away from school deliberately. The children cannot be contained within the school structure. That is different from non-attendance where the child can be contained in the classroom if the child is there.

The word "truancy" must be incorporated in the Bill because of the nature of the legislation. It deals with school attendance, attendance officers and a new approach in this area. Naturally, it is the desire to be proactive rather than reactive, and the Bill provides for a framework to deal with school children who cannot be contained in the classroom or in a normal setting. That is what the Bill is about.

I have difficulty with the amendment and I look forward to the Minister's response. My response is based on my experience in this area.

I sympathise with Senator Quinn on this issue and I disagree with Senator Ormonde. However, there might be confusion due to the different uses of the word "truancy" in these provisions. Section 10(1)(c), for example, provides that one of the functions of the board will be "to conduct and commission research into the reasons for truancy on the part of students and into strategies and programmes designed to prevent it".

That suggests it would conduct and commission research into the reasons for non-attendance. It seems to be the broader definition. Paragraph (d) which states it is "to advise such schools on matters relating to the prevention of truancy, and the good conduct of students generally" could be interpreted as looking at deliberate acts of misbehaviour by students. We would be better advised to use the broader definition. Truancy, according to the old definition of a student mitching from school, is only part of the problem. We should look at it in terms of the broader non-attendance of students, the reasons and strategies to address the problem. There is a plethora of reasons. It is not simply bad behaviour. There may be problems with the family at home, social disadvantage, motivation, part time work etc. We should move away from what Senator Quinn described as the old Dickensian or workhouse notion of truancy from the last century.

We are talking about non-attendance of students in the educational arena. I would like a more neutral word than one which seems to impose all the burden and responsibility on the student and sees the student as a mitcher. We should use a broader definition. That is the reason we also tabled an amendment to this effect. We should use Senator Quinn's suggestion of consistent non-attendance or our proposal of non-attendance. The critical word to replace truancy is non-attendance. I urge the Minister to accept the amendment.

I am inclined to agree with what has been said on this side of the House, not for political reasons but because this is a vital area related to my amendment No. 29 concerning tracking. Recently I spoke to two 14 year old traveller children who are not attending school. They told me and a director of adult education that it depends on where they are at a given time. They felt that there was no onus on them to attend school because they did not live in a house. Some people feel that if one is not in a certain situation in life, one does not have to attend school. It is important to encourage those people. I believe in the saying, "Mol an óige agus tiocfaidh siad".

This is a very complex and difficult area and I commend the Minister on trying to get to grips with it. I know the problem of truancy. Many people are not attending school and they are not being tracked. We should encourage them and that is the reason I agree with the wording of Senator Quinn's amendment. I say that as someone who works in this area on a daily basis when I am not in the Seanad.

We have spent much time considering this internally. We are dealing with semantics. All the good things the Senator said about the Bill are still there.

The Bill is about encouraging attendance and the Education and Welfare Board taking a pro-active stance in terms of developing strategies and undertaking research on why children miss school without permission. However, we must be precise in legislation. While I understand the perception of the word truant which Senator Quinn described as Dickensian and smacking of this, that and the other, the bottom line is that it has a precise meaning. Consistent non-attendance is a much wider concept than that of truancy, which is absence without permission or explanation. Consistent non-attendance or non-attendance could occur for a wider range of reasons.

We are trying to address that.

The Senator is not addressing that. If someone breaks a leg or, God forbid, is in a terrible car accident and is absent from school for six months, it is not in the same category as that with which the Bill is endeavouring to deal. Fundamentally we are dealing with school attendance issues and the reasons some children have difficulty attending school. We went to the dictionaries to try to get precision.

So did I.

I am still open to proposals of more precise language to replace the word "truant". The Oxford Shorter English Dictionary defines truancy as the act of playing truant and truant is defined as a child who stays away from school without permission or explanation. The concept in the Bill is thus that expressed by the term truant. Obviously the concept of non-attendance at school is much wider. Non-attendance could be due to illness or other good reasons. Sometimes parents have to move away for two or three months. In the normal course of events principals absorb that.

I accept this is all about perception. Legislation must be precise. We are concerned about children who stay away from school without permission or explanation and their educational welfare. The use of the word "truant" does not mean the heavy hand of the State is coming against people. It may conjure up images of those times as the word has been in use for a long time. However some of the best and most accurate words in the English language are those which have stood the test of time. Sometimes when we endeavour to get rid of them, the substitutes are not nearly as accurate or precise.

I regret I cannot accept the amendments as worded.

I understand the Minister's and Senator Ormonde's point. If I can come up with a better word, perhaps I will propose it later. "Deliberate" and other words could be used. I take the Minister's point and I will not press the amendment.

I am not so sure. I am not convinced by the Minister's argument. I know what he is saying but the word truant has nuances of personal misbehaviour on the part of the child and implies the child is responsible for non-attendance. Non-attendance is very different from truancy. It does not blame anybody, but truancy blames the child.

No, it does not. It is absence without explanation.

The parents do not play truant. The child plays truant and that is the only interpretation I have heard in the school around the corner in the north inner city. The Minister is repealing the School Attendance Acts in this legislation. This is all about school attendance. There are many reasons for children attending or not attending school. Truancy is the very broad perception about a child who is misbehaving and will not go to school, whereas we are trying to address something wider. In this legislation the Minister is trying to address the social framework which results in many youngsters not attending school in some areas and to put in place strategies to address that.

The words "truant" and "truancy", if used in this legislation, will jar. This legislation is broad and concerns welfare and the collective responsibility on society, particularly in ghettos and disadvantaged areas where truancy is rife.

A child does not play truant out of the blue but because of many disadvantageous circumstances. The Bill will not reflect that if the word is spread that it is truancy legislation. That is the word which will hit home. It is an old and odd Victorian word which has withstood the test of time, but it is also a Dickensian one and that is the nuance it has.

If one examines the amendments and the paragraphs of the Bill to which they apply, it could not be deduced from those that the term "truancy" lays blame with anyone. It defines the concept of children being outside of school. The amendments affect section 10(1)(a) to (j) which deals with the role of the board. Amendment No. 20 deals with section 10(1)(c) which requires the board to conduct and commission research into the reasons for truancy. That is not damaging, jarring or negative. It does not give a sense of Victorianism or Dickensian conditions if all we require is for the board to conduct and commission research into the reasons for truancy. Section 10(1)(d) requires the board

to disseminate to recognised schools the findings of research conducted or commissioned pursuant to paragraph (c), and to advise such schools on matters relating to the prevention of truancy, and the good conduct of students generally.

Section 10(1)(g) requires the board

to monitor, and assess the effectiveness of, strategies and programmes aimed at preventing truancy in recognised schools.

Section 10(1)(h) requires the board

to cooperate with such persons as the Board considers appropriate, and to coordinate the activities of the Board. . . . .to [prevent] truancy in recognised schools.

Other paragraphs are in a similar vein and the use of the word "truancy" is not that damaging. One word which arises repeatedly in the Bill is welfare. The title of the legislation gives an indication of the spirit which informs it. I understand the motivation of Senators but precision is nonetheless important.

Perhaps I was too quick to say there is not an obvious solution. I said that I seek a solution. Senator Costello's point is that the Bill seeks to confine the activities of the board to truancy as opposed to consistent non-attendance, yet the reasons for such truancy may be that parents do not encourage their children to attend school. If section 10(1)(c) were amended, for example, it would read: "to conduct and commission research into the reasons for consistent non-attendance" or, if one accepts Senator Ormonde's point, "consistent deliberate non-attendance". That suggests it may be useful to find another word or phrase, such as "consistent non-attendance". As I understand it, truancy means "mitching" and does not mean where parents do not send their children to school and keep them at home. If that is so, we should commission research into the reasons for consistent deliberate non-attendance. Perhaps the Minister would consider that.

I will examine it.

Senator Costello's remarks have reminded me that we should not limit the Bill to children's decisions to stay away from school without their parents' knowledge or consent.

We are not doing so because the Bill has regard to the fact that parents, guardians, schools, etc. have huge obligations and it deals with those in later sections.

We should also take into account that the framework exists in most schools to deal with non-attendance. The information is available in this area and it will be found that it is sympathetic to the child who is periodically absent rather than to the child we know cannot be made attend school despite all efforts to make them do so. I have no difficulty with the use of the word "truancy". All research and books on the subject and all educationalists make a clear distinction between truancy and non-attendance. Educationalists say it is a fine word to use to ensure those students who do not attend for various reasons are not placed in the same category as those who play truant. I would hate to think the child who does not attend would be caught in that situation. By coupling the two as the amendment does, the child who is absent for genuine reasons is penalised. I know the genuine cases as distinct from those who cannot be made attend. That is what is at issue. The legislation establishes a framework to co-ordinate efforts in a proactive manner to deal with those who, no matter what is done, cannot be made attend school.

The more we discuss this matter, the more I lean towards the position Senator Quinn and I have put forward in the amendments rather than the direction given by the Minister. Section 10(1)(a) is a fine provision which requires the board:

to promote and foster in society, and in particular in families, an appreciation of the benefits to be derived from education, in particular as respects the physical, intellectual, emotional, social and moral development of children, and of the social and economic advantages that flow therefrom.

However, section 10(1)(c) requires the board to conduct and commission research not into the socio-economic position of the family or anything similar but into the reason for truancy on the part of students and into strategies and programmes designed to prevent it. Section 10(1)(d) requires the board to disseminate such material and "to advise. . . . .schools on matters relating to the prevention of truancy, and the good conduct of students generally".

The subsection begins with the broad difficulties and responsibilities but research is then narrowed to truancy and conduct as if these were the problems. I am concerned we will end up not having any research into the reasons for consistent non-attendance at school and that, going on the wording of the subsection, research and strategies will be focused on what is seen to be the problem, namely mitching children, rather than on the broader issue we seek to address, namely the plethora of problems which result in consistent non-attendance by children at school.

No one could suggest we are narrowing the basis of research on why children do not attend school and that parents or the socio-economic context will not feature. They will. The Bill will not restrict researchers in discovering the reasons children do not attend school without permission or explanation. I would hate to think all research would concentrate on the fact that James did not turn up for six months because of illness or severe injury.

That said, we are dealing with semantics. I understand people would like a nicer word than "truant". Legislation is not just about nice words but about being precise and knowing what we are about. If Senators can think of a more precise and nicer word than "truant" which is accurate for the context in which it will be used in the Bill, I will use it. We have between now and the next Dáil session to find it. I will examine it again and will undertake to search again for the magic word. However, it is wrong to think the Bill places restrictions since it does not. The socio-economic context is a vital factor in terms of school attendance.

The board will investigate "mitching", as we call it, under all conditions in section 10(1). Will it also be able to investigate the cause of consistent deliberate non-attendance? Where is that mentioned in the Bill? For example, where the parents decide not to send their children to school, such children are playing truant with the permission of their parents. Is the ability to investigate that included somewhere in the subsection? I glanced through it quickly and could not see it.

It is. The matter also relates to section 14 which concerns a minimum standard of education and on which there considerable debate. If parents deliberately decide not to send their children to school, that is a separate issue which must be addressed in a different manner. Under the Constitution, parents are allowed to make such decisions. The State's duty is to ensure that children are in a position to avail of their constitutional right to an education and that is provided for in the Bill.

In the interests of being helpful, I suggest we take a belt and braces approach and include both phrases, "truancy" and "consistent non-attendance", in the legislation. We could then cease our deliberations on this matter safe in the knowledge that everyone's concerns will be catered for in the form of a Report Stage amendment. As is my nature, I merely wish to be helpful.

It is great to witness the Senator being helpful. I will take that on board for Report Stage.

Can we take it that the Minister will reconsider this issue?

Amendment, by leave, withdrawn.
Amendments Nos. 21 to 26, inclusive, not moved.
Government amendment No. 27:
In page 9, lines 31 to 34, to delete paragraph (i) and substitute the following new paragraph:
"(i) to carry out reviews of training and guidance given to teachers relating to matters of school attendance and the conduct of students, and to advise the Minister in relation thereto:".

The aim of this amendment is to change the emphasis of this paragraph. As drafted, the paragraph would give rise to concerns that the national education welfare board will be engaged in the actual assessment of teaching in schools. This was never the intention; rather the intention is that the board should be in a position to review, on a national basis, the training needs of teachers as regards school attendance and good conduct and how these needs are being met. This would not involve any assessment of teachers, although there could be consultation with individual teachers and teacher unions. The replacement of the term "make recommendations" with that of "advise" also more clearly expresses this wider role for the board.

I welcome this amendment because it improves the section admirably and complements the duties and functions of the board. Carrying out reviews of training and guidance given to teachers is an appropriate task for the board because it will provide the board with an overview and allow it to make an input. Everyone will welcome this development. People were concerned that the board would be obliged to develop new expertise in assessing the adequacy of training and guidance, a task which has already been carried out by one of the sections in the Department. The amendment is good because it will strengthen the section. I raised this matter on Second Stage and I am delighted my concerns have been taken on board.

Amendment agreed to.
Amendment No. 28 not moved.

I move amendment No. 29:

In page 9, between lines 41 and 42, to insert the following new paragraph:

"(l) to put in place a policy, that all children on leaving primary school be registered either with a secondary school or an alternative system i.e. Youthreach."

I reiterate my belief that the tracking system in this country must be made watertight. It is vital that all children who leave primary school and those under 16 years of age should be traced immediately. If a child leaves the system, it is the responsibility of school authorities to inform the relevant parties as a matter of urgency and this should be made compulsory by the board.

I return to what was said in respect of previous amendments, namely, that a number of children continue to slip through the net. These children are at risk because they are not attending school, a Youthreach programme or a training centre. It is vital that we cater for the needs of these children because, unfortunately, many of them will be liable to become involved in nefarious activities at an early age.

A watertight tracking system should be put in place. As it stands, unfortunately, a number of children slip through the net and they are not attending school or training courses. Earlier, I referred to two traveller children who were not attending school because they believe they are not obliged to do so given that they do not live in a house. We must take action to deal with such people. It is important not only in terms of training and education but also in terms of crime prevention that children should not be allowed to wander about freely and place themselves at risk. It is vital that these children should be encouraged to become involved in meaningful, gainful education or training. That is the thinking behind this amendment which seeks to make the tracking system watertight.

I accept what the Senator is saying but the amendment is unnecessary. The Bill comprehensively covers the issues dealt with in the amendment. The purpose of the Bill is to ensure, on enactment, that children either attend at a recognised school – section 17 – or are registered as receiving at least a minimum education in another setting – section 15 – for the entire compulsory period until they reach 16 years of age. Therefore, the very principle that Senator McDonagh is attempting to insert by means of this amendment is a basic principle which underpins all aspects of the Bill.

I fully agree with everything the Senator said and the Bill will achieve everything he suggests in his amendment. It will even cater for children over the age of 16 because we want all employers, for example, to register 16 and 17 year olds with the national education welfare board if they have not completed basic minimum qualifications, such as the junior certificate or an equivalent. We want to enable every young person in obtaining certification and we also want to track their progress between primary and secondary school.

Once the national education welfare board is established, it will be the vehicle by which we will discover the location of every child and young person within the system. That is vital. When I took office, I was struck by the lack of a database for primary education. That is a major deficiency in our education infrastructure and it hinders our capacity to track young children. The second level database is exceptional and we are working on providing one at primary level in addition to developing a system to track children in difficulty. We are using the eight to 15 years pilot project on early school leaving to try to develop the best model for this task. The Bill is a major weapon in our armoury to deal with this issue.

I am pleased the thrust of the Bill will take account of Senator McDonagh's concerns. This section of the Bill is crucial because it involves tracking young people in the education system. As the Minister said, there is no database for this purpose at primary level and that is precisely where we must make a start. There is not much point in trying to track children when they have reached the age of 12, 13 or 14; those likely to face difficulties must be identified much earlier.

If, through the legislation, we succeed in doing that, we will have taken a major step in curbing the problems of delinquency, truancy, dropping out, crime and anti-social behaviour. If we put this legislation in place immediately and establish a proper framework to identify those young people who are not attending school, for whatever reason, we will have taken a major step forward. Having listened to the Minister, I am satisfied that this will happen.

I agree entirely with the comments made by the previous speakers. However, would it not be desirable to include in this section the specific functions of the board in the form of a provision such as that outlined in Senator McDonagh's amendment? Should we not specify that one of the board's key functions will be the establishment of a tracking system of this nature? This matter is dealt with later in the Bill but would it not be better to enhance the functions of the board by including Senator McDonagh's provision in this section?

Senator McDonagh's amendment is a general one. He wants to put in place a policy whereas the Bill is prescriptive in terms of a register, etc. His amendment is unnecessary but I understand and accept the motivation behind it.

This issue is an integral part of the Bill. If we succeed on this issue in the way that the Minister has articulated it will be recorded in the history of the State. It is important that we track down people who are not attending school. I have a keen interest in this issue because I work in the education field and I encourage people to become involved and attend training centres and schools. I withdraw my amendment in light of what the Minister has said and because I respect his judgment. I am sure the Minister and his draftsmen have done a lot of work on this part of the Bill. I accept what he has said about this issue but if the Bill is to succeed, as I hope it will, then this is an important aspect of this Bill. We will have done a worthwhile job if we can get people off the streets and attending training and educational centres. Not only will it benefit the educational training system but it will also have a justice element. It is important these young people are traced and kept involved in training.

Amendment, by leave, withdrawn.

I move amendment No. 30:

In page 9, lines 44 to 47, to delete subsection (3).

I vehemently oppose subsection (3) because it is nothing less than an attempt to muzzle an expert group and prevent it from expressing its opinion. It is the Minister's role, in collaboration with the Government, to make decisions. If the Minister appoints an expert group we must not muzzle it by telling it that we will restrict its advice. From my experience in business it seems like people advising me on what is the right thing to do but when that advice proves to be wrong and I go back to my advisers and say they gave me incorrect advice, they can say they knew what was the correct thing to do but they thought I would not accept it because it might cost too much money. That is my decision and it is also the Government's decision whether it should be done at all.

If we appoint an expert group, ask them to tell us what to do and they make a proposal, then the State or Government can decide whether to accept their proposal. The Government can decide whether a proposal is too costly, is not the best thing to do or is not the best way to use resources. Let us not muzzle the board by saying we will take all those things into account and, therefore, the board will not make any recommendations. I have experienced this scenario in business several times. For example, an advertising agency might tell me they had an idea but they thought I might not run with it because it would cost too much money and, therefore, they did not recommend it. It is not up to advisers to make that decision. It is up to the Government to make that decision.

If we are to appoint a board to make recommendations then we should give them a free hand. Then the State through its Government can make a decision as to whether they will wear the cost involved. That is the reason I feel strongly about this subsection. In the interest of good government we need to separate the task of making recommendations from the task of making a decision on them.

There is a danger that the appointed groups will be accused of two things. Expert groups will do the State no service if they pre-empt the proper role of Government by saying they decided not to make a recommendation because they thought it would be too expensive. It is up to the Government to make that decision. If the board censors itself by refusing to tell the Government of the day what it thinks should be done, how could a Government ever decide what is the right thing to do? If this provision is accepted we will be left with a legalised sham because the board will be making recommendations that would purport to the outside world to be solutions. It should not be up to a non-expert board to decide what the Government of the day might be willing to spend. That is not what we want for the board. We want the board to tell us what needs to be done and then we want the Government to decide whether it should be done. We want the Government to make a decision on what recommendations to accept and to what extent it can afford to implement them. That would divide the responsibility between the two parties here and that is the way a good Government should operate. We should not attempt to frustrate good practice with bad legislation. On the contrary, we should be trying to copperfasten good practice into legislation whenever we can.

A future Government could be accused of using this subsection for two reasons. The first motive could be that it is a pre-emptive strike by the Department of Finance to ensure that they have fewer proposals to turn down. The other motive is more sinister. A future Government could make a deliberate attempt to avoid blame for not doing something. For example, in ten years time something could go wrong and an issue could be blown up into a headline scandal. The Government could respond to the scandal by saying it did exactly what the board recommended. The board could then say it knew what was the right thing to do but it also knew that if it recommended that measure the Government would make the decision not to spend the money.

I support an expert board but let us not constrain it by insisting that the board makes decisions taking costs into account. We should ask the board to make the recommendations and future Governments will decide if it can afford to implement them and use the State's resources.

This Bill will affect a generation and I want to ensure it will help them. I am not considering this Government or the next but the one that will be in power in 25 or 50 years time. I urge the Minister not to restrain the board in the next 25 years from recommending what it considers to be the right thing to do because it may decide the Government would not accept the cost of their recommendation. The Minister should delete subsection (3).

Senator Quinn has clearly expressed his viewpoint on this issue. I agree with him that this subsection should be deleted. I am sure the Minister will strenuously oppose that. I regard the subsection as an intrusion by the Department of Finance. It is a typical Department of Finance caveat to ensure that there is a measure in place that would regulate or control what it would see as excessive spending in an area.

I am worried that the subsection is all-embracing. It states: "The board shall in giving advice or making recommendations". In other words, it could curtail the type of advice given to the Minister if the board has to take account of costs. How will a board have regard for the costs of its advice or its recommendations unless it has people employed who will be able to assess those costs? If that is the case and we want to put it in a neutral fashion then the board should include a costing on its advice or recommendations. Would that not be the proper measure to take if we want to include something of this nature? Otherwise it could be easily interpreted as an inbuilt censorship warning to the board that what it must do first is make sure that any recommendations or advice it puts forward is not of a costly nature.

That is not what it says.

It says it must "have regard to the cost of measures that would have to be taken". Is that not a warning? It does not say it may have regard. I would delete the word "must" and insert the word "may". We have had such an argument along different lines before. The interpretation may be that it would include a costing of the recommendations as distinct from having regard to whether they would be costly or expensive. The board is being warned by this provision not to go over board and not to bring in recommendations which may be too costly because they will be shot down by the Department of Finance. If that is what it entails, then it negates the thrust of what we are trying to do.

We recognise we have a good education system which is operating efficiently and effectively but that 10 per cent to 20 per cent of students fall through the system for one reason or another. For the first time we are putting in place a structure which will track those students and address that problem, and I compliment the Minister. If we are to do that, surely that is where the money must be spent because the rest of the system is running, to a large extent, on automatic pilot. Our education system is working well for 80 per cent of children, although it is failing 20 per cent.

This is the first serious effort by any Minister of Education to deal with this issue in a comprehensive way, although individual efforts have been made. The local education authorities would probably have dealt with this issue, although regional authority would probably not have done so adequately. This is an excellent structure but if we undermine it by saying the primary function of the board in relation to its work, advice and recommendations is to have regard to the cost, we will negate much of the good work which will or can be done by this board.

In no way does this subsection muzzle, restrict or constrain the board in terms of making recommendations. It says to the board that it shall have regard to the cost of measures and recommendations it puts forward. That means costing the measures and doing some detailed work on what recommendations would cost. The subsection is no stronger than that and cannot stop the board from coming forward with recommendations. It is prudent, although one can argue about the Department of Finance and conventional provisions such as this which turn up in many Bills. It is prudent to say to people that if they come forward with proposals, they should have regard to the costs. It strikes a balance and is not a threat or a warning.

I have been in Dáil Éireann since 1989 and we can all count the number of wonderful reports which have landed on people's desks containing the sun, moon and the stars, and one would have to check how much of that was implemented. Very often when people make presentations to Government and Ministers credibility is essential in terms of winning a proposal. One has to have regard to the existing state of play at a given time, the likelihood of doing something and the cost rather than say we should something but without any idea what it would take. The person making the recommendation should say we should do A, B, C and D and what it would take.

A good example is the steering group we set up on the establishment of the psychological service which involved all the partners. They came forward with a five year programme, they costed it and said they believed we could reach the maximum strength in terms of the psychological service within five years if we appointed so many psychologists each year. They presented me with a very credible, achievable and tangible plan with which I could go to Government and deliver. That body gave sound advice and came forward with a credible programme.

It is not prudent to delete such a subsection which simply provides that the board shall have regard to the cost. It does not say the board should put forward proposals which will cost a minimum amount or which will cost whatever the Department will allow it to spend. It simply says the board shall have regard to the cost of measures which will have to be taken. It is not constraining. The board could still put forward a measure costing £100 million under this subsection and legitimately claim it had regard to the cost but that it still believes it is worthwhile.

Senator Costello's point that costings should be included is essentially what it does.

That is not what is says.

It says the board shall have regard to cost.

Much legislation contains this phraseology. That does not mean the body responsible for having regard to the cost would have an accounting brief but that it must bear in mind the cost. If the legislation was amended to say that the board shall, in giving advice or making recommendations to the Minister under this section, include with the recommendation and advice a costing of the implementation of it, that would be a different matter. Having regard to the cost means it must assess it to see whether the cost is large, small or an interim cost. That is a different message.

Is that not a sensible message as well?

It is a warning.

It is sensible. From my two years experience in Government and nine years as a Deputy, I believe it is a good thing.

If the Minister does not want this provision to remain on the shelf and wants it to be implemented, why not get the advice, recommendation and the costing for the implementation of the recommendation?

I will look at that.

The section is very clear and states: "The Board shall, in giving advice or making recommendations to the Minister under this section, have regard to the cost of measures that would have to be taken". I do not know what the Minister believes it means. All it can mean is that before it offers advice, it had better see what it will cost. It implies the board could not give particular advice because it would cost too much. The Minister made the point that it need not necessarily mean that on all occasions.

If it is necessary to include that subsection somewhere, the place to include it is in the Constitution directly after the point where it states the State shall require that children receive a certain minimum education. If Dev decided it was not needed at that stage, I do not believe we can second guess the Constitution and say that in giving effect to the constitutional requirement, we should have regard to the cost.

We have been second guessing since 1937.

I take that point. I remember meeting senior officials in the Minister's Department the day Mr. Justice O'Hanlon produced his judgment on the rights of children with special needs in the Minister's constituency, if I recall correctly, to a full education. Everybody I met from the Department of Education and Science said it would cost a bomb, and I said so myself. The learned judge felt it was his job to see the child's constitutional rights were vindicated, defended or advanced. He may or may not have been imprudent in not having consideration of the cost.

This subsection does not complement what is contained in the rest of the Bill; it does not fit in. It is reasonable to ask somebody doing a job for the State to be prudent.

I know the Minister will change all this, but it is bred into the ordinary members of the board, who will be appointed in consultation with five members of Cabinet, that they must have regard to the cost of the measures they advise. I think regard will be had to cost in any event. I accept the Minister's point that the issue will not arise on all occasions and that it is good to be prudent – a point everybody must accept. However, there is an implication that such consideration should or might in some way change a decision of the board. If the issue of cost changes the board's recommendations or its advice to the Minister, then it is not doing its job. When the Minister receives the board's advice he, as the political head of the Department, must make a decision on whether the recommendation is prudent or whether it could genuinely be implemented having regard to the issues outlined. This is where responsibility lies. A Minister can say something is a great idea but that the money to see it through is not available. Nobody could argue with the decision as it is made at a higher level than the board.

That is valid as the decision must be made by the Minister at the end of the day. However, sometimes experience shows that bodies propose the sun, moon and stars and leave it up to the Minister to say the proposal is not possible.

It sounds like a great idea.

It is not a great idea. There is too much of that happening. People are abdicating responsibility. The Senator is a past master of it.

I hope we do not leave here to find Deputy McCreevy has been sent to Europe and that Deputy Martin is to be appointed Minister for Finance. Certainly, the Minister is speaking like a Minister for Finance.

I accept the point made by the Minister – people must be responsible. However, if they are not responsible, then we must remember that the Minister appointed them. I will return to this issue three or four more times. I could appoint a group which would be responsible, which would have to take everything into consideration and which would have to strike the correct balance. It is important that people put together the best possible model while, of course, being prudent. However, Senator Quinn in absolutely right in his comments about the current phraseology as it gives a certain implication that the board is being cramped in terms of what it recommends. I think it is inappropriate and I support Senator Quinn's amendment.

Without making promises, I will undertake to look at it again. I want to have theissue of prudence and costing included, but without its forming an inhibition in terms of people coming forward with the best model. It is not meant to be an inhibiting constraint on the board. I take the points made by the Senators.

Amendment, by leave, withdrawn.
Government amendment No. 31:
In page 10, lines 1 to 3, to delete subsection (4) and substitute the following subsections:
"(4) The Board may, with the consent of the parent of the child concerned, arrange for a child to be examined as to his or her intellectual, emotional and physical development (hereafter in this section referred to as "an examination") by such person as may be determined by the Board with the concurrence of the parent.
(5) Where a parent refuses to give his or her consent under subsection (4) the Board may apply to the Circuit Court for an order that an examination of the child be carried out.
(6) The Circuit Court may, if satisfied at the hearing of an application under subsection (4) that the child's behaviour, his or her lack of educational progress or the regularity with which he or she is absent from school without reasonable excuse is such that in all the circumstances the carrying out of an examination is warranted, order that an examination of the child be carried out at such time, in such manner, at such place and by such person as may be specified in the order.
(7) An application under subsection (5) to the Circuit Court by the Board shall be made to a judge of the Circuit Court for the circuit in which the child concerned resides.".

It should be noted that "an examination" should be in single quotation marks. Amendments Nos. 32 and 33 are related and amendments Nos. 31, 32 and 33 may be discussed together by agreement.

The purpose of amendment No. 31 is to reflect more fully the requirements as to assessment of a child by including references to the intellectual, emotional and physical development of the child. The amendment also addresses the issue of a refusal by a parent to have his or her child assessed. In these cases the National Education Welfare Board may apply to the courts for an order enabling the assessment to be carried out. Assessment can be crucial to the education of a child, but unfortunately and for a variety of reasons parents do not always wish to co-operate with the assessment process. Nonetheless, in view of the seriousness of conducting an assessment against the parents' wishes, or without their consent, the board will be able to initiate the assessment process only on foot of a court order. To ensure the rights of the parents are respected, a court order will be issued only after the hearing in respect of which the parents will have notice and at which they will be entitled to be heard.

Given that amendment No. 31 includes a reference to physical development, it covers the intention of amendment No. 32, which recommends the inclusion of a reference to a medical assessment. Amendment No. 32, therefore, is not necessary.

In amendment No. 33 Senator McDonagh has suggested that a reference to counselling be included in the provision. I am not convinced of the need for this reference. Essentially the primary purpose of the newly established education welfare service will be to take such action as is necessary to ensure that a child is assisted to reach his or her educational potential. An examination of the kind to which this section refers has this as its objective. Arising from such an examination a range of actions might develop, such as some additional or special tutoring, home school liaison and counselling. I do not wish to attempt to list the range of actions as it could ultimately be limiting by failing to include an action which is necessary. My preferred approach is to leave the section as amended by amendment No. 31 and to rely on the education welfare service to carry out its statutory duty.

The thrust of the amendment is very important and it strengthens the Bill immeasurably. For a long time teachers have asked that there be some way of requiring parents to facilitate a child's psychological assessment, something I have raised with the Minister on many occasions. The view of teachers is that this should happen at board of management level as opposed to national welfare board level. However, I realise this provision is not quite the same thing. This has to do with somebody making the case that a child is not receiving what is perceived as a prescribed minimum. We have to know about the child in order to determine the prescribed minimum. In this context a psychological assessment becomes a crucial and core part of that development.

As the section was drafted, the consent of the parent was necessary for an examination. In other words, the Bill could be stymied by a parent saying they would not agree to a psychologi cal assessment. Digressing slightly, a similar problem arises in terms of discipline when a parent says they will not agree to a certain course of action, something which is a source of huge problems in schools. I will return to this matter in another context.

The Minister has anticipated the problem and dealt with it in the manner set out. Nobody can argue but that the rights of the child and the parent and the constitutional requirement on the State to see that a prescribed minimum standard of education is received by children are very well balanced in the amendment. The amendment specifies that judicial support from the Circuit Court is necessary and that the order of the court is what is implemented. People will feel that the provision is safe and protected and I think nobody can or will argue with it.

I wish to raise the use of the term "psychological examination", something I missed during the debate on Second Stage. There may be very good reason for using the word "examination", but the usual term is "psychological assessment" which is "received" and not "given". I do not propose making a big deal of this. The word "examination" is used throughout and maybe there is some reason which I do not understand for using this rather than "assessment". The term probably derives from the term "medical examination" which is somewhat different. In a medical examination aspects of the body are examined resulting in a conclusion. An assessment is different and involves the putting together of many things to arrive at a position which is descriptive. I ask the Minister to consider whether the word "examination" is appropriate and whether it should be replaced by "assessment".

Having said that, amendment No. 31 immeasurably strengthens the legislation. In other situations to do with discipline in schools I hope it allows the State to move forward in a parallel way or perhaps where at school level, for instance, a child's disruption leads to that child not receiving an adequate minimum level of education, the welfare officer could use this system for school discipline.

This is a major advance. It anticipates a challengeable aspect of the Bill. I support amendment No. 31.

I welcome amendment No. 31 also because it will strengthen the aspect of the Bill which relates to cases where the board does not have permission to assess a child and provides a way of doing so.

Without repeating the points made by Senator O'Toole, I would agree with him in regard to the use of the word "examination". I, too, would have felt that the appropriate word in this context would be "assessment" rather than "examination". However, I appreciate the Minister will look at that.

I am concerned about the time element where the parents are not prepared to give consent and the board must take the matter to the Circuit Court. I am sure the Minister has thought about how long it will take to talk to the parents, get all the documentation together, go to the Circuit Court and then undertake the assessment. We must be careful that a long time does not elapse because in the meantime the child is wandering around and one cannot get on with the job. This is my worry and I am sure the board will see to it. That would be an extension of what the Minister is doing here.

I compliment the Minister on the way he has gone ahead of us. When I read the Bill and saw this amendment I saw immediately from where the Minister was coming. That is wonderful because we know the Minister has a great grasp of this area, the thrust of this debate and how the measures will be implemented.

I am delighted that the Minister has incorporated the thrust of my party's amendment No. 32 in his all-encompassing amendment which greatly improves the section. Amendment No. 31 would substantially cover what Senator McDonagh is seeking also.

It is important that the area of assessment is expanded to include all of those aspects which are now included, that is the intellectual, emotional and physical development.

I would agree that "assessment" would be a more appropriate term than "examination". Examination seems to be a narrower word. Assessment is more neutral. It is a better word.

I wonder about one word in the first line of the Minister's amendment. The amendment states: "The Board may, with the consent of the parent of the child" not the parents of the child. That, in itself, may give rise to problems because the amendment, in subsection (5), further states: "Where a parent refuses to give his or her consent". One parent could give consent and the other parent could refuse consent. What is the situation there? Does it mean that the board must seek an order from the court where the parents are divided on the matter?

In subsection (4) of the amendment the board seeks the consent of "the parent" but subsection (5) refers to "a parent" refusing consent. There is clearly a different emphasis here. Will the views of both parents be sought on the matter? What is the situation? I presume that a one parent family was what was being referred to in subsection (4). I am not sure what is being referred to in subsection (5). The Minister needs to clarify that.

I agree with the general thrust of amendment No. 31, with amendments to replace the word "examination" with assessment" and to clarify the question of parental consent. I welcome the broader scope of the definition with regard to both psychological and medical assessment of the pupil. It greatly strengthens this section.

My amendment has to do with the fact that it is a sensitive, complex area. All avenues, like counselling, should be explored. Only where these fail should the child be referred to a psychologist for assessment because unfortunately there is still a certain stigma attached to this by certain people. It is important that the board should be in a position to assign a counsellor to all schools. The Minister will have an important role to play in this particular issue because the number of distressed children and teenagers seems to be increasing on a daily basis. Counselling is an important factor within the context of this amendment and, indeed, this entire issue. The Minister is addressing the issue but it is important that counselling should be used before these children are referred. More counsellors should be available to schools. The Minister will be aware of the need in this area. I am confident he will address the issue in the not too distant future.

I thank the Senators for their constructive comments in relation to this amendment. I undertake to return to the parliamentary draftsman in relation to the word "examination". Perhaps I will introduce an amendment to replace it with the word "assessment". I have some sympathy with the views of Senators in that regard.

The term "parent" is already defined in the Bill in page 6 as having the same meaning as in the Education Act, 1998, which refers to whoever is the guardian of the child. If I am not mistaken, Senator Costello raised the issue of where two parents in a harmonious context may suddenly disagree on whether or not a child should be assessed. This is a point which I must examine further. The essence of the matter would be that if the disagreement resulted in the child not being assessed and in the view of the board the child urgently required assessment, then the board would still be entitled to go to the courts. However, clearly that needs to be tidied up and clarified, and I undertake to take that into consideration also. The Senator raised a good point.

In the context of what the Minister said, I accept from where he is coming.

Amendment agreed to.
Amendments Nos. 32 and 33 not moved.
Section 10, as amended, agreed to.

Amendment No. 34. Amendments Nos. 35 and 96 are related. Therefore, amendments Nos. 34, 35 and 96 may be dis cussed together by agreement. Is that agreed? Agreed.

Mr. Ryan

I move amendment No. 34:

In page 10, before section 11, to insert the following new section:

"11.–Paragraph 1(2) of the First Schedule of the Freedom of Information Act, 1997, is hereby amended by the addition, after ‘the Board of the National Museum of Ireland,' of 'An Bord Náisiúnta um Leas Oideachais,'.".

This is a simple amendment to bring An Bord Náisiúnta um Leas Oideachais under the provisions of the Freedom of Information Act, 1997. Over the past 12 months specific provision has been made in a succession of Bills not to allow the provisions of the Freedom of Information Act, 1997, to apply and in some cases, such as where the Minister was determined not to allow school league tables based exclusively on examination performance, I agreed.

We can deal with that issue while at the same time ensuring that a whole raft of new agencies are not set up which are accidentally excluded from the provisions of the Freedom of Information Act. Certain provisions turn up in legislation all the time in regard to who can be a member of a State board. Those provisions exclude Deputies, Senators, bankrupts and criminals. The insertion of the provisions is a matter of habit and the parliamentary draftsman consistently inserts such clauses. It is time we reached the stage where a clause, recognising the provisions of the Freedom of Information Act, is inserted in all legislation. Otherwise, we will be faced with an extraordinarily anomalous situation where older State bodies will be covered by the Freedom of Information Act but a panoply of new bodies will not. That will not create a proper system of public administration. That is the thrust of the amendment.

I accept the thrust of all three amendments. If the Senator will bear with me, I will consider their precise wording when we deal with the Bill in the Dáil.

Mr. Ryan

Is the Minister accepting the general principle that the board should come under the provisions of the Freedom of Information Act?

I am asking the Senator to withdraw the amendment on the basis of the undertaking that I will bring forward amendments in the other House to embrace its general thrust.

Amendment, by leave, withdrawn.
Amendment No. 35 not moved.
Government amendment No. 36:
In page 10, between lines 16 and 17, to insert the following new subsection:
"(4) The board of management, principal, teachers and other members of staff of a recognised school shall give all such assistance as may reasonably be required by an educational welfare officer in the performance by the educational welfare officer concerned of his or her functions.".

The aim of this amendment is to provide statutory support to educational welfare officers in the performance of their statutory duties. This type of provision is standard when duties are assigned to a group of officers on a statutory basis. The provision may also be of some assistance to educational welfare officers in a small number of cases in which a school may be unwilling to assist an officer in the discharge of his or her functions.

I welcome this amendment. The previous wording of the Bill gave the impression that an educational welfare officer could walk into a school and effectively halt its work in order to get access to records and so on. That could have proved quite disruptive. I raised this point previously with the Minister's officials. Nobody could argue with the wording of the current amendment which states that the board of management, principal, teachers and other members of staff of a recognised school shall give all such assistance as may reasonably be required to the educational welfare officer in the performance of his or her functions. That wording strikes a better balance. School management authorities were concerned about the previous wording which might have led to the unnecessary disruption of the work of a school. This amendment recognises the duties and responsibilities of all concerned and requires people to be as helpful as is practicable at any particular time.

I, too, welcome the thrust of this amendment. In the past, the term 'attendance officer', as it was then called, was not specifically defined. The educational welfare officer should also co-operate with the board of management, principal and teachers. The process on the ground will be a two way, co-ordinated one, which will avoid disruption in our schools.

Amendment agreed to.
Section 11, as amended, agreed to.

Mr. Ryan

I move amendment No. 37:

In page 10, before section 12, to insert the following new section:

"12.–(1) The Minister shall appoint one of his or her officers as a development officer for each school in every disadvantaged area, in order to promote the development of appropriate relationships between the school and the local business community and relevant agencies.

(2) An officer of the Minister appointed under this section shall not be given additional remuneration by virtue of having been so appointed.".

This amendment is an attempt to slightly extend the provisions of the Bill to require the Minister to make more development officers available. All studies which have been carried out on this matter – about which Senator O'Toole is very eloquent – reveal that the inadequate resourcing of, and support for, our early education system is a fundamental barrier to the elimination of disadvantage in our society. By the time children reach seven or eight years of age, they are condemned to a cycle of disadvantage.

We are simply requesting that the Minister would make a specific commitment to the development of schools in disadvantaged areas in order to promote the development of appropriate relationships between the school and the local business community and relevant agencies. The Minister has spoken on many occasions about the need to bring community resources together to make education more relevant and facilitate the construction of an education system which confronts disadvantage.

Following the enactment of the Education (Welfare) Bill, my immediate priority will be to extend the coverage of welfare officers whose function will be to liaise with all agencies in a given area. Apart from the areas already covered by the existing school attendance service, the first step in that process would focus on areas in which there is considerable educational and socio-economic disadvantage.

The amendment refers to the appointment by the Minister of one of his or her officers. Does that mean a civil servant within the Department?

Mr. Ryan


To a certain extent, we do that anyway in regard to a number of area partnerships. However, we are constrained by the number of officers in the Department. People think we have a huge Department and a huge number of civil servants but we do not. Problems are being experienced in some of the sub-partnership areas where a number of people sit on a range of sub-committees throughout the areas. I am somewhat concerned about that as a balance must be struck between people getting work done and hopping from one committee to another. One could say that we could simply increase the number of staff in the Department.

Mr. Ryan

What about the £5 billion surplus the Government will have at the end of the year?

I do not have any surpluses. The Exchequer will have a surplus but the Department will not.

There is a lack of coverage in regard to school attendance. As we near the end of the millennium, only four areas in the country – Dun Laoghaire, Cork City Borough, Dublin City Borough and Waterford – actually have a school attendance service. That is hard to credit. Following the enactment of the Bill, my priority will be to allocate resources towards the appointment of additional educational welfare officers who will be targeted at areas of disadvantage.

The Department seconds officers and has established a social inclusion unit to co-ordinate all social inclusion policy measures and attend to the various area partnerships. We have made progress in that regard. I take the spirit of the amendment on board and clearly understand what it envisages.

Mr. Ryan

I will not be too provocative, in the spirit of the debate. We cannot deal with educational disadvantage without committing large-scale resources to the problem. The Minister accepts that. The State now has resources at its disposal, even if the Minister feels he does not. The State has the resources to do it. While we all believe that the return on public expenditure should be maximised, I am reluctant to let the Minister go by saying that the problem is the shortage of staff. That is surmountable. If the problem of educational disadvantage is to be dealt with, as distinct from access to third level education on which considerable progress is being made, we will have to think in terms of more teacher and support services which means more taxpayers' money. No matter what the Minister for Finance, Deputy McCreevy, may say, there is no other solution.

The Senator misinterpreted my comments about not having a surplus. I am spending every penny. Resources are being spent on tackling disadvantage which needs to be addressed but not by the expenditure of more resources alone. That is a misnomer. We have to examine critically the way we do things. People often call for the expenditure of more resources without fundamentally examining what is happening in disadvantaged areas. Pilot projects have shown that a change of methodolgy can have a strong impact on performance and in changing attitudes.

Amendment, by leave, withdrawn.

Mr. Ryan

I move amendment No. 38:

In page 10, subsection (1), line 27, after "officer" to insert "for each health board area".

With this amendment I am attempting to place a geographical limit on the area of operation of a liaison officer. What is the geographical area in which a liaison officer has to work? For obvious reasons, I am suggesting it should be the health board area.

Is this an attempt to introduce regional education boards by the back door?

Mr. Ryan

We will keep trying.

I am not certain it would be a good idea to include a specific geographical area in the Bill which could be much smaller than the health board area. The board will make the decision. It may want to target a much smaller area. Health board areas are very large.

Mr. Ryan

We are beginning to forget that we had hard times. There may be a temptation to spread the remit of what is a limited number of liaison officers even further. It is logical to link it to the functional area of health boards. One cannot separate health and education services.

The board will make the decision.

Amendment, by leave, withdrawn.
Government amendment No. 39:
In page 11, between lines 6 and 7, to insert the following new subsection:
"(5) Subsection (4) of this section does not apply to information in the possession of a member of the Garda Síochána held for the purpose of preventing, detecting or investigating offences, or apprehending or prosecuting persons who have committed, or who are believed by a member of the Garda Síochána to have committed, offences.".

The purpose of this amendment is to ensure the Garda Síochána can refuse to provide, in the context of section 12, information which could prejudice its work in criminal prosecutions and investigations. It was never the intention to oblige it to provide information of this sort. I am happy to clarify the matter.

Mr. Ryan

While a similar provision is to be found in most freedom of information legislation, it should be made clear that once the information is no longer needed for the purposes of this legislation the Garda Síochána should not sit on it. If the Garda Síochána has information that would be of benefit to the board, it should not be allowed to claim that it cannot make it available.

The Garda Síochána has a major role to play. During the local elections I became aware of the number of communities in Cork in which extraordinarily good gardaí are doing extraordinary work in working with young people. While nobody disagrees with the principle, it would be a pity if a good garda was not in a position to make information available because of a narrow interpretation of the legislation by a superior officer.

I will look at the matter again.

Amendment agreed to.

I move amendment No. 40:

In page 11, between lines 18 and 19, to insert the following new paragraph:

"(k) the national association of Youthreach Co-ordinators."

The Youthreach programme has gone from strength to strength since it was introduced in 1989. The foot soldiers, those directly involved at the coalface, should be given the chance to become involved in formulating policy. Little recognition has been given to the programme, of which the Department of Education and Science can feel justifiably proud. Tremendous work is being done. A number of directors and teachers were recently offered permanency.

The national association of Youthreach co-ordinators which has much to offer should be given recognition by way of being allowed to have a representative on the board. Those who have to implement training and education policies should be given the recognition they deserve. They have a major contribution to make. This may result in the putting in place of a better system.

I agree with the Senator on the work being done by the national association of Youthreach co-ordinators. I have attended its conferences and met its representatives. The statutory agencies are listed in the Bill. If the non-statutory agencies were to be included, the list would be considerably longer. This does not mean, however, that the national association of Youthreach co-ordinators will be excluded from the consultation process. The vocational education committees which operate the Youthreach programme have been included. One would expect, therefore, the views of the Youthreach co-ordinators to be taken into account by the relevant authorities. They have a central role to play in the implementation of the Bill.

When Minister of Labour, the Taoiseach initiated the concept of the Youthreach programme which has been very successful. Over two thirds of participants either proceed to further education or secure employment. We envisage that it will have an important role to play in terms of employers taking on participants and allowing them to remain in the programme part-time. We are moving towards part-time Youthreach and PLC programmes to facilitate young people who leave school early to continue in education and training programmes.

Advisory committees and sub-committees are sometimes appointed to statutory agencies. If this is the case with this agency, the Minister should consider involving Youthreach in some of sub-committees or advisory bodies which may come on stream.

That is a fair point and I will examine the issue.

If the Minister is prepared to accept my comments, I thank him for his kind words on behalf of Youthreach which is close to my heart. I work with these people every day and I am confident that the Minister will not let them down.

Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.
Amendment No. 41 not moved.
Section 13 agreed to.
Amendment No. 42 not moved.
Government amendment No. 43:
In page 11, subsection (1), line 28, to delete "with," and substitute "with".
Amendment agreed to.
Government amendment No. 44:
In page 11, subsection (1), line 31, after "child" to insert "who is being educated in a place other than a recognised school".

Some provisions of the Bill have given rise to concerns that the Minister's functions as regards primary education are being reduced to ensuring a minimum education only. This is not the case. However, given that this issue arose in discussions which my officials and I had with a number of groups, some reassurance in necessary.

Amendment No. 44 makes it clear that the prescribed minimum education applies only to children outside the recognised school system. The aim is to ensure that such children receive at least their constitutional entitlement to a prescribed minimum education. For children in recognised schools, the Education Act, 1998, provides for the provision not simply of a minimum education but of a high quality education.

Amendment agreed to.
Section 14, as amended, agreed to.
Government amendment No. 45:
In page 11, subsection (1), line 37, to delete "as soon as may be after" and substitute "on".
Amendment agreed to.

Amendments Nos. 47 to 50, inclusive, and amendment No. 53 are related to amendment No. 46 and may be taken together.

Mr. Ryan

I move amendment No. 46:

In page 11, subsection (1), line 39, after "education" to insert "during the school day".

These amendments seek to clarify section 15. The best thing we can do is to ask the Minister to reply.

Amendment No. 50 seeks to cover a small number of private, non-recognised schools. As the Bill is drafted it would require a formal assessment of the place and education provided in these schools each time a child was registered. This is unnecessary as, from previous experience, the board will know of the capacity of the school to provide the prescribed minimum education. All of these schools provide a standard of education which is much higher than the minimum required. Amendment No. 50 will allow the board to dispense with an assessment where it is satisfied, on past experience, that a school can meet the minimum standards.

Amendments Nos. 48 and 49 are technical drafting amendments. I cannot accept amendment No. 46 which would have the effect of obliging children educated in schools other than recognised schools to observe the school day. It would not be reasonable to expect children educated in schools other than recognised schools to observe the school day. All that is required is that the education provided should be capable of assessment and that it should be possible to arrange for an assessment to be carried out during reasonable periods of time. This is provided for in the Bill.

Amendment No. 47 is unnecessary as it would have the effect of limiting the registration process to children receiving education other than in a recognised school, and who are not attending a recognised school. If children are receiving education other than in a recognised school they are unlikely to be attending a recognised school. Accordingly, I do not propose to accept this amendment.

Amendment No. 53 would have the effect of excluding from the provisions of the Bill a child resident in the State but outside the State and not being educated outside the State. I cannot accept this amendment. There is a constitutional obligation to ensure that all children resident in the State, even those temporarily outside the State, are in receipt of at least a minimum education. If I accept this amendment the legislation would effectively be attempting to remove this constitutional obligation. Therefore, I cannot accept this amendment.

Mr. Ryan

I may not be as familiar with our amendments as I ought to be. The Minister misunderstands amendment No. 46. The amendment seeks to ensure that we attempt to regulate the education given to children during the school day. We are not trying to include people who provide additional education to children at times other than during the school day.

This amendment seeks to deal with children in receipt of education in a place other than a recognised school during the school day. It suggests adding "during the school day". We do not need a register of children who attend school at night or at weekends. There is a wonderful anarchistic impulse to educating children at home.

It is a very real one.

Mr. Ryan

Many people could see a purpose to such an education if we all had the energy for it.

Is the Senator suggesting that the register should be done during the school day, irrespective?

Mr. Ryan

The register should apply to children receiving an education outside the school during the school day. Are we going to have registers for children attending weekend courses?

No. The register concerns children receiving an education outside recognised schools. The idea of a register is that we keep track of all children. However, it will also allow us to assess children being educated in settings other than recognised schools. That is what we are trying to achieve.

If a child is being educated at home by a parent and we include the words "during the school day", we are stating that parents better have the child at home between 9 a.m. and 2.30 p.m. That would be wrong. A parent educating their child at home to a satisfactory standard could say that they were educating the child between 4 p.m. and 9 p.m. and that it did not suit them to have people calling during the school day. That is the problem. This amendment is not necessary.

Mr. Ryan

I do not wish to make an issue of this. However, my experience is that legislation can often end up being interpreted in ways which are quite different from those intended by the Oireachtas. We should not have to compile a register of children going to places other than recognised schools at periods other than the time when they should be in school, when the normal primary schools function. This is a lawyer's amendment. We should not argue about this but there is an ambiguity.

There is a misunderstanding of what the subsection is about.

Mr. Ryan

There is no misunderstanding about what the subsection intends to achieve. I am clear about that but I am concerned that it extends further than the Minister genuinely intends. It is meant to apply only to children who are not going to school.

Does the Senator think that we are going all over the place, weakening the measure?

Mr. Ryan

It could be used to find out who is attending weekend courses, night courses and so on.

I will consider the matter again.

I have no problems with this because the Minister has made clear what it means.

Amendment, by leave, withdrawn.
Amendment No. 47 not moved.

On amendment No. 48, for the information of the House, this is the appropriate reference to subsection (3) if amendment No. 49 is accepted.

Government amendment No. 48:
In page 12, subsection (2), line 1, to delete "Where" and substitute "Subject tosubsection (3), where”.
Amendment agreed to.
Government amendment No. 49:
In page 12, between lines 4 and 5, to insert the following new subsection:
"(3) The parent of a child who immediately before the commencement of this section is being educated in a place other than a recognised school shall, if he or she wishes the child to continue to be so educated, apply, not later than 3 months after such commencement, to the Board to have the child concerned registered in the register.".
Amendment agreed to.
Government amendment No. 50:
In page 12, between lines 29 and 30, to insert the following new subsection:
"(5) Where the Board, having received a report submitted under this section in respect of a child who is a student at a school other than a recognised school, is satisfied that the school is providing a prescribed minimum education to children who are students at that school it may, without carrying out any further assessments, register any or all of such children in the register, provided that the school concerned notifies the Board in writing that the children concerned are students at that school.".
Amendment agreed to.
Government amendment No. 51:
In page 12, subsection (8), line 42, to delete "section" and substitute "section,".
Amendment agreed to.
Government amendment No. 52:
In page 12, subsection (8), line 44, to delete "concerned" and substitute "concerned,".
Amendment agreed to.
Amendment No. 53 not moved.
Question proposed: "That section 15, as amended, stand part of the Bill."

Mr. Ryan

I do not think anyone could dispute the procedure here. Is the Minister satisfied that the resources will be in place to ensure there is an evaluation of children who go to school equivalent to the intensive evaluation that must take place of children who are educated outside the school system? It seems anomalous to go to enormous lengths to evaluate children who are being educated outside the school system if we do not ensure there is a similar evaluation of children who are in the school system.

We already do this, but we need to do more of it.

Mr. Ryan

Speaking as a one-time member of a board of management, I did not know we did this.

The Senator should consult with Senator O'Toole. The reason for including a register is because of the constitutional obligation to children educated outside the school. I take the Senator's point that there should not be complacency that within the school setting a child automatically receives the minimum standard of education. There are various instruments, for example, whereby we can determine the requirements for children who need remedial education or assistance or, indeed, the special needs area where children need extra resources and so on.

Mr. Ryan

Section 15(4)(c) reads, "carry out an assessment of the child concerned as to his or her intellectual, emotional and physical development, which shall include an assessment of his or her knowledge and understanding of such subjects. . . . ." It would be wonderful to believe that every child who enters primary school at the beginning is equally and thoroughly assessed so that the teacher would have an assessment of the child from the start in all those categories.

This is why we have teachers.

Mr. Ryan

I do not think teachers would see it as their duty to assess a child's emotional development.

Surely the Senator is not suggesting that individual assessments are carried out on every child. What happens in the ordinary course of events is that there are referrals and educational psychologists are available who can carry out practical assessments and so on. It is not too difficult for a teacher very quickly to know where children are at in terms of levels of literacy, numeracy and physical development. However, it is critical if one discovers that children need something extra to make the appropriate intervention. This is why, in essence, the Bill is being put through the House and the national psychological service is being implemented. These are all pillars to ensure the right intervention is made at the earliest possible time.

Mr. Ryan

It would be interesting if a large minority of the population decided to educate their children outside the school system because the resources the board would need to do the sort of an assessment referred to by the Minister would be enormous. If the resources are now theoretically committed because of the constitutional requirement to provide this assessment for children educated outside the school system, I see no reason why we could not endeavour to put together as good a picture and profile of every child.

We do that.

Mr. Ryan

With 40 children in a class?

There are not 40 children in a class anymore. Sufficient additional teachers have been appointed for the first time in a decade to ensure an average class size of 30.

Mr. Ryan

I would like to put a bet on with the Minister if he says there will not be a single class of 40 in primary schools.

I did not say that.

Mr. Ryan

The Minister said we do not have classes of 40.

As of next September, if the Senator discovers a school with 40 in a class, he should talk to me about it. It will not be my fault.

Mr. Ryan

Perhaps we will say 32 or 33.

I am making the point that teachers make assessments. This is why teachers do a three year undergraduate course and receive a B.Ed. degree and so on. They can assess a lot of children in a classroom very quickly in terms of their moral, physical and intellectual development. In certain circumstances, if children are outside the school setting, there is a constitutional obligation on the State to ensure that child is receiving his or her constitutional entitlement. This is the reason for the establishment of a register. In some cases there will be no difficulty and a child's constitutional obligations will be satisfied in the out of school setting, but others may not be so. The State must ensure that the child receives his or her constitutional entitlements and if this means extra resources, so be it.

Question put and agreed to.

Mr. Ryan

I move amendment No. 54:

In page 15, subsection (4), line 4, after "Minister" where it firstly occurs, to insert "or of the Board".

This is to do with the appeal committee which will review appeals against decisions of the board in the case of children who are not attending formal school. It suggests that the Minister should consider devolving his authority and appoint another person to the board.

I have no difficulty with that. The Senator is talking about a person appealing against the board's decision and that an officer of the board cannot be on the committee. The Senator's amendment makes a lot of sense.

Mr. Ryan

What does that mean?

It means I will accept the thrust of the amendment and change it in the Dáil.

Amendment, by leave, withdrawn.
Section 16 agreed to.

Mr. Ryan

Will Committee Stage resume at 8 p.m. or after Private Members' Business?

The order of the House is that Committee Stage will resume at 8 p.m.

Progress reported; Committee to sit again.