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Seanad Éireann debate -
Wednesday, 7 Jul 2004

Vol. 177 No. 11

Education for Persons with Special Educational Needs Bill 2003: Committee Stage (Resumed).

Question again proposed: "That section 9 stand part of the Bill."

We are awaiting a reply from the Minister of State on section 9.

Senator Burke referred to those who emerge from teacher training colleges and do in-career training. The position in this regard is evolving not only because of the responsibilities the legislation will impose, but also because of general concerns about special education. I agree with the Senator that we need to examine in-career training and courses in teacher training colleges to equip teachers to deal with developments regarding special educational needs. We appreciate and recognise this in the Department and we propose to increase funding for training. In doing so, we must take into account not only those who are now entering teacher training colleges, but also those already in the system who have not had the opportunity to learn extra skills through inservice training. It is not enough to state this; we must also ensure the necessary funding is in place to enable it to happen. The Department is committed to doing so.

On section 9, specifically section 9(7), I am sympathetic to the sentiments expressed by Senator Ulick Burke and the Minister of State has responded to them cogently. On Second Stage, it was remiss of me not to acknowledge the considerable input of Senator O'Toole to section 9(7). I was not aware of his input but was aware that an amendment had been tabled on this section in the Dáil. I agree with the view expressed by the Senator on Second Stage that section 9(7) significantly enhances the provisions of the Bill.

Question put and agreed to.

I move amendment No. 28:

In page 15, subsection (1)(a), line 29, after “volition” to insert “, but with the consent of the parents of the child concerned.”

This amendment is necessary for constitutional reasons. The choice of a school is primarily a matter for the parents. Accordingly, the council should have the consent of the parents when designating the school their child should attend.

With great reluctance I disagree with this amendment. The idea of the parents being the primary educator is completely misunderstood and abused. This is a question of whether parents should have a choice to accept the designated school. With great respect to the Minister of State's grandfather, I believe it is unfortunate that the Constitution made parents the primary educators of their children. As an educator, I have never understood why a person who happens to be a parent is also the primary educator. I recognise all the responsibilities that exist but I am sure the idea of making a child's education the responsibility of somebody who may have no educational background was never intended. However, this is how the Constitution has been interpreted.

That the Constitution makes the parent the primary educator means parents can decide to educate their children themselves. There are certain restrictions on this process under the education Acts and other regulations. Parents can choose not to educate their child themselves and choose instead to trust the State or educational system to educate him or her. One cannot have it both ways. One cannot say one wants the State to educate one's child and simultaneously make decisions that impinge upon this process. This has occurred on many occasions.

One of the most important changes I have seen in education during my time in the Seanad was an amendment to one of the education Bills that allows a child to be referred for psychological assessment without requiring parental consent. The reality is that the child should be at the core of the issue. One must allow for the fact that a parent, for all the wrong reasons, might not like the best school for his or her child. Let us at least put on record what the correct school is and how it is selected. The parent can decide not to have any part in it but at least the decision will be clear. Parents should not be entitled to ask the authorities to designate a school and then state the schools to which they will agree. The system cannot work this way.

Utter confusion has been caused throughout the education system because of the idea that parents are the primary educators. This idea does not obtain in every country. It is important to us and we must respect it, but it does not mean that parents have to take every decision for the system. They can work outside it. I am sorry to inform Senator McCarthy that I have a very strong view on this issue.

I could not agree more with Senator O'Toole. The idea behind our evolving educational policy is to make the education system more child-centred, not parent-centred. I agree with the Senator on his reference to the Constitution. I mean no disrespect to its author, but it is unfortunate that its wording regarding parents is sometimes misinterpreted — unwittingly, I am sure. To give parents the ultimate call in designating a child's school is tantamount to giving them a veto — I am very reluctant to use this word. For many reasons, outlined by Senator O'Toole and others, and in the interests of the child, we simply could not go down that road.

It has been articulated clearly by Senator O'Toole that parents might not be the best judges of where a child would be most appropriately placed and it would be a very dangerous precedent to allow them to make such judgments. I urge against it while at the same time warmly endorsing the core principle of the Bill, namely, that of giving parents a central partnership role in meeting special educational needs.

It has been suggested that parents should have power to consent to the designation of a school or to appeal a failure or refusal to make such a designation. I favour the latter approach. The Bill already permits parents, in these circumstances, to request the council to designate a school and to appeal if it fails to do this. If a particular school has been sought it will be a party to this appeal. The council will be required to indicate whether, if it were to designate a particular school, it intends to make a recommendation to the Minister for additional resources for that school. This would ensure that all parties have all relevant information to present their case fairly to the appeals board. In no circumstances could a child be enrolled in a particular school without the consent of his or her parents without the intervention of the courts. That would involve reference to Article 42 of the Constitution.

Amendment, by leave, withdrawn.

I move amendment No. 29:

In page 15, subsection (2), line 38, after "to" to insert "geographical convenience,".

The purpose of this amendment is to encourage the council to think in terms of accommodating the child at the nearest available school, all other things being equal.

I do not propose to accept this amendment because in requiring the council to have regard to geographical considerations before making a designation, it ignores the point that it must already have regard to the needs of the child and the wishes of the parents. I do not see what the amendment would add to the mix since the child's needs will, generally, be best served by proximity to the family home.

I read a sad case in the newspaper yesterday which relates to the issue raised by Senator McCarthy. The mother of an autistic child, who was driving the child to Dublin from south Kilkenny, was involved in a fatal car accident. I do not say this is the basis on which we should make a judgment. Nevertheless, travelling extraordinary distances is disruptive of people's lives and there should be a balance.

One can accept that a particular need can sometimes only be met in one place in the country but this, nevertheless, causes enormous problems for families. There are people who have become full-time carers of another type because they spend all their time bringing their child who has a special need to some place far away. The geographical issue carries weight in making children feel comfortable and in meeting the needs of families. I am reminded of the issue of medical services and their regional availability. This is the point of the amendment.

I appeal to the Minister to look at the text of the amendment and to understand it. Inordinately long journeys will be involved in some areas if this amendment is not accepted. Some people may be lucky enough to live in an area where a range of services is available and it is not necessary to travel long distances but it will not be so easy for people living in rural areas. They will be obliged to travel long distances to access a service which is designated by another body. The geographical consideration is as important as others in the welfare of a child. I appeal to the Minister to look at the amendment more favourably.

I agree with the Senators when they say that geographical considerations are important. Coming from a rural constituency, I have heard of a number of such cases over the years. However, the proposed legislation already requires the council to have regard to the needs of the child and to the wishes of the parents. When we talk about the needs of the child, we all accept that proximity to the family home is an important issue. This must already be considered in connection with the needs of the child and the wishes of the parents. That is why the amendment is not necessary and I cannot accept it.

Amendment, by leave, withdrawn.
Question proposed: "That section 10 stand part of the Bill."

In section 9, we agreed that money would be available for principal teachers or for whoever is designated by him or her. I welcome that. Section 10 requires that the burden of proving that a school does not have adequate resources to enable it to meet the needs of the child concerned shall be on the board of management of the school. Resources could be required to do that work and to present that case. This requirement places an additional burden on school principals.

In coming to a decision on designating a school, one would hope the council would be in contact with the board of management, the principal or the designated person before the decision is taken in order to make sure the resources were available. The council should anticipate an appeal by the school. One would hope such contact would take place but it is not required. This is a further duty which is to be placed on the shoulders of the principal, staff and board of management of a school who do not have the resources to meet it. It is important to recognise that it creates further pressure.

Section 10(2) states:

In making a designation under subsection (1), the Council shall have regard to the needs of the child concerned, the wishes of the child’s parents and the capacity of the school to accommodate the child and to meet his or her needs, including that capacity when the school has such additional resources made available to it as the Council recommends to the Minister...

The subsection does not require the council to consult the school. The council could come to a decision on the basis of its own notes or understanding. I accept the Minister of State's point. The reference in the subsection to the additional resources to be made available to the school goes to the core of the operation and management of the school. The principal teacher and board of management should have some contact with the council before the designation is made so that new requirements are not simply lobbed at them. The Department should recognise that this measure places additional responsibilities on principals and staffs of schools.

Question put and declared carried.

Amendment No. 30 has been ruled out of order as it would involve a potential charge on the Exchequer.

Amendment No. 30 not moved.

I move amendment No. 31:

In page 17, subsection (8), line 45, after "it" to insert "within one week".

Subsection 11(8) requires the principal of the school to whom the direction is given under subsection 11(7) to comply with the requirements laid down. No timescale is stated. It is accepted that the procedures provide for in the Bill will involve delay. This requirement should not be left open ended, as proposed.

If a principal teacher decides not to accede to a request from a parent to have his or her child's educational plan reviewed, the parent may bring the matter to the attention of the appeals board. In the event of the appeals board agreeing with the parent, the board will give the principal a direction to review the educational plan or to cause it to be reviewed. This is clear from the proposed legislation. However, no time is specified within which the principal must act on the direction of the appeals board. As we have already seen considerable delay in the appeals process it is imperative that we prevent delays where possible. That is the purpose of the amendment.

Throughout the debate we have been at pains to ensure there will be no delay in the delivery of services and we have accepted a number of amendments that improve the Bill in the other House. If we were to take this amendment on board, the school would be able to delay its compliance with the direction for a week for no good reason.

By the same token, in some cases carrying out a review may take longer than a week as a team of experts must be convened. The more complex the needs of the child, the more experts will be involved in the plan. The appeals board will have power to ensure a direction is issued and there is no reason that it should not be able to set down a timescale if one is needed. It is better to leave this to the discretion of the board than to set down a hard and fast rule to ensure there is no delay. We are seeking a reasonable length of time to ensure the best possible service is delivered.

The Minister of State has been inconsistent in that she has admitted there have been amendments to the Bill to avoid delay but she is now leaving it open-ended. Every school principal faces a huge additional work load where there are children with special educational needs but to leave the timescale at the discretion of the board is inconsistent and it would be regrettable if the Minister of State does not recognise the need for some timeframe.

I do not accept that. There is no need for a delay in the delivery of service and we have taken a reasonable approach to this within the Bill. In such cases, there will be discussions with a number of experts in the field and they will need time to be able to deliver the service for the child involved. In so doing, we want to ensure that the service is delivered in the quickest possible way and that is why the appeals board will have that discretion — if it feels there is a delay, it can set down a timescale if one is needed. That provision is already catered for in the Bill and the amendment would add nothing to it.

Does the appeals board have the capacity to set down a timescale?

It will have power to issue a direction and there is no reason that it would not be in a position to lay down such a timescale for the case under discussion.

Amendment, by leave, withdrawn.
Section 11 agreed to.

I move amendment No. 32:

In page 18, subsection (1), between lines 2 and 3, to insert the following paragraph:

"(a) the failure to include any particular action or service in an education plan, or”.

Section 12 is restrictively phrased. Parents can appeal the description of their child's needs or the failure to carry out actions specified in the plan but not the question of whether the action specified in the plan is adequate to meet the needs described in it. Is that a deliberate omission?

The amendment is unnecessary given that section 12(1)(a)already permits an appeal against the council or a school principal on the grounds that a statement or description in an education plan is incorrect or inaccurate and section 12(1)(b) permits an appeal against a failure to implement the plan.

Amendment, by leave, withdrawn.

I move amendment No. 33:

In page 18, subsection (2), line 18, to delete "2 months" and substitute "one month".

The appeals board shall hear and determine an appeal under this section within two months. A child with special needs could find him or herself in a situation where all of the timescales are used because of disagreements, appeals and processing, leading to serious delays before the process is finalised. Two months in this instance is over-generous when time is of the essence.

This amendment cannot be accepted because, as with the other provisions dealing with time limits, this area was examined during the Bill's passage through the other House. Given the potential complexity in dealing with these matters, I am concerned about reducing the time limit to one month. The Senator might note that section 7(7) ensures that the council or the health board is not absolved from providing services on those aspects of an assessment or education plan that are not in dispute. The other issues should not be held up if there is concern about one issue.

Amendment, by leave, withdrawn.
Section 12 agreed to.

Amendments Nos. 34 to 36, inclusive, and amendments Nos. 39 and 40 are related and will be discussed together by agreement.

I move amendment No. 34:

In page 18, subsection (1), line 35, to delete ", with the consent of the Minister for Finance,".

The current wording is inconsistent with the rights-based nature of the Bill.

The consent of the Minister for Finance to public expenditure is a key feature in government accounting and accountability. It is not possible to exclude the Minister from issues relating to public spending. The Minister for Finance sets overall spending limits within which each Minister must operate. This applies to all aspects of government funding and education and health are no exception. I will not accept amendments Nos. 34 or 35 on this basis.

We are well aware of the Minister for Health and Children's constant battles with the Minister for Finance. It also affects other Ministers and Departments. When one looks at the issue, one cannot be of the same opinion as the Minister of State. There are constraints under which all Ministers operate but to give the Minister for Finance this power of veto is unhelpful and does not augur well for the Cabinet when it is putting together a Book of Estimates. I cannot see this being operable in such important legislation.

When the Minister of State replied, she may not have understood that we are only seeking a change. The Bill already involves, in addition to the Minister for Finance, the Minister for Education and Science, the Minister for Health and Children and potentially the Minister for Justice, Equality and Law Reform. A situation could arise where consent is required from all four Ministers. A requirement of consultation with the Minister for Finance, rather than consent, would be a fairer way of dealing with this aspect.

Everybody in the country fully understands the grip which the officials in the Department of Finance can and must exert on certain issues. This can lead to serious problems. If it was a matter of consultation with the Minister for Finance, rather than consent, it would be much more acceptable. It would lead to easier negotiations and relations between the various Departments would run smoother. I understand what the Minister of State has said with regard to the provision of finances but when one must seek the consent of the Minister for Finance and knowing the long tradition of the grip of the Department of Finance over the purse strings, the whole ethos of the Bill could easily perish on that issue. The phrase "consultation with" would be preferable.

During the Second Stage debate and in a number of other discussions on the Bill, it was acknowledged that the legislation would stand or fall on the application of section 13. I agree with the points made by Senator McCarthy on these amendments. It may be a question of syntax but if the amendment is not accepted, the legislation will be at the mercy of an official in the Department of Finance. I disagree with the initial response of the Minister of State. The amendment does not propose that the Minister for Finance should not control the amount of money that is paid out each year to the Department of Education and Science because that is the Minister's decision and it is his duty.

There may be a problem with the syntax of the section. The Minister for Education and Science receives funding for the year and decides how it should be spent. In this instance, however, the Minister for Health and Children and the Minister for Education and Science must refer to the Minister for Finance for his consent as to how the money is spent. The Minister for Finance is being brought into the operational work of both Departments. That is where the Bill falls down. It was never contemplated nor intended for this to be the case and it is an unnecessary complication.

We have all dealt with the Department of Finance. With due respects to the officials from the Department, they have no experience of dealing with a child with special educational needs nor with the problems of the school. They will never have dealt with the individual education plans. They will simply look at the expenditure because that is their duty. Under this Bill, these officials have the right to intervene and to object on these issues. That is unacceptable. It may not be intended to be so but that is the way it is written in the Bill.

Section 13 makes section 9(7) operative. The oxygen for section 9(7) is the money provided under section 13. If the money is stopped under section 13, section 9(7) does not operate. Section 13(1) states:

The Minister and the Minister for Health and Children shall each, with the consent of the Minister for Finance, out of moneys provided by the Oireachtas, provide such moneys and other resources as are determined by him or her for the purposes of the preparation and implementation of education plans...

It is not decided on the basis of need or demand but on the basis of a decision made by the Department of Finance. The situation will arise where the operation of the Bill will work well and everything will be in place with everybody doing their work, but when it comes to implementation, the Minister for Finance will say, "I have thought about this and for all the work done this year I will allow one cent". He would be in compliance with the Act in that case.

On Second Stage, Senator Fitzgerald made a valid point that this was something quite new. The latter part of section 13 involves the Constitution where it refers to, "the provision of resources by the State in fulfilment of its duties under Article 42 of the Constitution...". There is no pressure on the Minister to make adequate resources available.

My amendment proposes that adequate provision be made out of the moneys provided by the Department of Finance for the full preparation and implementation of the education plans. There should be no interference by the Minister for Finance during that process. That is not an unreasonable proposal. I acknowledge all the amendments cannot be accepted but we take the view that the Minister for Finance should not be involved in stopping the availability of money for the preparation of an education plan for a child with special needs. We also propose that in terms of the recognition of Article 42 of the Constitution, the Minister for Finance must make adequate provision to allow for the full preparation and implementation of the education plans.

If the Government does not accept the amendment, it means it is afraid of a commitment to the full preparation and implementation of education plans. Of all the points made to me about this legislation, this issue has been raised by the INTO on a number of occasions. The INTO takes the view that the Bill is good legislation if the money is put up front. That is also the view of principal teachers. Class teachers and teachers in special education hold similar views. Will the money be made available? We may be overly cynical on this matter but the view is that it will not. That scepticism could be scotched by the acceptance of this amendment, by giving a commitment to ensure the full implementation and full preparation of the child's education plan.

Adequate provision is not an absolute. The word "adequate" requires judgment. It implies reasonableness and allows us to see the operation of the Act. As a reasonable person, the Minister of State must be swayed by my arguments. I have no doubt she will agree with the points I make and in all reasonableness will concede that given the extra work to be imposed on boards of management, principal teachers and staff members and acknowledging the greater expectations of parents, the necessary funding should be provided.

I expressed some views on the question of the consent of the Minister for Finance in my contribution on Second Stage. Article 17 of the Constitution requires that the Government be accountable to the Oireachtas for all moneys spent. It has always been the function of the Minister for Finance to organise Government expenditure.

The logic of one of Senator O'Toole's proposals would be for the Minister of Education and Science to have his own Appropriation Act.

He should have his own budget and decide how he spends it.

The Senator may inform the House of his logic when I am finished.

Senator Fitzgerald is splitting hairs.

The Government has always conducted its business in this way. On the one hand, Senator O'Toole is saying he acknowledges and accepts that this approach has worked and that he does not want to disturb it, while, on the other, he is arguing for the removal from the Bill of an element which acknowledges the way in which the Government works. The wording in the Bill does nothing other than acknowledge the system as it operates and as the Constitution requires the Government to operate. I am not accusing Senators of speaking out of both sides of their mouths but I am confused. I ask those who support the amendments to elucidate, clarify and enlighten me as I am not convinced by what I have heard.

As I stated on Second Stage, section 13 is finely balanced by a substantial, revolutionary measure taken by the Minister for Education and Science with the consent, implicit or otherwise, of the Minister for Finance. Senator O'Toole showed considerable sensitivity when I used the word "revolutionary" on a previous occasion, as he is entitled to do, but he is being over-sensitive in this case. The section is revolutionary and the inclusion in legislation of such a provision is certainly unprecedented in my time in the Houses.

Is it courage on the part of the Fianna Fáil Party Government that——

It is also extremely progressive and significantly enhances the powers of the Minister for Education and Science to make "adequate provision". With the deepest respect to my colleague, Senator O'Toole, the term "adequate provision" is subjective and arbitrary.

Yes, but it does not interfere with the Minister's rights.

Its use would not, therefore, guarantee that adequate resources would be made available. Nevertheless, I respect the Senator's view and support the general principle involved. His proposal would not, however, definitively result in the objective he seeks being achieved.

I am happy with and encouraged by the substantial improvements made to section 13. As has been stated, its reference to the Minister for Finance is to ensure that where he exercises his constitutional duty to control expenditure, he is reminded of the duty upon the State in Article 42 of the Constitution to make proper provision for the education of all children and to ensure that those who need most help receive it.

What about the record? For how long must children wait?

Section 13 is unique and unprecedented and will shape the exercise of the Minister for Finance's discretion in a way that has never happened before.

It is not likely to happen.

It has happened in the Bill, which provides that if the Minister for Finance fails to make adequate provision and resources available to the Minister for Health and Children or the Minister for Education and Science, or both, to discharge their duties under the legislation, those who suffer may have grounds for review of the Minister's failure by the High Court. That is a key advance at the heart of the Bill, which has never before been included in legislation. I commend the Minister of State and the Minister for Education and Science for achieving it.

The Senator should tell that to parents in Counties Donegal or Kerry.

The Minister of State will agree that there is unwarranted concern — I will not call it hysteria — and over-sensitivity regarding the inclusion of a requirement to obtain the consent of the Minister for Finance. This provision merely acknowledges what has always been and will continue to be the case.

Some 5,000 children have been denied assessment and are still waiting.

Its inclusion does not take from the fact that substantial progress has been made with regard to the rights of the child being vindicated in law within the framework of the National Council for Special Education.

We need to recognise that no one can bypass the Minister for Finance. Having served at the Cabinet table for five years, I am aware that when one is fighting for allocations, one has one's priorities and it is up to each Minister to get the allocation he or she regards as necessary to meet their departmental priorities. That is the way of Government. Under the Constitution the Minister for Finance is responsible to the Oireachtas and acts, as it were, as the Accounting Officer of the Government.

Some Senators expressed concern that the position regarding the amount of money available to implement educational plans could retard work on the plans in some way if the amendments were not accepted. The Minister for Education and Science will be in a position to fight for moneys, initially through the usual process of Estimate debates and so forth. When the allocation is made, the Minister will in turn allocate it to the areas of greatest need, including the responsibilities given to the Minister under the Bill. Elsewhere, as Senator Fitzgerald eloquently pointed out, the legislation imposes an obligation on the Minister for Finance to make adequate provision. If parents believe he has not delivered on this obligation, they will have recourse to the courts.

The amendments are not necessary given the constitutional position of the Minister for Finance, his or her obligation under the Constitution, the constitutional rights of the child under law and in light of other legislation on the Statute Book, namely, the Equality Act. These factors will strengthen the position of children who require the services provided for in the legislation. In many respects, the legislation recognises the need to deliver in the area of special needs for the first time.

I have listened with interest to the contributions of Senator Fitzgerald and the Minister of State. The Senator referred to the State's requirement to make "proper" provision, whereas the Minister of State referred to the requirement on the Minister to make "adequate" provision. Neither word appears in the legislation nor in the relevant section of the Constitution. This is precisely the point of the amendments. Is it not strange that both the Senator and the Minister of State used the words we are trying to insert in the legislation? The Constitution does not use the term "proper provision" used by Senator Fitzgerald, as he is entitled to do. It should be in the legislation and that is what I am trying to do. The term "adequate provision" to which the Minister of State referred should be included in the legislation.

As regards how the process might work, Senator Fitzgerald is correct that the word "adequate" is subjective. I chose the word carefully because I believe it would be a breach of the Ministers and Secretaries Act of 1924 for Senators to try to restrict or constrain the Minister as regards exercising his judgment, as required, in the provision of money. In other words, I have tried to find a balance by recognising there are two aspects to this job.

If the amendment were accepted, the Minister would make a judgment as to what is adequate provision, about which we can argue. At least, however, he would be required to make adequate provision. There is a major difference between "adequate provision" and "provision" because the latter does not require him to make a judgment and allows him to allocate any amount of money, however small.

The difficulty with the Constitution is the line in Article 42.4 which states: "The State shall provide for free primary education." It was a smart man who included the word "for" in this context because the State has never provided free primary education. The same line as Gaeilge is: "Ní foláir don Stát socrú a dhéanamh chun bunoideachas a bheith ar fáil in aisce." For some people the words "ar fáil in aisce" effectively mean the Constitution as written. While this was never intended, it is the way it is written.

By qualifying the word "provision" with the word "adequate" or "reasonable" one does not prevent the Minister for Finance from doing his job but requires him to make a judgment on what is "adequate". This is the reason I propose to insert the word.

The second issue concerns the words "out of the moneys available." It is a two stage operation. It is the Minister for Finance's judgement as to what constitutes adequate provision for children with special educational needs and he will draw up his Estimates and send the allocated funds to the Department of Education and Science or the Department of Health and Children. The Minister for Finance should then have no further part in the process. The money has been allocated and it should be at the discretion of the relevant Departments to spend that money as they see fit. They can demand more money but it will still be in the Minister for Finance's gift. This does not interfere with the Minister's ability to do his job as what the Minister of State described as the "Accounting Officer of the Government".

The allocation decision passes through the Accounting Officers of the Departments before coming to the Minister for Finance and in this way everyone has done their job properly. Provision can be a mere red cent but adequate provision means that the Minister for Finance must be able to account for and explain the allocation he or she has made to the Committee of Public Accounts or any other party which might challenge him or her. Under the terms of this Bill, one can make the argument for a specific allocation but one cannot make the Minister for Finance comply whereas if the word "adequate" is used——

That word invites a subjective interpretation and the matter could still end up in the courts.

——one can specify the precise number of children with autism or other special needs and so on. The Minister for Finance would be required to prove that he had taken all these facts into consideration before allocating a provision that is adequate. The Bill does not provide any guarantee of such adequacy and allows the Minister for Finance to come up with a figure for special educational needs services which he does not have to justify.

My concerns may be unnecessary and constitute a bottle of smoke. Perhaps I am wrong to present these demands to the Government and I may return to the House in six months time and acknowledge there was no cause for concern and that the Government shovelled money for special educational needs services into schools.

That is unlikely.

I am attempting to strengthen Senator Fitzgerald's hand for the next occasion he makes representations to the Department of Education or Science or the Department of Health and Children. He will be pleased that I made it possible for him to demand that adequate provision be made. This is about responding to the needs of children with special educational needs by ensuring that this legislation is implemented in the spirit in which it was intended. For this we must ensure that adequate funding will be provided.

I must warn the House that some Members are entering into the realm of repetition and I ask Senator McCarthy to bear this in mind as he makes his contribution.

I will. The whole spirit of the Bill will be lost if amendment No. 34 is not accepted.

Hear, hear.

The Minister of State has described the Minister for Finance as Accounting Officer but one must observe that there was little accounting done with regard to Punchestown, for example. I do not wish to divert from the matter at hand but where was the accountability in that instance? There was a clear neglect of proper accounting procedures.

I must advise Senator McCarthy that he is engaging in speculative comment that has no relevance to the amendment under discussion.

The Senator's comments are extraneous.

He has given a good example.

I accept the Leas-Chathaoirleach's ruling.

The decision on the allocation of funds will be taken by the Department of Finance and that decision will be based on economic considerations. It will not focus on welfare and education, which is clearly the concern of this legislation but rather on the resources available to the Department of Education and Science and how much of those resources it can afford to allocate to special educational needs services. This is the situation that will prevail if this amendment is not accepted and Senator O'Toole's words will come back to haunt service providers in the future. I appeal to the Minister of State to accept this amendment and consider that a future Minister for Finance may decide to pull the plug on this funding. This amendment makes provision for such an eventuality, which goes against the spirit of the legislation.

One must recognise the constitutional realities that pertain and the manner in which Government business is conducted irrespective of which party is in power. The Minister for Finance cannot be required through legislation to provide funding in the manner envisaged in these amendments. Resources are allocated at the discretion of the Minister for Finance following consultation with the various Departments. The Minister for Education and Science must have regard to his or her constitutional duties and must act reasonably in setting resources for the preparation and implementation of educational plans. An unreasonable decision by any Minister in setting the bar too low will be open to challenge as an improper exercise of his or her function. I cannot accept these amendments because it is incorrect to be too prescriptive in this regard.

There are thousands of children for whom funding for special educational needs is required. Over the years many backbenchers, Ministers of State and some Ministers in the area of education and in other areas have been crying out for the required funding. As Senators McCarthy and O'Toole said, the Minister for Finance has held the reins tightly, as is his prerogative. The best legislation in the world will not meet the needs of these children unless the resources are provided to provide the necessary educational services.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 27; Níl, 16.

  • Bohan, Eddie.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Kenneally, Brendan.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • O’Brien, Francis.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.


  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Ulick.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • McCarthy, Michael.
  • McDowell, Derek.
  • McHugh, Joe.
  • O’Toole, Joe.
  • Phelan, John.
  • Ross, Shane.
  • Ryan, Brendan.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators U. Burke and McCarthy.
Question declared carried.
Amendment declared lost.

In accordance with an order of the House, I must put the following question: "That sections 13 to 53, inclusive, Schedules 1 and 2 and the Title are hereby agreed to in Committee and the Bill is reported without amendment."

Question put and declared carried.

When is it proposed to take Report Stage?

Report Stage ordered for Thursday, 8 July 2004.