Vol. 213 No. 4
Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on an amendment. Also, on Report Stage each amendment must be seconded.
Amendments Nos. 1 and 2 are related and may be discussed together, with the agreement of the House. Is that agreed? Agreed.
I move amendment No. 1:
In page 4, to delete line 19.
I do not propose to continue the debate we had on Committee Stage on this issue. I note Senator Mullen has arrived.
I second the amendment. I apologise to Senators and the Minister for my late arrival. I was attending to other business around the Houses. The amendment returns us to the issues we discussed on Committee Stage. I ask the Minister to reconsider his position on this matter. The amendment effectively proposes to reverse the deletion of section 2(1)(f) and would have the effect of reversing the exclusion of speech therapy services from the definition of “support services”. Likewise, amendment No. 2 proposes to reverse the substitution of paragraph (n) with a new paragraph (n) so as to maintain a role for the Minister in consulting the appropriate health authorities on the provision of support services.
I listened to the Minister's contribution on these matters on Committee Stage. When I revisited the text I noted that the language elsewhere in the Bill refers to what the Minister may do, for example, he "may" request assistance. Amendment No. 3 proposes to reverse the repeal of section 7(5) and (6), as inserted by section 40 of the Education for Persons with Special Educational Needs Act, which provides that the Minister may request the assistance of the relevant health authority. The Department and Minister have a function in this area.
I support the amendments tabled by Senators Mullen and Quinn for the reasons I outlined on Committee Stage. While I understand the motivation behind the amendments introduced on Committee Stage in respect of the Department, I continue to share the concern of management bodies about the lack of a positive obligation on the Minister for Health to ensure the health service steps up to the plate by providing health therapies in schools, the absence of which makes it impossible for some of the most vulnerable children to avail of a full and meaningful education.
We have given consideration to the reinstatement of these amendments to section 4 of the Bill but they are not being accepted. The effect of the proposed amendment would be to maintain the position that support services details under section 7 of the Education Act 1998 remain defined in section 2 of the Act to include speech therapy services despite the actual position that such services are provided by the HSE and that funding is made to that body for the provision of these services.
The continued existence of sections 2 and 7 of the Education Act 1998 causes confusion for parents, schools and professionals as to who is the service provider. There are no services currently being provided by my Department which will no longer be provided as a result of the revised legislation. Rather, the amendment is necessary to clarify the actual position in regard to the delivery of speech therapy services to students of school going age.
The additional funding of €7.2 million for disability was provided to the HSE in budget 2009 for the provision of 90 additional therapy posts targeted to support children with disabilities of school going age and including speech and language therapists. The legislative framework will be regularised in accordance with the de facto position, which is, that the provision of speech therapy services is a matter for the HSE. The proposed provisions will not impact on the availability through the HSE of speech therapy services for children with special educational needs.
The Department will continue to support the co-ordinated delivery of services to families of children with special educational needs and will continue to work with service providing partners in the health and disability sectors through the inter-departmental cross-sectoral team.
Owing to the omission to vote of Senator O'Keeffe, who was present in the Chamber, with the agreement of the Tellers, the result has been amended.
On a point of order, is it in order for the Tellers to agree, if they did so, that Senator Susan O'Keeffe's vote be counted? As a Teller, she did not vote and the vote should not stand.
The Tellers agreed to it; the result was announced to the House and the adjusted result stands.
I move amendment No. 2:
In page 4, to delete lines 20 to 27.
I second the amendment.
I move amendment No. 3:
In page 4, to delete lines 28 to 30.
It is proposed to repeal sections 7(5) and 7(6) on the 1998 Act, which were inserted by section 40 of the Education for People with Special Educational Needs Act, which provides that the Minister may request the assistance of the relevant health board in the provision of support services. For the reasons outlined in my earlier comments, it is not appropriate to repeal those subsections and my amendment will negative the proposed repeal.
I second the amendment.
This amendment follows on the amendments made in section 4 to amend the definition of support services in section 2 of the Education Act 1998. As section 2 of the Act has been amended to clarify the position that the delivery of health and personal services, including speech therapy services, to students of school going age is not a support service to be provided by the Minister for Education and Skills, sections 7(5) and 7(6) of the Education Act, which provided for the Minister for Education and Skills to request the services of health boards to make provision for such services, no longer apply. The support services are now delivered by the HSE as opposed to by individual health boards, subsequent to the establishment of the HSE by the Health Act 2004. The HSE has responsibility for the delivery, planning and co-ordination of service delivery. My Department will continue to support the co-ordinated delivery of services to families of children with special educational needs and will continue to work with service providing partners in health and disability sectors through the inter-departmental cross-sectoral teams.
Amendments Nos. 4, 5, 9, 13 and 14 are related and will be discussed together.
These Government amendments are drafting amendments. I introduced a number of amendments on Committee Stage to clarify that the powers on employment issues would apply to existing and newly appointed teachers. A discussion with Senators raised the issue of whether the grammar used was correct. In particular, the phrase that these matters were to apply to people "who are, or are to be, remunerated", was questioned and it was suggested that it ought to be more correctly read as "who are, or who are to be, remunerated". My officials raised this matter with the drafting office and amendments Nos. 4, 5 and 13 are designed to make this change. I thank Senators for their assistance.
The purpose of amendment No. 9 is to clarify that the power of the Minister under the new section 24(8) of the Education Act, to prescribe the conditions for the employment of an unregistered person in place of a registered teacher, applies to recognised schools. For the sake of consistency with other provisions of the Education Act, it is important that this is made clear. Amendment No. 14 makes a minor change to the new section 24(13) of the Education Act by ensuring the language is consistent so that it refers to a principal teacher and another member of staff in the singular.
Amendments Nos. 6 and 12 are related and will be discussed together.
I move amendment No. 6:
In page 6, line 17, to delete "Minister" and substitute the following:
"Minister after consultation with and with the agreement of bodies representative of patrons, recognised school management organisations and any recognised trade union or staff association representing teachers, or other staff as appropriate and".
This amendment proposes to adjust section 24 by the substitution of text at 24(3). This part of the section deals with the terms and conditions of employment of teachers and staff. The issue we discussed at some length on the previous occasion was whether it should be for the Minister to determine terms and conditions of employment for teachers and other staff appointed by the board and whether it should only be with the concurrence of Minister for Public Expenditure and Reform or whether we should propose that the Minister, in determining terms and conditions of employment, does so in a manner that involves consultation and agreement with bodies representative of patrons, recognised school management organisations and any recognised trade union or staff association representing teachers or other staff as appropriate. Amendment No. 12 deals with the same issues except that the boards of recognised schools may appoint, suspend or dismiss principals, teachers or other staff in accordance with procedures to be determined from time to time with the Minister, following mere consultation, with bodies representative of patrons, recognised school management organisations and with recognised trade unions and staff associations. I am not sure whether this is an error of mine or of the Bills Office but I should take responsibility for it. I will not press amendment No. 12 because, as I propose it, it is badly worded. If I were to rewrite it I would have sought to replace the word "consultation" with the word "agreement". I cannot press amendment No. 12 because there is a mistake in my wording. However, I do not believe I am mistaken in expressing to the Minister the view that the question of appointment, suspension and dismissal of staff should be dealt with in accordance with procedures determined by the Minister, in agreement with representative bodies of patrons, school management organisations, etc.
There is a core point, which I am not sure if the Minister gets or disagrees with. By imposing a particular teacher on a school board, which in effect is what is involved if these procedures are to be determined by the Minister after mere consultation with others, is it not the case that the Minister is in fact acting as the employer? In effect, he is taking away the right of an employer or the board of management to appoint a teacher of its choice in order to deliver an appropriate education to students. This arises with the redeployment issue as well.
It is worth thinking of some case law, such as the case of McEneaney v. The Minister for Education [1941] Irish Reports 430. The case limited the power of a Minister to vary contracts of employment or teachers without their agreement. There is a quote from it worthy of consideration. The court held that “The case was of importance to teachers in as much in that they must recognise a power in the department to make a general reduction of pay as the necessities of the time it may require” but in the judges’ view they are not protected against changes which depend upon new qualifications for the individual teacher. The key line is that the Department is not, in the case of teachers appointed under one set of rules, entitled to modify these rules to the detriment of individual teachers who may not come up to special standards devised from time to time.
The case was upheld in O'Keefe v. Hickey, 2009. When one takes the two cases together, it becomes clear that if the Bill is enacted and amended it is likely that the Department of Education and Skills would find itself held to be vicariously liable, possibly with a board of management, in a case of wrongdoing by a teacher. This applies to my proposed amendment on redeployment as well. It might extend to a teacher recruited and employed by a school but under a contract, the terms of which were fully determined by the Minister without agreement of the employee’s representative union. In such a case the Department would become, to all intents and purposes, the employer and hence might be liable for the acts of the employee.
The McEneaney case is interesting from the point of view of section 30 of the Teaching Council Act as it refers to the ability of the Minister to change, ex post facto, the qualifications which teachers are required to have in order to be registered. Has the Minister taken advice on the impact of those cases? I suggest he needs to take careful heed of them before issuing regulations proposed under the draft new section 24 of the principal Act to replace the old one. These points relate not just to the issue of redeployment, but to the general issue of appointment, suspension and dismissal because the Minister is giving himself more power to determine the procedures under which all of these things may happen.
There is quite a degree of confusion in some quarters about the roles of patron and trusteeship in schools. The role of patrons is defined by section 8 of the legislation. Does the Minister have any view on the issue of clarity on the definition of rules of patents and trusteeship? The issue was raised with me by a number of people involved in education and the management of schools. There is a degree of confusion around those terms on occasion.
Without in any way wishing to circumvent a debate, time is rather limited.
I second the amendment. It seems that in general the development of management, right or wrong, in every sphere including education is to pass responsibility closer to where the action is. In this case, the Minister seems to be saying that consultation will take place but he is not willing to deal with the agreement of the board of management. If we are to have successful boards of management in the future we do not want to hand over all that power, particularly in faith schools, to the Department of Education and Skills
I recall this discussion last week. While I argued in favour of the amendment and agreed with its thrust, namely, that agreement is more ideal, I am aware that the Minister gave assurances on entering into IR discussions on this issue leading to what I would consider meaningful consultation and that an inappropriate teacher, for reasons of ethos or lack of confidence in an area, would not be forced on a school. In the event of a court case, would the debate we have had here form part of meaningful consultation, rather than hearing what people have to say but not agreeing with them and imposing teachers on them? That is the fear. This matter will only be tested in a court.
I will refer to my speaking note as I can only speak once. I will then address the speculative points that have been raised.
The effect of the Senator's amendments would be to introduce a general requirement that the Minister must agree with the education partners any change in the terms and conditions of employment of teachers and other school staff, and to continue the requirement to reach agreement with all parties on appointments, suspension and dismissal procedures. Amendment No. 7, which we will come to presently, deals with redeployment in so far as it might be construed to be appointment related. It is connected to the matters at hand in amendments Nos. 6 and 12.
For clarity, I will confine myself to addressing the substance of amendments Nos. 6 and 12. Senators will recall that we discussed these matters at length during Committee Stage last week. Amendment No. 6 introduces a requirement to consult and agree the terms and conditions of employment generally. This would set aside the existing provision whereby it is the Minister and the Minister for Public Expenditure and Reform who can determine the terms and conditions of confinement. I am simply not going to diminish the existing powers and legislation given to the Ministers and, by extension, the Government regarding terms and conditions of teachers and other staff remunerated from public funds.
On amendment No. 12, the existing legal position which requires agreement all around concerns three particular aspects of the terms and conditions of teachers and other staff. They have been referred to already and are appointment, suspension and dismissal. Furthermore, it is confined to the procedures that apply or are carried out in regard to those matters. In a situation where the existing legislation permits Ministers to determine the terms and conditions anyway, the new provision will bring legal clarity on the carrying out of recruitment, suspension or dismissal. The procedures that apply will in future not be subject to a potential veto by one party withholding agreement.
I am not accepting the proposed amendment because it would maintain such a veto. I understand the concerns about substituting consultation for agreement, but we can allay concerns outside the statutory provisions through the existing well-developed partnership structures. I said on Committee Stage that agreement should not equate to unanimity or veto, but equally that consultation must not be a steam roller. I used the phrase, if I recall accurately, that it should not be a diktat.
I have asked my officials, following enactment of the Bill, to engage in discussion with the education partners on having a general consensus on the extent and clarity of such consultation and how agreements were reached. We will use the well established mechanisms under the teachers' conciliation council, which comprises school management bodies, teacher unions and officials from my Department and the Department of Public Expenditure and Reform. While management bodies may have a mandate from patrons, officials will also engage directly with bodies representative of patrons that are not members of the council.
I am conscious that I have been invited to offer a comment and my remarks, therefore, are without prejudice to anything we might do subsequently. Senator Mullen, supported by Senator Quinn, is concerned that owing to the necessity to take somebody from the panel who may not be deemed appropriate, for whatever reason, to the employing body or school, the nature of the relationship is being changed. However, the nature of the relationship has been changed fundamentally under the employment control framework, which is part and parcel of the loss of our economic sovereignty. The consequence of not accepting somebody from the deployment panel, although the school in question may have great reservations, is that the teacher would be blocking the employment of a new person unless he or she got a job elsewhere. It is conceivable, given our circumstances and bearing in mind my comments on having meaningful consultation with the education partners, that a definition of "consultation" would be agreed. What is at issue is our being in a position to alter that without having to return to this Chamber or change a statutory instrument. As a former Minister responsible for labour, I realise some things are best left with a bit of fudge on different sides such that there is room for manoeuvre. One cannot, therefore, transpose by way of statutory instrument, let alone primary legislation, as we are doing at present. The definition, which can be written down and clearly understood by the education partners, can be changed over time.
As Minister I certainly do not want to be in a position where the Department is imposing a teacher from a panel who has been redeployed because of changes elsewhere and who is deemed to be utterly unacceptable to the school to which he is being deployed. I find it hard to believe that the teacher would be deemed to be unable to do the job properly, to use Senator Healy Eames's phrase. This Bill will enable section 30 of the Teaching Council legislation to be activated and will enable the council, using its professional powers, to decide whether a teacher is up to standard. Through the council, a teacher or all teachers may be required to demonstrate proof of continuing professional development, CPD, in order to have his or their registration properly validated and renewed. It will be a matter for the council, whose powers have been strengthened. The power to ensure that no person can be on a panel for redeployment whom a prospective employer will say is not really up to the job is being transferred back to the teaching profession. If the employer says this, an alarm bell will ring elsewhere in the system and the system should respond appropriately.
Senator Mullen's other cause of concern, that a prospective teacher could present a problem in regard to upholding a school's ethos by behaving in a manner disrespectful towards that ethos, I speak hypothetically, would be a question for the Teaching Council. I am offering an opinion rather than interpreting law in stating I do not believe a teacher would be behaving responsibly if he or she were to be disrespectful towards the ethos. There is sufficient anecdotal evidence, certainly from my consultation with teachers and their management bodies and representatives, to suggest there are many teachers in the system who are carrying out duties required by their schools under their ethos, that do not necessarily conform with their personal beliefs. Those teachers are not, to my knowledge, disrespecting the ethos or causing offence to the extent that they would be inappropriately employed.
With the continuation of social diversification, rather than secularisation, as some might say, we will need to determine how best to address the issue. With regard to the amendment, I assure the House that we will define what "consultation" means. It will not involve some kind of steamroller or diktat. To repeat what I said on Committee Stage, although the legal or union representatives of a would-be redeployed teacher may want him or her to be agreeable to a change, the teacher can exercise a veto over which they do not necessarily have control. Senator Mullen, whose many talents and skills include his being a professional lawyer, will know a client can ultimately determine whether to accept advice. I am seeking some room for manoeuvre.
Senator Quinn articulated a view that was supported broadly on Committee Stage. It is not the intention of the Department of Education and Skills to micro-manage individual schools. We are, however, brought into the system on occasion where there are appeals to section 29 of the 1998 Act, which concerns admissions policy. I issued a document last June inviting schools to consider their admissions policies in order for us to minimise the number of disputes that proceed immediately to a legal appeal.
There is, of necessity, a close coming together but the coming together generated by people going to law should not in any way be interpreted, either on foot of an attitude in the Department internally or an attitude of the Minister, that we want in any way to micro-manage or interfere with the relationship between the patron, board of management and employees in respect of how they run their affairs. This autonomy is one of the essential qualities of our education system. I want to respect that. Cases brought to us, because of section 29, in the main, and also because of demographic change, which includes people moving from one town to another, necessitated our examination of existing roll policy. Some people may have interpreted that as a desire, either by me personally or the Department institutionally, to intrude in an area that was previously ignored. It is absolutely not the case. Although I am prevented from straying from the amendment, I had no choice but to respond on this matter considering that the Chair allowed it to be raised.
On the basis of the assurances given by the Minister to the House today and on Committee Stage, we are prepared to support the aspect of the Bill under discussion. It is critical that there be real partnership in education. I welcome the fact that, in addition to the assurances the Minister gave us last week, he stated specifically today that the teachers' conciliation council will be used, which is really important, and that there will be real consultation with the patron bodies. There are genuine concerns, and issues will arise, and we all need an effective and reasonable way to deal with them. I welcome the Minister's assurances in that regard.
On a point of order, I wish to clarify whether this debate will be guillotined at 4.45 p.m. Will we get an opportunity to vote on amendments other than Government amendments that the Minister indicated previously he is willing to accept? What is the procedure to allow for those amendments to be taken on board? The Minister indicated he would accept the amendment on retired teachers.
I can accept the amendment on Garda vetting, which was a drafting amendment. Unfortunately, I am advised I am not in a position to accept the Senator's second amendment, on retired teachers. I am told it is covered elsewhere by the Chief Parliamentary Counsel.
Which amendment is the Garda vetting amendment?
Amendment No. 10.
Amendment No. 7 is in the name of Senators Mullen and Quinn. Amendments Nos. 7 and 8 are alternative to one another and will be discussed together.
I move amendment No. 7:
In page 6, to delete lines 25 to 52.
I hope this debate will not be guillotined. I do not believe we need that much extra time and we have already discussed the substance of this matter. I raised the issue and asked the Minister to change his mind on it. I recognise there is a need to try to facilitate redeployment of teachers and that what this legislation seeks to do is, in a sense, to embed the terms of the Croke Park agreement into both situation and legislation. I do not believe there is any substantial mischief that requires giving legislative effect to the Minister's power to determine the procedures under which teachers may be redeployed. Although difficulties arise from time to time, the approach of consultation and agreement is the best way to proceed. Notwithstanding that, I note the Minister's assurances and accept completely his good faith in the matter.
Looking at it further, however, why is it that whereas consultation is at least provided for in one area, given the Minister's determination on redeployment procedures and the procedures around the appointment, suspension and dismissal of teachers, it was not considered appropriate to provide for consultation on the terms and conditions of employment of teachers and other staff within the legislation? Will the Minister explain this disparity between the two issues? Arguably, I should have raised this point at an earlier stage but it occurs to me now as I look at the legislation.
Is Senator Quinn formally seconding the amendment?
I second it.
We are about three minutes away from the agreed end time of this debate.
I wish to amend the Order of Business. Rather than concluding I propose we resume discussion on Report Stage at 6.45 p.m. I thank the Minister for facilitating the House in that regard.
Is it agreed to resume at 6.45 p.m.? Agreed.
Briefly, on the issue of redeployment, I strongly support the Minister's position because in extreme circumstances we cannot have a veto, particularly given the present control framework and the new situation. It would be wrong for us to hold off employment because there was no agreement, in particular, in light of the Minister's repeated and substantial assurances that through the industrial relations mechanism and the teachers' conciliation council, there will be a mechanism to ensure full and adequate consultation.
On the last occasion, a speaker stated a teacher might not be able to work in an all-Irish school. In this day and age we have to be more flexible in those terms and in moving between different types of structures of management.
On a point of order and for clarity, I believe both Senator Power and Senator Gilroy used the term "teachers' conciliation council". I referred to the Teaching Council which, though similar, is a different body.
The Minister stated "teachers' conciliation council" in his address.
Then I misled the House.
The Teaching Council it is. I believe there is adequate mechanism in place to come to an agreement after consultation and if that does not happen we must act because we do not want a situation where on 1 September each year 20 classes might be left without a qualified teacher when teachers are waiting to be employed.
As it is now 5.45 p.m., with the agreement of the House, the debate is adjourned and will be resumed at 6.45 p.m.
