Education (Admission to Schools) Bill 2016: Committee Stage (Resumed)

SECTION 9

Next is amendment No. 36, which has already been discussed with amendment No. 32.

I move amendment No. 36:

In page 24, to delete lines 26 to 34 and substitute the following:

“(h) provide that the admission policy of a second level school that provides education through the medium of Irish may provide for the inclusion of students that have attended a primary school that provides education through the medium of Irish,”.

I will not discuss this amendment, but the Bill needs to be amended. We have worked with the Bills Office on this. We will withdraw the amendment and reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

Next is Government amendment No. 37.

I am advised that the Parliamentary Draftsman would like to reconsider the wording and submit that on Report Stage.

Amendment No. 37 not moved.

If the question on Government amendment No. 38 is agreed, amendment No. 39 cannot be moved.

Government amendment No. 38:
In page 26, between lines 28 and 29, to insert the following:
“(9) (a) Notwithstanding subsection (7)(e)(iii), and subject to this subsection, an Irish language school may prioritise the admission of a student where the school is satisfied that the student has attained a level of fluency in the Irish language and that the said fluency would be likely to regress were the student not admitted to an Irish language school.
(b) An applicant may, when making an application for admission to an Irish language school, include a statement confirming that the student in respect of whom the application concerned relates has attained a level of fluency in the Irish language and that the said fluency would be likely to regress were the student not admitted to an Irish language school.
(c) When making an application in accordance with paragraph (b), the applicant shall provide such evidence as he or she considers appropriate in relation to the level of fluency in the Irish language of the student in respect of whom the application relates, which may include confirmation that the student concerned is available to attend an interview or meeting to demonstrate his or her level of fluency in the Irish language.
(d) In satisfying itself that a student has attained a level of fluency in the Irish language and that the said fluency would be likely to regress were the student not admitted to an Irish language school, a school shall take into account only the evidence that the applicant has provided in accordance with paragraph (c).
(e) An Irish language school may not rank in order of preference, for the purposes of admission to the school concerned, a student who has satisfied the school in accordance with paragraph (a) relative to other students who have satisfied the school in accordance with that paragraph, by virtue of the students’ relative fluency in the Irish language.
(f) Nothing in paragraph (e) shall preclude an Irish language school from applying the selection criteria set out in the school’s admission policy to students who have satisfied the school in accordance with paragraph (a), where the number of such students is greater than the number of places available.
(g) Nothing in this subsection shall be construed as permitting an Irish language school to require a student attend an interview or other meeting to assess his or her level of fluency in the Irish language.
(h) In this subsection—
‘Irish language school’ means a school that provides education through the medium of Irish;
‘level of fluency in the Irish language’, in relation to a student, means a level of fluency indicative of what would be expected of a student who uses the Irish language as a normal means of communication in a non-educational environment, taking into account the age and any special educational needs of the student concerned.”.
Amendment agreed to.
Amendment No. 39 not moved.

Amendment No. 40 has already been discussed with amendment No. 32. How stands the amendment?

I move amendment No. 40:

In page 26, between lines 28 and 29, to insert the following:

“(9) (a) Notwithstanding subsection (7)(e)(iii), and subject to this subsection, an Irish medium school may prioritise the admission of a student where the school is satisfied that the student speaks Irish as a home language.

(b) An applicant may, when making an application for admission to an Irish medium school, include a statement that the student in respect of whom the application concerned relates speaks Irish as a home language.

(c) When making an application to an Irish medium school in accordance with paragraph (b), the applicant shall furnish such evidence as he or she considers appropriate in support of the statement that the student speaks Irish as a home language, which may include confirmation that the student and a parent or guardian, is available to attend a meeting in order to further support the statement that the student speaks Irish as a home language.

(d) If a school is not satisfied that the evidence furnished in accordance with paragraph (c) is conclusive the school may turn down the application for priority admission or seek further evidence from the applicant.

(e) If the school is not satisfied that the further evidence furnished in accordance with paragraph (d) is conclusive the school may turn down the application for priority admission.

(f) A post-primary Irish medium school may satisfy itself that a student is a speaker of Irish as a home language on the basis of a signed statement from the principal or vice-principal of an Irish medium primary school confirming that the applicant had previously been deemed, in accordance with paragraph (a), to be a speaker of Irish as a home language.

(g) In satisfying itself that a student speaks Irish as a home language, a school shall take into account only the evidence that the applicant has provided in accordance with paragraphs (b), (c) or (d) and the evidence from any meeting as provided for at paragraph (c).

(h) An Irish medium school may not rank in order of preference, for the purposes of admission to the school concerned, a student who has satisfied the school in accordance with paragraph (a) relative to other students who have satisfied the school in accordance with said paragraph, by virtue of the students’ relative fluency in the Irish language.

(i) Nothing in paragraph (h) shall preclude an Irish medium school from applying the selection criteria set out in the school’s admission policy to students who have satisfied the school in accordance with paragraph (a), where the number of such students is greater than the number of places available.

(j) Nothing in this subsection shall be construed as permitting an Irish medium school to require a student attend an interview or other meeting to assess his or her level of fluency in the Irish language.

(k) In this subsection—

‘a student who speaks Irish as a home language’, means a student whose normal language of communication with one or more parents or guardians is Irish and who displays the minimum level of fluency in Irish that would be expected where at least one or more parents or guardians have used Irish as the normal language of communication with the student from birth, taking into account any special educational needs of the student concerned;

‘Irish medium school’ means a school that provides education predominantly through the medium of Irish.”.

I will be withdrawing this amendment, but I would like to ask the Minister a few questions first, if that is in order.

It has already been discussed, but I will exercise my discretion and allow the Senator to contribute. Before he does, though, I would like to welcome Deputy Scanlon and his visitors to the Public Gallery. The Deputy, a former Senator, is always welcome. We are delighted to see him and his visitors, and I hope they enjoy their evening.

I understand that there have been discussions on this matter with our spokespersons in the Lower House. It relates to Gaelscoileanna, including secondary schools, and the Minister's proposed admissions policy. I have a couple of questions to which he might reply. What standard of Irish has he in mind when he refers to children speaking Irish in "a non-educational environment"? Who will set that standard? Appeals can be made to the Department, which means that the Department will ultimately set the standard. How can we ensure that the Department will adhere strictly to the criterion of the child speaking Irish in "a non-educational environment"? Does the Minister accept that, if this criterion is not strictly enforced, it could lead to a deluge of applications under the heading? Instead of a child genuinely being able to speak Irish, a cúpla focail taught to him or her would suffice, which could deprive others from Irish-speaking homes a place in Gaelscoileanna. Will the Minister confirm that the attendance at a naíscoil will not in itself qualify a child under the heading of using Irish outside the education system? Will he also confirm whether he is willing to consult with the organisations that have expressed concern about this detail of his proposal to give priority to children from Irish-speaking households when drawing up the guidelines?

My point is less for the Minister and more for Fianna Fáil. The amendment refers to "Irish as a home language". I support the priority being given to children with Irish as their first language and preferred home language. However, the definition in paragraph (k) of "a student who speaks Irish as a home language" dilutes the idea of it being a home language. Senator Gallagher can correct me if I am wrong. The definition reads: " ... a student whose normal language of communication with one or more parents or guardians is Irish and who displays the minimum level of fluency". Surely if a child's first home language is Irish, if would not just be of the minimum level. Just as a child whose first language is English, his or her English would not be of the minimum level. If anything, that child should have the same competency as any other three, four or five year old who is starting school. This phrasing leaves the system open to more abuse, as it were, by families with some Irish at home or whose members went to Irish school but for whom Irish is not necessarily their home language. It may just be a question of wording.

I appreciate that, like many of us, the Minister and Fianna Fáil are trying to grapple with this issue. We want to facilitate the ability of a child who has been reared through Irish to access education through his or her native tongue. That is reasonable. In fairness, Senator Gallagher has made a good fist of trying to devise a solution.

Will the Minister confirm that he will continue to engage with those representative groups with concerns? They understand that he is doing his best. Will he communicate to me that there will be proper consultation with them in bringing to the fore what he is trying to achieve? Given that Irish is the first language of the State, a child who is reared through that language not being disadvantaged in the enrolment system when trying to access a Gaelscoil is a constitutional right.

It would appear to me to be reasonable to have a certain number of places set aside for children from an Irish speaking background, but how to attest to that will be the difficulty. The Minister will have the support of Senators for his endeavours and we appreciate the sentiment behind the amendment.

I thank the Senators for their contributions. This issue was raised on Committee Stage in the Dáil and we sought to draft an amendment that would be constitutionally sound and we did produce such an amendment. A range of amendments were tabled by other Senators and we sought legal advice on how this could be done robustly. It was very clear that in order to be robust, the right to priority of access has to be based on the child and seen from the child's perspective. It was not acceptable to go back to the parents.

When we were discussing this, some Senators were critical of the word "pedigree" being used, but this was in the context of the parents speaking to the child in Irish. That referred to the child and the parent and would be discriminatory as between children who were not living with their parents or other circumstances. The legal advice was very clear that the priority of access had to be enshrined in the child.

It is very clear elsewhere in the Bill that priority is not achieved by attending a preschool, whether a naíonra or an English speaking preschool. Attending a preschool does not give a child entitlement to priority access to any school, nor a Gaelscoil either. The legal advice is that the child must have a very high level of fluency. The definition is a level of fluency in the Irish language in relation to a student means a level of fluency indicative of what would be expected of a student who uses the Irish language as a normal means of communication in a non-educational environment, taking into account the age and any special education needs of the child. It very clearly does not deal with a child attending a naíonra to achieve a level of competency. It uses the word "fluency" which is a high bar.

The legal advice is that this would be a high bar and one or two years attending a naíonra would not meet this requirement as having achieved an age appropriate level of fluency. Fluency is as it states, namely, that the child uses the language normally in his or her communications in non-educational circumstances. The child has to exhibit high competence in using the language.

In terms of testing that level of language competence, the parent must provide the evidence to the school of this level of competence. It would mean the parent volunteering the material that will back this up. It is for the parent to present to the school the evidence of fluency. The fundamental test is that level of fluency would regress if the child were not admitted to the Gaelscoil. That is the basis on which everyone agreed we should apply this.

Many of the other amendments tabled by Deputies were seeking to root this in something that is happening to the parents. That is not a constitutionally acceptable basis to do it. What is happening here is that a child must exhibit in a normal means of communication in a non-educational environment that level of fluency appropriate for his or her age, in other words the child is used to speaking in Irish and the parent is in a position to provide evidence to demonstrate that. That can be described and we will certainly describe in more detail what that means.

The difficulty is that one cannot set out some test of the child's grammatical level of language. We are not willing to apply interview procedures or entry tests because we believe they are wrong as the basis of access to our schools. That is the criteria throughout the Bill. We are trying to steer a narrow course between breaching some of the fundamental principles of the legislation not to take into account parents and their competence and not to be applying interviews, that children are forced into the school to pass tests. We have to leave it as a loser formulation but it is a high bar and it is intended to be a high bar.

We will of course provide guidance to schools and ultimately in section 29 appeals, the appeal committee will have to assess this. I admit that it is not absolutely perfect in the way that some people would like to see it defined because they would like to talk about Irish being spoken with one or other of the parents, but the constitutional advice is that this would be discriminatory and wrong. We are very clear this is the best way of doing it. It is constitutionally robust and it allows a distinction to be drawn between a child who uses Irish as a normal language in non-educational activities and the child who has attended a naíonra for one or two years. That is the intention and the purpose of it. Attendance at a naíonra will not be the basis on which one can get priority of access to a Gaelscoil.

The extent to which we can elaborate beyond the definition is probably more a question of judgment but we can certainly offer guidance as to how that judgment should be exercised.

I am happy with the Minister's response to Senator Ó Ríordáin's contribution. He has given a commitment that he will try to engage with all stakeholders involved to try to reach a compromise. I appreciate that it is difficult, but with the intent the Minister has shown in the Chamber this evening, I would be satisfied that would be the outcome.

I am happy to engage with Members, but the definition is the definition and I cannot change it but it will have to be interpreted. We can offer guidance because the intention is that it is a high bar, but I cannot introduce changes. This will be the text in the legislation. This will be the legal definition. It is what is legally robust and acceptable.

I do not want to give a false impression that I can go out and that if people want to revert to some other way of looking at this that I can accommodate it. The intention and the purpose and the way we have drawn this is to set a very high bar of fluency. It is associated with a child speaking Irish in his or her normal life. It is definitively not sufficient to have attended a naíonra to qualify.

I wish to withdraw my amendment No. 40.

Amendment, by leave, withdrawn.
Amendment No. 41 not moved.

Government amendment No. 42 has already been discussed with amendment No. 32.

Government amendment No. 42:
In page 26, line 29, to delete “(9) Subsection (7)(e)(vi)” and substitute “(10) Subsection (7)(e)(vi)”.
Amendment agreed to.

I move amendment No. 43:

In page 26, lines 30 to 37, to delete “virtue of—” on line 30 down to and including line 37 and substitute “virtue of a sibling of the student concerned attending the school.”.

I have spoken on this issue twice already so the Minister knows my reservations on this part of the Bill. Essentially the section gives a school the opportunity to have 25% of the school places set aside for children. I was going to oppose this on the basis of children of past pupils, but I see that bizarrely the Minister has provided for the grandchildren of past pupils as well. I think that is adding insult to injury. I repeat this is a key lobbying point of an elite sector in Irish education who want this provision in order to keep the school ties alive. I do not think that has any place in this Bill. Every child should try to access their local school on the same basis and what is being wedged in is a new barrier that children from outside the area or whose parents have not attended primary or secondary school, and in particular secondary school, have to overcome. I do not think this is fair. It is elitist. It comes from a particular sector of Irish society and I really wish this provision was not included in the Bill.

I really wish we were not having this debate on this issue. I will be pressing this amendment, but not now.

On the advice of the Acting Chairman, I will resubmit it on Report Stage if needs be. However, I have yet to hear the Minister's response to the amendment.

Once an amendment arises out of Committee proceedings, it can be withdrawn and resubmitted on Report Stage.

This is an issue on which there have been many differences of opinion. In a previous Dáil, the then Minister for Education and Skills, Ruairí Quinn, introduced the 25% cap and I think another former Minister for Education and Skills, Deputy Jan O'Sullivan, talked of 10%. Senator Ó Ríordáin, who was a Deputy at the time, wanted 0%. To put it in context, this provision is introducing a cap for the first time on the use of "past pupil" as a basis for access. Until now, it could be 100%. We are introducing a cap for the first time. I sought consensus and the 25% cap seemed to draw a level of consensus. It passed through the other House. We are trying to make sure the provisions are fair while recognising that continuity around a school's community is something that many people value. Having a connection of past pupils to the school is of value to the school, and that is true of all schools. People can take strong views one way or the other. I have been trying to strike a balance throughout this legislation and trying to accommodate different views. This is clearly introducing a cap where no such cap applied in the past.

I really hope I get support across the House for my amendment when I resubmit it. I appreciate that previously a school could have had 100% of its students under this criteria. We are trying to change things and introduce legislation that will make things fairer. It is at the behest of a particular lobby group that this 25% cap is being applied. The Minister is right that Ruairí Quinn had a similar viewpoint to himself. Deputy Jan O'Sullivan had a different viewpoint. I hold fast to the view that children should try to access their local school on the same basis. The idea that a child's father or grandfather or mother or grandmother - let us be honest, though, that it is the boys' school tie network we are really talking about - has no place when we are trying to change things.

There is genuinely a lot of good work in this Bill that we want to support. I do not really want to be nitpicking over this issue but it is wrong and elitist and should not be there. I think the Minister probably agrees with me in his own gut. We have a very vocal, powerful and well resourced lobby group that is well able to kick up a terrible amount of stink with local Deputies. It seems it is just not worth the political system's while taking them on. I would ask those in the Chamber who like to call themselves republicans whether they truly believe that a child whose father or grandfather went to particular school has more of a right to attend that school than somebody whose father or grandfather did not, even if the two children live right beside each other.

I am not sure if the Senator is referring to myself as a republican; the Fianna Fáil Senator to my left is claiming the title, too. We will not get into that today.

Sinn Féin will support Senator Ó Ríordáin's amendment and I hope he reintroduces it. It is about opportunity and equality. It is ridiculous to be going back to grandparents to give a choice for enrolment in schools. The times have moved on. It needs to be children of the area who are deemed suitable. The Minister proposes a 25% cap but we have an opportunity now to put in a complete cap. I wonder when that opportunity will arise again if we do not actively seek to impose it now.

Amendment, by leave, withdrawn.
Government amendment No. 44:
In page 26, line 38, to delete “(10)(a) Notwithstanding” and substitute “(11)(a) Notwithstanding”.
Amendment agreed to.

Amendments Nos. 45, 46, 49 and 50 are related and may be discussed together.

Government amendment No. 45:
In page 27, to delete lines 9 and 10 and substitute the following:
“(12) In this section—
‘code of behaviour’ has the same meaning as it has in the Education (Welfare) Act 2000;
‘pre-school service’ has the same meaning as it has in section 58A (inserted by section 92 of the Child and Family Agency Act 2013) of the Child Care Act 1991.”.

The amendments in this group are technical, proofing amendments. They are just replacing verbs and inserting words.

Amendment agreed to.
Government amendment No. 46:
In page 28, line 5, after “sought,” to insert “include”.
Amendment agreed to.

I move amendment No. 47:

In page 29, line 10, after “schools” to insert “and arrangements and procedures relating to the exclusion and suspension of students from schools”.

This amendment deals with regulations around expulsion and suspension. I am concerned about the use of exclusions and suspensions from schools. In many schools it is done on an ad hoc basis and often seems weighted towards the needs of the school rather than those of the student. There should be national guidelines regulated by the Minister. If we are putting this much work and effort into streamlining admissions procedures and making them accountable, the same should be done for exclusion and suspension due to their serious nature and the long-term impact they can have on a student's prospects.

I focused very heavily on expulsions and suspensions in the last debate. I am not sure people realise how many schools use them in the way they do. I have not pointed to specific examples in the Chamber because I do not want to be unfair to the schools concerned. They have challenges in terms of their situations, resources, time and so on. I have tried to keep the detailed information that I have in respect of suspension and expulsion out of the Chamber. A lot of schools are in difficult positions. However, year heads, teachers or vice principals are often jumping straight to suspension as a first port of call for matters that are not necessarily even in their guidelines and rule books.

I know this because I have intervened on a number of occasions for mothers who were concerned. I was contacted on one occasion by a 13 year old child who asked me to talk to his mother because he felt he was suspended unfairly. When I went through the school's rules that it set out for the children, he was correct. Sometimes the parents struggle to advocate on behalf of themselves and their children or they may not have as much access in terms of understanding the rules and regulations of the school. Sometimes they just take what teachers and schools say for granted because they feel intimidated by a person who has an education when they do not have one. My amendment would not only support students who are disadvantaged in that way but also the schools and the teachers by providing for clear regulations from the Minister on when and how it is appropriate to use suspension and expulsion. It can have a disastrous impact on a child's life. It is serious.

If the Minister was communicating with the same parents, children and teachers as I am he would probably see how serious it is. Since the issue does not make it onto the Minister's radar, it is very hard for him to know about it. I hope he can consider accepting the amendment and recognising its importance.

Before I respond to Senator Ruane, I am advised that I should say there may be further technical or proofing amendments required to the Bill after our discussion on Committee Stage and I intend to introduce them on Report Stage.

On amendment No. 47, I am advised that there are already statutory codes in place.

It is clear that there are already statutory codes. Section 23 of the Education Welfare Act 2000 requires schools to develop a code of behaviour in accordance with statutory guidelines. A school's code of behaviour must set out the procedures to be followed in the school before a student may be suspended or expelled from the school concerned. The National Educational Welfare Board, now the educational welfare service of Tusla, has published statutory guidelines for schools on developing a code of behaviour. These statutory guidelines provide guidance for schools on supporting student behaviour and the procedures to be followed in relation to suspension and expulsion. As the arrangements to be followed by a school in relation to expulsion and suspension are already provided for in other legislation and in statutory guidelines I do not propose to accept the amendment.

It still gives room for individual schools to set up their own codes of practices and that might vary from school to school but every school is different. We heard yesterday at the Joint Committee on Education and Skills about schools using codes of practice and suspensions to deal with children with special needs. The children are in special classes because they have ASD or various other issues and codes of practice are used to deal with them in the same way as children who have genuinely broken the code of practice. An example given was smoking in the toilets. The same code of practice is being used to deal with children who have behavioural issues related to their special needs. The codes of practice are not being used in the positive and correct way they should be to reinforce authority or good behaviour. I will withdraw the amendment for now.

Does Senator Ruane want to withdraw it?

I want to withdraw it and come back on Report Stage after I read the Tusla recommendations.

The amendment is withdrawn.

You should wait until I am finished, Acting Chairman.

Senator Devine wants to speak. I will let her in.

I know the sun is shining but I just turned down the chance to meet Pink Floyd to come here to speak on the Bill.

I have given Senator Ruane latitude. I would never try to cut her short. She has had six minutes in the debate already between herself and the Minister. I will allow Senator Devine to speak and if Senator Ruane wishes to speak again she is more than welcome. I will not apologise because it is not my fault. I am sorry that she is missing Pink Floyd but if that is the case, that is the case.

I am representing Senator Gavan who is busy sorting out European affairs. I do not know much about the amendment but I will support Senator Ruane and discuss it. I was a member of a school board of management. Given my expertise in the area of ill health and mental and emotional distress I was aware of certain high-risk factors but because teachers did not have the knowledge they were not aware of them. Until attention was drawn to those issues they were not included in the manual. They were ready to expel one young man who to me was clearly displaying signs of high risk and the intention to do something. A national standard is required for transparency and the protection of children, teachers and boards of management. Boards of management try very hard to run schools but a national standardised approach is necessary and it is very important that it should include risk assessment.

Amendment, by leave, withdrawn.

As Senator Grace O’Sullivan is not present, her amendment falls.

To clarify, will Senator Grace O’Sullivan be able to resubmit her amendments on Report Stage? She might have got held up somewhere.

I am told that the Senator is effectively an Independent even though she is in a group and if she is not present to move the amendment then it is not moved. She has to move the amendment herself.

Will the amendment stand or will it fall?

It is not moved. When we come to that section, can I indicate that I want to submit an amendment on age appropriate guidelines for primary and post-primary schools, respectively? I wish to put on record that I intend to submit an amendment on Report Stage in the same vein as Senator Grace O’Sullivan’s.

Is Senator Ruane indicating that she may want to submit an amendment on Report Stage relating to that?

A similar amendment.

Is that agreed? Agreed. That is noted.

Amendment No. 48 not moved.
Government amendment No. 49:
In page 31, to delete lines 7 to 9.
Amendment agreed to.
Government amendment No. 50:
In page 37, line 26, after “an” to insert “annual”.
Amendment agreed to.
Section 9, as amended, agreed to.
Section 10 agreed to.
SECTION 11

Amendment No. 51 is in the name of Senator Grace O’Sullivan. It has already been discussed with amendment No. 28.

I wish to indicate that I may submit an amendment similar to amendment No. 51 on Report Stage.

Senator Ruane has to discuss the issue if she wants to resubmit it.

I have discussed the issue.

It needs to arise out of committee proceedings. To be fair, because it has already been discussed with amendment No. 28, it is probably okay. Senator Ruane has only to indicate that she may want to submit on Report Stage an amendment similar to amendment No. 51.

Yes. Thank you for your help, Acting Chairman.

Amendment No. 51 not moved.

I move amendment No. 52:

In page 43, between lines 19 and 20, to insert the following:

“(5) The Minister shall —

(a) between three and five years after this section comes into operation, commence a review of the operation of Section 7A, and

(b) not later than 12 months after its commencement, make a report to each House of the Oireachtas of the findings made in the review, and of the conclusions drawn from the findings, including any potential need for legislative amendment.”.

Amendment, by leave, withdrawn.
Section 11 agreed to.
Sections 12 and 13 agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Report Stage ordered for Tuesday, 3 July 2018.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.

The Seanad adjourned at 7.50 p.m. until 10.30 a.m. on Thursday, 28 June 2018.