Education (Admission to Schools) Bill 2016: Report and Final Stages

I would like to remind Senators that a Senator may speak only once at Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment.

Amendment No. 1 arises out of proceedings in Committee Stage. Amendments Nos. 1 to 10, inclusive, are related. Amendment No. 2 is consequential on amendment No. 1. Amendment No. 6 is a logical alternative to amendment No. 5. Amendments Nos. 7 to 10, inclusive, are consequential on amendment No. 5. Amendments Nos. 1 to 10, inclusive, will be discussed together.

Government amendment No. 1:
In page 8, between lines 4 and 5, to insert the following:
"(k) the manner in which, and period during which, a review under section 29F(5) shall be undertaken;".

My amendments in this grouping all relate to a new provision that I am inserting in section 29F. On Committee Stage, Senator Ruane proposed an amendment providing that an applicant could seek a review of a decision of an appeals committee not to hear or determine appeal under section 29. At the time, I advised the Senator that I accepted the intention of her amendment but wished to have the opportunity to draft the new subsection in conjunction with the Office of the Parliamentary Counsel. As can be seen by the number of new subsections required to provide for this review, it was important to undertake that drafting work to ensure the new provisions will work effectively.

Amendment No. 1 inserts a new subsection (k) to provide for procedures to set out the manner in which and period during which such a review shall be undertaken. The Bill provides for consultation with the educational partners on new procedures for section 29 appeals, and this amendment will ensure that these procedures and the relevant consultation will also cover the manner in which this review can be undertaken and the timelines for requesting and conducting a new review. Amendment No. 2 is a consequential numbering amendment as a result of the new subsection (k).

Amendment No. 5 provides for the review itself. It provides that where an applicant receives a copy of a decision from an appeals committee that it is not going to hear or determine an appeal, that applicant can request for the Minister to review that decision. Where the Minister receives a request for a review, he or she shall appoint a member of an appeals panel to review the decision. This person shall not have been a member of the appeals committee that made the decision to refuse to hear or determine the appeal. The person appointed shall review the decision, and following the review shall make a recommendation to the Minister that the decision of the appeals committee is either upheld or set aside. Where the Minister receives a recommendation that the decision should be set aside, the Minister shall direct the appeals committee to proceed to hear or determine the appeal.

I am satisfied that the amendments meet the intention of the Senator in proposing the amendment on Committee Stage. I agree with the Senator that it is important to allow a parent or guardian to seek a review where an appeals committee has decided not to hear or determine an appeal. It is an important new provision within section 29, and I am pleased to have been in a position to facilitate the Senator in bringing it forward. Amendments Nos. 7 to 10, inclusive, are numbering amendments consequential to amendment No. 5.

The other amendments in this grouping are amendments Nos. 3, 4 and 6. I have considered amendment No. 3 and understand the intention to copper-fasten the action of the school must be taken after internal review where an error or failure on the part of the school has had a material effect on the student's application for admission. Amendment No. 3 will ensure that where a school finds an error or failure in how it applied its admission policy during an internal review by the board and that error or failure had a material effect on a student's application, the school must rectify the matter appropriately. Where the error or failure related to admission, the school must admit the student, and where it related to a student's ranking on a waiting list, the school must adjust the student's ranking. On the previous occasion, the Senator rightly pointed out that there was an ambiguity in the way the original provision was phrased. I am happy to accept her amendment, which will bring greater clarity to the internal review on the admissions conducted by the schools' board of management.

Amendment No. 4 provides that at the request of an applicant, a section 29 appeals committee may facilitate "consultation between the applicant and an appropriate member of staff in a neighbouring or otherwise appropriate school, for the purposes of preparing an appeal under this section". The position with this amendment is somewhat different. I do not consider it appropriate and, therefore, it would be appropriate to accept it. Section 29D(2) provides that, "oral hearings shall be conducted with the minimum of formality consistent with giving all parties a fair hearing".

The Bill provides for procedures on section 29 appeals to be developed after consultation with the education partners, including bodies representative of parents.

Under the current procedures for hearings and determining section 29 appeals, the parent or guardian can bring up to two additional persons to attend the hearing with him or her. In addition, with the prior approval of the appeals committee, one of these two additional persons can make the appeal at the hearing on behalf of a parent or student. It is my intention that the new procedures for hearing and determining section 29 appeals will also provide for a parent or guardian to bring an additional person of his or her choosing to an appeal hearing if he or she desires.

While I appreciate the good intention behind this proposal, the approach set out is not technically feasible. It is based on an appeals committee that can be appointed only after an appeal has been made, facilitating this arrangement in advance of any appeal being made. It also potentially opens up the charge of actual or perceived bias should a committee consider or become involved in the issues under appeal before the appeal is even made. The Bill already provides for Tusla's education and welfare services to appoint an independent person to take an appeal on behalf of the student. It also provides for the education welfare services or the National Council for Special Education to support a parent's appeal by the making of submissions to the appeals committee. I consider this to be the more appropriate approach to providing parents with impartial and independent support in regard to section 29 appeals.

The amendment is asking the appeals committee, which must hear independently the case being put forward, to become involved in facilitating the presentation of an appeal. That would not be regarded as a legally sound way to proceed. By contrast, there is already provision for the expertise of either Tusla or the National Council for Special Education to support a parent, or for the parent to pick his or her own people to attend the hearing and support the presentation of the case.

As for amendment No. 6, I am providing an alternative version. While I am not accepting amendment No. 6, I have provided an amendment that meets the intention of Senator Ruane.

I thank the Minister and his officials for giving me time between the last occasion on which we considered this and now to come to some agreements. I welcome the Minister's acceptance of amendment No. 3. It gets rid of the lack of clarity over where a child can be placed on a waiting list. I accept all the related amendments. I am referring to amendments Nos. 1, 2, 5 and the others in the group.

I listened to what the Minister said about amendment No. 4. Although I had support for it, I believe what the Minister said makes sense. My wording is such that I bring in the appeals committee before an actual appeal has been submitted. I am willing to accept the Minister is correct in this regard. I will not push the amendment.

I do not have much to add, other than that the amendments are welcome. I trust that when it comes to the time for me to remove my amendments, the Minister will have alternative wording.

Amendment agreed to.
Government amendment No. 2:
In page 8, line 5, to delete "(k) such" and substitute "(l) such".
Amendment agreed to.

I move amendment No. 3:

In page 9, lines 8 to 11, to delete all words from and including "error" in line 8 down to and including line 11 and substitute the following:

"error—

(a) where the failure or error related to the admission of a student to a school or special class, by admitting the student to the school or special class concerned, or

(b) where the failure or error related to a student’s ranking on the waiting list, by adjusting the ranking of the student on the waiting list.".

Amendment agreed to.
Amendment No. 4 not moved.
Government amendment No. 5:
In page 13, between lines 29 and 30, to insert the following:
"(5) An applicant may, after receiving a copy of a decision under subsection (4), request the Minister to review the decision.
(6) Where the Minister receives a request under subsection (5) he or she shall, as soon as practicable and subject to subsection (7), appoint a member of an appeals panel established under section 29A to review the decision.
(7) A person appointed under subsection (6) shall not have been a member of the appeals committee that made the decision in relation to the request concerned.
(8) A person appointed under subsection (6) shall review the decision in accordance with procedures under section 29B and, following the review shall make a recommendation to the Minister—
(a) that the decision of the appeals committee is upheld, or
(b) that the decision of the appeals committee is set aside.
(9) Where the Minister receives a recommendation under subsection (8)(b), he or she shall set aside the decision and direct the appeals committee to proceed to hear or determine, or continue to hear and determine, the appeal concerned.".
Amendment agreed to.
Amendment No. 6 not moved.
Government amendment No. 7:
In page 13, line 30, to delete "(5) Subject" and substitute "(10) Subject".
Amendment agreed to.
Government amendment No. 8:
In page 13, line 38, to delete "(6) Where" and substitute "(11) Where".
Amendment agreed to.
Government amendment No. 9:
In page 13, line 39, to delete "subsection (5)" and substitute "subsection (10)".
Amendment agreed to.
Government amendment No. 10:
In page 14, line 1, to delete "(7) An appeals" and substitute "(12) An appeals".
Amendment agreed to.

Amendments Nos. 11 to 13, inclusive, are related. Amendment No. 12 is a direct------

On a point of order, do the last amendments not need to be seconded on Report Stage to be valid?

No. We are all right.

Amendment No. 12 is a direct logical alternative to amendment No. 11. Amendment No. 13 is consequential on amendment No. 11. Amendments Nos. 11 to 13, inclusive, may be discussed together, by agreement.

Government amendment No. 11:
In page 18, between lines 17 and 18, to insert the following:
"(21) The Minister shall—
(a) not later than 3 years after section 8 of the Education (Admission to Schools) Act 2018 comes into operation, commence a review of the operation of this section, and
(b) not later than 12 months after the expiration of the said 3 years, make a report to each House of the Oireachtas of his or her findings and conclusions resulting from that review.".

Amendment No. 11 provides for a review of the new section 37A of the Education Act 1998, which provides the Minister with the power to direct a school to open a special class following a report of the National Council for Special Education. The amendment requires the Minister to commence the review not later than three years after the new section 37A comes into operation, and that the Minister shall make a report of the findings made on the review to each House of the Oireachtas within 12 months of the expiration of that period.

Amendment No. 13 is a consequential numbering amendment arising from the insertion of the provision in amendment No. 11.

I thank Senator Kelleher for proposing an amendment on Committee Stage to provide for a review of the operation of the new section 37A. I was pleased to accept approximately 12 or so of the Senator's amendments on Committee Stage. While I agreed to the Senator's proposal regarding this review, I advised that I wished to have this particular amendment drafted in conjunction with the Office of the Parliamentary Counsel.

Amendment No. 11, which has now been redrafted by the Office of the Parliamentary Counsel in line with the approach set out by Senator Kelleher, inserts a new subsection in section 37A. Section 37A provides the Minister with the power to direct a school to open a special class following a report by the National Council for Special Education. The new amendment I am introducing today provides for a review of the operation of the new section. It requires the Minister to commence that review not later than three years after section 37A comes into operation, as I said. This effectively means the report must be completed within four years of the section coming into operation given the 12-month period. I agree with Senator Kelleher that it will be important to review how this important new section of the Bill will operate.

The Office of the Parliamentary Counsel has drafted the provision in line with similar review provisions in recent legislation. This includes, for example, the Data Protection Act 2018, the Gender Recognition Act 2015 and the Protected Disclosures Act 2014. Amendment No. 13 is a consequential numbering amendment arising from the insertion of the new subsection by amendment No. 11.

If this amendment is accepted, we will have a significant new provision such that where the National Council for Special Education identifies a need that is not being met, it can, having reference to a series of procedural requirements, require a school to open a special unit to provide for children with special needs. In the Lower House, there was considerable concern that although the National Council for Special Education has the power to designate a school to take a child, there can be circumstances in which schools may be resistant to opening special units. It was felt the power should be available as a reserved power.

I pointed out here that, to be fair to schools, the evidence is that there is openness to the creation of these special units. There were 548 in 2011 and there are now 1,304. That is a very substantial expansion. The power in question is an important reserved power that the Minister should have at his disposal to ensure no barrier is raised unnecessarily against a child in a way that would prevent him or her from getting the most appropriate education.

Senator Colette Kelleher could not be here today but she asked me to note that she welcomes the Minister's wording. Had she been here, she would have withdrawn her amendment.

Amendment agreed to.
Amendment No. 12 not moved.

Amendment No. 13 has already been discussed with amendment No. 11.

Government amendment No. 13:
In page 18, line 18, to delete “(21) In this” and substitute “(22) In this”.
Amendment agreed to.

Amendments Nos. 14, 20 and 22 to 25, inclusive, are related and may be discussed together by agreement. Amendment No. 24 is a direct logical alternative to amendment No. 23. Amendment No. 25 is consequential on amendment No. 23.

I move amendment No. 14:

In page 23, line 11, after “school” to insert “not aided by the Department of Education and Skills”.

We addressed this issue in my amendments on Committee Stage. The Minister indicated that his aim with the Bill was to make incremental progress in secularising Irish education and removing barriers for access to education. Of course I welcome such efforts and I will be supporting this legislation in the final vote. However, I appeal to the Minister to again consider why we are taking half measures in this regard. Is it even fair to take an approach of secularisation when it comes to national schools with a Catholic ethos, yet not with other faith groups? Do State money and State institutions, be they educational or otherwise, have any role when it comes to promotion of religious faith?

The Green Party believes that State education should be precisely that: State-funded and run with an exclusive focus on the promotion of education and social development, and not the promotion of religious faith. Such promotion has its place in churches, community and faith groups as well as in homes and within families, but not within State institutions such as schools.

We disestablished our church in 1869, yet here we are 150 years later talking about preferential treatment in admissions on the basis of religious faith, a promotion of faith if ever there was one. I am fully in support of the principle of religious freedom, but as importance is the right to freedom from religion. That is why I have moved this amendment.

Amendment No. 20 relates to arrangements for children not taking part in religious classes. I did not get to speak to this point on Committee Stage. I intend to press this amendment because it is one that I have personal experience of as a mother of children who did not partake in religious instruction in school. They sat down the back of the class and were left out and left aside. It was not a particularly satisfactory arrangement. I imagine teachers themselves are seldom happy with such arrangements. Guidance from the Department in this regard would be useful. The amendment would require the Department to provide guidelines to schools on how they should put in place age-appropriate alternatives for those who do not wish to attend religious instruction during school hours.

As I have mentioned previously, I believe freedom from religion is an important part of religious freedom, but the current system is not adequate to ensure that students affected do not feel excluded or that their time is poorly used as they merely wait out the class. The amendment would ensure freedom from discrimination and protection of a child's right to freedom of thought, conscience and religion in school. As the Government acts to remove the baptism barrier in our national schools, it is only logical for the Department to set guidelines to ensure that all students are treated equally across schools when they opt out of religious classes.

Earlier this year, the Minister issued a circular to all education and training board schools requiring them to provide alternative subject choices for students who do not wish to partake in religion class in school. However, this measure only applies to education and training board schools, the logic being that they are multi-denominational.

I anticipate that the Minister will argue that he does not normally issue guidelines to schools on issues such as this, but that is belied by the fact that the Department has done so for education and training board schools. My amendment would thus make it compulsory to issue guidelines to deal with this question in all schools. Apart from giving schools certainty in coping with a shift to a more diverse population and an increasingly non-religious population, it would also ensure the right of students to not partake in these classes. It would ensure the children affected could spend the time productively and have their wishes respected.

I want to express my support on behalf of Sinn Féin for these amendments. As the Minister knows, we welcome the Bill and the level of engagement. However, I believe the Minister is missing an opportunity with regard to these amendments.

It does not make sense for a modern republic to still have the vast majority of schools under a particular faith control. The most logical step is to separate church and State. As republicans, we have consistently called for this. I believe the Minister is missing an opportunity. This is an opportunity to be bold and embrace the republic that we need to build. Notwithstanding the fact that this Bill represents progress, the Minister could have gone further. Perhaps it speaks to the ideological differences between us. As a party of the left, we fully embrace the separation of church and State. As a party of the right, regrettably, Fine Gael, does not at this point.

I have personal experience currently of the issue amendment No. 20 seeks to address. Effectively, my children are parked at one side for the best part of half a year in holy communion and confirmation classes. That is not good enough in a modern republic. We did not have an opportunity to send our children to a non-Catholic school. We wanted to ensure our children got an education through Irish. We had no choice. The Department can and must do better. Again, I encourage the Minister to address amendment No. 20. I accept that amendment No. 14 is probably politically impossible for him given the conservative nature of his party, but surely he should be able to embrace amendment No. 20.

I thank the Senators for this discussion. Perhaps I come from a different perspective but I certainly favour diversity in education. I believe that, as the Constitution sets out, parents are the primary educators. I believe that the State should try to facilitate parents to the best of its ability. That was the background to the approach.

I had a consultation on this matter. Alternative approaches were being canvassed on how this should be dealt with, such as only allowing religion to be used within the catchment. Some parties put forward that idea while other ideas included having nearest-the-school rules and so on. None of these met with consensus.

I sought to see how we could facilitate parents to the best of our ability. I think it is perfectly acceptable that a parent might want to a child brought up in the faith of the parent. I do not find that to be an objectionable ambition in a republic. We have many high-quality minority religion schools. We have many children and their parents, who have a legitimate and recognised desire that their children should have the chance to be brought up in a school reflecting their ethos. The difficulty is that if we removed religion altogether the concept of a minority religion school would effectively disappear. We could not have a minority religion school if it was obliged to accept all-comers because effectivity minority religion schools represent one out of every 20 schools. They would not be able to maintain the ethos. By contrast, I am not permitting religion to be used in Catholic schools. People in that situation have 18 of every 20 schools to choose from. A parent who wants to have a child brought up in a school with a Catholic ethos can achieve that. Similarly non-denominational schools do not apply religion and I am not in any way interfering with that. As a result, 19 out of every 20 schools will not be using religion as a criterion. The one exception to that will be in the case of minority schools.

I am providing that we allow those schools which are a valuable part of our tradition to continue. I am surprised the Senator is advocating that we should abandon that part of our tradition, given all our political history.

Senator Grace O'Sullivan has argued that we should have State education institutions but the truth is we do not. Of our primary schools, 99.5% or more are not State institutions but are private institutions. That is because of all sorts of historical reasons. There are denominational schools and Educate Together is another private institution, along with An Foras Pátrúnachta. The only State schools are the education and training board, ETB, schools, and there is a small number of community national schools. It was 11 at the last count. The philosophy of those schools is that every religion should be invited in and equally celebrated. It is a great model and I would love to see many more State schools. I would like to see the ETB model getting greater traction. I hope we will see transfers of patronage to that model.

For all sorts of reasons we did not go down that road. We have a different model and we must develop and reform the model as best we can. It is what I am doing here. It is a significant reform and I can see it in my constituency. Senator Ó Ríordáin would have the same experience. Parents feel obliged to have their child baptised simply to get into school or they find they live in an area where a baptised child will get a priority in a local school over their child. That is not acceptable. My role is about satisfying parents to the best of my ability rather than imposing uniformity or one model of school.

Our education system is very much a consensus, with stakeholder engagement and consultation being a very big feature. One may say this slows progress but Senators may have read the book by the late Fr. John O'Holohan - sadly, he was recently buried - that reflected on education in the past 50 years. He made a very persuasive case that stakeholder engagement has been a strength of our system. Although we have much friction and tensions, we have seen much very valuable reform. We must continue and accelerate that reform. I am really keen to see far greater diversity. It is wholly inappropriate that 95% of our schools are denominational when at the last count nationally, slightly more than 50% of parents who get married did so in denominational ceremonies. Ireland is changing very rapidly and we must facilitate that change. I hope we can accelerate such change.

I did not address the provision in the amendments that Senator Grace O'Sullivan seeks to address. It is the other feature of the equality legislation, which allows protection to review admission where it is essential to maintain ethos. It is not area where I addressed the change. It has never been used so it has not been an issue that has exercised public concern. It is a very high bar to prove it. I am addressing the real issues of concern.

Amendment No. 22 seeks to apply the provision I am making at primary level to post-primary level. When I initiated this consultation it was very clear the problem we were seeking to address was that 95% of schools are denominational and the capacity to use religion as a barrier. In post-primary education there is far greater diversity, with more than half of schools of non-denominational patronage. I did not address this in the consultation and it is not anything like as pressing. In practice, religious denomination is not used to de-bar to any great extent in this sector, or at least there is not the same complexity. There is much more choice. Nonetheless, Senator O'Sullivan's proposal would for the same reasons see many small, minority religion, post-primary schools wiped out. One could not continue to have minority post-primary schools under the Senator's provision, as they provide that children of a minority ethos who want access to those schools get preference. This may be called ideology but it is catering to a diverse Ireland and the plurality we experience in our community. Ideology should not totally trounce valuable institutions we have inherited.

There is the matter of issuing directions and we have made a significant change in this Bill. Before a child enrols in a school, the school would have to set out the policy it provides with respect to attending religious instruction. This is an area where there has been a good deal of evolution and we must see more. One cannot have a one size fits all approach to this and the precise nature of arrangements must be considered by each school, having regard to the particular circumstances. It would not be appropriate to try to develop a one size fits all approach to this. I have no doubt we are moving to a position where there must be much more catering for the needs. I am making provision in the forthcoming parents and learners charter Bill that there must be consultation with parents in how children who do not share the denomination of the school are catered for. I would prefer to see that develop through a parents and students charter, with a degree of flexibility as to how it would be delivered in the 4,000 schools that we have. That is instead of having some attempt to say the rules will apply in a small Church of Ireland, Methodist, Catholic or Educate Together school and they must be complied with. It does not fit with the way in which our school system has evolved and the diversity that exists. I am not disposed to supporting that.

Amendment No. 23 arose from amendments tabled by Senators. It provides that there will be a review of this section within five years of the section coming into operation. This is an area where custom and practice will evolve and our thinking about such matters will also evolve. I do not in any way pretend that this is the last word to be said on the matter. Amendment No. 24 will fall if my amendment No. 23 is accepted.

I welcome amendment No. 23. I thank the Minister for agreeing to a review of this section of the Bill. I would like to see how the priority in admissions that is given to minority-religion schools is working in practice. The results of the review will be welcome in establishing that. I thank the Minister again for taking this proposal on board. I appreciate that this means amendment No. 24, in my name, will fall. I would have been happy to withdraw it anyway on the basis of the Minister's amendment.

Amendment, by leave, withdrawn.

As amendments Nos. 15 and 17 are related, they may be discussed together.

Government amendment No. 15:
In page 23, to delete lines 39 and 40 and substitute the following:
"(iii) other than in relation to a course known as a post leaving certificate course or a further education and training course and subject to subsections (8) and (9), a student’s academic ability, skills or aptitude;".

These are proofing amendments. Amendment No. 15 proposes to expand subsection 62(7)(e) to provide that, in the case of admission to a post-leaving certificate course or a further education and training course run by a recognised school, the school shall not be prohibited from ascertaining a student's academic ability, skills or aptitude for admission to such a course. Amendment No. 17 amends subsection 62(8) by redrafting the existing provision to allow a student's academic ability, skills or aptitude to be considered in relation to admission to a special school or a special class. Both of these amendments relate to particular circumstances in which educational provision is designed to meet a particular need. It is reasonable to give an educational institution the power to establish whether a student fits into a particular category, and that is what these proofing amendments are designed to permit.

Amendment agreed to.

As amendments Nos. 16 and 18 are related, they may be discussed together.

I move amendment No. 16:

In page 24, between lines 25 and 26, to insert 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,".

The idea behind this quite self-explanatory amendment is that the Irish language should be protected, enhanced and supported. In Sinn Féin's view, it makes perfect sense for second-level schools to be able to give priority to pupils who have used Irish as they have come through national school level. The simple reason for this is that if they have to attend an English-medium second-level school, it is quite possible that they will not have the support they need and their Irish-language skills will slip back as a consequence. We all have to be mindful of the need to support the Irish language. To be honest, I do not see why this simple and practical amendment should not enjoy the support of everybody in the Chamber. It does not damage the Bill in any sense. It enhances support for the Irish language. My colleague will speak on amendment No. 18, which is supported by Sinn Féin on the basis that it comes from the same broad support for our national language.

I have spoken to Conradh na Gaeilge about the amendment I am proposing in this area. Like Senator Gavan, I think children should have continuous progression from the naíonra to the Gaelscoil if their parents wish. I will explain why this is desirable. First, a child who has attended a naíonra could lose the language skills he or she acquired at preschool if he or she progresses to an English-medium primary school. Second, as there are partnerships between naíonraí and Gaelscoileanna in many instances - this is the case in Tramore - we can facilitate simple continuity for children by ensuring they get to stay in secure and familiar surroundings. This is also the easiest and most practical option for parents. The close co-operation and unification that exists between naíonraí and Gaelscoileanna enriches children and ensures there is effective crossover across learning and development and social and linguistic objectives.

Third, by having continuity between naíonraí and Gaelscoileanna we can help parents who do not have Irish but want to ensure their own children do, while also reducing the stress on those who might be concerned they could have to find another Gaelscoil in the area. It is likely that the local Gaelscoil and the next closest Gaelscoil will be very far apart. Parents from all walks of life should have an opportunity to choose to send their children to naíonraí, especially in the context of the early childhood care and education programme.

Fourth, it is not only good for the child to progress from the naíonra to the Gaelscoil, but it is good for other children in the Gaelscoil as well because it ensures the standard and quality of immersive Irish in the school increases.

I fully support the Sinn Féin amendment, mainly because I do not think many students from English-language primary schools make the shift to Irish-language schools at second level. The amendment will provide protection in some regions and some places.

I do not support the amendment tabled by my colleague, Senator Grace O'Sullivan, which would apply further down the age bracket. I know it involves the same principle, but at a much earlier stage. It is not the case that there is a naíonra attached to every Gaelscoil. If it is decided that a child from outside the community who has access to a naíonra in his or her own community should travel to a Gaelscoil in a different community, that could disadvantage children from the locality who want to go to their local Gaelscoil.

Many schools with prefabs have limited numbers of places in their naíonraí. Therefore, the classes are much smaller than the junior and senior infant classes. My daughter did not get a place in a naíonra. I was lucky enough to be able to put her in a private Irish-speaking crèche. This meant she started speaking Irish from the age of one or two, which gave her an advantage. If this rule had applied, she would not have had priority based on having attended a naíonra. I oppose amendment No. 18, but I support amendment No. 16.

I will begin by responding to Senator Gavan. Under the existing legislation, a second-level school that provides education through the medium of Irish is free to give priority to students who have attended a Gaelscoil. Such a school can have a feeder school policy because it is perfectly provided for. The general provisions of this Bill allow for such policies, which are already in place. There is no need for an amendment of this nature because its provisions are already adequately provided for in the Bill. I am setting out the factors that a school cannot consider. I have not sought to set out the admissions strategies that schools are perfectly entitled to consider. I do not believe this amendment is necessary. It would not fit in with the approach of the Bill.

My view on amendment No. 18 is the same as that of Senator Ruane. Throughout this legislative process, we have taken the view that factors like education qualifications, interviews, tests or attendance at preschool should not be acceptable grounds for giving priority or preference when children are seeking access to primary school. There is good reason for this. As preschool in Ireland is not an entirely free provision, a measure of this nature could constitute a financial barrier. In addition, it would make it more difficult for parents who come from outside the area to seek access to a primary school. Those who are newly arrived would be at a disadvantage because they would not have been able to enrol their children in the relevant preschool. We have sought to end waiting lists by banning them and to provide for a much simpler approach. In my view, giving priority to children who have attended a local Irish-speaking preschool would not be consistent with the approach in the Bill. On that basis, I cannot support the amendment.

The last time we considered these matters, Senator Gallagher queried how a child's level of fluency in the Irish language will be defined.

The only situation in which we are allowing a Gaelscoil to give priority to a child is where the child's level of fluency in the Irish language is that 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. I assured Senator Gavan on the last occasion that the intention was for it to be a high bar. The intention is that there is age-appropriate fluency associated with using Irish in one's normal life. The Senator expressed concern that attendance at a naíonra would give a child access but that is not the intention. It is a high bar. In light of the concerns the Senator expressed, I will set out procedures for section 29 appeals which are provided for in the Bill. In those procedures, I will take the opportunity to give clarity on how the definition should be interpreted in appeals. It will set out a guideline for schools. The appeal mechanism will set out what it means and what is expected of a child who has reached this level of fluency. The intention is to ensure children who come from homes where Irish is spoken as a normal part of their lives get preferential access to Gaelscoileanna so their level of fluency does not regress. I thought it was a desirable objective which was raised in the Lower House and which I have accommodated here without transgressing on constitutional rights. As we discussed before, if we started to look at the parent and his or her background and whether he or she was speaking Irish to the child, it would be discriminatory. I have chosen a provision that is robust and works. I also wanted to give the Senator some assurance because he raised the issue on Committee Stage.

Is Senator Gavan pressing the amendment?

I second the amendment.

Amendment put.
The Seanad divided by electronic means.

Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Amendment again put:
The Seanad divided: Tá, 21; Níl, 19.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Gallagher, Robbie.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Mac Lochlainn, Pádraig.
  • Nash, Gerald.
  • Norris, David.
  • O'Sullivan, Grace.
  • Ó Céidigh, Pádraig.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Paul Gavan and Niall Ó Donnghaile; Níl, Senators Gabrielle McFadden and John O'Mahony..
Amendment declared carried.
Government amendment No. 17:
In page 26, to delete lines 21 to 28 and substitute the following:
"(8) Notwithstanding subsection (7)(e)(iii) in relation to—
(a) a school approved by the Minister to provide an education exclusively for students with a specified category or categories of special educational needs, or
(b) a special class, a student’s academic ability, skills or aptitude may be considered or taken into account insofar only as is necessary in order to ascertain whether or not the student has the category of special educational needs concerned.".
Amendment agreed to.

I move amendment No. 18:

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

"(9) Notwithstanding subsection (7)(e)(iii), and subject to this subsection, an Irish medium school may prioritise the admission of a student where the student has previously attended a Irish language pre-school or Naíonra.".

I second the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 19:

In page 26, lines 30 to 37, to delete all words from and including "of—" in line 30 down to and including line 37 and substitute the following:

"of a sibling of the student concerned attending or having attended the school.".

This section of the Bill has been dubbed "the Clongowes section", which is probably accurate. It states: "...a parent or grandparent of the student concerned having previously attended the school, provided the maximum number of places filled pursuant to that criterion does not exceed 25 per cent of the available places as set out in the school’s annual admission notice for the school year concerned. This has no place in this Bill. I have spoken on this several times. The Minister knows my reasoning for this stance. This is an elitist provision, which has no place in this Bill. It has no place in a Bill proposed by anybody who genuinely believes in a republic. There is no reason to give more than 25% of the places in a school to children or grandchildren of past pupils. This would be odious enough if it referred only to children of past pupils, but the provision for grandchildren puts the cherry on the cake.

Only one section of the education system is looking for this. The Minister and I know who they are. The private fee-paying school lobby are the only people who are looking for this. These are the ones who have advocated for this, and I will state the reason. People are afraid to say it because they are so powerful, they have so much influence and so many members of Cabinet are past pupils of theirs, so they have an open door. The reason is that they want to keep the royal bloodline going to their schools - the old ties network. They tend to be old boys. The Minister might as well have inserted "sons and grandsons". It would have exactly the same affect. I refer to the old boys' network, those who hang around, stay in touch with each other as business colleagues and on golf courses or kick around the corridors of power together. This lobby wants to ensure that its schools have this royal line of succession so that the children and grandchildren of past pupils will have a certain section roped off for themselves and will be allowed access to the school.

We talk about equality. We have all mentioned equality this afternoon in reference to provision for Irish language speakers, Travellers, etc. How is somebody whose father, mother, grandfather or grandmother did not attend secondary school supposed to have the same access to a school on that basis? Let us consider a Traveller child whose father or mother did not go to second level school. If a child is not from the local area, their father or mother will not have attended the local second level school.

If a child is not from this country, clearly his or her father or mother did not go to the local second level school. If a child is from an area of acute disadvantage, it is more likely that his or her father or mother did not go to a second level school and it is extremely likely that the child's grandparents did not go to a second level school. Let us be honest. The only reason this provision exists is because of the powerful lobbying of a section of the education sector, which is fee-paying, exclusive and elitist. They want that exclusivity and elitism in legislation and they will get their way. I do not really expect much more from the Fine Gael Party but the Fianna Fáil Party is going to support it anyway. Fianna Fáil and Fine Gael together will support this section of the Bill, which gives more rights to children and grandchildren of past pupils. It is odious, elitist and wrong.

I know the Minister will say that previously there was no cap and he has put one in place. That is not the point. There is much good stuff in this Bill and the Labour Party completely accepts that the Constitution puts constraints on what can be done with the baptism barrier. We are not going to play political football with that at all. We will not support amendments that ask the Minister to do more than he can because of constraints in the Constitution about religious ethos etc. We know the Bill goes further than many people would have imagined it could have gone in that regard. However, there is no need for this provision at all. My colleague, Deputy Jan O'Sullivan, believed this should be at a zero level. Senators should not go far as I will be calling a vote on this. The compromise was meant to be 10% but that did not get through the Cabinet in the previous Government. The Bill did not get past Cabinet in the previous Government because of this section.

People want this section to go through without any pointing to it or mention that this section of Irish society has so much influence in this Republic that the political system, over and over again, will bend over backwards for them. They want school ties written into legislation, which is disgusting. This elitism has ruined the country and gives every young person who does not come from that background the idea that life just is not fair and those people do not really play by the same rules. We are writing that into legislation as unless a pupil's father or grandfather went to the school, for example, there is not the same right of access.

I will make a suggestion to the Minister but he will not do it. He should scrap this by agreeing to our amendment and saying it is right. He will not do it. Fianna Fáil is the so-called republican party but if it supports the Government on this, it should not speak about equality in education in this Chamber or the other Chamber ever again. This provision puts Travellers, migrants and poor children at a disadvantage and it is being put in legislation. This is supposed to be a republic. I know what the Minister will say as he has already said it twice. We just have to go with it. Before coming to this House I heard rumours of the influence of elitist groups in Irish society on members of the Cabinet and politicians in this place but I did not really believe it. It is now written in front of me and we will pass it into law.

I second the amendment. Senator Ó Ríordáin covered most of the points. Often people say politicians vote in this House in self-interest. Dublin Bay South probably has the biggest concentration of people who have attended private schools but this provision is wrong. I might be shooting myself in the foot in supporting the amendment but if we believe in equality and want people to be able to break through the glass ceiling, we cannot put this into legislation. It is utterly wrong. We can speak of diversity and equality of opportunity but we are saying to children that they will not have the same equality of rights as others. If a person's grandfather went to the right school, that person can go to that school as well. In some cases a child might live across the road, looking at its gates, but be excluded because somebody else had the right grandfather and has the right amount of money in a bank account. I am totally disgusted by this. It is wrong. As Fianna Fáil calls itself a republican party seeking equality of opportunity in education, it must support this amendment. Otherwise, shame on it. This is not a party political issue. Members should think of what they would say to children currently going through the education system and who cannot attend a school because their grandfather did not go to the right school. If their father or mother did not go to the right school, they cannot go there either. It does not matter how others did in school, they can get in the door with the right connections. I ask the Minister to accept the amendment.

I put on record our party's full support of this amendment because we are a republican party. We spoke about ideology earlier and we have an ideological divide. There is something fundamentally offensive about stitching in this protection in order that those who go to private schools can ensure the line all the way through.

A line of succession.

Absolutely. Although I did not mean it in a personal sense, and I hope the Minister knows that, the last day I asked how many members of the Cabinet had private education. As somebody who is still relatively new to here, it strikes me when I meet senior people in the Government or senior civil servants that they did not go to the sort of schools I attended. People who attended fee-paying private schools are predominant in the upper echelons of the Civil Service and the Government. Those are the facts and I speak as a working class boy who never had a prospect of going to private school. I would never dream of sending my kids there anyway on a point of principle.

The fact that the Government seems so intent on stitching in this provision is disgraceful. We speak of equality and we all say we believe in it but in this Bill, the Minister is going out of his way to keep the elite where they are. I am genuinely disappointed as the Minister has demonstrated some determination to reform in this Bill. I acknowledge that. This provision is therefore very disappointing. It is not needed. What possible reason is there for this being included if not the reasons outlined by colleagues in the Labour Party?

It is not required and no damage would be done if the provision was removed. It would enhance the Bill in a significant way. This is class politics. It is about those people who have the privilege of going to private schools and ensuring they maintain the privilege and the line of succession. If that is the case - it is - the Government should be honest and say so. It is about class and it is probably the most shameful point in a Bill that otherwise has much to commend. We will support the Bill overall but the Minister has let himself down with this aspect. All of us can and should aspire to doing better, regardless of party.

Before calling on Senator Gallagher, I welcome from the Lower House Deputy James Lawless and his guest, Ms Nicola King from Sallins, to the House. It is good to see them.

I have a few comments and the Minister might correct me if I am wrong but I understand that this legislation applies to all schools, not just private schools.

I will support this Bill and this amendment. It is important to keep a sense of perspective on all of this while we have this debate.

Thankfully oversubscription does not come into play in the majority of schools. We should keep that in our minds. Where I come from it is the complete opposite, schools are touting for pupils although that may be the wrong expression to use. Come enrolment time there is nothing but billboards on every county road and main road across the State where schools advertise open days and invite students to come. It is important to keep a sense of perspective on the debate. I would welcome clarification from the Minister that this amendment applies to all schools, private and otherwise.

I welcome the active retirement group from Limerick who are here today. They are very welcome to the Chamber and I hope they enjoy their day in Leinster House.

Senator Gallagher can correct me if I am wrong but when asking whether it applies to all schools that does not undermine the point about the schools this will have an impact on. Even if the Minister says this applies to all schools that is still discriminatory because my parents did not go to second level school. I left school at the age of 15. My grandparents did not go to second level school. Whether this applies across the board are not it means that I am discriminated against by every school that might be oversubscribed and decide to prioritise against me. I have daughters but who is to say that if I was to have another child and had a son I would not want to send him to a private school? As this amendment stands if I wanted to send him to the same school as the Minister went to I would be actively discriminated against.

That is too personal.

Clongowes has been mentioned. I am just mentioning that the Minister went to the same school. That is not a personal attack. It is a fact.

It is not an attack, it is only a fact that I would have no issue in sending my child to a private boys school had I had a son, I just would not want to be actively discriminated against because I did not have the second level education and my parents and grandparents did not have second level education that would be required for me to be able to enrol my child in such a school.

I am very concerned about what Senator Gallagher said because what he is saying happens in rural areas and Fianna Fáil is losing touch with what happens in urban areas.

That sounds good coming from the Labour Party.

Access to all schools is difficult. Are we saying that if my grandfather goes to a school in Dublin 4 and the family now lives in Baltinglass it will have 25% access?

Senator Humphreys we are on Report Stage and Senator Noone is right that contributions can be made once only. The Senator has had his slot as has everybody else who wants to speak. Unless anybody who has not spoken wants to speak I will bring in the Minister.

We have discussed this on Second Stage and on Committee Stage. Schools as of now are allowed to operate their own admissions policy. They have been allowed up to now to have waiting lists, to allow unrestricted preference for preschools, feeder schools, siblings, past pupils, religion. In all of these cases I am introducing restrictions where I feel they are appropriate. We will continue to allow feeder schools and sibling preference to apply.

In the case of past pupils, we are introducing for the first time a cap on the extent to which priority can be given to past pupils in gaining access to the school. This will apply to all schools. The history behind this is that the then Minister, Ruairí Quinn, proposed 25% which is in this Bill as being the appropriate restriction. Subsequently, I understand that the then Minister of State, Deputy Jan O'Sullivan, reduced that to 10%. I thought in approaching this to get consensus on it and consensus emerged around the 25%, the original proposal made by Ruairí Quinn.

The counterargument is that schools are communities and that there is a value in having continuity around the community and building a connection between one generation and the next. That does help schools to be stronger. We have to decide when we believe it is appropriate to intervene and to what extent, and we have decided to intervene to ban in their entirety waiting lists, to ban religion in 95% of schools, to ban in its entirety access through preschools but to allow the continuation of access through feeder schools. We just discussed an amendment on that issue in respect of Gaelscoileanna. This is a question of striking a balance in what should be permitted and what caps we should impose. This measure imposes a cap where none applied. It is appropriate. This is a fair and balanced approach. Having listened to all the arguments, this is introducing a restriction which is appropriate. Therefore I do not support the amendment.

Amendment put:
The Seanad divided: Tá, 14; Níl, 28.

  • Bacik, Ivana.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Mac Lochlainn, Pádraig.
  • Nash, Gerald.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Clifford-Lee, Lorraine.
  • Coghlan, Paul.
  • Conway, Martin.
  • Feighan, Frank.
  • Gallagher, Robbie.
  • Hopkins, Maura.
  • Horkan, Gerry.
  • Lawlor, Anthony.
  • Leyden, Terry.
  • Lombard, Tim.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Céidigh, Pádraig.
  • Ó Domhnaill, Brian.
  • Reilly, James.
  • Richmond, Neale.
  • Swanick, Keith.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Kevin Humphreys and Aodhán Ó Ríordáin; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

As amendment No. 20, in the names of Senators Grace O'Sullivan and Lynn Ruane, has already been discussed with amendment No. 14, we cannot have a discussion on it.

I move amendment No. 20:

In page 31, line 6, to delete "concerned." and substitute the following:

"concerned;

(xv) age-appropriate guidelines for primary and post-primary schools, respectively, in relation to students who do not wish to attend religious instruction or classes.".

I second the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 21:

In page 31, line 6, to delete "concerned." and substitute the following:

"concerned;

(xv) statutory guidelines for schools in preparing arrangements and procedures in relation to the suspension and exclusion of students under section 23 of the Education (Welfare) Act of 2000.".

I second the amendment.

On Committee Stage, the Minister did not accept an amendment I proposed that sought to empower the Minister of the day to make national regulations on suspension and exclusion. His decision was based on the existence of statutory codes under the Education (Welfare) Act 2000, section 23 of which requires schools to draw up codes of conduct and procedures they must follow before students can be suspended or excluded.

My concern is that schools are developing these codes of conduct on an ad hoc basis with no oversight by the Minister. They are able to write them in any manner they wish. Amendment No. 21 would empower the Minister to make national guidelines for schools on how best to develop codes of conduct in this area. This would mean that some form of national uniform standard would exist, bring ministerial oversight to this area, provide guidance to schools and give parents and students a national reference for dealing with these issues. My intention is that this amendment would complement the provisions of section 23 of the Education (Welfare) Act 2000 in ensuring codes of conduct are developed with national guidance in the best interests of schools, parents and pupils. I hope the Minister can accept this amendment, which is meant to be constructive.

We have had this debate previously. As Senator Ruane has recognised, section 23 of the Education (Welfare) Act 2000 requires schools to develop codes of practice in accordance with statutory guidelines prepared by the former National Education Welfare Board, which is now the educational welfare service of Tusla. This body has been given statutory responsibility for overseeing the requirement to have proper codes of practice and has published statutory guidelines for schools on developing codes of behaviour. These guidelines provide guidance to schools on supporting student behaviour and on the procedures to be followed in respect of suspension and expulsion. Statutory guidelines are already in place. Any potential review of those guidelines is a matter for the educational welfare service, Tusla and the Department of Children and Youth Affairs, to which Tusla now reports. As the arrangements to be followed by schools in respect of expulsion and suspension are already provided for in legislation and in statutory guidelines and are under the remit of a separate Department and Minister, I cannot accept this proposal.

When I took the opportunity to examine the practices that exist in this regard in our schools, I formed the view that they are very strict. A school's code of behaviour must disclose the specific procedures to be followed before a student may be suspended or expelled from the school. The statutory guidelines in respect of suspension advise that a decision to suspend a student requires serious grounds relating to the student's behaviour, etc. Those grounds must be set out. The guidelines require schools to consider various factors such as the context for the behaviour, the impact of the behaviour, the interventions that had been tried, the question of whether suspension is a proportionate response and the possible impact of suspension.

Fair procedures must be followed when a school is proposing to suspend a student. When a preliminary assessment of the facts confirms that there has been serious behaviour that could warrant suspension, the school should inform the student and his or her parents of the complaint and give the student and his or her parents an opportunity to respond. The board of management must provide an opportunity to appeal. The guidelines outline that expulsion should be a proportionate response to the student's behaviour.

The expulsion of a student is a very serious step that should not be taken by a board of management other than in extreme cases of unacceptable behaviour. The school should take significant steps to address the misbehaviour and to avoid the expulsion of a student, including, as appropriate, meeting parents, making sure the student understands the consequences of expulsion, ensuring all other avenues have been considered and seeking the assistance of support agencies such as the National Educational Psychological Service, the HSE, community services, the National Behaviour Support Service, the child and adolescent mental health service and the National Council for Special Education.

This is a good code. I have not heard anyone saying otherwise. In cases in which people feel the code has not been followed, appeals can be submitted under section 29. The last time the Senator raised this matter, she asked about the number of expulsions. I can inform her that in the most recent year, there were 195 expulsions at second level and 19 at primary level. This means that expulsion is required in the cases of 0.57% of students, or one in every 1,750 students. The Department received 77 appeals relating to expulsions in the same period, which indicates that approximately one in every three expulsions is appealed. Approximately 31% of appeals are upheld, and the expulsions are found not to have been validly applied, when these hearings take place. This matter falls under the remit of another Department and is the responsibility of a statutory agency. I do not have a reason to believe there is evidence that we should be demanding a review. The current arrangements seem to be reasonably robust from a layman's point of view. Having reviewed the evidence since Committee Stage, as the Senator asked me to do, I am afraid I am not disposed to change the approach that is currently adopted.

I thank the Minister. I suppose I agree that the arrangements are robust. My problem is with how they are being implemented and followed at local level. I would prefer to be in a situation where there is no need for an appeal. I am willing to accept what the Minister is saying. I might follow up this matter through other avenues, such as Tusla or the Department of Children and Youth Affairs. I am concerned that many expulsions could be going undocumented and unnoticed, especially in areas of deprivation where it can look like a child who has been expelled simply left school early. There could be a large cohort of people who are not falling into this bracket. There might be another way for me to go about pursuing such cases. For the time being, I am happy enough to accept what the Minister is saying about this amendment.

Amendment, by leave, withdrawn.
Amendment No. 22 not moved.

If amendment No. 23 is agreed, amendment No. 24 cannot be moved. If amendment No. 23 is not agreed, amendment No. 25 cannot be moved. These amendments have already been discussed with amendment No. 14.

Government amendment No. 23:
In page 43, between lines 19 and 20, to insert the following:
"(5) The Minister for Education and Skills shall—
(a) not later than 5 years after section 11 of the Education (Admission to Schools) Act 2018 comes into operation, commence a review of the operation of this section, and
(b) not later than 12 months after the expiration of the said 5 years, make a report to each House of the Oireachtas of his or her findings and conclusions resulting from that review.".
Amendment agreed to.
Amendment No. 24 not moved.
Government amendment No. 25:
In page 43, line 20, to delete "(5) In this" and substitute "(6) In this".
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I thank Senators for their interest in the Bill.

Question put and agreed to.