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Seanad Éireann debate -
Wednesday, 13 Nov 2019

Vol. 268 No. 4

Education (Student and Parent Charter) Bill 2019: Committee Stage (Resumed)

Debate resumed on amendment No. 15:
In page 10, between lines 17 and 18, to insert the following:
“(c) by the deletion of the following in subsection (5):
“and such rules may provide for the election of members and the dissolution of a student council.”,
(d) by the insertion of the following after “affairs” in subsection (6):
“including providing for the election of members and the dissolution of a student council.”.”.
(Senator Lynn Ruane)

Senator Ruane was in possession when the debate adjourned.

Had I finished?

You were in possession and you were about to conclude.

I had just finished and the Minister would have been due for a response. I finished my contribution on amendment No. 15 and then the debate was adjourned so perhaps we will go straight to a response from the Minister, unless the Minister needs me to remind him of my contribution, which I am happy to do.

I welcome the Minister, Deputy McHugh, back to the House.

It was a very welcome intervention that I could not forget. It was an important intervention as well because the Senator was specifically talking about the voice of the student. That is something I am extremely interested in and I was part of the formation of Donegal Youth Council a long time ago back in 2000. It is really important to get the voice of the student right.

I did a wee bit of background checking on this and I do not have any evidence that even over the last two decades there has been any significant issue of boards being dissolved by schools or anything like that. I am confident the specific reference in the Bill to a "student council (where one has been established)" is simply reflecting the fact that primary schools may not have a student council. When no student council has been established the Bill still provides for consultation with the student body. I specifically refer to section 27B(1) of the Bill, which deals with the process where a school should prepare its student and parent charter.

The key focus of this legislation is on schools informing students, consulting with students and responding to feedback from student and school plans, policies and activities. This is specifically reflected in the large number of provisions in the Bill. I am confident the provisions in the Bill will allow that student voice to be heard. The big part of it is the fact the students will be working with the boards of management. Where schools do not have a student council, they will work along the guidelines. As somebody who shares the Senator's strong opinions on advocacy of the student's voice, I am confident the provisions in the Bill would do enough in themselves. It is not necessary to put anything further in there to strengthen it. That is why I will unfortunately not be accepting amendment No. 15.

The Minister is right in his point about boards being dissolved and I do not have evidence of that happening either to be quite honest. For me, this amendment was to prevent such a thing. We also never had an Education (Student and Parent Charter) Bill. I feel there is room to begin to have more equality of input between students, parents and boards. There might be potential there to silence students or student councils.

I hear the Minister saying he cannot support this but between now and Report Stage would the Minister consider what we can put in the Bill in terms of the schools that theoretically say they have student councils but do not actually convene those student councils in any real formatted and structural way so that the students have a place where they can contribute to legislation such as this or to the general school community? Between now and Report Stage, would the Minister consider thinking about how we could put measures into the Bill whereby if a student council is in existence, it should hold a minimum of three meetings within the school year, or one meeting per term, for example? I would have to think about how that would look in practice but unfortunately, we have many schools that say and promote the idea they have a student council and yet, the teachers are not providing the space for the students to meet as a council. Whatever about not dissolving councils, it is about having councils and not being able to utilise them because they are not meeting. Sometimes that is not down to the students. I have experience of students constantly asking for the student council to meet, one teacher would have specific responsibility for the student council and they would find it difficult to nail that particular teacher down to set meeting times. Are there other less blunt ways of doing this than through my amendment? Are there other avenues we can take to strengthen the role of student councils?

I appreciate where the Senator is coming from. One of the things we are trying to avoid here is uniformity. Senator Ruane, other Senators in the House and I know that no two schools are the same in ethos and philosophy. I reassure the Senator that there is provision for this within the guidelines. The education partners will include student representative bodies as well and I know we are living in a period where the voice of the student is becoming stronger and louder and there is a sense of urgency in that voice as well. When the education partners meet at the consultative stage of the development of this Bill, there will be a lot of suggestions for the guidelines. I reiterate I am confident they will get it right. I know what the Senator is saying about whether there should be a prescription around how many meetings a year the student councils should have but that gets the Bill into-----

-----disrupting schools. In some schools they meet on a very regular basis and different schools have different ways of doing things. We will look at this again before Report Stage. If there is anything we can do to build reassurances around that, I will get my officials to look at it.

Is Senator Ruane pressing amendment No. 15?

I will withdraw it with the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.
Section 7 agreed to.
Amendments Nos. 16 to 24, inclusive, not moved.

I move amendment No. 25:

In page 10, between lines 33 and 34, to insert the following:

“(f) an explanation of the role of the Ombudsman for Children under section 9 of the Ombudsman for Children Act 2002 and the complaints procedure thereof.”.

The amendment proposes an amendment to the new section 28 of the Education Act 1998, which relates to the procedures available to students and parents to resolve grievances with schools. It sets out the matters that must be included in the procedures for dealing with grievances, how grievance will be investigated and resolved and how any decisions will be implemented.

The amendment proposes to insert an additional subsection which would require that any school procedures relating to grievances would include an explanation of the role that the Ombudsman for Children can play when investigating complaints against a school under section 9 of the Ombudsman for Children Act 2002. Section 9 provides that the ombudsman can investigate the actions of a recognised school and provides an option for recourse for students and parents who have not had an issue resolved locally and with their own board of management. The ombudsman plays a key national role in this respect, offering expertise, experience and a statutory basis to make investigations into the actions of the school. I want to ensure that the procedures for resolving grievances within schools and for students and parents to complain within their school environments also include a description of the options to escalate the issue to the Office of the Ombudsman for Children.

This Bill sets out a new collaborate to school grievances, which I welcome. Unfortunately, there will always be issues that cannot be resolved in the local school environment and will need the intervention of the ombudsman to resolve them. I want to see a statutory guarantee that an explanation of this route will be set out in the procedures relating to grievances. I hope the Minister will accept my amendment.

The amendment provides for the explanation of the role and complaints procedure of the Ombudsman for Children to be included in section 28. I accept that the Bill does not currently make it an explicit requirement that the grievance procedures would require that schools inform students or parents of their right to make a complaint to the Office of the Ombudsman for Children following the exhaustion of those procedures. However, it is my intention that this requirement will be included in the guidelines on the grievance procedures. Nonetheless, I understand and agree with the intention of the Senator in respect of her amendment. However, I consider the wording that refers to grievance procedures including "an explanation of the role of the Ombudsman for Children" is too broad. It is preferable and more practicable to ensure that the grievance procedures make clear that students and parents should be informed, that they can make a complaint to the Ombudsman for Children's Office, and that they must be provided with the relevant information or contact details in order to do so. I do not think it appropriate for the grievance procedures to set out in detail an explanation of the ombudsman's role. Therefore, I cannot accept the amendment in its current form.

I am happy to have my officials consider this issue further with the legislative drafters, with a view to bringing forward an amendment on Report Stage, if required. I agree with the intention of the Senator in respect of her amendment.

I accept the point the Minister made. I will not press the amendment at this Stage and will wait to see if he comes up with a better wording or way of achieving the same outcome.

Amendment, by leave, withdrawn.

Amendment No. 26 in the name of Senator Craughwell cannot be moved.

Amendment No. 26 not moved.

I move amendment No. 27:

In page 10, after line 36, to insert the following:

“(3) Where a school decides not to deal with a grievance on the basis of it being vexatious or frivolous it shall, where appropriate, notify the complaint outlining as to why it deems this to be the case, and keep a record of this decision.”.

I welcome the Minister. My amendment has been proposed to address what I believe may have been an oversight in regard to transparency. We all acknowledge that it is likely that schools will, from time to time, receive complaints that may not hold water. The opinion of the school may be that the complaint is frivolous or vexatious and, to reach a consensus, a discussion must be had about why this is the case. My amendment provides that any such decision will be put in writing and the basis for reaching such consensus will be outlined. This will be in the interest of the schools to protect themselves going forward regarding matters that may arise in the future. It will also give the complainant, where appropriate, a clear rationale as to why his or her complaint has been dismissed.

I note the drafting error in this amendment where the word "complaint" should read "complainant". I intend to address this on Report Stage.

I thank the Senator for his amendment. The amendment requires a school that decides not to deal with a grievance on the basis that it is vexatious or frivolous to notify the student, parent or parents as to why the school has deemed the grievance to be vexatious or frivolous and to keep a record of the decision.

Section 8 of the Bill replaces the existing section 28 of the Education Act 1998 and provides for new standardised grievance procedures in all schools. The charter guidelines will set out the details of the new grievance procedures and these will focus on dealing with complaints efficiently, effectively, fairly and, as far as possible, informally. The grievance procedures will be developed in consultation with the stakeholders, including parents and student representatives, which will help to ensure the procedures are straightforward, fair and accessible to parents and students.

The new section 28(1)(d) provides that the new grievance procedures shall include a requirement on schools to give reasons for decisions in relation to grievances. It is intended that this would also include schools giving reasons when they decide not to deal with a grievance when the grievance is, in the opinion of the school, vexatious or frivolous. Therefore, I consider that the Bill already provides for schools to provide reasons where they decide not to deal with a vexatious or frivolous grievance and that the amendment proposed is not required. However, I am happy to have this matter further considered. If it is considered necessary to include an explicit amendment to provide for this, I will be happy to bring an amendment forward on Report Stage.

I note that there appears to be an error in the wording of the amendment which uses the term "notify the complaint". The Senator has pointed out that this should read "notify the complainant".

While I will not accept the amendment in its current form, I am more than happy to consider the matter to try to provide more clarity on Report Stage. I will also consider making an explicit reference to the matter in the Bill. I will be happy to do that if the Senator is happy to work with me.

I take on board what the Minister has said and I will withdraw my amendment with a right to resubmit it.

Amendment, by leave, withdrawn.

Amendments Nos. 28 and 29 in the name of Senator Craughwell cannot be moved as the Senator is not here.

Amendments Nos. 28 and 29 not moved.
Section 8 agreed to.

Amendment No. 30 in the name of Senator Craughwell cannot be moved.

Amendment No. 30 not moved.
Section 9 agreed to.

I move amendment No. 31:

In page 11, lines 13 to 16, to delete all words from and including “in” in line 13 down to and including line 16 and substitute “by the repeal of subsection (2).”.

My amendment seeks to amend the section, which amends section 9 of the Ombudsman for Children Act 2002. I thank the current ombudsman and staff in his office for meeting me to discuss the provision. The section, as it stands, simply makes a technical amendment to reflect the legislative references made by this Bill. I refer again to the pre-legislative scrutiny process undertaken by the Joint Committee on Education and Skills. This exact amendment was proposed in head 7 but it has been dropped from the Bill, as initiated. I have yet to receive a substantive explanation as to why this crucial provision was dropped. I have tabled my amendment for that reason.

The amendment proposes to delete section 9(2) of the 2002 Act, which states that the Ombudsman for Children can only investigate the actions of a school on foot of a complaint from a parent or student where the local grievance procedures within the school have been exhausted. I do not see the need for the provision as I am concerned about the levels of oversight that will be possible under the provisions of this Bill if the ombudsman can only intervene at the very end of the process. There are many reasons the ombudsman may need to begin an investigation earlier than currently allowed. I can imagine a belligerent board of management using the knowledge that the ombudsman cannot intervene until its procedures are exhausted for the board's own ends at the expense of the interests of the student. Imagine if we only allowed other investigatory and regulatory bodies to begin investigations once local complaints procedures were exhausted. Would we allow this in hospitals and social care homes? We would not allow it and we should not allow it in schools.

I want the ombudsman to be able to intervene and investigate at the stage that he or she believes most appropriate and helpful, not because an arbitrary restriction in the legislation provides that he or she must wait until local procedures have been exhausted. I do not understand the reason such an important provision was included in the general scheme presented to the joint committee on Education and Skills before being dropped without explanation. My amendment must be accepted and this unnecessary restriction on the role of the ombudsman removed. It allows for an intervention to be made much earlier in the process. It also improves the balance of power and brings equality for students, teachers and schools. Grievances could be resolved at a much earlier stage, rather than having to exhaust every single possible solution. At that stage, a child could be missing school and the relationship with the school will have broken down. This provision is a preventative tool as it would allow the ombudsman to intervene at an earlier stage if he or she fits to do so, rather than waiting for processes to conclude.

I thank the Senator for tabling this amendment. It would provide for the repeal of subsection (2) thereby deleting subsection (9)(2) of the Ombudsman Children Act 2002, which prevents the Ombudsman from investigating a complaint until a local school compliant process has been exhausted. I understand the concerns raised by the Senator and my Department is actively considering this provision in conjunction with the Office of the Ombudsman for Children. There is ongoing engagement on that. That engagement will involve the Department of Children and Youth Affairs and the Office of the Attorney General and a decision will be made when it has concluded.

As part of this work, further, more detailed consideration must be given as to how best to balance factors such as the valid issues raised by the Senator, the current legal framework under which the Ombudsman for Children's office operates, the autonomy of schools and the general desirability that grievance procedures at school level should be followed before the Ombudsman for Children's office would become involved in a complaint.

While I cannot accept the amendment at this time, I assure the Senator that this issue remains under active consideration by my officials. I hope to bring forward an amendment for Report Stage. In layman's terms, it is not giving the Ombudsman the full rein but there are examples where schools may in the future frustrate or delay proceedings. That is the space we are in. I am happy to consider the issue again but, because a conversation is ongoing between the Department of Children and Youth Affairs and the Ombudsman for Children, I am not in a position to accept this amendment today.

I am happy with the Minister's response and will wait to see how the conversation progresses with the Office of the Ombudsman for Children. I will withdraw the amendment and reserve the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.
Section 10 agreed to.
Section 11 agreed to.
Question proposed: "That the Title be the Title to the Bill."

I briefly wish to thank the Senators. Amendment No. 5 was discussed during the debate on the Bill last week. Its content now forms part of the Bill, having been voted through last week. I wish to advise the House that both my officials and I need to examine the provision in more detail in conjunction with the Office of Parliamentary Counsel to consider how it will work with the other provisions of the Bill. In particular, I need to reflect on the additional administrative burden the amendment places on schools. From a technical drafting point of view, I also need to consider whether the amendment is inserted in the most appropriate section of the Bill and whether it may need to included in a separate section. There is a bit of housekeeping to be done in that regard. As a courtesy, I want to advise the House that I may need to bring forward an amendment to this provision on Report Stage. I want to be courteous and nice about it rather than demanding.

I thank the Minister for that.

Question put and agreed to.
Bill reported with amendment.

When is it proposed to take the next Stage?

Report Stage ordered for Tuesday, 19 November 2019.
Sitting suspended at 3.24 p.m. and resumed at 4.30 p.m.