Skip to main content
Normal View

Tuesday, 9 Jun 1998

Vol. 1 No. 4

Education (No. 2) Bill, 1997: Committee Stage (Resumed).

I welcome the Minister for Education and Science, Deputy Martin, and his officials, Mr. John Dennehy, Mr. Tom Boland, Ms Deirdre O'Keeffe and Mr. Feargal Costello. I suggest we continue consideration of the Bill until 6.55 p.m. and take a break between 4.15 p.m. and 5 p.m. for the Order of Business. Is that agreed? Agreed. If we do not conclude today, I suggest we meet tomorrow from 9.30 a.m. until 11 a.m. Is that agreed? Agreed.


I move amendment No. 166:

In page 14, subsection (3)(a)(i), line 37, to delete "the Minister" and substitute "the Chief Inspector".

Section 13(3)(a)(i) runs in the face of decentralisation and devolution. The role of the Minister should be to set out policy parameters. However, this subsection concerns itself with the area of administration. Section 13(3) states:

The functions of an inspector shall be: . . . [to] visit recognised schools and centres for education, as directed by the Minister and do any or all of the following:

Where does this leave the chief inspector? This provision means that the Minister will be involved in what is essentially an administrative area as distinct from a larger policy area. My amendment would enhance the position of the chief inspector within the Department. The Bill is concerned with centralising tasks which are inappropriate to the Minister's office.

I support the amendment. The previous amendment, which was not accepted, suggested it would be either on the initiative of the Minister or on the initiative of the inspectorate. The Minister appears to be determined not to give even optional discretion to the inspectorate to decide on the organisation of its work. I am puzzled by this. While I am open to persuasion that the Minister should have the residual right of asking for an inspection to be undertaken, the primary initiative should lie with the inspectorate.

We discussed this at our last meeting. Basically, inspectors are the agents of the Minister and he retains a policy remit in respect of the inspectorate. He or she is also ultimately responsible to the Dáil and the people for the actions of the inspectorate. It is appropriate for the Bill to provide the Minister with ultimate control over the inspection of schools, especially at a time when we are evolving a new development in terms of whole school evaluation, etc. We are all aware of the sensitivity of this issue going back many years. I believe, even in the light of most recent developments, it would be inappropriate to effectively take the Minister out of the equation, as this amendment would do, because he or she is in regular contact with management bodies, trade unions and so on in respect of this entire area.

However, this does not mean the Minster must involved himself or herself in the detail of school inspection. Ministers can delegate responsibility for day to day matters to their officials while retaining ultimate responsibility for their actions. In practice, the inspectors will act at the direction of the chief inspector, as has happened to date, and will have the power to visit a school if they consider it is warranted. The Bill ensures that the ultimate control still rests with the Minister. Given the stage we are at and for the reasons I have outlined, I do not propose to accept the amendment.

The Minister makes no sense. If he wants to protect his policy remit he would retain the right, as is frequently provided in legislation of this kind, to issue certain directions and set the policy framework within which the work is undertaken. When the Minister says he will be responsible to the Dáil, it is my understanding he will not reply to answers on specific schools, nor is it appropriate for him to do so.

We want a professional inspectorate with its own independence of operation while operating within policy guidelines determined by the Minister and responding to his legitimate concerns or those brought to his attention by members of the public. The inspectorate should work on its own initiative, make an identity for itself, report regularly to the public and take on a role with regard to all of the various parents, teachers and different stakeholders in the school.

The Minister's defence of his position is hard to understand. If he reads the section he will see it provides not for policy but for visits to recognised schools. By all means let him set out a policy framework agreed between him and the inspectorate after consultation. However, he appears to be trying to retain control within Marlborough Street for things which should become devolved in their operation, something for which he criticised his predecessor. It would be a good first step if the inspectorate took on this role.

The Minister's reply is not convincing in that the power granted to him relates to visits to schools. Section 13(3)(a)(i) provides that the inspector may assess the implementation of regulations made by the Minister, report to him and so on. The amendment relates only to visits, not to policy.

Visits are part of policy.

I disagree.

The concept of visits to second level schools is still a fundamental part of policy decisions that must be taken in consultation with the partners. Similarly with the area of whole school evaluation; we all are aware of how laborious it was to get to the stage of a pilot project involving 12 schools, six primary and six secondary, to look at the overall school situation with a view to improving various aspects of it. For years there has been resistance, especially in secondary schools, to the notion of an inspector visiting a school at all. Any Minister would have to take cognisance of that reality. It would be a mistake for the Minister to take himself or herself out of that equation in the light of the careful and delicate discussions undertaken by the chief inspector on behalf of the Minister and which have been ongoing for some time. Control rests with the Minister and the Bill proposes a continuation of the position to date.

Deputy Bruton appears to want an independent inspectorate which is a different concept to the one envisaged in the Bill. I disagree with his proposal. The inspectorate is an integral part of the overall Department approach to the education system and the education partners. I do not envisage an independent inspectorate similar to the type in operation in Britain, for example which has caused much controversy in terms of the publication of league tables, etc. That kind of approach would inevitably emerge if an independent inspectorate was established.

Under our system, inspectors do much more than inspect schools. They have a wider remit in terms of research, the curriculum, examinations and providing advice to the Minister on a range of issues. It makes sense to continue with the position where the inspectorate is part of the overall Department team in terms of the education provision.

The inspectorate in this country is not independent, as it is in the UK and it must have relative independence in the Department in terms of its day to day operations. Policy is a much wider remit and, as I pointed out, it would assess the implementation of regulations made by the Minister. This does not conflict with cases where, for example, there are concerns about a particular school which are conveyed to the Minister and he or she asks the chief inspector to examine them. However, I foresee a difficulty regarding the general day to day implementation of policy.

There is no difficulty.

I foresee a difficulty because it gives the impression that the inspectorate will be in the hands of the Minister. I do not refer in particular to the current Minister.

I understand that.

Acceptance of the amendment will not weaken the powers of the Minister in any way. However, it would give perceived and pragmatic independence to the inspectorate which would be good in the education system. The inspectorate will not decide which schools it will visit without reference to anybody. The amendment would ensure that the chief inspector has powers of direction in this area.

In view of the structure of the Department, discussions will take place between the Minister, the Secretary General and the assistant Secretaries General. Information will pass back and forth but I am concerned about the ultimate professional integrity of the office of the chief inspector.

It is arrant nonsense to state that league tables is the inevitable result of acceptance of the amendment. By making that suggestion the Minister is treating the committee with contempt.

I did not say that.

The Minister said acceptance of the amendment, which would give inspectors the power to determine the schools they visit, would lead inevitably to league tables.

The Deputy said he wanted an independent inspectorate. I said such an inspectorate would lead to precisely the same position that obtains in the UK.

That is total nonsense. An independent inspectorate can operate within a policy framework set out by the Minister. He or she can set whatever policy requirements in accordance with which the inspectors must conduct their business. The Minister said that second level schools are unwilling to let inspectors inside their doors and he could not allow inspectors to have authority for that reason. However, the Minister should recognise that if he grants inspectors a role within a policy framework, they must work within whatever framework he sets. If the Minister negotiates a protocol with second level schools, the inspectors must act accordingly. However, if he fails to do so, he can say that they do not have a policy remit in that area.

The Bill states that the inspectorate shall only visit schools as directed by the Minister, report to the Minister in respect of various matters and consider international comparisons in terms of how our system is faring and report to the Minister. At every hand's turn, the Minister is insisting that the inspectorate, which is potentially the most important service in the education system in the long-term, will be bound by whatever the Minister of the day wants to do at any given time. His or her discretion will apply at every point.

Ministers should do what they are good at, which is developing policy frameworks. Ministers are not good at intervening on a day to day basis or censoring reports prepared by people evaluating the system. Ministers tend to be sensitive about criticism and will want to dock such matters from reports. It should be accepted that inspection is here to stay. It should be developed in a meaningful way and everything it wants to do should not be confined to ministerial discretion. The Minister is making a mistake in this area. I am surprised, having appointed people of recognised quality to the inspectorate, that he feels the need to put them under this type of stricture.

The position has been overstated by Deputy Bruton. As it stands the chief inspector operates on a daily basis. I am not oversensitive to criticism in any report and in the future any amendments to reports will available to the public under the Freedom of Information Act. There may be sensitive material but I have never been in the business of amending inspector's reports. They submit reports about schools on an ongoing basis. In any case, Ministers are ultimately responsible to the Dáil for their behaviour.

The Deputy has overstated the position regarding the likely impact of the provision. In comparison to the Education (No. 1) Bill, numerous references to the Minister in a range of areas have been deleted. There were many more provisions relating to ministerial power in the first Bill compared to this legislation. The wording is adequate and correct in terms of the Minister retaining ultimate control and responsibility over the inspectorate. Therefore, we must agree to differ.

Will the Minister indicate the time allocated by inspectors to their functions in schools and on research? I understand their functions include overseeing supervisors at particular times, such as during the leaving certificate examinations which start tomorrow. Many primary and second level inspectors are drafted in to oversee the activities at the various centres. Will the Minister give a breakdown of this area?

As a former teacher my view is that inspectors should act as a back up to teaching staff. They should offer advice on new courses, guide teachers on recent developments and advise teachers who are having difficulties coping in the classroom. The practicalities on the ground are far removed from that position. The activity of inspectors in that role is minimal. It is a great loss to children and others that there is a talented team of teachers but inspectors are not doing a better job. Perhaps this is due to lack of time and that is why I asked the Minister about that aspect. Perhaps they do not have time to motivate teachers and help those with difficulties.

The job of an inspector should not be tied to the Department. I am interested to know how many days during the school year inspectors spend visiting schools as distinct from doing administration work in the Department. The work many inspectors will start tomorrow could be adequately done by others in the Department. Inspectors are a talented group of people and it is a waste of their time to have them doing administrative work.

I do not have a comprehensive breakdown of the work programme of each inspector or the inspectorate collectively. However, I can arrange to furnish a summary to the Deputy.

A rough guide will suffice.

That can be forwarded to the Deputy as quickly as possible. Inspectors continue to make regular visits to primary schools and reports are submitted regularly to the Department in relation to a range of issues, such as physical accommodation matters, the need for additional support or specific difficulties in schools.

The Deputy is aware of the historical difficulty at second level. It is not only a case of inspectors having other work to do, a fundamental policy issue must be resolved by the partners. The school evaluation programme developed in that context and this involved much work, particularly by the chief inspector, who did an excellent job in that regard.

Regarding examinations, the inspectors play an important role which involves much more than administration. It is a fundamental role in terms of assessments and overseeing the examination and correction of papers. The chief inspector has a fundamental role in this area which is most important in terms of the papers that are set and how they are corrected. It is not a question of people in Athlone lifting boxes and doing basic administrative work — they are absorbed significantly by the examination system.

I agree with the Deputy that it should be the role of an inspector in the modern era to be of assistance to a school and teachers, to help them improve the overall performance not only of teachers in a classroom but the entire operation of a school. That is the philosophy which underlies the school evaluation process and I know the present chief inspector also has that view. That is the philosophy which informs his approach to the evolution and development of the inspectorate over the next number of years.

I think there is a slight misunderstanding between the Minister and myself. I am not saying the inspectorate should not be involved in the examination process — that is, setting papers, making sure standards are achieved, marking, etc. From tomorrow, inspectors will be visiting various examination centres and ensuring everything is in position — I may be wrong but as far as I know that is the case. That strikes me as a job which could be done by someone else, so that the talent bank in the inspectorate could be used for other work. There is a need for them to be involved in the setting of examinations and in co-ordinating with experienced teachers. To have such a group of people driving from centre to centre over the next fortnight is a waste of talent.

Could Deputy O'Shea indicate his intentions for his amendment, as we have spent a long time on it?

It is an important amendment. The Bill mentions an inspector, not the chief inspector, and uses the phrase "as directed by the Minister". That conjures up the image of an inspector being given a list of schools to visit each month. If the only reason for keeping the Minister's name in this subsection is a difficulty for inspectors in carrying out their functions in some second level schools, that is an appalling admission.

What admission?

To admit that there is a difficulty with——

I am just telling the truth, which is also how it was under the Deputy's Administration and previous Administrations. It is not an appalling admission, it is being frank, open and not pretending. I am just saying what the reality is.

The bottom line is that there is a difficulty with the inspectorate being allowed carry out its job — is that what the Minister is saying?

No. There is no point denying this is a highly sensitive area, which is a matter of public policy in respect of all sectors in education. That is the background to the position I have adopted in terms of how the Bill has been phrased. It does not mean that I or the next Minister will be involved in every decision an inspector makes — that is overstating the case. I think the Deputy is making a mountain out of a molehill. I outlined to the Deputy at the beginning the background of the inspectorate's visits to schools and that has been the position for many years.

If the Minister was flexible he would be able to agree something we would all be happy with but he seems to be set on this wording for some reason which is not clear to me.

There will be plenty of flexibility in how the Bill is operated. I do not see any difficulty with this.

The Opposition does.

I think the Opposition is wrong.

The Minister is saying that is not how it will operate and I do not doubt his good faith, but this legislation will stand for him and for other Ministers and it is far too centralised in its phraseology. What is the problem with giving this function to the chief inspector if, as the Minister says, that will be the de facto position in any case?

What is the problem with it as it is? My opinion is that because of the sensitivities involved, making the Minister the person who directs what happens is a guarantee to other partners that future developments will be made by way of ministerial directive in consultation with Departments. This is acting in good faith as a guarantor of how the process will operate in future. The Deputy said this section gave a certain impression; if, on the other side of the coin, the impression was given that the Minister was completely removing his involvement in the operation of the inspectorate, that would cause problems for other parts of the process and would lead to concerns and anxieties that they would be open to a range of new developments, which is not the intention of his amendment. For safety, I think it makes sense that the Minister retains control of what happens to the inspectorate, given where we are at present. The Department, the chief inspector and I are acting in good faith with the partners on the school evaluation process and that should be seen as a benchmark for where we intend to go.

Where are the functions of the chief inspector laid down in the section?

They are included. He is a member of the inspectorate so his functions are covered in the general functions in section 13 (7). The Minister has overall control of policy and the chief inspector has the same remit for policy functions as detailed in the section dealing with the inspectorate.

I read the Bill somewhat differently. We are talking about criteria for inspections which may be determined by the Minister from time to time following consultations. However, there is no clear identification of the chief inspector's role — we are leaving everything to trust.

Does the Deputy want me to include in the Bill everyone in the Department's top management group?

A Deputy

That is rather disingenuous.

It is not.

The chief inspector is an important part of the inspectorate and the Minister should tell us what he or she is going to do.

I think it is quite clear — he will oversee the operation of the inspectorate, as he is doing at present, and all the policy functions which apply to it, in respect of primary school inspection, whole school evaluation, examinations, curriculum research, and various other research on educational matters.

The section states that the Minister shall make directions as to visits but the rest of the Bill relating to the inspectorate——

Section 13(1) states that the Minister appoints the chief inspector, each inspector and as many inspectors as the Minister considers appropriate. The chief inspector and the inspectors shall be known collectively, and are referred to in the Bill, as the inspectorate. The section then lists the functions of the inspector and the inspectorate. The chief inspector advises the Minister as to supports which should be given to schools and a raft of matters which come under the functions of the inspectorate generally.

Is the Minister saying that the chief inspector's role, as per this legislation, is advisory?

No, it is more than just advisory.

Where is that stated?

In the phrase "to support and advise recognised schools", etc., in the list of functions of an inspector, which includes the chief inspector.

Yes, but the chief inspector is separate from the other inspectors. We have to assume he is in charge in some way but it would be helpful if we knew how.

He is in charge, but we could look at that for Report Stage to see if the role of the chief inspector needs further clarification.

I do not want to be awkward but I think there is a problem. I am trying to be helpful. If the Minister is prepared to look at this for Report Stage——

To be clear, some people want to move the inspectorate in a certain direction but I am not in favour of that. I am in favour of the Minister holding control of the inspectorate and that is the position I am adopting.

In no way have I suggested anything other than that.

There is a difference between policy control and day to day control. We want to retain ministerial policy control. This is acceptable but when a Minister takes on to himself the authority to intervene in the day-to-day activity that is properly the role of the inspectorate, people rightly see warning lights. Over time a Minister who has a different view from the present Minister could let this service go into decline. This is a sensitive service and people will be watching to see if it goes into decline. Therefore, we should seek in so far as possible to have both the policy framework and operations controlled by the Oireachtas by agreeing the framework which you operate rather than relying on your goodwill and interest in developing this, which I have no doubt is genuine.

The argument that Ministers should stay out of every single issue is not valid. Anyone with any experience of the difficulties involved traditionally and the position I inherited or anyone who visited the union conferences last year and talked to delegates would realise how sensitive the issue is. There is no point being idealistic and burying our heads in the sand. The reality is there is some distance to go before many people will be convinced, particularly in the secondary school sector, that a free rein inspectorate who visit schools when they wish is a good idea. This is what deleting "the Minister" will entail. We have not yet arrived at a situation where we can do this with a degree of confidence that chaos will not result. As things stand at present, if this were allowed to happen any union branch could say, "This is outrageous and totally new" and cause chaos.

There is plenty legislation in place which gives the Minister the right to produce a framework within which groups can operate and which allows him to give directions to the inspectorate. If the Minister wants to protect the system and allow it to evolve he can do so by agreeing the framework within which they would operate and he need not allow inspectors into secondary schools until there is a national agreement.

That is what I am saying.

The Minister is saying that even where there is a national agreement on the operation of the inspectorate he will still retain the right to say he will curb the activities of the inspectorate.

In all Acts the words "the Minister" does not necessarily mean that the Minister will carry out every function in terms of detailed implementation on a day-to-day basis.

There is plenty legislation which allows a framework within which this can be done.

This is a gross over-statement and suggests that the inclusion of the words "the Minister" means the Minister will be involved in every single inspection in every single school. This is not the case. Obviously the Minister has the power of delegation and on a daily basis delegates authority to both officials and inspectors in his Department to take a raft of decisions on different matters. This will continue to be the case. I will look at this issue on Report Stage in the context of Amendment No. 116 and the clarification of the role of the chief inspector.

I welcome the Minister's undertaking to look at the definition of the role of the chief inspector. In that context it would probably be easier to draw a demarcation line and define the powers that can be delegated. However, we need to know what are the functions of the chief inspector. It needs to be clear that the policy function rests with the Minister and the Minister devolves. I have a problem with the section both in terms of practice and of its perception but I will withdraw my amendment of the basis of the Minister's undertaking.

Amendment, by leave, withdrawn.

I move amendment No. 167:

In page 14, subsection (3)(a)(i)(I), line 39, to delete "management" and substitute "organisation and operation".

I propose amendment No. 167 in order to clarify the exact role of the inspectorate in relation to evaluating school management. It is not my intention an inspector should become involved in matters other than "matters relating to the provision of education", as specified in the Act. The role does not and should not include evaluation of areas which are properly within the remit of the patron. Chief among these are matters relating to the schools' ethos. This distinction may not be clear in the Bill as drafted. In order to address this matter, the amendment specifies that the inspectorate will evaluate only the organisation and operation of the school rather than the general all-inclusive management of the school.

Amendment agreed to.

I move amendment No. 168:

In page 14, subsection (3)(a)(i), after line 47, to insert the following:

"(IV) assess the extent to which the objectives set out in section 6 and the functions set out in section 9 are being achieved;".

This arose in an earlier context when the Minister indicated sympathy for this line of thinking, namely, giving explicit mention to the objectives and functions set out for the education system as a whole and for schools in particular. This amendment explicitly requires an inspector to look at matters such as the extent to which there is reasonable equality in relation to the operation of the school and all the various objectives set out in section 6 — equality of access, promoting opportunities of different sorts, liaison with the community and so on. This amendment lays down that when inspecting an inspector would not solely look at a very narrow set of issues the school might set itself but at the broader objectives of the education system and the broad functions of the school.

I have already said I would look at how the objectives will be reviewed on a regular basis in terms of targets being achieved. Inspectors would in practice be involved in assessing objectives in respect of each school. Whether we put a statutory obligation on them to do so and increase the burden on them is open to question. Section 3 of the Bill makes provision for the functions of schools to be open to assessment by the members of the inspectorate. I will look at this on Report Stage in the context of putting in place a system of review of the objectives as outlined in section 6 of the Bill.

Amendment, by leave, withdrawn.

I move amendment No. 169:

In page 14, subsection (3)(a)(i), after line 47 to insert the following:

"(IV) evaluate the implementation and effectiveness of any appropriate individual education plans drawn up for students in those schools or centres with disabilities or special education needs,".

This amendment seeks to include an extra subsection in the context of the functions of the inspector. I am seeking that inspectors would have as a function to evaluate the implementation and effectiveness of any appropriate individual education plans drawn up in those schools or centres for students with disabilities or special education needs. Essentially I am seeking to ensure that children with disabilities or children with special education needs have an individual plan in place from a very early stage so that there is a holistic approach to their education. I believe these children more than most would benefit from external or objective evaluation from time to time in terms of the implementation and effectiveness of the plan drawn up. I know the Minister does not accept my point that all inspectors should be suitably qualified to deal with the disabled or people with special needs. I ask the Minister to accept this amendment.

We have already discussed the issue of education plans for children with special needs and we said we would look at that approach on Report Stage. Our system tends to adopt an individual rather than a group approach. While I am prepared to accept the amendment in principle, perhaps an addendum could be made to include "where such plans exist". The concept of an education plan is not included in the Bill. If plans exist or will exist in the future, I have no difficulty with the inspector evaluating them. In other words, I have no difficulty with the amendment.

I accept the Minister's good faith. I am concerned that there should be an individual approach and commitment to the education of children with special needs or disabilities who are in special schools or special classes in mainstream schools. They, above all children, would benefit from an evaluation. I ask the Minister to consider including a provision to evaluate the special needs of children at an early stage and to map out a programme to meet their individual needs. Much can be lost if there is no plan or framework through which those children can develop.

Much can also be lost by being overly prescriptive in legislation, particularly as regards the integration model and approach. We have some distance yet to go in terms of integration. I will accept the amendment on the basis of redrafting it on Report Stage.

I will withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

I move amendment No. 170:

In page 15, subsection (3)(a)(i), between lines 4 and 5, to insert the following:

"(V) report to the school or to the educational partners within the school on these matters or on any other matter relating to the activities of those schools or centres and the needs of students attending those schools or centres,".

This is one of the few amendments the Minister will be willing to accept in relation to the inspectorate. In the Bill as drafted, the inspectorate is confined to reporting solely to the Minister. There should be an obligation on the inspector to report to the school on matters he has inspected or on other matters relating to the school's activity. The amendment should read "report to the school and to the educational partners within the school". The Bill includes provisions to allow the inspector to advise teachers on the performance of their duties, the board and parents, although it does not specify on what he will advise them. It is sensible to look at the development of the school as a partnership between the different partners. The inspector who assists the school to achieve excellence in the way it conducts its work should report to the school and the education partners on what he or she finds and indicate things which could usefully be done. That would enhance the standing of the inspectorate.

I sympathise with the amendment's intention to inform the partners in education of the results of an inspector's report. The school evaluation process involves all the partners, including the board of management which consists of teachers, parents and patron. An addendum to the amendment would have to be made to include "following the establishment of procedures agreed by all the partners".

That would not be a problem.

One option would be to do it via the boards. In other words, the Minister would get the report and give it to the board of management and it would then become a function of the board of management to inform the education partners. The other option would be for the inspector to circulate the report to the parents association, teachers, board of management and the patron. The degree to which that impacts on how the inspector prepares his or her report is another matter. If sensitive issues pertaining to an individual in the school are contained in the inspector's report, for example ——

Under an amendment such as the one I have tabled, the inspector could give the principal one report which includes certain sensitive issues and give the parents association a different one. The inspector will not report on issues, such as personnel issues, which might undermine the confidence parents have in an individual teacher, although he might tell the principal that a particular teacher needs in-service training in certain areas. I accept the Minister's point that the inspector must strike a balance between what is appropriate to different partners because there will be sensitive issues. The conduct of the evaluation and the role of parents should be included in the Bill.

We will come back on Report Stage with an addendum to include "following the establishment of procedures agreed by all the partners". We want to ensure a reporting mechanism is in place.

Amendment, by leave, withdrawn.

I move amendment No. 171:

In page 15, subsection (3)(a)(i), between lines 4 and 5, to insert the following:

"(V) In conducting such evaluations, the Inspector shall consult with all the education partners in the school, and take their views into account in developing proposals to assist the improvement of educational services in the school,".

This is the other side of the same coin. It seeks to ensure that the inspector consults with all the education partners in the school and takes their views into account in developing proposals to assist the improvement of educational services in the school. The inspector may have the best will in the world but he or she will only meet the key people. Unless the inspector meets parents and teachers and gets feedback from the coalface, they will be working without full information. In the interests of a commitment to partnership within the school, there should be explicit recognition that teachers, parents and others who have a genuine interest in the educational services in the school are consulted. Inspectors should regard that as part of the way they approach a school.

Subsection (7) already provides for inspectors to carry out their functions in accordance with procedures and criteria determined in consultation with the partners in education. That could be strengthened along the lines suggested by the Deputy. However, we must be careful about the burden we are putting on inspectors when we state they "shall consult with all the education partners in the school" in conducting such evaluations. We must be careful not to be too legislatively prescriptive in terms of what inspectors do on a day to day basis. They may not necessarily have to consult everyone in every situation in which they are involved.

We could strengthen subsection (7), which deals with the procedures, to accommodate the principle of the amendment to consult with the education partners in terms of whole school evaluation. That is happening at present. Not all the partners were entirely happy with the immediate outcome of whole school evaluation which involved the chief inspector consulting with all the partners. The board of management and the parents on the board of management were also involved. We got that far in terms of working out a model which is up and running on a pilot basis. On reflection, this is taking it further than where the school evaluation model is at present in the sense that the word "shall" is included. I would be slow to accommodate the word "shall" in that context because in the hard world of real politik I am trying to move forward the situation. Making ringing declarations in legislation does not necessarily move anything forward.

To some extent I take the Minister's point about burdening the inspector with too many functions. A later matter, to which I drew his attention, is that it seems there is a statutory right for parents to be advised by an inspector. I am not sure how that can be regulated but I could see it initially causing many problems due to the time inspectors would have to allocate to this sort of activity.

The essence of what Deputy Bruton is seeking here, the interface between the inspectorate and the extended school community, must be for the better of the pupils, and I welcome his approach. However, I have misgivings about what appear to be statutory rights in this Part of the Bill, which deals with the inspectorate, which could become too time consuming and which could take the inspectorate's activity from areas which would be better for children at large.

We may take the substance of that when we come to the section which deals with the inspectorate advising the parents' associations.

We must strike a balance. Generally it is working well at present. There is a necessity that an agent of the Minister, particularly the inspectorate, advises parents' associations. In the past, for example, parents' associations were not advised about their basic rights vis-à-vis the boards of management, etc. That led to many unholy rows about how boards were formed, poor communication, a lack of understanding of how the processes of decision making worked within the Department, what are the procedures, etc.

There is nothing wrong in one way in having an inspector advising parents' associations in the sense that it could cut out much subsequent difficulties. There have been cases which have reached the newspapers in a blaze of publicity, but if somebody had been advising the other parties, the situation could have been resolved a long time ago. I am talking about the building of new schools and the acquisition of a site, for example, when half the partners did not know what was going on and they were out picketing the Department as if the Department was responsible. I have met some of these delegations. The idea that the parents would have somebody to advise them who would know the procedures is not a bad idea.

Deputy Bruton's amendment is about evaluation. As it is currently phrased, it takes us a step beyond the current position with regard to the whole school evaluation model which we have developed. For that reason I am slow to accept the word "shall" at present. There was, as the Deputies will be aware, considerable opposition to that sort of position in the context of whole school evaluation and if it had been adopted, it would have meant the end of school evaluation.

I would be happy in principle if the Minister amended subsection (7) to insert at the end of these procedures which he will develop a statement of principle that these procedures shall respect the concept of partnership and the equal interest of all the partners in the success of the school. Some such formulation would be satisfactory to me.

In subsection (7) one could deal with all the partners.

Yes. In other words, the Minister would state the procedures which the Minister is taking on himself to determine but he would add a rider that these procedures would respect the principle that people have an equal interest in the success of the school.

Yes. I think we can accommodate that.

Amendment, by leave, withdrawn.

Amendment No. 172. Amendment No. 173 is related. Therefore, amendments Nos. 172 and 173 may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 172:

In page 15, subsection (3)(a)(iv), line 14, after "associations" to insert ", and students and student associations".

The Minister is accepting in principle this sort of change. I do not know whether he is accepting it in this particular context.

Is this about students' councils?

Do students want to be advised by an inspector? I doubt it. I am in favour of students councils and I want every second level school to have a students council. However, this is an additional burden.

It could be set up.

The idea is to develop self-confidence in students and give them the capacity to develop themselves. I know a teacher tends to act as a guiding father or mother figure to the students council, but I would be reluctant to have the inspector come in and tell them how to do business. Every students council of which I am aware is doing well. The democratic principles are absorbed there. There is tremendous progress in furthering the self-confidence of students. Often the head of a students' council welcomes visitors to the school and represents the school at ceremonial functions. There is much happening in that regard. In addition, they have discussions.

There is another issue. Are we placing another burden on the inspector? In addition to everything else, this amendment wants the inspector to advise every students' council.

There is the question of another adult at students' council meetings which might run contrary to the idea that the students have a sense of self-deliberation and self-reliance and are masters of their destiny to a point.

Perhaps I am getting confused, but I thought this was in the context of school visits, in other words, it is not about inspectors taking a permanent role on students' councils. The Minister may be able to clarify the matter. What does the Minister intend by section 13(3)(a)(iv), that is, "shall advise parents and parents' associations". If the Minister elaborated on the role of the inspector in relation to parents and parents' associations which he already accepts, it would be easier for me to understand why he did not envisage a similar relationship with students' councils where they exist.

As I outlined earlier, there is a fundamental difference between a parents' association and a students' council. There are fundamental responsibilities and roles in so far as parents are full partners in the education process and they are members of boards of management. They are carers in the school.

Students' councils do not have the status of a full partner. They are a mechanism where students can articulate their views about the school, where they have better communication processes with the school authorities and where they can develop their own processes of decision making.

As I outlined earlier, it can be useful for the inspector to be in a position to advise parents' associations so that they are in no doubt as to their rights under the Bill and the procedures which govern decision making processes, etc. For example, one of the concerns when we concluded the agreement on schools' boards of management was would every parents' association be formed properly and in accordance with procedures or would certain cliques or individuals try to orchestrate the election of parents to boards of management without parents' associations being formed. We hear stories about this in certain areas around the country where no proper structure is in place yet. I would envisage the inspector, as opposed to a chairman of a board of management, the patron, a teacher or a parish priest, being in a position to advise parents on such matters in an objective way. The inspector would be able to explain the system and the parents' entitlements and rights.

In addition, parents would be anxious to be advised on a range of issues relating to the operation of the school system, the performance of the school, curriculum reform and the examination system, and the inspector could do so in an informed way.

I accept what the Minister says if he feels it is not appropriate.

I am in favour of the idea of inspectors advising parents' associations. I question their role in advising parents, which is referred to in subsection (3)(a)(iv). That is too loose.

There may be occasions when an inspector will have to advise parents. This could arise in individual cases in respect of a particular child and his or her parents. An inspector could have an advisory role there.

I accept that, but on the other hand a parent could claim that this legislation gives him or her a right to advice from an inspector.

What would be wrong with that?

My problem would be that this would not be the best use of an inspector's time.

I will look at that.

Amendment, by leave, withdrawn.
Amendment No. 173 not moved.

I move amendment No. 174:

In page 15, subsection (3), between lines 18 and 19, to insert the following:

"(c) to evaluate the overall effectiveness of all aspects of the teaching, development, promotion and use of Irish within the education system and to report thereon to the Minister;".

This amendment has already been discussed with amendment No. 56. I would like to hear the Minister's response to this amendment. The amendment seeks to have the teaching, development, promotion and use of Irish included in the Bill as a function of an inspector.

We had a long discussion on this amendment. Does Deputy O'Shea remember what was decided?

I do not wish to put words in the Minister's mouth. I thought his response was positive.

The amendment was accepted in principle and it was decided to return to it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 175 is out of order because it would involve a potential charge on the Revenue.

Amendment No. 175 not moved.

I move amendment No. 176:

In page 15, subsection (4)(a), line 34, before "to assess" to insert "in consultation with parents".

This amendment is in the context of the psychological service. The Minister proposes to appoint inspectors who will assess the psychological needs of students and advise, as appropriate, those students, their parents and the schools on the educational and psychological development of the students.

When we had experts in this field speaking to the Committee, the point was made that an assessment involves something more broad than merely a psychologist making a report. There is a need to look at the situation in the round and, to reflect that, the Minister agreed that the assessment would not be done solely by psychologists. Parents should be involved in this process. They should not be told the results of an assessment after it has been done. This seems like good practice and there is no harm in having it stated in legislation.

As things stand, no assessment is carried out without the consent of parents and reports of assessments may be made available to parents. I understand what the Deputy seeks to achieve. The wording may need to be clarified but in some instances it may not be desirable to have parents involved in the actual assessment. In some cases it may be undesirable. We must be careful about that.

I would be open to persuasion if the Minister can instance cases where it would be undesirable.

In a case of parental abuse, for example.

Parents would not give their consent in that case.

This amendment would impose an obligation to consult parents, even in those circumstances.

I understood the Minister to say that the consent of parents was already required. In cases of abuse would an assessment be carried out without such consent?

Consent and consultation are not the same. Is the Deputy suggesting that parents be brought into a process of professional assessment? The assessment is carried out by professionals who make an objective assessment of the child. At what stage does Deputy Bruton suggest that the parents be brought in?

One would like to see parents fully appraised of what is happening. That is in everyone's interest. In difficult situations more than one professional is usually involved in making an assessment of a child. I wonder what do we mean when we speak about consultation?

I understand it to mean that if an assessment is being made and if certain broad trends emerge, the parents would be brought in at that stage and before the final assessment is made so that parents would not be presented with a fait accompli. The parents should be a party to the decision concerning the child. The amendment may need to be re-drafted but that was my objective.

Parents often have preconceptions about their child and when a recommendation is made which goes against their preconceptions they react badly. It might be better for everyone concerned if parents are involved in the development of the recommendation.

I accept that. The Bill does require an inspector "to assess the psychological needs of students in recognised schools and to advise as appropriate those students, their parents and the schools in relation to the educational and psychological development of such students;". I can accommodate on Report Stage the principle of what Deputy Bruton is recommending.

I would like to refer back to my own teaching days. It was often difficult to persuade a parent to agree to an assessment. It is difficult for a teacher to see a situation continuing which is not in the best interest of the child because parental consent to a psychological assessment is withheld.

Psychologists' reports usually include a range of tests. A child may perform at or above average in some of them. The parent is sometimes unable to comprehend the overall assessment. Sensitivity in interpreting tests and in presenting the results to parents is called for so that the parent can benefit from the assessment in making a decision about the child's future. My greatest concern is for children who need to be assessed but where parental permission is not forthcoming.

I think we can accommodate the amendment. Deputy O'Shea has hit the nail on the head, so to speak. There are wider issues and authorities involved — the health authority would have a key involvement in cases where a teacher or other professional knows there are certain difficulties and the parents refuse assessment. However, this section does not cater for that.

The issues of mandatory reporting and the constitutional right of the parent versus the right of the State to intervene also arise and, hopefully, will be resolved in other legislation.

Amendment, by leave, withdrawn.

I move amendment No. 177:

In page 15, subsection (4), lines 40 to 45, to delete paragraphs (c) and (d) and substitute the following:

"(c) to advise the Minister on any matter relating to the psychological needs of students in recognised schools;

(d) in collaboration with parents and the Principal and teachers in recognised schools, to assist in the creation of a school environment which prevents or limits obstacles to learning which students may experience, and

(e) to advise the Minister on any matter relating to the linguistic needs of deaf students in recognised schools.".

Amendment agreed to.
Amendment Nos. 178 and 179 not moved.

I move amendment No. 180:

In page 16, subsection (6), lines 1 and 2, to delete "or expedient".

This amendment arises because the use of the word "expedient" in the section is excessive. The section states that "An Inspector shall have all such powers as are necessary or expedient for the purpose of performing his or her functions . . . ". The term "expedient" is inappropriate, superfluous and does not make the section any more likely to achieve the desired results. The term might mean appropriate, advantageous or wise, depending on the context. However, it is not necessary because the word "necessary" is adequate. The use of "expedient" could give rise to confusion and fears, whether groundless or not, among teachers.

I am advised that language of the section is commonly in use. It does no more than provide that inspectors will have the necessary powers to carry out their functions in accordance with the legislation. The word "expedient" means necessary or useful for the purpose of carrying out the functions.

The word "necessary" is used. Expediency may suggest making it up as one goes along.

It can also mean useful. I will come back to the Deputy with a definition of "expedient" on Report Stage.

Amendment, by leave, withdrawn.
Amendment Nos. 181 and 182 not moved.
Question proposed: "That section 13, as amended, stand part of the Bill."

There should be an annual report from the inspector. Whatever the arguments about the scope of the inspector's powers and the extent to which he may tread on the toes of others, he should produce an annual report on the state of the education system. Under the freedom of information legislation we may be able to compile such information ourselves——

The chief inspector or every inspector?

The chief inspector. In other words, the inspectorate should produce an annual report. It should report to the Oireachtas on its evaluation of the quality and effectiveness of the provision of education, research and the other areas in which it has a function. Such an annual report would be a good spur for the system. Talented and experienced people will be involved in the inspectorate and their expertise should be in the public arena. I will table an amendment to this effect on Report Stage.

I have a certain intolerance to the compilation of reports generally. As a backbencher I was fed up getting annual reports from every organisation in the State. I do not wish to be flippant but there is a danger of bodies producing reports but doing no work.

I would be happy for the Department to abandon its annual report in favour of a report from the inspectorate. We might not suffer the loss of the SMI.

All these reports are damaging to the environment. I will consider the matter for Report Stage.

Question put and agreed to.

I move amendment No. 183:

In page 16, subsection (1), line 31, after "patron," to insert "including Vocational Education Committees".

To what extent does this provision apply to the vocational education committees? Perhaps the Minister has dealt with the matter in an earlier amendment. The VEC is normally regarded as the patron. Is that the case in the context of this section?

Yes. Section 8(4) specifies that in the case of a school established and maintained by a VEC, the committee will be the patron of the school.

Amendment, by leave, withdrawn.
Amendment No. 184 not moved.

I move amendment No. 185:

In page 16, subsection (1), line 33, to delete "where practicable".

It is unacceptable that the partners in education are not part of the management process where State funds are provided for a school. I have approached this with an open mind. What is the Minister's explanation for the necessity of these words? I am unaware of any reason for them. It is undemocratic not to have a board of management in a first or second level school. I understand there are quite a few second level schools in the voluntary sector that do not have boards of management. As I said I have an open mind on this but I cannot understand how this can be justified.

Are we dealing with amendments Nos. 184, 185 and 188 together?

My amendment No. 188 is part of this group. Instinctively I agree with Deputy O'Shea but I am not an expert in the field as the Minister may be. I understand that custom and practice has grown up clearly regarding the role of boards of governors of Protestant schools. That system might not fit in with the type of board the patrons of national schools approve of, and this may be a provision to accommodate what is seen as good practice, with which I would have no objection. However, there are other schools where it does not seem reasonable that a board — within the meaning of this legislation — would not be established. There are cases where boards should be established and they are not there. Neither is there a suitable alternative. That is why I suggest that, when a patron is unable to appoint a board on grounds of practicality, the patron should report the reasons for not doing so to the Minister each year. He or she should also furnish the parents of students and staff at the school with a copy of that report.

In other words, pressure could be put on schools that fail to appoint boards and the issue of practicality could be pushed. Another school of thought holds that the words "where practicable" are extremely narrow and that it would be extremely difficult for a school to establish that it was impracticable to establish a board. I am interested in the Minister's legal advice as to what "where practicable" means. In some interpretations, that phrase means "compulsory", other than in cases, such as the Protestant schools, where there is a very satisfactory alternative. What is the Minister's view of what "where practicable" means in terms of a legal interpretation in the courts? This will be litigated.

First, this matter caused fundamental discussion during the debate on the Education (No. 1) Bill. The proposal in that Bill was that the establishment of boards of management would be compulsory in the event of an agreement being worked out by the Minister and the partners. It did not say whether a majority of partners was needed. That Bill gave the Minister authority to freeze additional funding to schools that would not establish a board of management in accordance with the Minister's wishes. This would have undoubtedly led to legal challenges from schools and the issue of compulsion is undesirable anyway. The only realistic hope for the future is to establish board of management structures in consultation with and with the agreement of the partners.

In terms of ultimate delivery that is the best way forward. Our track record in this respect is good in the primary sector, where we have achieved agreement with all the partners in respect of the boards of management of primary schools. That was done last November in advance of legislation and it is included in the deeds of variation which have been drawn up and agreed by patrons, teachers unions and the parents associations. By patrons I mean patrons of all types of schools, Catholic, Protestant, multi-denominational and Gaelscoileanna.

I intend to proceed in a similar vein at second level. Deputy Bruton correctly raised the issue of Church of Ireland school boards of governors. Those schools have a unique approach to governance which has been highly effective in management terms. Our objective is to have the partners represented on boards of management, i.e., the parents and teachers. I am confident we will work that out. However, I do not want to impose my will regarding a type of board of management on a group or sector. Lay voluntary schools had major objections but they represent a small minority of second level schools. However, they are there. Issues such as property rights came into play, for example, with the possibility of a Minister imposing a board of management on the owner of a lay voluntary secondary school. Parents vote by sending their children to those schools conscious of their governing structures. They make up a unique species of school, which has a strong tradition in certain areas, that tends to work quite well.

The Bill is quite narrow in that the patrons and the school must tell the Department it is not practicable to have a board of management, which does not give much leeway to a school trying to opt out of this provision.

What is the legal advice?

It depends on the circumstances and how it is justified that it is not practicable to have a board of management.

Does the Minister have any examples of what would be a good defence?

I do not. I imagine in the lay voluntary sector the argument would be that property rights could be affected by a board of management. Because somebody owns such a school, a board of management might develop policies contrary to the rights of the owner. These arguments were raised in legal opinion advanced by senior counsel who were engaged by some voluntary schools. Some of the churches also got legal advice. I am not saying that that legal advice would have won the day. A competing view holds that it would not. However, I do not doubt that the issue would have ended in the courts.

I see no necessity to risk the constitutionality of the Bill or to risk its becoming a legal quagmire on this one issue. I am confident I can establish boards of management with all the partners without legal compulsion. We did so at primary level, though admittedly it took almost three years to achieve. We are working on comprehensive schools, which do not have boards of management similar to vocational education committees or community schools.

Many voluntary secondary schools have boards of management. I feel that that sector will not be particularly difficult in future because there is an anxiety, particularly with some religious orders, to have management systems in place. This is particularly true because of the decline of religious orders and the development of lay principalships; it makes sense that they would have boards of management that would be well balanced and that could administer the school. There has been a lot of heat about this issue but I look forward to having good boards of management with parents and teachers at second level. It is a little more complicated than primary level because of the range of provisions and diversity of school types.

What is the Minister's intention regarding schools which do not have boards? It seems that the defence based on their property rights being infringed would not stand up. Other voluntary secondary schools have property rights which would be intact even with the appointment of a board. I suspect when we come to section 15 we will find the board does not have the right to do anything which would infringe on property rights.

What is the Minister's intention in relation to schools which do not have boards? Will he exercise his legal muscle under section 14 to seek their establishment of the non-practicability of having a board or will he let sleeping dogs lie?

It is not a question of letting anything lie but of proactively establishing boards of management in every second level school. However, I want to do so by agreement and not by compulsion. That is the choice I have made in how the Bill is framed and I will seek the co-operation of the partners in that respect.

I wish to comment on amendment No. 185. As a trade unionist, the idea that worker non-participation could continue in perpetuity is repugnant to me. The legislation states it is the duty of the patron to do so "where practicable". That gives an out in perpetuity to those who, for whatever reason, do not want a board of management.

Are we, by not letting parents have an involvement, acquiescing to elitism in some of these schools? What powers has the Minister, who is paying the piper to a large extent, in regard to admission, expulsion, suspension, etc. policies? Will the children who attend these schools have the same rights as children who attend schools with boards of management in terms of the appeals procedure to the Secretary General of the Department?

I understand the strategy outlined by the Minister. We all wish to see the boards of management in place and I do not want to be awkward in that sense. However, I am not convinced by the arguments. We are fudging the issue as politicians if we go along with this.

How practical in reality is the other approach? How practical is it to go down the compulsory road and impose our will on particular schools? What would happen if, for example, there was a particular school parents were delighted with but they then heard the Minister of the day had decided to freeze funds to the school because it would not establish a board of management in accordance with the Minister's wishes? There would be huge controversy, every Deputy in the constituency would be lobbied, pickets would be placed and busloads of demonstrators would arrive at Dáil Éireann. People would say their children were being denied their constitutional right to an education because the Minister was a dictator who was freezing the school's funds and wanted to impose his or her will on the school.

I was never convinced about the practicability of the method outlined in the Education (No. 1) Bill. If one wants to go down the compulsory route one must have a penalty for failure to comply. One is also putting the cart before the horse.

I take the Deputy's point about partnership. I am suggesting that at this juncture we should go the partnership route first, which is to try to bring all the partners around the table and say the basic objective criteria for the establishment of a board of management should involve teacher representation and parent representation. We must then ask each partner if its sector can develop a system which will accommodate that. The point is that that has not been tried. When community schools were established a very successful model was eventually agreed by all the partners and it is working very well. However, no real initiative was taken to bring about for other schools the situation which has been brought about at primary level.

It is a question of which approach we should take. I am taking the consensus approach first. It is my view that it will guarantee the best results ultimately. The alternative approach can generate a great deal of heat and controversy and one ends up in a quagmire with a great deal of bad blood and so on. We do not want to go down that road. We can and will establish boards of management with the partners agreeing the various formats. We may not end up with a uniform system at second level because of the different types of school. However, if we can get a basic agreement on the principles which should inform the constitution of a board of management we will have achieved a great deal. If the Deputy wishes to put in a review mechanism I am confident we will achieve that. There is a great deal of common sense out there.

A number of the lay voluntary schools have real difficulties. We would have to act in the first instance in such cases as a persuader. However, do not forget that we are placing a statutory obligation on schools to establish boards of management. The words "where practicable" do not give a person an out for any reason. Someone cannot just say they do not want to establish a board and leave it at that. It is not a case of creating a convenient out for people.

This is a very critical amendment in terms of the whole Bill. The issue between us is the correct strategy and tactics to achieve an objective. I take issue with the Minister's use of the term "the Minister imposing his will". If this legislation went through the Houses of the Oireachtas with the deletion of the term "where practicable" it would then reflect the will of the people, as expressed through their public representatives as part of this Parliament. It is not a case of the Minister imposing his will on anybody — it is the will of the people. We should be very cognisant of that because it is the basis of democracy.

The Minister spoke about putting consensus first and I see the road down which he wishes to go. However, people who do not want to do this are not going to say that upfront to the Minister. Instead, they will supply reasons it is not applicable to their situation or why it is not suitable and so on. If the term "where practicable" were deleted, the Bill would then state the consensus view of the electorate and of elected representatives.

The Minister's stated position is that a signal will be sent that there will have to be boards of management. However, there must be a strong signal sent that where establishments are in receipt of public money there must be accountability, participation and partnership. I believe we should state the will of the people in our legislation. The difficulty the Minister may be envisaging with deleting those words is to do with the timeframe.

It is fine if the Minister wants to go down the consensus road but he should do so against a background in which the will of the people is clearly seen. It is clear that the generality of parents, the electorate, teacher unions and Oireachtas Members want to see boards of management in all schools in which public funds are used. If this wording is allowed stand, those who for whatever reasons do not want to travel the democratic road are given an escape route in perpetuity.

What is wrong with deleting the words "where practicable"? It would not, in terms of the consensus approach to which the Minister referred, necessarily make his position any weaker. In fact, it makes it stronger in the context that, during an unspecified period, boards of management must be put in place. I accept that this cannot be open-ended but I have no problem with time being made available for reasonable periods of consultation. However, Members of the Houses of the Oireachtas are responsible for the disbursement of taxpayers' money. If that money is being used, taxpayers should be representing the Minister in terms of the management of institutions as fundamental and as important as schools.

I would be interested in obtaining, before Report Stage, a legal interpretation from the Minister of the term "where practicable". My interpretation, which might be faulty, is that it would be a narrow door for people to get through and say they did not want to establish a board. Will the Minister provide legal advice on that?

I am also interested in exploring the Minister's statement that he would be willing to include a review mechanism in this section. What does he have in mind? Is it his intention that this section be referred back to the Dáil for a review of the provision which includes the term "where practicable" or would some form of report be made?

We could include a review mechanism to deal with the board of management issue and see how it works. In other words, regulations could be put in place to stipulate that the section in question would be subject to review.

There are reviews and reviews.

The review mechanism could state that the Minister should be informed of the position relating to boards of management within one or two years and whether the provisions relating to them have worked.

This is the last opportunity the Oireachtas will have to consider this matter. I am satisfied that the Minister is correct in stating that the provisions will be unproblematic in their operation. However, if he merely intends to inform us in two years time that it worked quite well because 90 per cent of schools have boards of management, he may be satisfied but others might not. A mechanism which placed the Oireachtas centre stage in the context of the review might be more apt.

I will consider that before Report Stage. Interpreting the will of the people is a difficult task. Many French revolutionaries went to the guillotine because of their interpretation of the will of the people. I recall many people in the education community being upset by and opposed to the notion of funds being frozen as a penalty for not establishing boards of management in accordance with the wishes of particular Ministers at various stages. There was considerable anger about that approach. I take the Deputy's point that there is general agreement on the need to establish boards of management.

We do not have boards of management at second level because there has not been the same level of engagement as there has been at primary level in recent years. The partners at primary level took a long time to discuss this matter and their remaining difficulties were not resolved until November last. An agreed procedure has been put in place and it is working. The value of this is that everyone is on board from the outset. On the other hand, if one lays down a compulsory limit in legislation people may not be engaged or involved of their own free will from the outset. This is not a matter of putting in place a mechanism or legal requirement to establish boards; people must be convinced about the ethos of establishing boards of management, etc. That is the philosophy which informs my approach to this matter. I have no objection to putting in place a review mechanism or bringing the Oireachtas into play in that context.

How will the recruitment system operate in a school with no board of management? How will the rights of individuals be catered for in this regard? In the context of accepting the amendment or considering this matter before Report Stage, will the Minister delete the term "where practicable" and put in place the review mechanism? Without returning to a consideration of the French Revolution, I believe the will of the people on this issue is clear. Those who studied history have the ability to inform us about past events.

I have great faith in the will of the people.

Let us get back to the future.

A Deputy

Is the Minister near to people's hearts?

Always. It is natural intuition, a great gift for any democrat to have.

On this occasion, the Minister's natural intuition runs contrary to the wording in the section.

I am merely asking that Members give this approach a chance. I am confident we will succeed in our mission to establish boards of management in schools.

On that basis, if the Minister accepts this amendment and, as a counterbalance, puts the review mechanism in place, that is the way forward because the Minister's intention will be stated in the section.

It will not be stated, it will be compulsory.

Exactly, that is the intention.

In that case, what penalties should we impose? What will happen if people refuse to establish boards?

The penalty will arise after the review if people are not coming on board. The amendment seeks to allow the Minister to compromise and give him the opportunity to take whatever action he believes necessary.

I will consider it before Report Stage. However, I have strong views about this matter and I do not believe the Deputy and I will agree on it.

The Minister is not prepared to accept the amendment?

Our positions are diametrically opposed. I have held a view on this matter for a long period and I voiced it when in Opposition.

How stands the amendment?

I will withdraw it subject to the Minister returning to this matter on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 186:

In page 16, subsection (1), line 37, after "teachers" to insert "the Irish Council of People with Disabilities".

When this amendment was discussed with amendment No. 55, to the best of my recollection the Minister agreed with the principle. Difficulties arose in respect of naming a particular organisation to represent people with disabilities but the Minister stated that he was favourably disposed to the concept.

As already stated, I will consider this matter before Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 187:

In page 16, subsection (1), line 37, after "Minister." to insert "In making appointments to a board of a school where there is a recognised student council, the patron shall appoint the chairperson or another elected representative of that student council.

I am aware the Taoiseach is keen on the concept espoused in this amendment. I am merely interested in hearing the Minister's view.

We must wait until student councils are established in every school; a number of principals remain reticent in that regard. Do we want leaving certificate students or their fifth year counterparts to become members of boards of management in view of the fact that they would be obliged to attend monthly meetings and discuss weighty matters on subcommittees when they should be concentrating on their studies? I am concerned that they would be overwhelmed by becoming embroiled in the workings of boards of management at a young age. I am inclined to oppose the amendment because it would place a heavy weight of responsibility on young people's shoulders given that they would already be under stress in the run-up to the leaving certificate examination.

It could be a useful transition year course.

Yes, I had considered that a transition year student could be appointed. I take it the Deputy did not mean that a primary school student should be appointed?

That might be acceptable in Cork.

There does not seem to be much support for this concept. It appears that the Taoiseach stands alone.

Amendment, by leave, withdrawn.

I move amendment No. 188:

In page 16, between lines 37 and 38, to insert the following subsection:

"(2) Where a patron is unable to appoint a board on grounds of practicality, that patron shall report each year to the Minister the reasons that it has not proved possible to appoint a board, and furnish parents and staff of the school with a copy of that report.".

The Minister referred to a review mechanism and this amendment deals with the reporting requirement.

We will look at amendments Nos. 188 and 198 before Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 189:

In page 16, subsection (2), line 40, after "and" to insert ", except in the case of a school established or maintained by a vocational education committee,".

This is a technical amendment. It reflects the fact that under VEC Acts boards of management in VEC schools already have a statutory basis as they are operated as subcommittees of the VEC itself. While these boards could be granted a further statutory basis in the Education Act, I have been advised this is unnecessarily complicated and, indeed, undesirable from a legal perspective.

Amendment agreed to.

I move amendment No. 190:

In page 16, subsection (4), line 48, after "shall" to insert ", except where articles of management otherwise provide,".

This is a technical amendment which ensures any procedures for appointing boards which may be set out in existing articles of management will remain in place following enactment of the legislation. These are schools, for example, where we already have agreements and deeds of trust have been established between all the partners. Those procedures have already been put in place for some sectors. The deeds of variation at primary level, to which I alluded earlier, will be given statutory underpinning by the Bill. We have procedures for the establishment of boards of management for vocational education committees and community and primary schools. The amendment statutorily underpins all the procedures and agreements already worked out by the partners. In terms of boards of management the voluntary secondary, comprehensive, lay voluntary and Church of Ireland secondary schools must catered for through agreement and discussions with the people involved.

It has been represented to the committee on a number of occasions — and I have not been able to get a handle on it — that much of this section is in conflict with deeds of trust. The Minister kindly sent me a copy of the deeds of trust but I have not been able to get to grips with it. It has been contended that some of these provisions are in conflict with them. Does that imply the deeds of trust will be modified?

What are articles of management? If a school decides it will not have a board and sets up articles of management that say it will have a board which will be appointed according to certain articles of management, is this an exemption clause? One can have favoured members of a board which is a board in perpetuity.

They are also agreed by the partners.

Do they have a legal meaning? They are not just any institution's articles of management.

Yes, any instrument relating to the operation and management of schools "shall be agreed from time to time by patrons of schools, national associations of parents and recognised trade unions and staff associations representing teachers". The amendment covers the issue raised by the Deputy regarding deeds of trust to ensure there is conformity between the Bill and existing deeds of trust.

Amendment agreed to.

Amendment No. 191a is related to amendment No. 191 and both may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 191:

In page 16, subsection (4), line 49, after "school" to insert "following selection in accordance with procedures set out by the Minister in consultation with the education partners involved".

It is blunt to state the members of the board shall be appointed by the patron of the school. There is no qualification as to whether it is a democratic selection. The amendment provides for procedures set out by the Minister in consultation with the education partners involved. Section 14(1) deals with the composition of the board, but the procedure for appointing said composition has not been agreed and is not referred to in subsection (4) either. It is a blind spot in the section that the procedures to be put in place would be democratic and have passed muster with the Minister after he consulted with whoever he deemed fit.

My amendment is similar in intention. Section 14(4) states "The members of a board shall be appointed by the patron of a school" as if he will wake up one morning and say "you, you and you." It is necessary that clear regulations are laid down.

Section 14(4) is the formal rubber stamping. The patron makes the appointments once all the people have been agreed and selected in accordance with the procedures laid down.

Where are they laid down?

In section 14(5) which states:

The Minister, with the agreement of the patron, national associations of parents, recognised school management organisations and recognised trade unions and staff associations representing teachers, may prescribe matters relating to the appointment of a board.

It states "may prescribe matters"; it does not state "make regulation".

"Prescribe" means that.

What are "matters"?

"Prescribe" means prescribed by regulations made by the Minister and cognate words shall be construed accordingly in the definitions section. If people want this stated clearer, we will come back on Report Stage. Section 14(4) and (5) must be read together and subsection (5) covers the partners working out the agreement in terms of those who should be appointed. The partners will come together and say "we should have two of this and two of that and two from the outside and this is how it should be done." When that has been done, the patron will then appoint those who emerge from that process.

The difficulty is that it states "may prescribe" and not "shall".

That is a fair point. We can insert "shall" before Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 191a not moved.

Amendment No. 193 is an alternative to amendment No. 192 and both may be discussed together by agreement.

I move amendment No. 192:

In page 16, after line 49, to insert the following subsection:

"(5) In making appointments to a board the patron shall ensure an appropriate gender balance such that there is at least 40% men and 40% women in the board after each new set of appointments.".

The amendment simply requires that there would be at least 40 per cent men and 40 per cent women on each board after each new set of appointments. It is phrased so that if people step down, the reselection would have to ensure the 40 per cent balance was restored. It would not be sufficient just to have 40 per cent at the outset and then because of resignations that figure was undermined. After each new set of appointments the 40 per cent balance would be restored.

The Government has accepted this in respect of every board directly appointed by Ministers. There is no reason not to bring this into the school system where it is even more relevant. Schools should have a gender balance on their boards. There are arguments about whether gender balance is appropriate in commercial bodies appointed by the State. If it is appropriate there it is even more appropriate in the make up of a school board.

My recollection is that there was a reference to gender balance in the previous Bill. Why was that dropped? Essentially, this ensures equality for women and for men. In girls' schools the gender balance can be weakened in the opposite direction. We are at a stage where it is important that an adequate gender balance is struck for all boards of management. Whether the Minister accepts my amendment or Deputy Bruton's amendment, this issue should be addressed in the legislation.

I disagree. This would tie schools up too much. This was not an issue in the last Bill in terms of the discussions of primary level. It is up to parents' associations to select their representatives, to teachers in the staff room to select theirs and to patrons to select theirs. The six together then select two representatives from the wider community. The emphasis is on parents, staff and patrons having representation. These are the constituencies which were pre-eminent over the two representatives from the wider community.

One could put in an overall provision for gender balance but I am reluctant to go along the lines of the amendments which seek to insert exact quotas. We have to be careful. I was on a VEC which was selecting the first governing body of an Regional Technical College. The degree to which attempts were made to orchestrate a result to meet the quotas was not in the best interests of the institution.

In the context of small schools in rural areas it is best not to tie people down to exact quotas. What happens if the entire staff of a school is female? My view on boards of management in education is that the gender issue relates to men, at primary level in particular. How could 40 per cent representation be achieved if all the teachers are female? You would have to tell the parents to come with two men.

There are four other vacancies to fill.

In a primary school with four female teachers, the staff representatives would be women. Because 40 per cent of the board must be male, we would have to tell the parents that no female parent can serve on the board of management.

The board is made up of more than teachers' and parents' representatives.

That is 50 per cent of the board already; you could end up telling one group that they must select two men.

The patrons and the parents must achieve the required balance. It is not solely left to the parents; there could be two out of six.

What if a religious order of nuns is the patron of the school? Many school patrons are religious orders of nuns, the majority of teachers are female and most of the parents' associations are led by women. That is the reality.

The meeting is now suspended for the Order of Business and will resume on amendments Nos. 192 and 193 at 5 p.m.

Sitting suspended at 4.15 p.m and resumed at 5 p.m.

Is the Minister saying he does not think it practical that there be a requirement for a gender balance of 40 per cent — which could be up to four people — on a board? Perhaps it is not practical to set the figure at 40 per cent. There should be a very strong expectation that there be at least three of each gender representative on boards. If the Minister is willing to table an amendment which creates a very strong expectation that boards make reasonable efforts to secure gender balances I would accept that.

The last time the Department had a cut at this they used a provision to secure a gender balance in accordance with what the Minister set out as represented balance. Perhaps such a formulation could be used here. The Minister would not be setting a rigid requirement for a 40 per cent gender balance but where all the teachers are of one sex he will accept something less than the 40 per cent or three out of five. There is a legitimate expectation in this day and age that every board should seek to have gender balance. The expectation should be so strong that we do not accept the trite response that it was not possible.

The Minister should introduce a broad set of rules to promote gender balance in the make-up of boards. We should not wring our hands and say there are all sorts of reasons it might be difficult to do so. The Minister should come up with a broad set of regulations encompassing situations which might create genuine difficulties. He should not accept bogus reasons that gender balance was not possible. Perhaps the formulation "in so far as is practicable they would secure a gender balance" could be used so that there would be an obligation to show that it was generally impractical to secure such balance. If the Minister is willing to accept a form of principle of that nature I would modify my amendment for Report Stage.

I am ad idem with Deputy Bruton. The Minister outlined genuine problems that arose in terms of gender difficulties. I suggest that he consider using the wording: “in making appointments to a board the patron shall ensure an adequate gender balance as determined by the Minister from time to time among the membership thereof”; it is a previous drafting of the Minister’s amendment from the Department. It seems to fit the consensus that has developed.

I am prepared to look at this for Report Stage. I am against being too prescriptive because of the variety of school types. I am interested in appointing persons the people want to elect to the board. I am prepared to look at amendments which read "have regard to the gender balance or, where practical, should have appropriate gender balance". The more one delves into this in terms of the types of schools we have the more one can see the difficulties in practical terms of applying a strict approach. I am not making excuses for the sake of them, but there are genuine difficulties in this area. What we want in terms of boards of management are people who want to serve on them in the first instance, who represent the various partners involved in the process and who are elected by the partners to represent their interests. They are the bottomline.

Was there a profound objection to the previous formulation?

No. The Deputy is aware that is a very general formulation.

It is very specific because it actually allows the Minister to dictate the situation.

Concern was expressed by some of the management bodies about the practicality when this was mooted in the last Bill.

The history of trying to achieve gender balance on any board has been studded with people saying it was not practical and complaining. However, if one wants to secure this one has to be persistent.

The difference is that in this context one has partners electing nominees to a board. Appointees to other State boards are Government nominees or nominees of bodies or institutions.

One of the parents' nominees has to be female, so it is one of each.

Not in all cases.

There has to be a woman. That was my understanding of how primary school boards were elected.

It does not say that in the deeds of variation.

That was the practice as I remember it. We are talking about the November agreement.

That is not specified.

Has it been dropped?

No, I do not know what the Deputy means.

To the best of my recollection the practice up to that as per the circular would have been that one of the parents had to be a woman.

It may be the practice but it is not in the deeds of variation. I will check the articles of management. It is a good idea and we will look at it on Report Stage.

The patron has more room for manoeuvre in terms of gender balance in a situation where there is no female or no male teacher in a school. We need to keep pressing this issue as we are far from the objective.

I withdraw the amendment and I may come up with a more practical formation for Report Stage.

Amendment, by leave, withdrawn.

I will not move amendment No. 193 on the basis of the commitment given by the Minister.

Amendment No. 193 not moved.

Amendment No. 194 has been discussed with amendment No. 55.

I move amendment No. 194:

In page 17, subsection (5), line 4, after "teachers" to insert "and the Irish Council of People with Disabilities".

The Minister responded positively to this amendment but the problem is naming the specific body. Would the Minister agree that we are making progress in terms of representatives of the disabled being part of the consultation process?

Amendment, by leave, withdrawn.

I move amendment No. 195:

In page 17, subsection (5), line 5, after "board" to insert "and qualifications for appointment, including awareness of, and experience in assessing and providing, special education needs".

This amendment seeks to insert the following in terms of the appointment of members of a board: "and qualifications for appointment, including awareness of, and experience in assessing and providing, special education needs". Throughout the debate on this Bill I have stated that we need to do a lot more for people with special needs in the education system. There are still those who are not getting the service to which they are entitled. We will make more progress if there are people on boards of management who understand the issue. If those in a management capacity are aware of a problem and of ways to address it a great deal more progress can be made.

I accept the bona fides of what the Deputy is saying but I cannot accept the amendment as it is too prescriptive. We are again trying to tell the partners who to select. We have reached agreement in principle at primary level on boards of management. We are anxious to reach agreement with the partners on second level boards of management. However laudable, we cannot get into the business of telling them who to appoint. One could specify other areas where we would like to have expertise. Boards of management should be representative of parents, teachers and the wider community. If we specify gender of qualification we insert disqualification. What choice will that leave the partners? We could insert a general recommendation that in deciding on appointees to boards of management, the Department should have regard to appointing people with qualifications in special education. However, I could not agree to making that compulsory.

The alternative is to appoint people who do not have expertise. That is the probability.

Parents are on boards of management by virtue of being parents not because they are experts in some area of education. Teachers are there because they are teachers and patrons because they are patrons. We may come to an arrangement where there are two outsiders. Sometimes people try to elect outsiders to a board such as those involved in industry or business. We have to be careful that we do not become too prescriptive.

We are suspending for a Dáil vote.

Sitting suspended at 5.17 p.m. and resumed at 5.35 p.m.

My concern regarding the amendment is that it is too prescriptive; therefore I am not disposed to accepting it.

I have no desire to be prescriptive, but I want the issue addressed. For Report Stage will the Minister examine the provision of courses for people appointed to boards of management to make them more knowledgeable about this area? This is where much of the difficulty lies. Without being prescriptive, if courses are provided people will in general attend them as those appointed are generally committed to what they are doing. This is an important opportunity to instil knowledge about special needs and disability into our education system. I am concerned about this being achieved and not how it is achieved. I am anxious that the legislation should give the issue of disability in education a boost.

Amendment No. 294 to section 37 provides for support centres which are defined as "a place in which services are provided for teachers, parents, boards and other relevant persons which support them in carrying out their functions in respect of the provision of education which is recognised for that purpose by the Minister in accordance with subsection (2)". In-service programmes provide courses for boards of management and this will continue. I am not sure if this is specifically catered for in legislation. With the establishment of more boards of management, particularly at second level, it is envisaged that there will be more in-service programmes.

I am not questioning the bona fides in this context, but there is nothing in the legislation or in the proposed amendment——

The Bill deals with special education in other ways in terms of professional advice being made available to boards of management via the inspectorate. There are many other sources which boards of management may wish to commission from time to time in relation to special education. In addition, a parents' association could elect somebody to a board of management who has special concern or experience in special education, perhaps the parent of a child with special needs attending a mainstream national school.

There is likely to be a greater willingness on the part of a board of management if it is aware that this is an issue which can be coped with and developed.

We must examine all situations. There is an assumption that there will be no difficulty in securing people to serve on boards of management. There is some evidence from rural areas which suggests that achieving what we want could pose difficulties in some areas of low population. We hope to get parents, teachers and everybody else, including members of the wider community, on board. However, it will become more difficult to establish boards if there is a statutory obligation to have people with specific qualifications serving on them. We could ask that people would have regard to this point and that special education is covered in other areas of the Bill, such as functions. However, in terms of the appointment of boards of management, we could make provision that people would have regard to social needs in education. I do not think we could make it any stronger than that.

A more comprehensive way of approaching this may be to specify a minimum amount of training or education for board members. That could be initiated even after their appointment and would advance the cause of children with special needs. Could that be incorporated into the Bill? I am not hung up on this wording.

It is unusual to go into detail on the provision of in-service programmes. There will have to be in-service programmes and we have such programmes for members of boards of management covering a range of issues, particularly management skills. The legal obligations on a board member need to be explained to those without any previous experience. We will look at this on Report Stage. The Deputy is trying to insert provision for in-service training for boards of management in the area of special needs.

An awareness of disability should be cultivated among all board members. I withdraw the amendment on the basis of the Minister's commitments.

Amendment, by leave, withdrawn.

Amendments Nos. 196 and 197 are related and may be taken together by agreement.

I move amendment No. 196:

In page 17, subsection (6), line 6, after "action " to insert "for damages".

This amendment seeks to address the loose wording in this section. Section 14(6) states: "Except as provided for in the Act, no action shall lie against a member of a board. . ." No action for what? It does not specify that it is an action for damages. Having some knowledge of these issues from my teaching days, I wonder if the word "action" is adequate. Do we need to add "for damages"?

The wording is particularly strong so the amendments are not necessary. This wording is the most appropriate but we can go back to the draftsman to see if we can cater for the point the Deputy has made and to ensure that we use the strongest wording possible. The word "action" does encompass damages.

What else would it encompass?

We are indemnifying the members of the board of management against legal action in pursuance of their duties.

So they cannot be injuncted. I am seeking clarification but I am willing to wait until Report Stage on the basis of what the Minister has said.

The parliamentary draftsmen have gone through the Bill. We are all agreed that if people are serving on a board of management we do not want them to be the subject of legal suits. Where they are acting in good faith we want to indemnify them from legal action, particularly in pursuit of damages.

Amendment No. 196, by leave, withdrawn.

I move amendment No. 197:

In page 17, subsection (6), line 8, after "good faith" to insert "and taking reasonable care".

Section 14(6) states: "Except as provided by this Act, no action shall lie against a member of a board in respect of anything done by that member in good faith. . ." I wish to add the words "and taking reasonable care". This places an onus on people to take reasonable care. Those who do not do so would have to give an account of their stewardship. I am trying to ensure that people take reasonable care in the discharge of their functions and duties as members of boards of management.

The words "in good faith" encompass that objective. The Deputy's wording could make it more difficult for board members. Who is to argue a final legal point on whether reasonable care was taken? Such a definition would be very open in court.

I have seen this issue arise in terms of what constitutes care. This was with teachers rather than boards of management.

We are talking about boards of management.

Yes, but that is the context in which I have seen this arise.

We have to establish that the board member was acting in good faith. The onus would be on someone to prove that the board member was not acting in good faith. The Deputy's wording is more loose and would dilute the protection that board members would have in that they would now have to prove they took reasonable care.

Good faith is a more abstract concept and is more difficult to establish than carelessness.

One can make mistakes in good faith.

Which can also be careless.

We have to find a balance between making sure that people will serve on boards of management and not serve because of the potential of legal action being taken against them. That is a real possibility. If legal protection was not built in people would not be anxious to serve. Why would they bother with the hassle?

I am seeking to cover situations in which someone is seriously disadvantaged or injured as a result of people acting in a careless manner.

Presumably people would have to be careless on a collective basis. If one member of a board of managment of eight people is being careless, one would presume that the other seven would override that carelessness.

The board has a life while it is in session and its agents discharge its instructions between meetings. One can be an agent and a member at the same time.

Not the chairperson. The secretary would carry out the instructions.

So would the chairperson.

Unless delegated to do so by the board, it depends on the board.

Effectively it could delegate to anyone.

We will go back to the draftsman but we must find a balance. In going down the road suggested by the Deputy we are making the regime less protective for boards of management members.

But seeking to make it more protective for the people they serve.

To a large extent it is a matter of perception. However, it is also a legal issue in terms of interpretation. I will go back to the draftsman to see if we can accommodate the Deputy's concerns. We can look at this again on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 198 not moved.
Question proposed: "That section 14, as amended, stand part of the Bill."

In light of subsection (6), who is being sued in the context of the board being sued? Neither the patron nor the individual members is sued under the section.

Which will have its own insurance.

Therefore, there is someone to sue if the board is sued in the context of these functions.

Yes. Section 14(2) clarifies this issue. It states:

A board established in accordance with subsection (1) shall fulfil in respect of the school the functions assigned to that school by this Act, and each board shall be a body corporate with perpetual succession and power to sue and may be sued in its corporate name.

In the previous framing of the Bill subsection (5) spoke of the Minister in consultation with the patron of the national associations. The Minister's freedom of manoeuvre to prescribe what we took to be voting rules is more constrained as he has to get positive agreement from these bodies. Why was that change made?

We want to proceed by way of agreement. We are buoyed by the experience of the primary sector where we secured agreement. The Deputy is correct in saying it reduces to a certain degree the Minister's power in this area, something which is deliberate as partnership involves agreement. In the context of sensitive areas such as the establishment of boards of management we are basically erring on the side of including an obligation to secure agreement of patrons, the national association of parents, other organisations and teachers. Consultation alone could mean consulting but then proceeding.

This only concerns rules for election, etc.

That is correct. In terms of its ultimate successful implementation, it is better to secure agreement on these issues. I accept the Deputy's point.

The problem is that the pace of movement is the pace of the slowest person. Will the Minister check with the draftsman the definition of "patron" under section 8 which seems to include every patron in the country? On a crude reading it appears that the Minister will have to get the individual agreement of every school patron.

I will check with the parliamentary draftsman.

Question put and agreed to.

I move amendment No. 198a:

In page 17, subsection (1), lines 10 to 12, to delete "to manage the school on behalf of the patron and for the benefit of the students and their parents and".

Under this amendment the subsection would read as follows:

It shall be the duty of the board to provide or cause to be provided an education for each student of the school for which that board has responsibility.

I have some difficulty with the concept of managing the school on behalf of the patron. Who benefits from the school at the end of the day? It is not the patron but, hopefully, the children. It is also being managed on behalf of teachers and the community. I have difficult with the present wording as it seems to exclude from the responsibility of management anything other than managing the school on behalf of the patron and not on behalf of the other partners in education. If the amendment is accepted the subsection will read more accurately in terms of describing the situation as it is.

We want to achieve an appropriate balance between certain key interests in schools. Finding such a balance is necessary for legal and constitutional reasons relating to the system of school ownership and the rights of students, parents and the State. It is also necessary if schools are to be effective in operating in a spirit of partnership. The words which the amendment proposes to delete are part of the process which led to the drafting of the section which has due regard to the role of the patron as the person or body who established the school. There are many cases of persons managing schools in a very hands on manner. Ownership and the history of involvement in education gives rights to patrons which we cannot ignore even if we wanted to. We fund the schools because of their benefit to students and parents, something the Bill states in its key section. We also provide a rigorous framework within which one of the greatest structural changes in Irish education can be brought about, namely, the establishment of boards of management, the composition of which will be agreed by the main stakeholders.

Section 15 deals with how a board should conduct its affairs. The phrase the Deputy wishes to delete recognises the role of patrons and reflects the historical evolution of education. Patrons are anxious not to be forgotten once boards of management are established. They want their fundamental role in establishing schools with a particular ethos recognised. This is the reason for including the phrase, "on behalf of the patron". However, this does not dilute the functions of the board or those carried out by all the partners working together on the board of management, the manner in which members will be elected, etc.

Sitting suspended at 5.55 and resumed at 6.15 p.m.

Had the Minister concluded his response to amendment No. 198a?

I was referring to patrons. We are anxious that the Bill would be constitutionally sound given that patrons own the schools and we are, therefore, seeking to achieve the correct balance.

Teachers' salaries are paid by the Department and virtually all capital funding is provided by it. The Department also sets the curriculum. I would have thought schools were being managed on the Minister's behalf with the Minister serving as the people's representative.

The patrons own the schools. The education system is State aided and the Department provides a variety of resources to schools. The Bill is a good one in terms of the balance struck between patrons and boards of management. To a large extent, the Bill represents a ceding of much of the authority patrons had up to this point and that should be welcomed. One could take a radical decision to dispense with all patrons but one would find oneself in a quagmire if that happened in terms of buildings and so on. I do not think people want that. The wording in the Bill represents a consensus and strikes a balance between the various partners in education. Parents are conscious of a school's characteristic spirit and view the patrons as the ultimate guardians of that spirit and ethos.

There would not be any schools to manage if resources were not provided by the State.

The State is well represented in this Bill. I do not think the wording is a source of difficulty.

The management function is narrowed down to only one of the players.

Until now, patrons effectively managed the schools themselves if they so desired. In theory, management is purely a matter for the patrons until such time as this Bill is passed.

No management whatsoever would be required if the State were not providing the resources. There would be nothing to manage.

There would. Many of these schools existed prior to the introduction of free education by former Minister, Donogh O'Malley, in 1966.

Yes, but they were fee-paying schools.

Compromises have been made along the way. There are no sinister undertones to this Bill. We do not want to suddenly ignore the fact that patrons founded schools and developed their ethos, particularly religious and diocesan schools. Many people feel it is important to send their children to a Roman Catholic or Church of Ireland school. Others send their children to multidenominational schools. The patrons of schools do not become involved in their daily management; they entrust that to boards of management which manage them on their behalf. Boards of management comprise the various partners involved in education. The Bill will serve to strike a balance in the relationship between the partners and the patrons.

If the management function is being delegated in a de facto manner, it is imperative the State’s input is equally recognised. Is the State not equal to the patron in terms of management functions?

We do not envisage establishing complete State ownership of all schools.

That is not what I am talking about.

In essence, that is what the Deputy is saying.

It is not. Are the provisions in the Bill factually accurate?

The Deputy is referring to the fact that boards of management will manage schools on the patrons' behalf. The State will then provide resources to the school to facilitate children receiving the education to which they are entitled.

That education is effectively paid for in full by the State.

To a large extent it is, but local contributions are also made.

Is the Minister referring to parish contributions?

Yes. Contributions up to 15 per cent are required to be made at local level to any school building projects.

To what extent are the patrons the agents of the State in the provision of education?

The patrons are not agents of the State.

Yet the State substantially funds the provision of education.

That is correct.

It appears that, though the State provides funding, pays salaries and so on, boards of management only work on the patrons' behalf.

Section 15(2) states:

A board shall perform the functions conferred on it and on a school by this Act and in carrying out its functions the board shall—

(a) do so in accordance with the policies determined by the Minister from time to time,

Are the two not at variance?

They are not. There is a constitutional and legal issue involved as regards on behalf of whom the school is managed. If somebody owns the school, it is managed on behalf of that person. Then it is managed in accordance with policies determined by the Minister from time to time. The Minister or the State does not own the vast majority of schools.

Is it similar to a hospital being managed by a management board on behalf of a health board?

There are voluntary hospitals and health board hospitals.

I am referring to health board hospitals.

They are State hospitals. Community schools are State schools in the sense that they were established by the Department. However, they are a minority of the secondary schools. The vast majority of secondary schools are voluntary schools. No constitutional issues arise in the health area but they do arise in the education sector.

Is there no similarity between a vocational education committee and a health board in that context?

My legal advice is that there probably is. There is a similarity in that vocational education committees have a number of schools under their remit which were established by the State and are 100 per cent funded by the State. The education system has evolved in this way.

Many cases before the Supreme Court have confirmed that Ireland has a State aided system of education as opposed to a State owned system of education. That means it is a unique system where patrons are owners of the school buildings and of the schools. When free education was introduced agreements were made between the State and the patrons in respect of, for example, the application of the free secondary education scheme. Over time relationships developed among the owners of schools, the State and the other partners. The owners might have developed arrangements with the other partners independently of the State from time to time in terms of, for example, industrial relations, appointment procedures and so forth.

The Bill is a huge step forward in regulating those relationships and bringing them within a statutory framework. The system will evolve rapidly in the years ahead anyway for obvious reasons.

In what sense? To what will it evolve?

The system will evolve in terms of the patronage of schools in the medium to long-term. I had a number of conversations last week with people who are involved in voluntary secondary schools. The issue is what will be their position in ten or 15 years time? Trustees and owners of schools, if they are thinking of the future, will have to try to make arrangements to deal with the fact that religious orders are in decline. They will not have many members in 20 years time so what will happen then? These are issues that must be worked out in agreement with everybody concerned but essentially they are issues for the patrons, not for us.

Let us suppose that a patron decides he or she will no longer continue in ownership of a school. What mechanism is there to deal with that? Is there anything in the legislation to deal with it?

The current mechanism is that the State can take over the school.

And become patron?

And become owner. It could develop into a community school, which happens in the case of some amalgamations. There might be two or three second level schools in a town, for example, and a religious order might decide to finish its involvement with one of them. In some instances the school simply closes and, if possible, the other schools in the immediate area absorb its students while the teachers are redeployed. In other instances amalgamations take place with the agreement of the State. Often a vocational school will amalgamate with a voluntary secondary school and the resulting community school or community college becomes a State owned school. That is the process at present.

I am aware of those two models because they apply in my constituency. However, looking at what is before us——

In that sense, the Bill deals with the here and now.

Does that section confer any powers on the patron?

It reflects the status quo.

It is descriptive rather than prescriptive.

It puts on a statutory basis the fact that the board is acting on behalf of the patron.

Had that not been the legal position until now?

However, there was no underpinning legislation?

No. That is the reason for the Bill.

That is my point. The Bill is putting something that was established through agreement or custom and practice on a statutory basis.

The Bill also makes it clear for the first time that the day to day management of the school is the function of the board, not the patron. That is a significant advance on the position that prevailed before the Bill was introduced. The Bill clarifies the roles of the patrons vis-à-vis the various partners. Its aim is to put the schools system within a statutory framework. Obviously it takes the education system as it has evolved to the present stage and puts in place structures which will facilitate the management of schools into the future. It is a sensible arrangement and a huge advance on where the system was ten or 15 years ago in terms of the involvement of the partners in the management of schools.

I will withdraw the amendment but I intend to return to it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 200 is an alternative to amendment No. 199. Amendments Nos. 199 and 200 can be discussed together. Is that agreed? Agreed.

I move amendment No. 199:

In page 17, subsection (1), line 12, to delete "provided an education" and substitute "provided an appropriate education".

Section 15 sets out the functions of a board of management. The basic function of every board is to manage the school on behalf of the patron and for the benefit of the students and their parents and to provide an education for each student in the school. Boards of management should provide an education appropriate to each student. While this is implicit in the Bill, the amendment articulates this function more clearly.

The amendment provides that each board will provide not just an education but an education which is appropriate to each student having regard to the abilities of the student. Deputy Bruton's amendment would have a similar effect.

Amendment agreed to.
Amendment No. 200 not moved.

I move amendment No. 201:

In page 17, subsection (2), line 14, after "shall" to insert "pursue the objects set out in section 6".

The Minister agreed that he will introduce an amendment on Report Stage with regard to reviewing the pursuit of the objects of the Bill.

Amendment, by leave, withdrawn.

Amendments Nos. 203 and 204 are alternatives to amendment No. 202. Amendments Nos. 202, 203 and 204 can be discussed together. Is that agreed? Agreed.

I move amendment No. 202:

In page 17, subsection (2), lines 18 to 25, to delete paragraph (b) and substitute the following:

(b) support the characteristic spirit of the school as determined by the cultural, educational, moral, religious or social values and traditions which inform and underpin the objectives of the school,".

This amendment relates to an extent to the amendment regarding the management of schools which we discussed a few minutes ago. Section 15(1)(b) of the Bill states that a board shall

uphold, and be accountable to the patron for so upholding, the characteristic spirit of the school as determined by the cultural, educational, moral, religious, social, linguistic and spiritual values and traditions which inform and are characteristic of the objectives and conduct of the school, and at all times act in accordance with any deed, charter, articles of management or other such instrument relating to the establishment or operation of the school,

My amendment proposes to delete that paragraph and substitute one which removes some terminology with which I am not au fait — “deed, charter, articles of management or other such instrument relating to the establishment or operation of the school”. What does this mean?

My amendment proposes to remove from the existing provision the accountability of the board to the patron of the school for all these characteristic spirits. Is this accountability necessary? Deputy O'Shea's amendment is simpler as the board has a duty to uphold the characteristic spirit. Does this accountability give the patron power to dismiss the board on spurious grounds — for example, if they contend that the cultural, educational, moral, religious, social or linguistic values are not being upheld in the way they would like? Is a balance being struck too much in favour of the patron against the board on which the patron is represented by two members? Are we gilding the lily too much by giving the patron a second bite of the cherry?

The background to this is similar to a previous amendment. This issue has been ongoing, from the Green Paper to the White Paper to the preparation of the Education (No.1) Bill and the Education (No.2) Bill. There has been a great deal of discussion between the partners. In essence, the Bill represents the patron ceding considerable powers in respect of the management of their schools. Patrons were concerned about the characteristic spirit of the school. In return for ceding considerable powers, it was seen as reasonable that the patron would be anxious that the characteristic spirit of the school would be upheld and that the board would be accountable to the patron in that respect only.

A patron cannot dismiss a school without the consent of the Minister, under section 16 of the Bill. The documents mentioned — the deeds, charters and articles of management — are historical agreements arrived at between the partners and the Bill provides that the board will act in accordance with these. This protects the community schools which have a deed of trust which underpins their management. It is important that the Bill does not contravene that deed of trust or other articles of management agreed between partners, such as the deed of variation at primary level. It confirms existing agreements.

We will continue our consideration of the Bill tomorrow at 9.30 a.m. If we do not conclude our consideration then we will meet on Thursday morning from 9.30 a.m. to 10.30 a.m. Is that agreed? Agreed.

The Select Committee adjourned at 6.35 p.m.