Education (Welfare) Bill, 1999 [Seanad]: Committee Stage (Resumed).

We return to our deliberations on the Education (Welfare) Bill, 1999. It is proposed that the meeting should conclude at 4.15 p.m. Is that agreed? Agreed. I welcome the Minister and his officials.


I move amendment No. 53:

In page 12, subsection (1), line 19, to delete "may" and substitute "shall".

Amendment agreed to.

Amendments Nos. 54 to 56, inclusive, and No. 61 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 54:

In page 12, subsection (1), line 20, after "Assessment" to insert ", such persons as appear to the Minister to be representative of parents who provide education at home".

The purpose of these amendents, on which I will expand in a moment, is to enable consultation to take place. At an earlier meeting the general principle of substituting assessment for examination was discussed. Those who represent people who favour the option of educating their children at home made a reasonable request in seeking to be represented. Those are my reasons for moving amendment No. 54.

I concur with that. I have tabled an alternative formulation of this amendment. There is no doubt that where the State decides to prescribe a minimum education and then puts in place inspection procedures which will involve, in extreme cases, entering the homes of those involved in home education, it is only right that people with relevant direct experience in this field are among those consulted when the Minister draws up the regulations he plans to enforce. That is what is being sought here.

My amendment differs from the others in that I suggested including persons with relevant experience in home education rather than people who are representative of parents providing home education. However, I am open to either formulation. The merit of Deputy Higgins' amendment is that it gives direct representation. The merit of my amendment is that it includes some technical expertise in the field, that is, people who, in addition to direct personal experience, have studied this area. This viewpoint must be represented effectively in the consultation process.

I appreciate the thrust of the Deputies' arguments on this section. Home educators have expressed a similar view to me, that is, that as the State is assessing the education provided by home educators, they should be represented in the decisions on how this assessment is carried out. I am proposing the deletion of section 14 and the insertion of a new section 17 which would cover the issue of minimum education.

I am aware from both my own and my officials' consultations in the course of the drafting of this Bill that there are many forms of home education. These may differ on the grounds of approach, breadth of subjects, methodology and effectiveness.

However, as Deputies will appreciate, I, as Minister, am constrained by the Constitution from exercising any function in relation to these different types of education. These parents have made a clear decision to exercise their constitutional right to act as the primary educator of their child. I, as Minister, have no role in this area, save for the one overriding concern that each child must receive at least a minimum education. This is the rationale for the current draft of the Bill. The Bill provides a structure and framework to allow me, through the National Education Welfare Board, to ensure that children being educated outside the recognised school system receive a minimum education. That is, and must remain, the limit of the Bill's role in this area.

While, therefore, I appreciate the reason for the Deputies' amendments, I cannot, on constitutional grounds, become involved in the manner of the delivery of the education but only the outcome of that education. I propose to delete section 14 and insert a new section 17.

I take the Minister's point that he is deleting section 14. We are, therefore, really talking about his amendment No. 91 to section 17, where the Minister is still envisaging that he would engage in consultations with the National Council for Curriculum and Assessment and that he would issue guidelines and make recommendations of a general nature. As I understand it, all he is doing is responding to the ruling of the courts that he is not entitled to set a minimum education in the way the Bill as originally drafted proposed.

However, the theme of the obligation to consult with people who have experience in home education is still valid. I cannot see how the Minister feels he meets that need by consulting with the NCCA because it does not include representatives with experience in home education. He must either amend the NCCA Act — which is not going to happen — or agree to consultation with people with relevant experience in the field. I accept the point that our amendments technically fall. However, their theme is still important.

Deputy Bruton and I aread idem on this. We might differ slightly on the form of establishing the representative consultation but we are arguing the principle from the same premise.

I have a difficulty with the deletion of section 14 and its replacement by a new section 17, in that I have not seen the text of the new section. I presume amendment No. 91 is related to the new section. It states, "The Minister may, after consultation with the National Council for Curriculum and Assessment and such other persons (if any) as the Minister considers appropriate. . . ". We need clarification of this.

Schooling is a component of education. The Minister seemed, in the original draft of the Bill, to regard formal schooling under the control of the Department as congruent with education as he is willing to define it. Representations have been made to us by people who are exercising an option in education separate from formal schooling. It is important in any evaluation or definition of education that people with experience and competence in this area, even from a research point of view as Deputy Bruton argued, and those who have chosen this route in relation to education, as I argued, have the right to see the principle of their representation clearly recognised. It is not fair to say that a structure coming out of the formal schooling process will handle that.

I have difficulty with what the Minister has just said about how he is concerned with the outcome rather than the process. That worries me. The reason for the deletion of section 14 is the Minister's constitutional difficulties under Article 42.3.2º. However, if there is to be change, and in order to be positive about the progress of the legislation, I would like to be assured that the group who made this representation to us receive a clear acknowledgement of the principle of representation and that there is no suggestion that the role of the NCCA, as expressed in amendment No. 91, is seen as quenching that right or closing off the opportunity of direct representation.

I think Deputies appreciate my constitutional difficulty. Deputy Bruton mentioned the importance of issuing guidelines. My amendment No. 91 to section 17 includes the issue of guidelines, so that is catered for. In other words, the purpose——

My point was that if our amendment was designed to give people a right of consultation in relation to statutory minimum requirements, it can be equally validly argued that they should have some representation where the Minister is offering only guidelines. It will still have a considerable bearing on what happens to their children.

We are discussing section 17 at this stage, which is the relevant section now. Amendment No. 91 states, "The Minister may, after consultation with the National Council for Curriculum and Assessment and such other persons (if any) as the Minister considers appropriate. . . ". That caters for consultation with other persons.

That phraseology was also used in the existing section 14. Deputy Higgins and I were seeking to make explicit that the consultation would include home educators.

As Minister I am constrained by the Constitution from exercising any function in relation to the different types of education. The parents have made a clear decision to exercise their constitutional right to act as the primary educators of their children in these cases. I have no role in this area save for the overriding concern that each child must receive at least a minimum standard of education.

Can we agree to move on because the section is going to be deleted?

We have already inadvertently discussed and agreed to amendment No. 53 which is germane to the section proposed to be deleted, section 14. We have also commenced discussion of amendment No. 54 which also relates to section 14. We can move on provided that the point of principle can be satisfied. I cannot accept that the Minister, in exercising his constitutional responsibilities, is limited in the way he says. His responsibility for education extends beyond formal schooling but, if it is to include education in the broader sense, we have no difficulty with acknowledging the formal schooling mechanism he represents. When we come to discuss amendment No. 91 we can discuss the NCCA. If we agree to the deletion of section 14 and move on to the related amendments, it places us in the difficult situation that we will return to the principle of inclusion. I do this with reservations.

We must withdraw each amendment individually.

I am not being pernickety but I agree to the withdrawal of these amendments in anticipation that the principle will be fully discussed when we reach amendment No. 91.

Amendment, by leave, withdrawn.
Amendments Nos. 55 to 63, inclusive, not moved.
Section 14 deleted.

I move amendment No. 64:

In page 12, subsection (1), line 31, after "school" to insert "and who is not receiving education at a recognised school".

As I interpret the text produced by the Minister's predecessor, if a child was at school but was receiving education elsewhere, such as additional art or music lessons or even, to use that offensive word, grinds, such a top up in education under the strict interpretation of the text of the Bill would mean that the child would have to be registered. My amendment addresses this flaw in the text.

I understand that this is a technical amendment to clarify the purpose and role of the register. The register is only designed to cater for students who do not attend a recognised school. Specifically students will be admitted to the register on the application of their parents who have decided to educate or have educated their children in a place other than a recognised school, as is seen in subsection (2). There is no other circumstance of entry to the register. It is not my view that children educated out of school additionally by their parents will need to be registered under this section. I will, however, clarify the matter with the draftsman and provide an amendment to the Bill on Report Stage if necessary.

I am satisfied with that assurance. The Minister's intentions are admirable but the text is the text. One would have to construe the additionality about which I spoke earlier as not education to stay strictly within the text. It merits consideration.

Amendment, by leave, withdrawn.

Amendment Nos. 66, 68, 72 and 76 are related to amendment No. 65 and they shall be taken together, by agreement.

I move amendment No. 65:

In page 12, subsection (2), line 35, to delete "shall" and substitute "may".

There are two issues being dealt with here. Amendment No. 65 arises from concern about the constitutionality of requiring a parent to be registered in this way and whether it would be preferable to have "may" instead of "shall" given the concern raised under Article 42 of the Constitution. Has that been thoroughly checked by the Minister?

Amendments Nos. 68 and 76 are similar. Amendment No. 68 refers to line 1 of page 13, where it says that an application under this section shall be in writing. It should be the case that the parent will be registered and then, if there is a problem after that, action can be taken. Does this application process envisage that there might be a refusal to register? Does this raise a question about whether parents are entitled to use that form of education for their child if it is not in a recognised school? Would it not be more straightforward to provide for registration rather than an application for registration? This means that people would be registered having declared themselves to have made a choice and the assessment can then be made on that basis. Given this, the amendment should be accepted.

The amendment in my name covers similar ground. As it is formulated here, the Minister is placing a presumption of incompetence on the part of the home educators in that they will not be deemed to be eligible or able to provide home education until they receive explicit sanction. However, given that many parents already provide home education, it is preferable that they should register with the State and continue to educate while on the register. The State should only remove them from the register when it decides they are not providing the minimum education. That is more in accord with the constitutional intention.

The State cannot tell parents that they cannot educate their child at home unless it believes and has established that they are not providing a minimum education. However, the Minister is reversing that. He expects parents to prove they are providing a minimum education, even though they are the primary educator. He is on thin ice constitutionally here. Furthermore, it is not a good approach in practical terms because many people are home educators. There is not much point in striking them off and then taking six or 12 months to deal with their application. Although the Minister says this would not happen, I do not understand why this approach is being taken.

The section confines parents to do certain things when the child is not in a recognised school. Are there not instances, for example, where a child is in a hostel, where a parent will not make a choice? If education is being provided in something other than a recognised school, the Bill does not appear to allow for such providers to register with the education welfare service. Is that an oversight? What about situations where children are outside the recognised school but are not under the direct control of their parents or are in an institution which provides education but is not deemed to be a recognised school?

Amendments Nos. 65, 66 and 68 apply for a reworking of the provisions in relation to the registration of students who are being educated outside the recognised school system. The amendments envisage a scenario where the board has a much reduced monitoring role on the quality of education being provided to children outside the recognised school system. Amendment No. 76 is consequential on amendment No. 68.

While I understand the rationale of the amendments, it is not possible for me to accept them. The State has a solemn constitutional duty to vindicate the rights of children, just as much as the rights of adults. A right of children is to receive an education which enables them to make the best use of their abilities and to equip them for life. The system of registration and assessment provided in this section seeks to create an effective structure to vindicate this right. I have tried to ensure that in so doing, the system respects the rights of parents.

Amendment No. 74 in my name will provide for enhanced flexibility in the system of assessment and to reduce any burdens or impositions on parents. This will meet many of the concerns of home educators. On balance, therefore, the basic structure of this section must remain unaltered. The right of a child to an education is so precious, especially in the context of today's knowledge based society, and the protection afforded to that right by the Constitution is so strong, that I believe we as a society must take sufficient steps to protect these rights.

With regard to Deputy Bruton's last point, under the Bill the parent includes any person acting inloco parentis. This definition relies on that given in the Education Act.

I am disappointed with the Minister's response. Monitoring is not lessened by parents registering what is, in effect, their constitutional right. If the State is of the view that they are not fulfilling the right in terms of the welfare of the children, various kinds of monitoring are provided for.

The Minister says the application will be processed as soon as practicable. In the interim the Constitution allows parents to exercise their rights, yet the law will mean that they must operate in a limbo and that would be open to challenge. Has the State satisfied itself that it can oppose such a challenge because it appears to be operating on thin ice here?

My views are similar to Deputy Sargent's. I see the Minister's point when he says the child has a core right to education, although I am not sure it is stated so explicitly in the Constitution. I have always been under the impression that the Constitution is remarkably silent on the rights of children and has given rights mainly to parents. The Minister may be correct when he says we need to assert the core right of children to receive an education. but has he obtained legal advice to confirm he is on sound ground in asserting that right by this formulation which provides that parents must prove their capacity to educate their child to the satisfaction of the State, even though they are the prime educators? That is a significant change to what I understood the Constitution to mean. Parents may challenge the Minister to prove that schools have the capacity to vindicate the right of children to a core education because 10% of children in receipt of primary education have serious literacy problems. Their right to a core education is not vindicated.

This is not a trivial issue. I wish to be satisfied that the Minister has thought through the implications of a direct challenge to this provision. He may have the powers to tell a school that it is incompetent but, in practice, children attend and leave school uneducated, yet he does not seek to vindicate their rights. By contrast, he is now proposing to ab initio rule out parents unless they can prove to him some competence. I do not oppose his intentions outright but I wish to have them explored further.

I appreciate the points made by the Deputies and I understand their concerns. The right of parents to educate their children is accepted and made clear. At the same time parents are required to register their children. It is a matter for the State to clear-up the issue of time in this context, but it does not affect the basic right of the parent to educate their child, something which is accepted.

There is a difference between having a right to do something if one provides proof to the State and the State proving one incompetent before a right is taken away. The presumption is different.

I am speaking about the simple issue of registering. Leaving aside exceptional cases where somebody actsin loco parentis, etc., in ordinary cases, which I thought is was what was being raised, parents will be expected to register the fact that they are undertaking their children’s education. I think this is reasonable. I see no administrative delay on the part of the State which will affect the situation as it places a requirement on parents to apply for registration. This does not affect the parents’ basic right to educate their child. There is no such thing as stopping or interrupting the education of a child. Section 17(2) states “a child shall not be required to attend a recognised school where”,

(b) an application under that section in respect of the child has been served on the Board but the Board has not made a decision in relation thereto, or a notice of appeal under section 16 has been served on the Minister but an appeal committee has not made a determination in relation to the appeal.

I am at a loss to understand one point in relation section 15(4)(b) which states that an application under the section shall "specify the times and place at which the child receives the education to which the application relates". Unfortunately, this continues the theme that education is delivered and monitored by the Department of Education and Science through the school system. This is not a school attendance Bill but rather deals with education welfare. I would probably be more familiar than many with the disastrous teaching of the arts and the general legacy resulting from an absence of creativity in schools.

Amendments Nos. 70 and 72 have been tabled in relation to this.

If the provisions of section 15 are necessary, with a provision for an application to be in writing, why not seek the address at which a child ordinarily lives? The section seeks that the times and places at which a child receives the education to which the application relates be specified. Those who have the time and resources to educate their child at home will bring him or her to the gallery, the theatre, to different performances of music, maybe on trips abroad or down the country, to visit a hospital, etc. Why not seek under section 15(4)(b) that the place of residency of the child be specified? I make no apology for saying that the legacy of the substitution of schooling in a building for education is terrible. I have listened to the case of those who say they have workbooks, logs and diaries, with entries such as "Our day at the Zoo". Should the zoo also be listed? If the application has to be in writing, etc., why not seek the address at which the child mentioned on the application is ordinarily resident?

We are proposing another amendment for that purpose.

We are continually in anticipation of the Minister's wisdom.

We are only dealing with amendments Nos. 65, 66, 68 and 76.

We will deal with the two lines——

I will confine my wisdom to that area.

Perhaps the Members could have this chat somewhere else.

Why is section 15(4)(b) necessary if, for example, powers already exist under section 15(4)(c)? Why is the Minister seeking more than the address at which the child is ordinarily resident and what type of inventory will be necessary under the provision? What is the purpose of section 15(4)(b)? We are all in favour of the constitutional rights of the child but we are also in favour of text meaning what it says.

Under the structure being established by the Minister a parent will apply, the application will be evaluated, and registration will be refused if a range of events occur. If a child is not on the register they must attend a school. Therefore, the State is asking the parent to prove their competence. Is the State entitled to do this? Should the State only be allowed take action if it discovers anomalies? Perhaps the Minister is satisfied following legal advice that he is entitled to do what he is proposing, but the presumption of competence on the part of the parent and that the parent is the primary educator seems to be turned around in this section. The Minister says this is on the grounds that he wants to protect the core right of the child to education. I see something in this point of view, but I am not sure that the legal advice will be upheld.

We have to be concerned with the outcome of the education received. I appreciate the point being made by the Deputy——

I wish to let Deputy Sargent contribute and then the Minister can answer the issues raised.

The Minister said this will have no effect on the rights of parents who can continue to exercise their constitutional right. If I was a parent I would feel under a cloud of uncertainty and perhaps even suspicion that the State was exercising a form of psychological intimidation, namely, that unless I reach the Minister's particular understanding of what I should be doing I will be in trouble. Will the Minister take into account the effect this will have on parents and the situation in which the child is being educated? As Deputy Higgins said, this bears all the hallmarks of a schooling approach to education. Does the Minister accept that it even bears the hallmarks of a driving school approach? We are talking about a provisional licence for the parent while he or she waits to get a full licence in order to allow them to do the job which the Constitution says they should be entitled to do without any strings attached. One should be presumed competent until it can be proven otherwise. Has the Minister clearly checked out the legality of what he proposes? Would it be simpler to conduct registration and then carry out all the monitoring provided for in the Bill?

No form of psychological intimidation is involved. The State's concern is to ensure that where children are not catered for and assisted in their education in the normal way, there is an onus on the State to ensure that the child receives an education somewhere and the sections to which Deputies referred are designed to ensure that it happens somewhere. We have discovered in the past that children were isolated, separated, kept in sheds, etc., and we do not want to go back to that. I accept and recognise people who feel strongly that they are first class educators of their children. If parents everywhere recognised that the time they spend with their children is the most important, we would advance on all fronts throughout society. We would get away from many of the problems that we have. However, the parents to whom Deputy Sargent referred want to go further than that and conduct their children's education fully themselves. They have a right to do so but we have an obligation to ensure that the child receives an education. These sections are designed to ensure that happens.

The Deputy asked about the Attorney General's view. He regards it as the proper approach. Given the views expressed by Members, we have revisited this issue to make certain of that. That is our advice.

Is the amendment being pressed?

I am withdrawing it but we may need to come back to it on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 66 not moved.

I move amendment No. 67:

In page 12, between lines 36 and 37, to insert the following subsection:

"(3) An institution other than a recognised school where a child attends shall apply to the Board to have the child concerned registered in the register.".

The Minister dealt with this to an extent. He envisages that where an institution might have care for a child, it would register that fact and the word "parent" is included. I do not know but I expect there are institutions which are not recognised as schools. I also do not know whether such institutions have special units for children who have specific problems. It seems that they should be registered. If the Minister is absolutely satisfied with the definition of a "parent" in this context we must bow to his wisdom. However, as we progress, more of these institutions will be established as children will be withdrawn from recognised schools because they exhibit psychological, emotional or behavioural problems and will be provided with a form of education in these settings. That is the way we are heading. It seems a little unsatisfactory that the only way such institutions will be recognised under the legislation isin loco parentis rather than being explicitly recognised as ones which could be open to inspection by welfare officers.

The amendment brings to mind a number of schools, such as Steiner schools and even gaelscoileanna in their formative years, which are awaiting registration. Will the Minister put the emphasis on ensuring that these schools or institutions and their component parts are registered? It appears quite inefficient and does not recognise the holistic point of the institution. Has any progress been made on the registration of such institutions?

Most of the schools to which the Deputies referred are registered with the Department and are, therefore, covered but some are not.

For example, the Steiner school in Clare.

I do not know which ones are not. In such cases the parent is required to register. It may suit the school or parents to make other arrangements to have the school recognised. If they are not in the system, the parent is still obliged to register.

Is there an inconsistency here? We are trying to support the Minister in giving primacy to the welfare, care and rights of the child. In this case, is this not mediating the rights of the child through the parent? Deputy Bruton's amendment has an immense practicality about it. If we are to be child driven and are anxious to track children at risk, this amendment deals with that.

The amendment would alter the focus of the relationship between the national educational welfare board and each parent or parents to the national educational welfare board and an institution. I am not convinced about the value of the amendment. It is important in an area as important as a child's education that the board is satisfied that the child is receiving a minimum education and a direct relationship between the parents and the national educational welfare board is the best means of assuring this. At the same time, I draw the Deputy's attention to section 15(6) which allows the board to register all children attending an institution once it is satisfied that the institution is providing a certain minimum education.

I am satisfied that this is a more appropriate means to deal with this scenario. Overall, in regard to registration, it must be borne in mind that its objective is to establish which children are not attending recognised schools so that their education can be assured in line with the State's constitutional duty. The decision to educate the child outside the recognised school system is that of the parents, not an institution they are attending. It is entirely appropriate, therefore, that the initial responsibility for registration lies with the parent. It is also appropriate, however, that where the board is satisfied that an institution is providing at least a minimum education to all its attending students, it is not necessary for each individual student to undergo a detailed assessment to establish this fact. On balance, therefore, I am happy that the section should stand as drafted.

In practical terms the Minister is saying that if a school and a parent agree that a child needs to be withdrawn for a certain period to do intensive work with a psychologist or whoever, the onus is then on the parent to immediately contact the board and apply to be registered as a parent who is educating their child outside of a recognised school, and the welfare board will then liaise with that parent. Quite apart from the point Deputy Higgins made about the child's education being at the heart of the Bill, I wonder about the practicality of expecting a parent to notify the board and stand in a potentially illegal position for something that was agreed in a responsible way by all involved. It seems an undue onus on the parent.

I do not think that would arise if the child normally attends the school but is withdrawn to do something that will take a week or two weeks. Even if someone is absent for a longer term than that, the school has to report to the board in the normal way. If the absence were prolonged, it would then be necessary to inform the board that the child was absent. In practice it may well be that the school would inform the board in that situation because the child is withdrawn for some additional education or training.

We are providing the legal framework for this to happen and we are saying it must be the parent. There is no other interpretation of section 15(1), that is, that the parent must——

But it must be taken in the context of the other sections. Obviously we cannot put it all in one section. The other sections cover the situation in which a child is absent from a school for so long and there is an onus on the school to provide a report at that stage.

That is where people are in breach of their obligations out of court. In the example I cited, the parents did not transgress anything. They agreed all the time. I do not want to nitpick. I know the Minister is anxious to make progress.

We can go on up to Easter. It just means that the board will not be in operation and the children will not receive the protection. I do not mind how long it takes. I will stay here as long as is necessary. I will remain here longer if the committee is prepared to sit longer hours. I appreciate the points the Deputies made but I want to stress that the Department's position is very clear. The onus is on the Department to ensure that the child receives an education, that there is an outcome of an education at the end of the day. That is all we are trying to do.

The Minister repeated that the child is paramount, and we all agree on that. Nobody is making a distinction in that area but effectively each parent is being obliged to jump through the hoops. Take, for example, the Steiner school which the parents believe is of value and should be recognised but which the Department, in its wisdom, has decided it will not recognise. The Department is creating an antagonistic situation and to make the matter even more confrontational, the parents have been told to assume they are all individually educating their children even though, as far as they are concerned, they are operating through a school which they recognise as being very worthwhile and with which they are closely involved. I ask the Minister to think about that from the point of view of the parents and teachers in an unrecognised school who are not getting paid by the Department. I know this situation operates in County Clare, for example. I ask the Minister to bear in mind that he is creating an additional burden by not recognising this institution which is not serving the best interests of the children and the overall community. Does the Minister recognise the difficulties he is creating?

There will always be difficulties and arguments. The onus, constitutionally and legally, is clear. The Deputy has raised the case of an individual school.

As an example.

There are not many examples of that but in this particular example, the High Court found in favour of the Department, that the curriculum was not——

Very narrow grounds.

This was the finding of the High Court. Let us stick to facts. We should not argue around in circles without dealing with the facts. This is a fact. If a school is in a situation such as that, there is an onus on my Department to ensure that the child has a good outcome from the education. There can be argument and debate about that in certain exceptional cases. There are very broad curricula in education now and there is wide recognition. Thirty years ago the focus might have been much more narrow in terms of the recognition of curricula in schools, but the focus is fairly wide now.

That is a matter of opinion.

There is a wide selection of foci but they are all recognised.

I am saying it is subjective.

The Deputy raises one or two areas where there is a difficulty. In that case the duty to protect the child would require that the parents notify the board that they are educating the child themselves.

Is the amendment being pressed?

I withdraw the amendment but I may reintroduce it on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 68 not moved.

We now move to amendment No. 69. Amendments Nos. 70, 71, 72 and 73 are alternatives. We will discuss Nos. 69 to 73, inclusive, together, by agreement.

I move amendment No. 69:

In page 13, subsection (4), lines 3 to 6, to delete paragraphs (b) and (c) and substitute the following:

"(b) assure the Minister the specified minimum education is being provided.”.

We are coming back to the discussion we already had in another form but I am asking for something to be done which has been referred to previously by Deputy Higgins where the application or, as I would prefer, registration under this section shall specify the times and place at which the child receives the education to which the application relates and to comply with such requirements, if any, as may be prescribed by the Minister.

I ask the Minister, once again, to consider the balance he is trying to strike between the rights of the child and the rights of the parents. I would prefer if they were not presented in such a confrontational way but I recognise that the law may interpret them as such. If he is prescribing a minimum standard of education, the requirement on the parent would be to assure the Minister the specified minimum education is being provided. In that way, the Minister does not have to involve himself more than is necessary. He simply has to prescribe the minimum level of education. I use the word "simply" because it is a singular intervention rather than him coming back again and having another series of hurdles laid down for parents with regard to times, place and any other requirements which may be prescribed. A parent is left wondering when the goal posts are next going to change.

A parent who invests such time, trouble, dedication and commitment, as many of those who have come to us do, would feel constantly on edge at the prospect of the Minister laying down further requirements, which might depend on whether there is a shortage or over-supply of teachers and getting more pupils into or out of the classrooms. The Minister is trying to set down a standard for minimum education. If that is being complied with, would he not accept that as the bottom line to avoid complicating the matter more than is necessary?

I have put forward the reasons for amendment No. 70. An indication of where the child is ordinarily resident would suffice. It is also cumbersome to ask a person to indicate the venues at which an educational experience might be garnered. Subsection (4)(c) reads: "comply with such requirements (if any) as may be prescribed by the Minister"; why then is subsection 4(b) required? My amendment proposes the deletion of paragraph (b). If the Minister says he intends to reword it on Report Stage, I could withdraw it. Subsection 4(b) is redundant, apart from everything else.

Amendment No. 71 is slightly different from the other amendments in that I am being more ambitious in relation to what a parent who is providing their child with a home education should do. It proposes that a parent set out an education plan for the child and describe the content, methods and materials of the programme to be followed and assessment of progress to be undertaken.

There is concern that if a parent has not put sufficient thought into the project, the child might not receive the minimum standard of education he or she should receive. Perhaps a requirement of this nature would emphasise to parents the seriousness of what they are undertaking. It would not be seen as an undue burden by parents who are engaged bona fide in home education. They have clear views on the methods, materials and education plan for their child. It could be a beneficial element of an application and it would underline to parents what they need to consider when they embark in this direction. The Minister can also provide for this and similar requirements in the regulations.

In legislating for education outside the publicly funded education system, we must be particularly sensitive to the complex social and constitutional issues involved. The right of parents to educate their children as they see fit is both a right guaranteed by the Constitution and a jealously guarded right by those who choose to exercise it. The right, however, is not absolute and is limited by the right of a child to receive an education and the constitutional duty of the State to ensure that each child receives a certain minimum education.

I and my officials have had a number of discussions with parents who educate their children in their homes with a view to finding a way which will ensure as little interference as possible in their affairs while at the same time protecting the rights of children. Amendments Nos. 69 and 70, respectively, have been taken on board to some degree in amendment No. 72. Following discussions with representatives of the home education sector, I propose that to respect the privacy of these families it should not be necessary for the parent to specify the times at which the child is receiving education.

Deputy Higgins proposed to take this further and remove the requirement that parents specify the place at which the child is educated. I believe it is important that the place of education be specified. Deletion of this requirement might lead to a situation where certain parents might try to evade the requirements of the legislation to the detriment of their child's education. This provision provides a reasonable requirement given the importance of the subject and the right of each child to receive a minimum education. Deputy Higgins mentioned that paragraph (c) provides that an application shall comply with such requirements, if any, as may be prescribed by the Minister. The reason for retaining the place at which the education is taking place or at which a child receives the education is for clarity in relation to the place.

Amendment No. 69 relates to an earlier discussion of the committee. While I understand the rationale for the amendment, my constitutional duty as Minister does not allow me to accept an amendment which provides no more protection to the right of a child to education than a parent's say so. It is incumbent on the State to protect the constitutional rights of the child by taking a more proactive role.

I sympathise with amendment No. 71 but I am concerned about some of the amendment's implications. It demands a high standard of application from parents requiring a plan, content, methods and materials of the programme to be undertaken. I am concerned that the State would make onerous demands on home educating parents if the amendment were accepted. Amendment No. 74 addresses the same principle but in a less onerous manner, allowing parents to assess the education being provided, materials being used or time spent in educating a child. In view of these issues, I cannot accept amendment No. 71.

I am happy to accept amendment No. 73. The board should be in a position, drawing on its experience of involvement with parents of children being educated outside the recognised school system, to advise the Minister on the necessary and appropriate requirements for application to the register.

If it were too logical and consistent there would be redundancies in the legal profession. I hope it does not provoke further consternation and confrontation. However, it appears that the Minister is leaving himself open to that. I say this in light of discussions I have had with those who represent the interests of people who educate their children outside the recognised school system.

Deputy Bruton's amendment, which has a great deal of merit, and the amendment in my name can equally refer to areas where the Minister would be setting out the specified minimum education, for example, section 14. I will not press the amendment because I am prepared to wait and see what the Minister brings forward on Report Stage. However, he must beware of the temptation to eclipse the role of parents.

I am willing to withdraw my amendment in favour of amendment No. 71 in Deputy Bruton's name. I appreciate that the Minister proposes to delete the term "times" which goes part of the way towards achieving the goal I set out in amendment No. 70.

I have a difficulty with people's hang-up that education should take place in one specified place. I could drive it to the absurd by giving the example of a person arriving at a house and inquiring which part of it serves as the school. That is the thinking behind people's nonsensical obsession with "place". There is a difference between that and the thinking behind amendment No. 71. It may well be that a child's parents are deliberately trying to transcend the difficulty of an overcrowded home. They may want to construct a plan that will take into account an entire set of different experiences, etc. They should have the right to do that and I do not believe it would be regarded as an onerous burden.

My understanding is that parents perceived the restriction here in terms of the necessity to specify time and place. The message I have been receiving is that people are well able and competent to do what they have been doing for many years, namely, examining in school settings. That is why focus has come to bear on the concept of "place". I am willing to wait until Report Stage to see what the Minister proposes to do. However, if a consensus is to be established, I am willing to withdraw my amendment in favour of amendment No. 71 if the Minister responds positively to Deputy Bruton's suggestion.

The Minister is saying that amendment No. 74, which we are not discussing, covers the situation dealt with in amendment No. 71 up to a point. When I tabled my amendment I believed that parents would register and would not be obliged to wait for approval before doing so. My understanding was that they would be expected to set out this plan as part of the registration. If the State felt that there was aprima facie case that they were not delivering, this would become evident from the plan and the methods they set out. The Minister does not accept that and suggests that amendment No. 74 resolves problems in this area. I accept that it goes a distance towards doing so because the Minister envisages that the officer of the board will consult with the parent in respect of the education being provided, the materials used and the time to be spent. If the Minister is convinced that the setting out of a plan is overly onerous and that the co-operative model should be used, I would be willing to accept his argument.

That is essentially what is proposed in amendment No. 74.

How stands amendment No. 69?

I will withdraw it but I hope the Minister takes the thrust of amendment No. 71 on board.

Amendment, by leave, withdrawn.
Amendments Nos. 70 and 71 not moved.

I move amendment No. 72:

In page 13, subsection (4)(b), line 3, to delete “times and”.

Amendment agreed to.

I move amendment No. 73:

In page 13, subsection (4)(c), line 6, after “Minister” to insert “or developed by the Board with the approval of the Minister”.

Amendment agreed to.

I move amendment No. 74:

In page 13, lines 7 to 25, to delete subsection (5) and substitute the following:

"(5) As soon as practicable after an application under this section is received by the Board, the Board shall, for the purpose of determining whether the child is receiving a certain minimum education, cause an authorised person to carry out, in consultation with the parent who made the application, an assessment of—

(a) the education that is being provided, or that is proposed will be provided to the child,

(b) the materials used, or that it is proposed will be used, in the provision of such education, and

(c) The time spent, or that it is proposed will be spent, in the provision of such education,

and if, after receiving a report undersubsection (8) in respect of such assessment, the Board is of opinion that it is unable to determine the said matter, it shall, with the consent of the said parent, cause an authorised person to—

(i) enter the place at which the child is being educated and observe the child receiving the education that is being provided to him or her,

(ii) inspect such premises, equipment and materials as are used in the provision of education to the child, and

(iii) carry out an assessment of the child, in the said place or such other place as the Board considers appropriate, as to his or her intellectual, emotional and physical development, which shall include an assessment of his or her knowledge and understanding of such subjects, and proficiency in such exercises and disciplines, as the authorised person considers appropriate,

and the performance of any or all of the functions referred to in this subsection by an authorised person is hereafter referred to in this section as an 'assessment'.".

This amendment has already been discussed with amendment No. 8.

Am I correct in assuming that where a parent does not offer consent, registration is refused?

That matter would probably be dealt with by the appeals committee.

This amendment was already discussed with amendment No. 8 at one of our previous meetings.

With a different Minister.

I will allow some latitude.

Amendment No. 74 proposes to provide a more flexible process to assess whether children are receiving a minimum education. The first part of subsection (5) of the amendment will allow for a less intensive scrutiny of the methods of education to be used in educating the child in question by consulting with parents engaged in educating their child and considering the materials being used or to be used in educating that child, the time being spent or to be spent on the education and the education that is to be provided or is being provided.

The authorised person may be able to satisfy himself or herself that a minimum education is being provided without the need for a more detailed and more intrusive assessment. Should the authorised person not be able to so satisfy himself or herself, the more intensive process will be used. However, I believe this addition provides for a more flexible and balanced process for determining the educational achievement of a child who is being educated outside the recognised school system.

Will the Chairman permit me to make a point?

I thank the Chairman for displaying a philosophical disposition in this regard.

With regard to paragraph (i) of amendment No. 74, I have said everything I wish to say about "place" and I will reserve my position on that until Report Stage. However, paragraph (ii) allows the authorised person to "inspect such premises, equipment and materials as are used in the provision of education to the child". I strongly advise, as a person with a background in education, that there is such a thing as an experience which, of its nature, is educative. For example, one must simply be patient enough to learn to simply listen to a piece of music or to look at a painting. I suggest that the amendment not be limited in terms of merely focusing on the physical instruments of schooling or education.

Paragraph (b) of the amendment refers to "the materials used, or that it is proposed will be used, in the provision of such education". I suggest that the term "or the experience involved" should be included there. For example, a person learning yoga as a relaxation technique and listening to music — rather than having something pushed at them in the knowledge economy that substitutes for the creative society — is being profoundly creative. That is not reducible simply to "materials". I am advocating a reconsideration of paragraph (b) before Report Stage, so that it will not be so miserably limited to chalks, pencils, crayons, paper and so on.

Is it envisaged that a child would present work in a workbook of some sort? Is that what the Minister has in mind in practical terms? Would the authorised person sit down with the parent and look at the workbooks? Is that what is meant by "materials" and "education"? Or does it mean, as Deputy Higgins said, the number of pencils, sheets of paper and books?

That is not what it says.

No, it is not.

Perhaps this is a procedural point but, given that there are other amendments referring to this point, is it envisaged that we will have different versions of the same discussion as we debate each amendment? Is there any way of foreshortening that?

We have already discussed that. This is probably the only latitude the Deputy will get today.

Has amendment No. 77 been discussed?

We are discussing the section at this stage

In that case, I will be brief because it seems this is the only opportunity I will get. My amendment sought the presentation of a portfolio in a neutral venue, which would remove fears of everything else being examined, such as whether the washing up was done. Is that understood? Could it be more explicitly stated that it is the portfolio and the educational fruits that are being examined rather than the mechanics? Can the Minister satisfy us that is the thrust of his amendment because it is not clear?

It refers to the education that is being provided. This returns to the point that we are talking here about trained people. The idea of pencils is a bit outdated now.

They use rubbers now.

It is no longer a case of going to the top of the class and giving out the pencils. The people concerned will have to be trained. The purpose of this is to be satisfied——

Many schools are short of materials for the junior certificate examination in art. We collect money for them

We are putting many materials into schools now.

I am delighted to hear that.

That is one of the products of the Celtic tiger. People will be trained for this job. This returns to the same issue. We are fluctuating between being too onerous and trying to be flexible. That is what happens when a system is very open. How can the Minister and the State satisfy themselves that an education process is taking place? As Deputy Higgins said, that can be very broad. We will have a better understanding of music when the PIANO report is implemented. I would appreciate the value of that myself. The bottom line is that this will require training. We have noted the points made by Deputies. We will look again at anything we feel would be valuable to add on Report Stage.

Amendment agreed to.
Amendments Nos. 75 to 77, inclusive, not moved.

I move amendment No. 78:

In page 13, subsection (6), line 29, to delete "prescribed" and substitute "certain".

Amendment agreed to.
Amendments Nos. 79 and 80 not moved.

I move amendment No. 81:

In page 14, subsection (10)(a), line 1, to delete “prescribed” and substitute “certain”.

Amendment agreed to.

I move amendment No. 82:

In page 14, subsection (10)(b)(i), line 8, to delete “prescribed” and substitute “certain”.

Amendment agreed to.

I move amendment No. 83:

In page 14, subsection (12)(a), line 17, to delete “prescribed” and substitute “certain”.

Amendment agreed to.

I move amendment No. 84:

In page 14, subsection (12)(a)(ii), lines 22 and 23, to delete “prescribed” and substitute “certain”.

Amendment agreed to.

I move amendment No. 85:

In page 15, subsection (16), line 6, to delete "prescribed" and substitute "certain".

Amendment agreed to.

I move amendment No. 86:

In page 15, between lines 13 and 14, to insert the following subsection:

"(18) The Board shall, in the performance of its functions under this section, have regard to such guidelines as may be issued, or such recommendations as may be made, by the Minister undersection 17.”.

Amendment agreed to.

I move amendment No. 87:

In page 15, lines 20 to 25, to delete subsection (19) and substitute the following:

"(19) (a) In this section—

'authorised person' means an inspector, educational welfare officer or a person appointed by the Board to perform the functions of an authorised person under this section;

'registered child' means a child who, for the time being, is registered in the register in accordance with this section.

(b) For the purposes of this section, the registering of a child in the register shall consist of the entering, in the register, of his or her name and such other particulars relating to the child as may be determined by the Board.”.

Amendment agreed to.
Section 15, as amended, agreed to.

Amendments Nos. 88 and 89 may be taken together by agreement.

I move amendment No. 88:

In page 16, subsection (4), line 4, after "Minister" where it firstly occurs, to insert "or of the Board".

This amendment ensures a board member cannot be on the appeals board hearing appeals against the board. I think the Minister is accepting this amendment.

Amendment agreed to.

I move amendment No. 89:

In page 16, subsection (4), line 4, after "Minister" where it secondly occurs, to insert "at least one of whom shall have relevant expertise in home education".

How does the Minister feel about this amendment?

This relates to a theme we have already discussed. As I have indicated to Deputies, the reality is that when a parent chooses to educate their child outside a recognised school I, as Minister, within the context of the Constitution, have no role in terms of the delivery of that education, only in its outcome, specifically to ensure the child reaches at least a minimum education. The Constitution, in balancing the rights of parents and the State, does not permit me to go further. On these grounds, it is not open to me to accept the amendment.

Essentially, this is where a parent who has been refused registration or who did not co-operate is making an appeal. Why can there not be a representative with experience in home education?

It is constitutionally determined that I have no role in terms of the delivery of the education.

All this seeks is that the appeal committee would include a representative with experience in this field. It is not saying the Minister should seek to adjudicate on matters that are not constitutionally within his remit.

It would mean, in effect, that I would be making a judgment on the types of delivery of education.

With respect, the Minister has set himself up as an authority on home education over vast swathes of the Bill. I am at a loss to know——

The outcomes——

I asked about that. My amendment focused on it, but the Minister did not accept that it would be a portfolio based assessment, rather than checking on room layout and whatever else may be seen as important from his point of view. The Minister said it is important that a trained person be involved in inspecting the home environment or whatever other location at which the education is given. Given this, should it not also be a requirement that somebody qualified in home education, at least in terms of experience, would be included in the appeals board? This is a logical approach and it would achieve consistency. Why does the Minister have a problem with it?

The thinking behind this provision is to seek people who are experienced in the outcome, rather than the types, of home education. We accept that there could be a wide range of type of education, as Deputy Higgins has often reminded us. In view of this we are not taking any role with regard to the delivery aspect.

Under amendment No. 91, it is proposed that the Minister will issue guidelines and make recommendations to the board for the purpose of assisting it in determining whether a child is receiving a certain minimum education. The appeals board will also bear these in mind in deciding whether a minimum education has been achieved in specific instances. It would be relevant and helpful to the board if it contained a member or members who had experience of the strengths, weaknesses, opportunities and threats inherent in home educating. These would bring extra wisdom to bear on the determination of whether an acceptable outcome has been achieved. It would mean that determination would not be made exclusively by, say, an inspector who had no experience in or sympathy with this approach and who would seek to ensure compliance with an established form taken from a recognised school network. There are other ways to look at education and perhaps this suggestion would bring extra balance to the board. Perhaps the Minister could offer another formulation to assure the committee that those appointed to the board will be sympathetic to the multi-faceted approach to this issue.

Professionals will be involved, with their appreciation of education, including the different inputs and consequences which form part of it. I appreciate the point about including people with different backgrounds and experiences, provided they are not representative of specific viewpoints.

There is a problem here with regard to the Minister's dual functions, which was identified a long time ago by the Devlin committee. Under the Constitution the Minister is responsible for education, yet he also runs a Department and is an active and intervening partner in a form of education that is run through schools, with an established inspectorate and curriculum. However, an appeal may be made as to whether an adequate education is being performed, which transcends the practice within the school system. In view of this, an assurance is required that the appeals board will not be filled with those who have administrative competence, expertise and, indeed, genius in one form of education. While the Minister may reject the formulation in Deputy Bruton's amendment — "at least one of whom shall have relevant expertise in home education" — there is nothing to stop him including on the board one of whom shall have a general experience separate from or exclusive to the normal school system.

However, it cannot be assumed, either from historical experience or from a practical assessment of the present position, that those immersed in one mode are in a position to leave it aside, transcend it and judge an alternative mode which in some respect may be seen as being in competition. There is also an international comparative literature on home educating. I say this to be of assistance because there appears to be a confusion arising from the suggestion that those with administrative competence in one furrow should oversee the whole field.

I could not have put it better, indeed, I tried to make a similar point before the Deputy intervened. I did not mention the 1969 Devlin report, although I was there when it was launched and I appreciate it. I also appreciate that members appointed to the board should be broadly representative. However, I would not be inclined to take the approach provided for here on a general basis. I would try to ensure a fair degree of balance.

Is the Minister persuaded to provide for that in the Bill?

That is where I would encounter constitutional difficulties, which become especially prevalent when the issue of addressing the different types of delivery in education arise. I am precluded from involvement in those cases. However, I am concerned with the outcome of education and when looking at this I can in practice meet Deputy Bruton's and Deputy Higgins's requirements that it be a broadly based board and not narrowly focused.

In view of what the Minister has said I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 90:

In page 16, between lines 20 and 21, to insert the following subsections:

"(8) An appeal shall lie to the Circuit Court from a decision of an appeal committee under this section.

(9) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the child concerned ordinarily resides or receives education.".

The amendment seeks to establish the normal guarantees by way of legal process available to parents as are available to other citizens in other matters. It also prevents the appeals board assuming a quasi-judicial status beyond its remit. Its net effect is to argue for court determination before the obligation of the decision is visited on those involved.

The amendment proposes the deletion of two lines and the establishment of the principle of an appeal to the Circuit Court, which should preside in the territory or the area where the child lives, while the judge with responsibility should be the judge of that court district.

I agree with the amendment.

I note the point the Deputy makes but I am concerned that the amendment could lead to an over legalistic approach to the process of registration of children. An appeal to the Circuit Court could conceivably set in train a process of appeals to the higher courts, which would be a costly and a more lengthy procedure. In the meantime the child may be left in a vacuum without access to the minimum education to which he or she is entitled under the Constitution.

I am satisfied that the appeals procedures already in place in the Bill will adequately deal with all situations which may arise. In addition, of course, the normal remedies which people may seek from the courts, such as judicial review, are not affected by the provision. It is available if people wish to resort to it. In this context, Members will also recall a recent High Court case involving a private school. The judge was reluctant to allow a school-based issue to become the subject of full judicial proceedings unless there was no other recourse. In the event an alternative solution was found relatively quickly to which all parties could agree. Members will agree that, in general, such a solution is more appropriate to deal with issues arising in the education system.

Thejurisprudence which formed the basis of that judgment was exceedingly frail. Using such an excuse for arriving at a solution which would have required the Minister to assess the realm of the State, private schooling and the individual was not a particularly incisive conclusion to arrive at. It could have been expressed in clearer lay terms, such as, “Could they not fix it up among themselves so that the Minister would not have to deal with the difficult issues such as the role of the State in schooling and education”. Those who are disaffected from the procedure or composition of the board and may feel more reassured by their constitutional rights and the legal process that flows from them will receive further reassurance.

The final conclusion, which one hopes will mean the delivery of the challenge to an adequate educational setting, will mean there is no excuse because all circumstances will have been dealt with, not by a quasi-judicial board which is an appeals board, but through the legal process. Facilitating an appeal to the Circuit Court has merit as it would be cheaper, faster and more locally based than a more cumbersome judicial review process which will refer back to the genesis of the legislation. If the Minister is willing to take advice on it, it is worth considering before Report Stage.

For the first time there will be an independent appeals committee which will address decisions by the national educational welfare board not to register a child. The committee will comprise "such judge of the District Court as shall be nominated by the President of the District Court, such inspector and such other person (other than an officer of the Minister) as may be appointed thereto by the Minister". A judge will be on the committee and people will separately have the right to seek a judicial review. A substantial system for dealing with appeals will be introduced.

The President of the District Court will have an enormous body of talent from which to nominate but, nevertheless, I have reservations because the Circuit Court procedure might be better.

Amendment, by leave, withdrawn.
Section 16, as amended, agreed to.

I move amendment No. 91:

In page 16, before section 17, to insert the following new section:

"17.—The Minister may, after consultation with the National Council for Curriculum and Assessment and such other persons (if any) as the Minister considers appropriate—

(a) issue guidelines, and

(b) make recommendations of a general nature,

to the Board, for the purpose of assisting the Board in determining whether a child is receiving a certain minimum education.".

Many amendments related to this referred to section 14, which was deleted. Are you permitting debate, Acting Chairman, or must we retable them on Report Stage?

A number of them were discussed and withdrawn.

We withdrew them in anticipation of agreeing this amendment. One or two of them are relevant to the new section.

Does the Minister agree to discuss them on Report Stage?

I will consider them for Report Stage.

I will allow general comments on the new section.

With regard to amendment No. 58, some people were anxious that reference should be made to education in both official languages in terms of a certain minimum education. I do not know the Minister's view because the amendment was not discussed. Amendment No. 56 refers to the consultations that the Minister will undertake and that these should include persons who had experience of or are engaged in home education. He will presumably say that he will deal with the outcomes and does not want to consult such people. Consultation will not undermine him.

I appreciate the Deputy's reason for tabling amendment No. 58. I can only, on constitutional grounds, become involved in the outcome of the education rather than the manner in which it is delivered. In the July 1999 Supreme Court judgment in Bestvs. Ireland, no clear line emerged as to whether a requirement that children must be taught Irish when being educated at home would be constitutional. In the High Court the judge considered that it would not be. In the circumstances it is prudent on legal grounds to avoid this potential pitfall.

Amendment agreed to.

Amendments Nos. 92, 93 and 101 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 92:

In page 16, subsection (1), line 21, to delete "of a child" and substitute "or guardian of a child registered as receiving education in a school, whether or not that school is recognised,".

This amendment relates to an earlier discussion during which the Minister stressed that the parent was obliged to be registered and was responsible as primary educator under the Constitution. I agree, but will he take into account that the amendment would allow a parent to cause a child to attend a school whether or not it is approved, subject to subsection (2), given that the fact that the school is not approved is a separate matter between it and the Department? If the parent is responsible for the child and needs to be registered in the case of the child attending an unrecognised school, that is already provided for. I ask the Minister to be consistent in terms of this amendment. If the onus is on the parent to register as an educator the child should not be caught in the cross fire of whether he or she is attending a recognised school. Has the Minister received advice on this?

The Bill provides that, in general, a parent should cause his child to attend a recognised school on each school day. It goes on to provide, however, that where a child is receiving education other than in a recognised school the parent shall not cause the child to attend a recognised school.

Amendment Nos. 92 and 93 would broaden the general provision in section 17(1) to include reference to non-recognised schools. This would have the effect that the State would, through legislation, place obligations on parents who are educating their children outside the recognised school system with regard to how they educate their children. As I made clear, the State has no power to interfere with the decision by parents to educate their children outside the school system except to ensure the children are receiving the minimum education. In relation to the Deputy's point about the parent or guardian in amendment No. 92, this reference is unnecessary. In legislative terms, "parent" is read to include guardian as appropriate. However, I will check this with the parliamentary draftsman and return with an amendment on Report Stage if I am advised it is necessary.

The effect of amendment No. 101 would be to create a position where the State becomes involved in administering the affairs of non-recognised unfunded private schools. That is not the intention of the Bill. The Minister does not have the legal power to dictate how a private school ensures that its students are provided with a minimum education. My only role and the only role provided for the Minister in this Bill is to ensure that the education is provided.

I accept the committee previously discussed the interpretation of the word "parent". My motivation was simply to avoid duplication of monitoring and I accept the Minister's point. I have no wish to cause further legal complications. I withdraw the amendment.

I will look at it for Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 93 not moved.

I move amendment No. 94:

In page 16, subsection (2), between lines 25 and 26, to insert the following:

"(a) reasonable efforts by the Board under section 27(1) have failed to ensure that the child is accommodated in a registered school,”.

The net effect of the amendment is to ensure a parent will not be guilty of an offence if the board cannot accommodate the child.

I appreciate the Deputy's point. In one sense the argument is covered under subsection (2)(f). Nevertheless, it might be useful to spell out the particular case the Deputy has in mind. I would like an opportunity to consider the advice of the parliamentary draftsman about the drafting of the Deputy’s amendment. I accept the point in principle and I will return with an amendment on Report Stage.

I welcome the Minister's response. It cannot be adequately accommodated under subsection (2)(f) in so far as consideration under paragraph is internal to the board’s decision. It is arrived at before the board has taken a decision. The issue is that the board having decided, one is faced with a set of consequences. I appreciate the Minister’s willingness to consider the amendment.

Amendment, by leave, withdrawn.
Section 17 agreed to.

Amendments Nos. 96, 97, 98 and 99 are alternatives to amendment No. 95, amendment No. 100 is related and amendment No. 115 is related to amendment No. 97. Amendments Nos. 95 to 100, inclusive, and amendment No. 115 may be discussed together. Is that agreed? Agreed.

I move amendment No. 95:

In page 17, lines 1 to 9, to delete subsection (1) and substitute the following:

"(1) Where a child is absent from the school at which he or she is registered during part of a school day, or for a school day or more than a school day, the parent of such child shall, in accordance with procedures specified in the code of behaviour prepared by the school undersection 23, notify the principal of the school of the reasons for the child’s absence.”.

This is a group of related amendments concerning the notification by a parent of a child's absence from school. It is my intention in amendment No. 95 to recognise the autonomy of schools in respect of day to day operational matters. The school community is the most appropriate body to consider how and when parents should inform the school of their child's absence, as long as there is a legislative requirement that it be done in some way. Circumstances may differ from school to school and legislation can be an inflexible instrument. I am aware that most schools already have effective systems in place in this regard and I do not wish to cause them to have to create new systems simply to satisfy the needs of legislation.

The amendment will also cover the proposals from Deputy Michael Higgins, in amendments Nos. 96 and 100, and from Deputy Richard Bruton, in amendments Nos. 98 and 99. Amendment No. 115 reflects a concern that the legislation is not sufficiently flexible to recognise that certain students might be absent from school for a day and yet be fully participating in school activity. This might include areas such as sport, debating and other extracurricular activities which form part of the broad education spectrum. The effect of amendment No. 97 is covered in this amendment.

I wish to give the background to amendment No. 96. I will be blunt.

The Deputy might also discuss amendment No. 100 which is in his name.

Yes. Both amendments are an attempt to dilute the bureaucratic madness of section 18. Under this section if a child is absent for ten minutes, the parent is legally obliged by statute to give written notice within three days unless the principal agrees to verbal notice. That is crazy. Amendment No. 96 provides that absence must be over two days before the obligation comes into force. It further allows for provision of prior notice — the original draft overlooked that. The amendment mentions a family bereavement or any other such circumstance where it would be unreasonable to require notice.

It is absurd to allow the principal to accept a verbal notice and to require written notice. Amendment No. 100 provides that if the principal is inclined to want the written text, he or she should write it. If the principal is that insistent why not discover his or her writing skills? Bluntly, that was the reason for amendments Nos. 96 and 100. It is an attempt to be human in these situations. I am sure the Bill never intended that these ridiculous requirements should fall on parents, no more than it sought to suggest that certain principals might want to play God.

The Minister seems to be saying that an absence during part of a school day must be notified under the legislation. It appears that the procedures of a code of behaviour would not override that, even if the school considered it appropriate. Can the Minister simplify his amendment to provide for a genuine absence, rather than providing for going to the dentist, for example?

Essentially, the school code is the main factor in this regard. I accept that schools will vary but mainly they have boards of management as well as principals. School principals have established a new professional body which they launched recently. That might serve to get rid of some of the variations which Deputy Higgins mentioned.

My amendment goes a long way to meeting the arguments made by the Deputies.

For example, a child who wants to go to the Dáil to see his or her parent be appointed a Minister — which could happen at the drop of a hat — should be entitled to rush here immediately.

That could happen, but probably not too often.

Is the amendment agreed to?

I am worried about the reference to "part of a school day", which seems very draconian, and to a single school day. It would be better to substitute "two days". I am inclined to press amendment No. 96, unless the Minister returns to us on the question of "part of a school day" and the single day. It would be reasonable to change that to "two days".

This comes under the school code.

The school code cannot override the Minister's——

It does in this respect.

How could the school code have a statutory status?

We are giving it that status here. The amendment states "in accordance with procedures specified in the code of behaviour prepared by the school undersection 23”. It is in accordance with that code.

We have hit a rock.

Or a hard place.

We have almost hit the rock of the clock.

My inclination is to be guided by that wonderful constitutional expert, Sartori, and to look for certainty and, to facilitate certainty, accountability. I will have to review the later section. School codes are to be welcomed and admired but are a——

I will get a note on that for Report Stage.

Amendment agreed to.
Amendments Nos. 96 to 100, inclusive, not moved.
Section 18, as amended, agreed to.

As the Finance Bill and Social Welfare Bill are being taken next week, it is not possible for the committee to continue this Bill next week. We have proposed meeting on 9 March and have asked the Whips and spokespersons to consult on the date. I am informed there is a space between 11 a.m. and 1 p.m. and between 2 p.m. and 4 p.m. this Thursday. Does that suit members?

Thursday morning would be fine.

Is it agreed we meet from 11 a.m. to 1 p.m. on Thursday? Agreed.

The Select Committee adjourned at 4.15 p.m. until 11 a.m. on Thursday, 24 February 2000.