Last week I expressed by concern about the grouping of such a large number of amendments. We discussed amendment No. 1 last week but we did not get a chance to discuss the other amendments, although the Minister discussed them when she moved amendment No. 1.
I want to make a few general points in relation to the imposition of a specific form of board of management. In many of the submissions to the Select Committee on Social Affairs there was considerable opposition to sections 37(7) and 43, which essentially give the Minister power to impose a particular form of board of management if agreement is not reached between all the partners in education. In amendment No. 139, the Minister reserves the power to impose a school board of management where the Minister is of the opinion that a patron is unreasonably withholding agreement to same in accordance with sections 43(2) and 43(3).
Even with the Minister's amendments, the ultimate power to impose a particular form of school board of management resides with the Minister of the day. It is my contention that such a power is unconstitutional and also undesirable. If one looks at the opening preamble to the White Paper on Education, which lays down certain core principles which should inform education policy, much is made of the concept of partnership in education. If a Government or a Minister reserves the power to override that partnership, which this Bill proposes to do with the Minister imposing a board of management on a school even if the patrons of the school do not agree, as made clear in amendment No. 139, it seems that this flies in the face of the principle of partnership.
I have come across two particular categories of school and I want the Minister to address these issues in her reply. One relates to the lay voluntary secondary schools, many of which were founded by lay people who actually own the school and have private property rights over the school building. I know a number of these schools have sought legal opinion on the constitutionality of much of this Bill, particularly with regard to the boards of management. I sought legal opinion and it seems to me that the Bill undermines the constitutional rights of the lay owners of lay voluntary secondary schools.
A legal opinion which was sent to the principal of such a school stated the following. The principles contained in paragraph 9 are the key ones. It is clear beyond argument that the Bill would effect a very substantial and far-reaching interference in property rights, even if it did not quite amount to a diversion of the property of an educational institution within the meaning of Article 42.6 of the Constitution. Apart from anything else, the owner's management functions would be all but taken from him and transferred to the board of management. It goes without saying that this could of course gravely affect the reputation of the school, especially if poor management decisions were made by the new board. However, the fact that a substantial interference has been effected in property right does not, of itself, establish an unconstitutionality although the more substantial the interference with the property rights, the more difficult it tends to be for the State to justify such interference. In these circumstances, this legal opinion of a very senior counsel concludes that the interference with querists' property rights to be effected by the Education Bill, 1997 is disproportionate and cannot be justified by reference to the need to maintain educational and other standards. In these circumstances, the senior counsel was of the view that key provisions of the Bill, as initiated, in particular Part V thereof, would not survive challenge in an appropriate case.
Many owners and principals of lay voluntary secondary schools believe that the imposition of a school board of management is against their best practice and wishes. Parents choose to send children to these schools because of the structures that obtain there. It seems unnecessary to endeavour to impose a particular structure on these schools. If partnership is to mean anything we should seek agreement with the managers of such schools on governance structures.
In addition, I have met a number of Church of Ireland principals and managers on school boards. The committee received a comprehensive submission from the Church of Ireland representatives. They emphasised that their approach to schools is a community approach. For many years parents have been on the school boards of management of Church of Ireland schools; they have a democratic approach to the election of members to parish councils and the General Synod. They are opposed to the State interfering in their traditional practices, telling them how to govern their schools and prescribing the form of board of management they should use.
Before lunch I was speaking to the principal of a Church of Ireland school which has a board of governors comprising eight people. The school has sought people with particular expertise, including parents. The Church of Ireland schools have adopted a different approach to the formation of their school boards. The principal indicated that whereas his school has an eight member board of management, other schools might have up to 30 members, depending on the locality, the community involved and the experience and traditions which informed the community.
I cannot understand why the Minister would wish to arbitrarily end those traditions and forms of governance if they are what the community involved want. If partnership is to mean anything it should involve the development of policies, programmes and forms of governance that are in accordance with the wishes of the partners in education. The Church of Ireland's submission was interesting because the delegation comprised parents, teachers, principals and owners. They saw themselves as forming a coherent community with a particular interest in education and a particular perspective on the evolution of education for their children. They have built up expertise and experience since the foundation of the State and they are at a loss to understand why the State should attempt to interfere in their existing forms of governance and attempt to impose a particular form of governing body on them.
There are other schools outside the domain of the churches. I am aware of two primary schools which are not recognised by the State but which have their own forms of boards of management.
Why is there a need to impose boards of management? At primary level progress is being made, following agreement in November between the partners, on the establishment of school boards of management in advance of this legislation being passed. That is happening with the co-operation of patrons. The presentation to the committee from the Catholic school owners indicated that they were proceeding with the establishment of school boards of management at primary level. Why do we need to impose a particular form of boards of management? Why not outline a general framework for their establishment in consultation and agreement with the partners in education? I do not see the need for the Minister's amendments or the powers contained in sections 37 and 43.
We should seek the agreement of the patrons. I am aware that at primary level considerable agreement has been reached with the partners. However, at second level the process of the establishment of school boards of management in terms of structures and agreements has not even been initiated. We are aware that various institutions have developed their own formats. For example, the community schools have their deeds of trust and boards of management which work well. Vocational schools under the vocational education committees have boards of management which work effectively. Second level schools are developing boards of management and about 75 per cent of voluntary secondary schools now have boards of management in place.
Why is it necessary to include in legislation a dictatorial approach, indicating to schools that they should accept the structure the Minister of the day outlines or additional funds to the school will be frozen? That is a fundamentally undemocratic approach. It does not respect local democracy or the needs of communities. If we believed in democracy and partnership at local level we would listen to the communities to find out how best they can manage their affairs. We should listen to them and assist them to put in place structures that best meet the needs of the local communities. It is unacceptable that the State should impose a format on local communities.
Amendment No. 14 proposes to delete section 5(2) which states:
Where the Minister fails to reach agreement under section 43(2) on the composition of a board and proposes to make an order under that subsection a draft of that order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft order has been passed by each such House.
We propose to delete it because we do not think the Minister should have that power. We are not happy with amendment No. 139. Will the Minister clarify what "unreasonable" means in this context and how it will be defined in law?
We have proposed amendment No. 138 to delete section 37(7) which provides for the freezing of funds, income, additional grants or additional teachers that may not accord with the wishes of the Minister of the day. It is draconian, dictatorial State interference at its worst. This provision should be deleted. Having examined legal opinion from a number of sources it would appear to be unconstitutional. The Minister is being unduly stubborn at this stage in wishing to retain this provision. It could very well be a section which will result in the Bill failing in the Supreme Court. The State cannot interfere to that degree in the property rights of citizens in the context of lay, voluntary, Church of Ireland, Catholic and multidenominational schools.
Amendment No. 138 proposes to delete subsection (7). There is no need for it. It flies in the face of the White Paper's spirit of partnership and consultation and makes a mockery of the principles on which the Minister elaborated earlier. She mentioned the devolution of authority and other buzz words such as "democracy" and "partnership". However, those words bear no relationship to the content of the Bill. If the Minister believes in partnership and democracy, how could she include section 37(7)? It is the antithesis of local democracy and the devolution of authority.
Amendment No. 194 states: "In page 31, subsection (1), line 35, to delete "shall" and substitute "may"". Section 43(1) states:
A school shall have a board of management to fulfil in respect of that 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 to be sued in its corporate name.
The amendment takes a more laissez-faireapproach because we do not favour dictation and compulsion. The education system has evolved satisfactorily without the compulsion proposed in the Bill. This matter relates to one’s conviction about partnership.
Amendment No. 195 states:
In page 31, subsection (1), line 37, after "Act" to insert "and by any Deed of Trust or legal instrument which currently governs the school".
The delegation from community and comprehensive schools was appalled and shocked that there was no reference in the Bill to the deeds of trust which underpin the governance of such schools. They could not understand why it was excluded and their legal opinion was that the Bill would supersede the deeds of trust which were so painstakingly put together over ten years by the people involved in the establishment of community schools. They were very upset and taken aback that they are ignored under the Bill.
The Catholic Primary Schools Management Association was surprised that there is no reference in the Bill to the deed of governance and variation which was negotiated in November. This deed is now in the Attorney General's office and perhaps the Minister could clarify its current status. Has agreement been reached? Has the Attorney General dealt with the issues that arose in terms of the constitutionality of the deed? It is surprising that there is no reference to this matter in the Bill.
It is also surprising that the Bill was published in advance of the resolution of that issue. This legislation deals with regional boards and the structures of governance of schools. Agreement was reached by all the partners in education on the governance of primary schools but that is not mentioned in the Bill. A number of the Minister's amendments attempt to deal with this point but that omission was appalling.
Amendment No. 197 relates to section 43(2) which states:
Where the Minister proposes to make an order to provide for the composition of a board of any school or class of school he or she shall make all reasonable efforts to reach agreement on the composition of the board with the patrons of those schools, national associations of parents and recognised trade unions and staff associations representing teachers but may, subject to section 5(2), make an order without having reached agreement with the parties concerned.
This means that if the Minister fails to reach agreement after reasonable efforts, he or she can go ahead and impose the board. We oppose that type of dictatorial approach to school communities and owners. It is dictatorship at its worst and we propose the deletion of that subsection. The Minister's amendment is also unacceptable.
Amendment No. 199 seeks to delete subsection (2) and to substitute the following:
. . . . .The Minister may make an order to provide for the composition of a board of any school or class of school subject to agreements reached on the composition of the board with the patrons of those schools, national associations of parents and recognised trade unions and staff associations representing teachers.".
This invokes the spirit of partnership and agreement. If the Minister really believes in partnership, why is she afraid to include a provision which states that we shall not proceed unless there is agreement with the partners? This is the ultimate litmus test of whether the Minister is really committed to partnership at local level. There is conservatism, caution and double standards in this area. The White Paper contained lovely flowery rhetoric about partnership, democracy, plurality and diversity, but none of it was meant.
The implication is that the White Paper should not be taken seriously because the Government is not committed to partnership. In terms of the legislation, it wants the power to ensure that schools do what the Government wants them to do. That is the message these sections send to the partners in education. The Government knows what is best for them and this is how they must proceed. If they do not proceed that way, the Government will impose its will on them. This is why these powers are included in the Bill. It will force the partners to take action in accordance with its wishes.
The thrust of our amendments is that we trust the partners in education. We believe in the partners' commitment to progress and progressive thinking in education and we are willing to state in legislation that core issues, such as the governance of schools, curriculum development and reform, are matters which should be agreed between all the partners in education — teachers, parents, principals and patrons. The critical issue in this area is trust. The Minister's response will be that somebody might be awkward and that, ultimately, decisions must be made. However, much has happened in education through discussion and negotiation. Ultimately, one cannot compel people to do things, even through legislation. If co-operation is not freely given by the partners, we will go nowhere in education. The State cannot impose its will on the partners. Inevitably, it must reach agreement with them. There must be interaction and debate.
Amendment No. 200 states:
In page 31, subsection (2), lines 44 and 45 to delete "but may subject to section 5(2), make an order without having reached agreement with the parties concerned" and substitute "and may only make an order subject to section 5(2) after having reached agreement with the parties concerned.".
We are providing that the parties or partners can have an input. Perhaps the Minister will consider including in the definition section definitions of the recognised partners in education.
Amendment No. 201 proposes the insertion of a new subsection (3) in section 43, which will read:
A Board of Management shall mean a Board of Management or the recognised management structure which is in place in the school at the time this Act becomes operative.
Many schools already have boards of management which work well, such as Church of Ireland schools and lay voluntary secondary schools. We should give recognition to the existing boards of management because people who are not familiar with education might be given the impression that there are no such boards in first, second or third level. We have made great progress in establishing boards of management in schools during the last ten years and the partners are to be congratulated for initiating that. The Minister said I was proposing the retention of certain boards of management whereas she wanted to start with an almost "green field" approach. That is not acceptable.
Amendment No. 202 reads:
In page 32, subsection (3), line 2, to delete "in accordance with regulations made by the Minister" and substitute "in accordance with procedures agreed by the recognised partners in education".
The Bill makes 222 references to the Minister. Despite all the empty rhetoric about devolution of authority, giving local people a say in decision making, etc., the Bill contains many phrases such as "in accordance with regulations made by the Minister" and no reference to agreement or consultation with the partners. The Bill gives the Minister over 100 powers but only one or two of those refer to the need for agreement. This again illustrates the contempt which the Minister and the Department have for the partners in education. Amendment No. 202 will change this. The Minister's amendment No. 203 will do something similar.
Amendment No. 204 reads:
In page 32, subsection (3), line 2, after "Minister" to insert "following consultation and agreement with the recognised partners in education".
This is similar to amendment No. 202. Amendment No. 206 reads:
In page 32, subsection (4), line 4, after "determined" to insert "following consultation and agreement with the recognised partners in education".
This relates to the appropriate gender balance which the Minister will determine from time to time among the membership of school boards of management. The current subsection (4) gives the Minister unbridled power as to the composition of such boards. There must be representation from the various categories — parents, teachers, patrons and outside interests in the community — but we should not overly interfere. Some boards may want to appoint someone according to their needs and a person in the community may have much to contribute. For the sake of meeting objective criteria and policy guidelines we may ruin the boards. Immense difficulty was created by the gender provisions for regional technical colleges and there were many undemocratic practices behind the scenes to get the right balance. Something similar may happen here. That is why we wish to insert the phrase "following consultation and agreement with the recognised partners in education". The theme of consultation and agreement with the partners runs through all our amendments.
Amendment No. 208 reads:
In page 32, subsection (5), line 6, to delete "in consultation" and substitute "following consultation and agreement".
Section 43(5) reads:
The Minister, in consultation with the patron, national associations of parents and recognised trade unions and staff associations representing teachers, may make regulations relating to the appointment of a board including regulations relating to the making of nominations and the holding of elections and regulations that will enable the patron to appoint a board which has an appropriate gender balance.
We argue that the Minister should not have unilateral powers in this area and the partners must be involved in the process outlined in the subsection and the regulations concerning appointments to boards. A future Minister could appoint political hacks to school boards of management if he or she were allowed to interfere. We have had considerable examples of this in the past. Agreement is the key word.
Amendment No. 211 proposes to delete section 43(7), which reads:
The Minister may by order amend or revoke an order under this section including an order under this subsection.
This is more dictation from the Minister and we oppose it. Amendment No. 212 proposes to delete section 43(8), which reads:
Where a member of a board including the chairperson——
(a) dies, or
(b) resigns by written notice to the board, or
(c) is absent from all meetings of that board for a period of six consecutive months, unless such absence was due to illness or was approved of by that board, or
(d) is removed by the patron in accordance with section 45,
then that member's office shall become vacant and that vacancy shall be filled, as soon as may be after the vacancy occurring, by a new member appointed in the same manner as that in which the vacating member was appointed.
That is a matter for local boards of management. There is no need for such a subsection in the Bill. We should trust local boards of management. Submissions have been made to us in that regard from patrons and interested parties who are of the view that the subsection is not necessary. We propose its deletion.
Amendment No. 213 proposes the deletion of section 43(9), which reads:
A member appointed pursuant to subsection (8) shall hold office for the residue of the vacating member's term.
This relates to the same issue, that of people ceasing to be members of a board.
The thrust of our amendments on the governance of school boards of management is that we are in favour of reaching agreement with the partners on all these issues and responding to their needs. Some 14 groups came to this committee, which showed that the various partners have different needs, backgrounds, traditions, ethoses and characteristic spirits, as described in the Bill. Over the years they have formulated and put in place structures of governance which they believe fulfil their criteria or needs and are best for them. Why should we attempt to impose a format on them?
We do not believe that we should ever impose the penalty of freezing funds to schools because they may not agree with the Minister of the day on the composition of school boards. The students in those schools would ultimately suffer from such an action. I would like the Minister to address that issue. This Administration is unduly obsessed with structures in education when we should really be concerned with what goes on in the classroom. The Minister has stated that, if a patron unreasonably withholds agreement on the composition of boards of management, funds will be withheld or additional teachers will not be provided. Who will ultimately suffer from such an action? The patron will not, nor will the teachers. It is the students in such schools who will suffer.
The Constitution provides fundamental rights to parents in terms of allowing them to provide their children with an education of their choice. Children and parents vote with their feet. If parents decide to send their children to a school with a particular ethos, tradition and set of values and if that school has particular forms of management which parents are aware of and in agreement with, why should the State interfere with these? Why should the State tell everybody involved in the school community that, because they do not have a board of management which is in accordance with the Labour Party's view of things, it will dictate the changes which will have to be made otherwise additional funds and teachers, to which the school would normally be entitled, will not be provided? That is an appalling and disgraceful section and it should be withdrawn.
There is much concern about section 37(7). The Minister is supposedly concerned with agreement among the partners in education. The Catholic School Management Association is opposed to section 37 as are the representative bodies of the Church of Ireland schools, the community and comprehensive schools, the school principals' association, the second level management association, CORI and others. I am amazed that the Minister can utter the word "partnership" with any kind of conviction. Members of the committee spent two weeks listening to the various representative bodies express their opposition to section 37, yet the Minister has included it. I do not think there is any need for the section and I do not know why the Minister cannot delete it from the Bill. That would make the Bill more acceptable. I would like to hear some legal opinion on the section.
