Dáil Éireann díospóireacht -
Wednesday, 26 May 2004

Vol. 586 No. 3

Education for Persons with Disabilities Bill 2003: Report Stage (Resumed) and Final Stage.

Debate resumed on amendment No. 145:

In page 17, between lines 44 and 45, to insert the following:

"(4) The Minister shall take into account the views of the Deaf community in the provision of resources and when determining policy under this Act.".

—(Deputy Stanton).

Minister for Education and Science (Mr. N. Dempsey)

I was addressing the amendment which suggested we should specifically mention deaf people and deafness as a specific disability that needs to be catered for within the Bill. I said that up to now we have avoided — and I intend to continue to avoid — singling out any individual disability. It would be invidious to do so and would be unfair to members of other affected groups. The alternative to accepting this amendment would be to mention every disability but that approach would present its own difficulties. Obviously, people with different needs and various disabilities must be accommodated and the Bill attempts to ensure that all rights are respected. For those reasons, I am not accepting this amendment.

In common with other Deputies, I have met deaf people and parents of children who are deaf or hard of hearing at meetings around the country. They have lobbied strongly and extensively concerning the needs of their children. One Opposition Deputy said that up to now I had not taken into account the views of the deaf community, as if there was a single voice representing deaf people. The difficulty is that a variety of voices has been raised to represent the deaf community. Unfortunately, the problem has arisen that the attitudes being adopted on both sides of the argument within the deaf community appear to be almost mutually exclusive.

There are at least two very specific but opposing views as to where we should go with education for the deaf community. For the information of the House, we set up a committee some time ago to make a report to me on the question of education for the deaf and hard of hearing as well as the issue of sign language and so on, to which Deputy Stanton and others referred. Unfortunately, that committee has twice failed to meet deadlines I set for it to produce its report because both sides of the argument want to totally exclude the other's point of view. I do not want a solution like that.

This Bill gives us a great opportunity if at least two sides are willing to take it on board. The thrust of the Bill and the desire of all Members is that, since we are referring to individuals with special needs or learning and educational disabilities, the best solution to meeting these needs is the individual education plan for the child rather than any doctrinaire approach which dictates that it must be through sign language, orally or through lip reading.

I gave a deadline of last Christmas to the committee and allowed myself to be persuaded to allow it to go until Easter but I have now told the committee that I need the report now and if it is not prepared to produce an agreed report, I want its work and I will start making decisions myself. I do not particularly want to do that but I do not foresee us making much progress unless people are willing to consider other people's point of view. That is an aside by way of information to Members.

I will not accept an amendment that singles out any individual disability because it would be unfair to the rest of the groups. While I accept the concern and desire of Deputies and members of the deaf community who sought this amendment, we would not be doing a favour to people with special needs by singling out one group.

Mr. Stanton

I have listened carefully to what the Minister has said and I am inclined to agree with much of it. His point in regard to singling out one group against all the others makes sense. I also support the Minister's setting up of this committee and I look forward to the report being produced and working with him to ensure that the best possible result flows from it. However, I ask the Minister to examine Irish sign language and its role given that others have recognised it as an official language and given it support.

Amendment, by leave, withdrawn.

Mr. Stanton

I move amendment No. 146:

In page 17, between lines 44 and 45, to insert the following:

"(4) The Minister shall take into account the needs of special schools in the provision of resources and when determining policy under this Act.".

This amendment recognises the role of the special schools in dealing with children with special educational needs. The special schools have not been specifically mentioned in the Bill but they have an important role to play in this area. Even though the idea of inclusiveness and integration is causing difficulties in schools, it is to be welcomed and encouraged. However, there are instances in which it is not possible. Special schools have been established around the country and are doing great work. The Minister should take into account the needs of these schools and recognise the work they are doing in the provision of resources and when determining policy under this Bill. The amendment seeks to recognise this so that the schools are given a certain status which they deserve and need.

Ms O’Sullivan

I support this amendment since it presents an opportunity to debate special schools and how they fit into the legislation. Does the Minister envisage that every child in a special school will have an individual assessment of need under the legislation? We did not really tease out the position of special schools as much as the position of children in mainstream schools in our Committee Stage debate.

Under this section, which deals with the Minister's principles and policies, it is a good idea to acknowledge that special schools have a particularly important role to play, especially where children's learning difficulties are greater than those who are appropriately placed in mainstream schools.

Mr. F. McGrath

I also support this important amendment. We must acknowledge, value and support the role of the special schools and the needs of the children within that system as well as the needs of teachers and staff to provide services to the children. We should also take on board the broader debate on the role of special schools and inclusive education, whereby some children with disabilities are going to mainstream schools.

Special schools must also be prepared to change and take a more open approach to the debate on choice in education and on children with disabilities. They must be open to the idea of working with mainstream schools for children with special needs. The special schools system has served many children very well as has the other system, where children have attended mainstream schools, provided the resources and back up services were in place.

It is important that the debate about education, particularly education for people with disabilities, is about choice for families — children and parents — but also about accommodating difference, which is an essential part of this legislation. We must be prepared to accommodate difference and different types of services but the emphasis should always be on the needs of the child and what is in his or her best interests. If we take that on board, we will go down a constructive and positive road.

We have some excellent special schools which are involved in projects which demonstrate good educational practice. For example, St. Michael's House in Ballymun links in with the other local national schools to work on all sorts of constructive projects. These examples of good practice need to be developed. We should also work towards breaking down the barriers and ending segregation for children with disabilities. It is still a problem that many children with disabilities, particularly those who attend special schools, do not have enough interaction with mainstream schools and children without disabilities. We must open up our minds to this, end the segregation and do something about bridging the gap. Sometimes, there is too large a gap between the mainstream and special schools sectors. All schools should be included, particularly when it comes to needs and resources, rather than pushing one set of educational guidelines over another. It is important we provide for the needs and resources of the schools, whether special or mainstream. The emphasis must be on the needs of the children and the services we can provide under this Bill.

Mr. N. Dempsey

On Committee Stage, I stated that special schools are recognised in the same way as mainstream schools within this Bill. Section 13 seeks to ensure that, in formulating policy on special needs, the constitutional rights of all children will be enjoyed equitably. All children with special needs will be able to avail of and benefit from appropriate education in the same way as their peers without special needs. For that reason the amendment is unnecessary as in the allocation of resources those principles must be taken into account. All children must be treated equitably and fairly.

I listened to the contributions of Members with an open mind but some comments have convinced me not to accept the amendment. I hope I am not being perverse in that. We want to ensure that all children are treated equitably and that the divide referred to by Deputy Finian McGrath does not exist. I accept that divide can exist but the suggested provision, which will take into account the needs of special schools, is something I am obliged to do anyway in the provision of resources and determining policy under this Bill. Saying these schools are different and separate would copperfasten the present situation. Since beginning work on this Bill we have made the child the central focus of the Bill and it does not matter if that child is in a special class, a special school or a mainstream class with special needs. The child's needs must be met and he or she must have an individual education plan, as Deputy O'Sullivan said, whether he or she is in a special school or not. I agree with Deputy McGrath that the special schools have served people well and, on reflection, we might be doing a disservice to such schools by accepting this amendment. I do not propose to accept it.

Amendment, by leave, withdrawn.

Mr. N. Dempsey

I move amendment No. 147:

In page 18, line 26, to delete "an educational disability" and substitute "special educational needs".

Amendment agreed to.

Mr. N. Dempsey

I move amendment No. 148:

In page 18, between lines 30 and 31, to insert the following:

"(4) A request under subsection (1)(c) or (3) shall be complied with within such period (not being a period longer than 1 month from the date of the request) as the Council specifies in the request.”.

Education service providers will be obliged to provide the council with the information it requires. In the context of the review of all time limits in the Bill, as requested by Deputies, I undertook to look at this section. Again, the volume, complexity and urgency of the information sought by the council may vary from case to case and with that in mind the amendment gives the council discretion in setting a deadline. An outer time limit of one month is proposed. This goes back to what Members proposed — as soon as possible but within a month.

Amendment agreed to.

Mr. Stanton

I move amendment No. 149:

In page 18, line 36, after "training" to insert "or employment".

This section of the Bill deals with planning for future educational needs, which is laudable. We agree with that aim but the section also states there will have to be regard for provisions that will need to be made to assist the child in his or her education or training on becoming an adult.

The Bill does not recognise the possibility that children with special educational needs can move into employment. Part of the role of education is to prepare people for employment and I would hate to give a message through the Bill that we recognise those with special educational needs as being consigned to long-term, permanent training. We should explicitly allow for the fact that we want those with special educational needs to enter gainful employment also. In reviewing and preparing an educational plan the principal of a school should have regard for the provision which will need to be made to assist the child in continuing his or her education, training or employment on becoming an adult. That should be done from when the child attains such an age as the principal or organiser considers appropriate. We are also considering work experience, possibly, and other such classes in schools. Those with special educational needs may need more help than those without such needs in preparing for employment because of the barriers that often exist in the workplace and society generally. We are all trying to remove those barriers to help those with special needs, and all children, to reach their full potential. That is an important statement to make. "Employment" should be included here, as education is about helping people to reach their full potential and to have dignity in living as independently as possible. That is true for those with or without special needs. The Minister would be doing something positive by accepting this amendment as it would add greatly to the Bill.

Ms Enright

Continuing with Deputy Stanton's point, it is important to realise that many parents look on the education system as a means of preparing their children for future employment, whether we like it or not. Using the word "training" in this section separates children with special needs from others in the school system. We must accept that part of the reason children are in schools is to be able to get gainful employment after their education. This Bill covers children up to the age of 18 but including the term "employment" would recognise the fact that these children have the potential and capabilities to be employed. The educational plans put in place for them work in part to educate them to enter the workforce in whatever capacity they can. The Minister should give serious consideration to this amendment.

Ms O’Sullivan

I support this amendment, which is very practical. There is no reason a certain number of children with special needs should not go directly into employment after school, just as happens with a certain number of children without special needs. Some go on to further training or higher education but many go straight into employment after school. There seems to be no reason employment should not be included here with education and training. It makes sense that if a young person with special needs wants to get a job he or she can do, then he or she should be prepared for that future along with those who will go on to further education or training.

Mr. N. Dempsey

We discussed this on Committee Stage when I said the Bill was concerned with the education of persons with special educational needs. As Deputy Enright mentioned, we discussed the fact that the purpose of education is to prepare people for further education, training or employment. I have no difficulty with that concept but accepting this amendment would require the principal of a school or the council to prepare a form of employment plan for some special needs students. The broader disability Bill will deal with those coming through the education system from the point of view of training, employment or whatever is most suitable for them. For that reason and given that the Bill is particularly geared towards education, it is better to leave the question of employment, employment plans and so on to the larger disability Bill. As such, I do not propose to accept this amendment.

Mr. Stanton

I am disappointed the Minister, who, like me, is a former career guidance councillor, does not recognise the importance of preparing people for the world of work in the education system. When I worked as a career guidance councillor that was one thing I did. There were modules at all levels to alert students to what happens in the world of work and in workplace. I am disappointed and surprised the Minister will not accept this amendment. While we have not yet seen the disability Bill perhaps it will impinge on what happens in schools. I thought this Bill was specifically geared to children in schools and would assist such children.

I agree with one comment the Minister made that education is about preparing people for life. What is effectively being done here is that the child is being prepared to continue his education and training but not to enter the world of work. Surely that is an important part of education. When a child is in school and reaches a certain age, the principal and the school would, as they should do with all children, assist the child to continue his or her education or training or assist him or her into the world of work. It does not mean preparing an employment plan. It does not apply to any other child so why should it apply to these special children. We are talking about general education to assist children with special needs if they wish to be better prepared to enter the world of work. These children will also have other needs. This is an important issue and it would be an omission to leave it out.

The Bill provides for education or further training. We are more or less consigning them to education or further training and are not recognising their great potential. They should enter employment and the school should make provision for that from a certain age, perhaps by work experience. This is the Bill in which to include such a provision, not the disability Bill. This is an education Bill. People are being educated for the world of work. I ask the Minister to have another look at this amendment for the Seanad because it would send out a positive signal from the House regarding the employment of persons with special educational needs. If this is not done, it could be said they will be in training and further education and consigned to that.

Mr. N. Dempsey

I will have another look at it. I presume, knowing what happens in schools, the kind of preparation for young persons about which Deputy Stanton is talking would proceed for a person with special needs. The effect of the amendment would be to put an onus on the principal or the council to prepare an employment plan.

Mr. Stanton

No.

Mr. N. Dempsey

What the Deputy has outlined as a guidance councillor would have been done in schools, such as giving life skills in regard to job applications, mock interviews and so on. There is nothing in the Bill to prevent that being done. It could be written in as part of the individual education plan. Given the way the amendment is worded, I am concerned that there would be an obligation on the principal or the council to prepare an employment plan. I will have a look at it in the context of the Seanad to see whether a wording can be inserted here or in the guidelines for the individual education plans.

Mr. Stanton

May I make one further comment?

An Ceann Comhairle

Yes. Perhaps the Deputy would confine himself to two minutes this time. The last time he went well over the two minutes.

Mr. Stanton

I apologise.

An Ceann Comhairle

There is no problem.

Mr. Stanton

In future I ask the Chair to remind me and I will stop.

An Ceann Comhairle

It is difficult for the Chair to know whether a Member is concluding.

Mr. Stanton

For a change I will be brief. We are making provision for the continuance of education and training into the future. Given that we have not discussed the detail I am not sure what that might be. How will they do it? What onus will be put on the principal, the council or the school to do this? It is preparing them for future education and future training, so it is something that happens in the school. It prepares the child and does not impact on anything outside the school. I cannot see the principal, the school or the council getting involved in a third level institution or a further education college at this stage. It is all about preparing the child and we are talking about employment in the same vein. I welcome the Minister's undertaking to look at it again.

Amendment put and declared lost.

An Ceann Comhairle

Amendments Nos. 150 and 152 to 154, inclusive, are related and may be discussed together.

Ms O’Sullivan

I move amendment No. 150:

In page 18, line 36, after "adult" to insert "and to the principal that a student should not be required, simply by virtue of reaching a particular age, to cease to avail of educational services".

The Minister will tell the House that those over the age of 18 will be dealt with in the disability Bill. However, that Bill is slow in coming. According to what the Taoiseach said yesterday when I raised the matter and again today when Deputy Stanton raised it, the Bill will not be published until mid-June if not later. We do not know what will be contained in the Bill. The question of young people who reach the age of 18 and who need higher or continuing education has been the subject of a number of court cases. We cannot ignore that in this Bill.

I accept this section is planning for future educational needs. That is a step forward. That there is an onus on the schools to start planning from the age of 17 for what happens to the child after school is welcome. It would do no harm, even in the context of the disability Bill, to address the position of those over 18 by including amendment No. 150 which seeks to insert the words "and to the principal that a student should not be required, simply by virtue of reaching a particular age, to cease to avail of educational services", nor would it put any onus on the school system.

That the Minister has joined with me and other colleagues in putting his name to amendment No. 152 is welcome and I assume it will be agreed. We are also discussing amendments Nos. 153 and 154. Amendment No. 153 is related to amendment No. 150 and seeks to insert the words "including measures involving the student remaining in school notwithstanding his or her having attained the age of 18, or alternatively receiving other educational services after that age". We do not know the content of the disabilities Bill and we wish to ensure there is provision for those over 18 years who need or want to stay in the education system.

In amendment No. 154, I wish to ensure that those who have turned 17 or even 18 when the Bill becomes law are not excluded from the provisions relating to planning for future education needs. I wish to ensure also that if for some reason a person has not had his or her future education needs planned before he or she reaches 18 years and he or she is still at school at 18 years, that he or she will not be excluded from the provisions of this section.

Mr. Stanton

Many students with special needs start school later or will be delayed in their progression through school because of their special educational needs. We need to ensure that when they reach 18 years they are not in a limbo situation. The amendments tabled by Deputy O'Sullivan seek to ensure they will have a future role in the school. One could have students with special educational needs who will do the leaving certificate, the leaving certificate applied or the leaving certificate vocational programme at 19, 20 or 21 years. We need to make allowance for that. In the most recent programme, Sustaining Progress, it was promised that the disability Bill would be enacted before the end of the 2003. That did not happen and there is still no sign of it. Seeing that the disability Bill has not been published, we must take account of the needs of young people who stay in school and in planning for their future education needs, that we give them some form of security in that they will be allowed stay at school until they do the leaving certificate. The Minister has stated in the past that there is no need to fear this will not happen. That is all right now, but if it is not written in legislation, it may not be guaranteed in the future. If the Minister does not accept these amendments, perhaps he should give them serious consideration before the Bill goes to the Seanad.

Mr. F. McGrath

I support amendment No. 150. Many families are very concerned about the provisions for those over 18 years with special educational needs. Parents are concerned about the future provisions for children who are having their needs met at primary and second level education. Recently I have been contacted at my clinic by the parents of teenagers with autism who are concerned at what will happen and what services will be available for these young people when they reach 18 years. This is a very important aspect of amendment No. 150.

The point was made that the disability Bill will cover some of the services dealing with adults with a disability. I am extremely disappointed at the delay in the publication of the Bill. Much has been made of the consultation process, but the consultations appear to be taking years and there seems to be a number of issues that are holding up progress. One aspect is the debate about rights-based legislation. It appears that some members of Cabinet have a problem with giving people with disabilities rights. I reject that strongly.

When those with a disability reach 18 years, we should be more creative in offering them opportunities at third level. I welcome the recent move by Trinity College, Dublin, to reserve 15% of places for "non-traditional" students, including students with disabilities. I welcome the opening up of third level institutions. I would like to see a progressive approach to people with disabilities and the creation of courses that are suitable for those with an intellectual disability. One does not have to be a rocket scientist to create a third level course for those with intellectual disabilities. If primary and second level schools can create suitable courses, surely third level institutions can create courses encompassing art, drama, personal development, social and personal skills or other such courses. Down's Syndrome Ireland hosted an excellent conference on the needs of adults with Down's syndrome. The parents and professionals came up with many progressive ideas on the development of opportunities at third level. The third level institutions would want to waken up and become more inclusive. Most students at third level come from wealthy families, but that is no longer acceptable.

The Minister strongly supports providing resources at primary level and in disadvantaged areas. I will take that on board, when he replies. Staying at home watching television and videos for seven or eight hours a day because one is a disabled 18 year old should not be an option. Deputies know of many instances where those with intellectual disabilities have no option but to stay at home because there is no proper respite care or motivational education service. Sadly that is happening.

People with disabilities suffer sheer loneliness. This is at crisis point. Any family with a child with Down's syndrome, autism or other intellectual disability will tell one that their children experience a major problem with loneliness, particularly between 12 and 18 years. There is a significant gap that needs to be filled. The education services have a role to play. Many people who work in the disability sector are bursting with new ideas to provide services.

I strong support amendment No. 150 and I ask other Deputies to support it as well.

Ms Enright

I support the amendments tabled by Deputy O'Sullivan. I am open to correction, but my understanding is that if a student of 19 or 20 years is still at school and wants to repeat his or her leaving certificate, there is no difficulty. I know an individual who sat the leaving certificate on three occasions. I presume if a disabled person is 18 years he or she can finish out the school year. From my reading of the Bill it does not stipulate that he or she must then leave, but the legislative provisions in the Bill state there is no obligation on the State to provide for a person's educational needs after 18 years.

Let us suppose that an assessment of a student at 15 or 16 years suggests it would take him or her four years to complete the leaving certificate. My concern is that there is no concrete guarantee, without the Minister accepting the amendments tabled by Deputy O'Sullivan, that would allow him or her remain at school. Should a Minister wish to take a decision that the special educational needs will be met only until the individual is 18 years, I do not think the individual's right to education will be safeguarded. That is the reason I wish the amendment to be included.

Mr. Crowe

I welcome the Minister's decision to take on amendment No. 152. I too agree with the concept of lifelong learning. The point raised by Deputy Enright on those who start school later than the norm also was raised during the Committee Stage debate. People would be worried if the health boards had responsibility for the provisions of the disability Bill, because of the difficulties they have experienced with them.

During the initial discussion we suggested replacing the word "child" with "student" as this ties in with the concept of lifelong learning. Lifelong learning does not stop at a particular age. If people want to continue in education, they should be able to do so. In some cases, people are late starters and, for whatever reason, they may take longer to cover a course. We should be open enough to allow individuals to do so and that is why I support these amendments.

Mr. N. Dempsey

I assure the Deputies opposite that the Bill does not, nor will it, prevent a person continuing with his or her education once he or she reaches 18 years of age. That would be contrary to the Government's policy and to that of all Governments and parties. The Government has been strongly supportive of lifelong education. It is as real an issue for people with disabilities as it is for people without.

Subsection (3) aims to ensure the planning process makes an assessment of the extent to which a child or young person has benefited as fully as he or she can from the education provided. It is also aimed at addressing any deficiencies there might be. That provision is deliberately left as broad as it is to try to ensure it is in no way restrictive. Nothing is ruled out. It is for the planning process to make the decision based, in particular, on the child's or young person's needs as they go into adulthood. That is the aim of this section. In some cases, that could include continuation in education, that is, in a particular education programme or perhaps moving on to a different programme all beyond the age of 18 years. Deputy Enright said that it occurs at present even for those without special educational needs, often up to the age of 21. Since this section is drawn up as broadly as possible, amendments Nos. 150 and 153 are not necessary.

I understand Deputies going for belt and braces in regard to amendment No. 154. However, I have seen the disability Bill, as drafted, although there are one or two other items which need to be included in it. I have that advantage. Amendment No. 154 is more appropriate to the disability Bill than to this Bill. In some respects, there is a presupposition that the council will not discharge its statutory duties in respect of future planning. That is the basis of this but it is wrong, particularly given the wide powers of appeal for parents in regard to the education plans. Amendment No. 154 is not necessary.

Section 15(3) provides that where an education plan is being prepared or reviewed in respect of a 17 year old and where the goals of a previous plan have not been met, the new plan must include, where appropriate, measures to address any effects on a child's development as a result of that failure. On Committee Stage, Deputy O'Sullivan, in particular, sought to confirm that measures would have to be included where there had been a failure to meet those goals. For that reason, we have all come up with the one wording in amendment No. 152 in regard to the use of the words "where appropriate". The Bill meets amendments Nos. 150 and 153 and I do not want to be seen to restrict it in any way. Amendment No. 154 is more appropriate to the disability Bill and will be dealt with in it.

Ms O’Sullivan

I suppose the rest of us are uninitiated. Knowing what is in the disability Bill and when it will be published is like knowing the third secret of Fatima. Will the Minister give some information about——

Mr. Crowe

He should give us a sign.

Ms O’Sullivan

Exactly. He should give us a sign. For example, are measures in regard to people with physical disabilities who go on to higher education and who need special computers or tools in higher education included in the disability Bill? We are operating in a vacuum. As spokespersons, we deal with education, as does the Minister who also deals with third level, higher and further education, but we do not know if the disability Bill will adequately deal with the various aspects of a child's continuing needs after the age of 18. Perhaps if the Minister threw a little more light on the subject, I might know whether I want to press the amendments.

Mr. N. Dempsey

I assure the Deputy that one category of student who is well catered for at third level is the student with a disability from the point of view of laptops, scribes and translators. Mechanical and human resources are made available. From talking to many of the students at third level, the Deputy will find that they are probably better catered for than those at primary or second levels because of the extent of the funding. That is all done without any legislative base. This Bill and the disability Bill, when enacted, will underpin and copperfasten that. While it is always dangerous to say the following because somebody will come back and tell me there is a particular problem, in general, most students with disabilities who I have met in third level, while having some complaints about the initial slowness of getting the equipment or assistance they need, would say they are well served. I hope to build on that in the years ahead. I assure the Deputy they will not be forgotten, nor are they at present.

Amendment put and declared lost.

Ms Enright

I move amendment No. 151:

In page 19, lines 4 and 5, to delete "to meet those goals and the effect any such failure has had on the development of the child," and substitute the following:

"of any previous plans or programmes to meet the special educational needs of the child or student and the effect that such failure of such plans or programmes has had on these special educational needs, and

(c) the extent, if any, to which the lack of any previous plan or programme has had an effect on the special educational needs of the child or student,”.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. N. Dempsey

I move amendment No. 152:

In page 19, line 6, to delete ", where appropriate,".

Amendment agreed to.

Ms O’Sullivan

I move amendment No. 153:

In page 19, line 7, after "effect" to insert "including measures involving the student remaining in school notwithstanding his or her having attained the age of 18, or alternatively receiving other educational services after that age".

Amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 154:

In page 19, between lines 7 and 8, to insert the following:

"(4) Where the planning for future educational needs contemplated by this section has not been carried out in relation to a person prior to his or her having attained the age of 18 years, including a case where the person attained the age of 18 years prior to the passing of this Act, the Council shall, on request being made in that behalf, carry out the planning for future education needs of the person with special educational needs concerned in accordance with this section.".

Amendment put and declared lost.

Mr. N. Dempsey

I move amendment No. 155:

In page 19, line 21, to delete "that".

This is a technical amendment whose effect would be to remove the word "that" from the beginning of paragraph (b), which is an unnecessary duplication.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 156 in the names of Deputies Enright and Stanton arises from committee proceedings.

Mr. Stanton

I move amendment No. 156:

In page 19, between lines 33 and 34, to insert the following:

"19.—(1) It shall be the duty of the Council——

(a) to keep under review the provisions of this Act,

(b) to keep under review any other relevant statutory provisions that effect, or may effect, the carrying out of its functions under this Act, and

(c) to submit from time to time, to the Minister or any other Minister of the Government having responsibility for the other statutory provisions, such recommendations as it considers appropriate in relation to the said statutory provisions or for the making, modification or revocation of any instruments under those provisions.

(2) Before submitting recommendations to the Minister or such other Minister of the Government, as the case may be, in accordance with subsection (1)(c), the Council shall consult any Minister of the Government, or other person that appears to the Council to be appropriate in the circumstances or that the Minister, or other Minister of the Government, as the case may be, so directs.”.

This is a technical amendment. Such provisions appear in many other Bills and Acts. It allows the council to keep under review the provisions of the Act and so on. To save time, I will not go into the detail, but I would like to hear what the Minister has to say about it.

Mr. N. Dempsey

One could say this is implicitly covered in section 23, but there is merit in including this type of provision in the Bill, and I have tabled amendment No. 187, which proposes that the council be able to review relevant laws and make recommendations on appeals or amendments that it considers necessary. That should fully meet what Deputies Enright and Stanton propose here.

Amendment, by leave, withdrawn.

Mr. N. Dempsey

I move amendment No. 157:

In page 20, line 2, to delete "and to parents" and substitute ", parents and such other persons as the Council considers appropriate".

Amendment agreed to.

An Ceann Comhairle

Amendment No. 158 in the names of Deputies Enright and Stanton arises from committee proceedings. Amendments Nos. 159 to 164, inclusive, 167, 170 and 171 are related and may be discussed together. Is that agreed? Agreed.

Mr. Stanton

I move amendment No. 158:

In page 20, line 6, after "schools" to insert the following:

", school management bodies, third level and teacher training colleges, training and rehabilitation centres and any other persons and bodies that the Council considers appropriate".

These amendments would widen the role of the council. I note that the Minister has tabled amendments to widen it even further. If the Minister can explain what he intends by those amendments, I will be happy to listen to him and save time by moving on.

Mr. N. Dempsey

It is precisely to do with what Deputies Enright and Stanton were proposing on Committee Stage. They suggested that some of the council functions should be widened into the areas of information, advice and consultation to try to include bodies such as the training colleges, the NCCA, school management, the Teaching Council and so on. However, given the difficulty in ensuring that all relevant bodies are included, amendments Nos. 157, 159 and 163 will permit the council to exercise certain functions, not only regarding schools and parents but also anyone working in the area of special educational needs, when it considers it appropriate. It widens the remit as the Deputy intended. All the amendments relate to the dissemination of information on best practice, planning and co-ordinating the provision of educational support services and planning for inclusive education. The issue of teacher training is raised in amendments Nos. 160, 167 and 171. There is a difficulty in that area, since I cannot see how the council could ensure that adequate training and professional development for teachers in the area of special needs takes place. That appears to be a matter of policy for the Minister. However, the council will be free to advise on that. It is also an issue for the Teaching Council.

Regarding amendment No. 161, the preparation of the school plans is very much a role for the board of management of the school. The council is already obliged to provide information to the schools on the planning and provision of education. The essential intent of what Deputies Enright and Stanton had tabled, namely, to widen matters to give the council more flexibility in the bodies with which it deals and can advise, is met by the amendments we have put forward.

Amendment, by leave, withdrawn.

Mr. N. Dempsey

I move amendment No. 159:

In page 20, line 6, to delete "and health boards" and substitute ", health boards and such others persons as the Council considers appropriate".

Amendment agreed to.

Amendments Nos. 160 to 162, inclusive, not moved.

Mr. N. Dempsey

I move amendment No. 163:

In page 20, line 9, after "schools" to insert "and with such persons as the Council considers appropriate".

Amendment agreed to.

Amendments Nos. 164 and 165 not moved.

An Ceann Comhairle

Amendment No. 166 in the names of the Minister and Deputies Crowe and Finian McGrath has already been discussed with amendment No. 32.

Mr. N. Dempsey

I move amendment No. 166:

In page 20, line 13, after "to" to insert "their entitlements and".

Amendment agreed to.

Amendment No. 167 not moved.

Mr. N. Dempsey

I move amendment No. 168:

In page 20, line 26, after "education" to insert ", rehabilitation and training".

Deputies Enright and Stanton have suggested that the council's role to review the provision for adult education be extended to include rehabilitation and training, and this amendment will achieve that.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 169 in the names of Deputies Crowe and Finian McGrath arises from committee proceedings.

Mr. Crowe

I move amendment No. 169:

In page 20, between lines 44 and 45, to insert the following:

"(m) to ensure that adequate training and professional development in special education is provided for teaching staff in consultation with recognised trade unions and staff associations representing teachers and principals of schools, to review generally the provisions made for such training and to publish reports on the results of such reviews.”.

The report Inclusive Education and Classroom Practices, published by the European Agency for Development in Special Needs Education, highlighted several conditions that play a central role in special needs education. Those include the attitude of teachers towards pupils with special needs, the need for teachers to have skills, expertise and knowledge, and for support from outside as well as inside school. Throughout the 14 countries studied in the report, the most important issue regarding the attitude of teachers was felt to be teacher training. There has been support for the thrust of this amendment from all the teacher representative organisations and the Irish Primary Principals' Network. I call on the Minister to accept this important amendment, which deals with continued up-skilling and keeping teachers in top form, given that their position and attitude in the classroom is such a critical issue.

Ms O’Sullivan

I support Deputy Crowe on that issue. The question of appropriate training for teachers is very important. It is a good idea to insert it into the Bill.

Mr. N. Dempsey

I agree with the Deputies that it is important that this kind of training and professional development for teachers be put in place. However, I do not accept that the council is the correct body to do that, since it must have a specific focus. I have no doubt that, as normally happens in education, there will be the necessary interaction between the council, the teaching bodies and so on, but this matter is one for the Minister and the Teaching Council, once established. It would not be appropriate to put this onus on the National Council for Special Education. For that reason, I cannot accept the amendment.

Mr. Stanton

It is important that the council has some input into the training. Perhaps the Minister might comment on that. It should have some role in that, since it will have the expertise in the area, which could be called upon by the Teaching Council or the Minister. That is the thinking behind the second part of the amendment. It is obviously important that adequate training and professional development in special education be provided for teaching staff. I agree that it is a policy matter for the Minister, but it is crucial that it be done. I emphasise that point.

Mr. F. McGrath

I strongly support amendment No. 169. It is important that we have adequate training and professional development in special education for teaching staff. That is essential if we are serious about providing the proper services for children with disabilities and those with special educational needs. It is also important that we have negotiations and consultations with the trade unions and the groups directly involved. Amendment No. 169 is important and I urge people to support it.

Ms Enright

The Minister probably realises there is a problem currently as regards the level of special needs training that some teachers have. I conducted a survey on this in a number of schools. Some schools may have only one teacher with training in this area. I accept what the Minister said as regards the teaching council. Will he explain what level of interaction he envisages between the special education council, the teaching council and himself, since he said it is the function of the Minister? How is the current lack of training to be addressed?

Mr. N. Dempsey

We are all agreed on the necessity for adequate training and professional development for teachers in the area of special needs. Where we may have a divergence of view — or maybe we have not — is where the responsibility should lie. As I have said, it is a matter for the Minister and the teaching council, once the latter has been established.

I will just answer the questions that I have been asked. The general thrust of the questions is whether there will be interaction and, if so, at what level. I assure Members that the purpose of the amendments we have tabled allows the special education council to have contact with the teaching council, the teaching organisations, unions and anyone working in the area of special education needs, as it considers appropriate. The council will be free, because of the previous amendment that we made, to advise me as Minister for Education and Science on the whole issue of teacher training for professional development for teachers involved in special needs. The teaching council will have a responsibility for the accreditation of teacher education programmes, reviewing the standards of knowledge, skill and competence required for the practice of teaching. The special education council will have a function to liaise with the teaching council on this issue as well. All of these initiatives are designed to ensure there is the interaction that Deputies are requesting and that is requested in this amendment.

As to how often it should or will happen, that is something I cannot answer at the moment. However, we are talking in terms of two professional bodies doing their jobs. The level of partnership that exists between most of the education bodies at present would indicate that in this particular area there is so much to be learned from each side that there will be good communication between all of the organisations involved. The amendment as it is, is not necessary. The special education council will have the right and the competency to liaise with the various bodies we are talking about and offer advice both to the teaching council and the Minister as regards special needs teacher training and professional development.

Mr. Crowe

The Minister again does not agree that this amendment should be inserted in this section as regards the council. Where does he believe it should be put? I take on board what he is saying as regards the issue, but I do not understand where it is going to be incorporated in this Bill if not in this section. When we refer to people working in this area, another group to be considered is special needs assistants. In my own area, for instance, there is a school with a number of special needs teachers. They are currently employed on a dedicated basis, to individual children. If we are talking about keeping people in the system, such children move on to the next step of their education. The contracts for the teachers end. They have no seniority within the school and their rights as employees are under threat. They believe this situation is in breach of their rights as employees. Again, under this section, will the Minister say if that is going to be addressed in the context of upskilling and keeping people within the system? Will he indicate where he sees the area covered by the amendment being addressed?

An Leas-Cheann Comhairle

The Minister has already spoken twice. Is the Deputy pressing this amendment?

Mr. Crowe

I am.

Amendment put.

The Dáil divided: Tá, 47; Níl, 66.

Tá

• Breen, Pat.
• Broughan, Thomas P.
• Bruton, Richard.
• Burton, Joan.
• Connolly, Paudge.
• Cowley, Jerry.
• Crawford, Seymour.
• Crowe, Seán.
• Cuffe, Ciarán.
• Deenihan, Jimmy.
• Durkan, Bernard J.
• English, Damien.
• Enright, Olwyn.
• Ferris, Martin.
• Gormley, John.
• Harkin, Marian.
• Hayes, Tom.
• Healy, Seamus.
• Higgins, Michael D.
• Hogan, Phil.
• Howlin, Brendan.
• Lynch, Kathleen.
• McCormack, Padraic.
• McGinley, Dinny.
• McGrath, Finian.
• McGrath, Paul.
• McHugh, Paddy.
• McManus, Liz.
• Mitchell, Olivia.
• Murphy, Gerard.
• Naughten, Denis.
• Neville, Dan.
• Noonan, Michael.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• O’Keeffe, Jim.
• O’Shea, Brian.
• O’Sullivan, Jan.
• Pattison, Seamus.
• Quinn, Ruairí.
• Ryan, Eamon.
• Sargent, Trevor.
• Sherlock, Joe.
• Stagg, Emmet.
• Stanton, David.
• Twomey, Liam.
• Upton, Mary.

Níl

• Ahern, Dermot.
• Ahern, Michael.
• Andrews, Barry.
• Ardagh, Seán.
• Brady, Johnny.
• Brady, Martin.
• Browne, John.
• Callanan, Joe.
• Callely, Ivor.
• Carey, Pat.
• Carty, John.
• Cassidy, Donie.
• Collins, Michael.
• Coughlan, Mary.
• Cregan, John.
• Cullen, Martin.
• Curran, John.
• Davern, Noel.
• de Valera, Síle.
• Dempsey, Noel.
• Dennehy, John.
• Devins, Jimmy.
• Ellis, John.
• Fitzpatrick, Dermot.
• Fleming, Seán.
• Gallagher, Pat The Cope.
• Glennon, Jim.
• Grealish, Noel.
• Hanafin, Mary.
• Haughey, Seán.
• Hoctor, Máire.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kelleher, Billy.
• Killeen, Tony.
• Kitt, Tom.
• Lenihan, Brian.
• Lenihan, Conor.
• McCreevy, Charlie.
• McEllistrim, Thomas.
• Martin, Micheál.
• Moloney, John.
• Moynihan, Donal.
• Moynihan, Michael.
• Mulcahy, Michael.
• Nolan, M. J.
• Ó Fearghaíl, Seán.
• O’Connor, Charlie.
• O’Donoghue, John.
• O’Keeffe, Batt.
• O’Keeffe, Ned.
• O’Malley, Fiona.
• O’Malley, Tim.
• Parlon, Tom.
• Power, Peter.
• Power, Seán.
• Roche, Dick.
• Sexton, Mae.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.
• Wright, G. V.

Tellers: Tá, Deputies Crowe and Durkan; Níl, Deputies Hanafin and Kelleher.

Amendment declared lost.

Amendments Nos. 170 and 171 not moved.

Ms O’Sullivan

I move amendment No. 172:

In page 21, to delete lines 5 to 11.

The aim of the amendment is to delete the section that refers to providing an assessment of the implications of the council's advice for resources, including financial resources, available to the State. We want to remove the onus from the council of having to address the issue of resources. We already discussed resources when we dealt with section 13. I am strongly of the view that we need to take out the reference to resources in this section.

The council should be free to give advice to the Minister on the basis of its expertise and opinion. The Minister can, by all means, assess the resource implications. Advice would be available to him from his Department and the Department of Finance. The Departments would be better equipped to address the question of the cost implications of certain proposals made by the council. This provision would tie the council's hands and make it conscious of resource implications when giving advice. Deputy Crowe made a proposal earlier regarding best international practice. The council would keep itself abreast of what is going on in other countries and would give advice in the best interests of children. If it has to assess costs, it would be curtailed in that regard. In addition, it would not have access to information on finance that is available to Government.

Before the last general election we were told money would be spent, but after the election it was found the money was unavailable. At that time, the Opposition did not have access to information on the detail of public finances. Similarly, the council would not have the level of information that would be required in order to assess the situation. More importantly, on principle, it should be free to give advice on the basis of best practice and it should not be curtailed in this duty. It is up to the Minister to make decisions based on resource implications as to whether he can implement the recommendations of the council.

Ms Enright

As Deputy O'Sullivan stated, we want the best possible advice to be given to the Minister. If the council, in giving that advice, has to have regard to the issue of resources, it may give the Minister advice to fit a budget rather than the best possible advice. When the Minister allocates resources across the Department, he may consider the matter differently on the basis of advice from the council, for example, that for X amount more he could provide a better service in the area of disability. If the council has to take resources into account, the recommendations would be based on the funding it knows to be available or believes is available.

The issue of resource allocation is one for the Minister to make. I do not see why it is necessary for the council to have regard to it. I accept it may have to cost out choices, but it should not have to have regard to resources in the actual advice given. It should be free to make recommendations based on the best possible advice available to it.

Mr. Stanton

It is important for the council to give advice to the Minister, as it is the expert in this area. From time to time, the Minister will seek advice from it. It would be an impossible situation for it to provide an assessment of the resource implications of that advice. Council members would not be in a position to know what financial resources are available to the State. I was a member of the Oireachtas Joint Committee on Finance and the Public Service for a number of years. How will the council know what resources are available to the State when even officials from the Department of Finance find it difficult to know the answer?

The Minister made the point earlier that it is the prerogative of the Minister under the Constitution. Section 13(3)(a) states:

In formulating any such policy, the Minister of the Government concerned shall have regard to, and take due account of, the following principles—

"That the provision of resources by the State in fulfilment of its duties under Article 42 of the Constitution (being the resources available to the State and allocated by it in a manner consistent with common good) . . ."

That is the Minister's job. It is not the job of the council to worry about the resources available to the State. Its job must be to give the best advice to the Minister. It is up to the Minister to deal with the issue of resources. It will tie the hand of the council if it operates on the basis of only so much money being available, as its advice would have to be tailored to that.

Regarding the practical implementation of that advice, it is the Minister's role to have regard to that. The council must give advice to the Minister in the best interests of the child concerned. The Minister has made repeated reference to "the best interests of the individual child". When the council gives advice to the Minister, it should not have to worry about the financial resources available to the State.

What is meant in section 20(3)(a) where it states the council must “provide an assessment of the implications of that advice for the resources, including financial resources, available to the State”? What kind of assessment is required? What implications are we talking about? Would it include written advice to the Minister that the implementation of its recommendations would require a Supplementary Estimate or would bankrupt the State? Surely that is the role of the Department, not the role of the council?

The amendment is a good one. I accept the need for advice to be given and reluctantly admit that, perhaps, the measure could be modified by referring to the provision of costing implications of the advice. The council could provide the Minister with advice in that regard, which is not the case in the Bill as it stands. It now requires that the council provides an assessment of the implications on resources available to the State. The council would not be privy to such information. We are talking about long-term planning and the council would not be in a position to know what the financial position would be from one year to the next. The point was made earlier that the issue of resources is an important one. We already have reservations regarding the role of the Minister for Finance. I accept what the Minister said about the nod of the Minister for Finance being important. The implication is that he would not refuse consent. A different point is being made here in respect of the provision of education. I assume that means education for children with special educational needs. I urge the Minister to remove this provision and make it the responsibility of the Minister.

Mr. Crowe

I made a proposal regarding international best practice in amendment No. 110. If the Minister wants an example of budgetary difficulties, an example would be the Minister for Transport and the complaints made about the level of awards regarding the taxi hardship panel. The Minister said that it was not established to deal with the problem of hardship among taxi drivers. We did not receive a response in that regard and there is a similar concern about the Bill that the Minister will not receive the best possible advice if the council is working on the basis that there is only a certain amount of money to be spent on something. I support the amendment.

Mr. N. Dempsey

It is not intended that the advice we are seeking would be influenced by an assessment of the resources available. There is nothing in the Bill which indicates, as some Deputies appear to have inferred, that the council will be obliged to have regard to the resources available to the State. It is merely being asked, if it is making an assessment or suggestions, to include in the advice it will give implications, including those relating to resources. However, we are not saying that it shall have regard for the amount of money available from the budget or anywhere else. It will be perfectly free and independent, as a body, to provide this advice. It is not the council's job to worry about from where the money will come. As the Deputies correctly stated, that is the Minister's responsibility.

I do not believe that there is anything wrong with requiring the council to give an assessment of all the implications, including those relating to resources, in its advice. There is little point in a public body giving advice in a vacuum, as if resources were irrelevant. The reality is that resources are relevant. The council may be required to give advice in respect of the need for additional speech therapists or whatever. In that context, the implications for resources would be quantifiable. There might also be a recommendation in the advice given that we might need to provide extra speech therapy at third level.

What we are trying to do is ensure that the council can give the best possible advice. The members of the council will be the experts in this area. The Department will have a policy role but the practicalities of providing top quality education for special needs children will rest with the council. It will then be the responsibility of the Minister to try to deliver on the advice.

It is reasonable, good practice and efficient for the council to be charged with making suggestions. It will be in a position to make recommendations and outline the implications, financial and otherwise, so that the Minister will have before him the full range of advice available. Once a Minister receives a recommendation, he can, in approaching the Minister for Finance or planning for the Estimates process, state that he has received advice, that, policy-wise, he agrees with the approach outlined and that it will cost whatever amount in respect of the deployment of personnel and resources. That is better than receiving a bland recommendation with none of the implications spelt out and being obliged to have civil servants and others, perhaps even outside consultants, to investigate what will be the implications.

If one reads the section negatively, one can, as Deputies have — rightly so because it is the job of those in opposition to do so — arrive at a very malign interpretation. I reiterate that I regard it as extremely important for me, as Minister, and for my successors that the council will provide advice of the nature outlined in the section. It will do so but it will not be influenced by the resources that might be available. It will at least be in a position, when providing advice to a Minister, to outline the implications, financial and from the point of view of personnel, for the system in general.

Ms O’Sullivan

The wording in the amendment goes somewhat further than the Minister appeared to state. The point Deputy Stanton made ties in with that. The problem with the section is that it seems to imply that the council should be aware of the resources available to the State. Perhaps the Minister will reconsider the matter in that regard. It does not merely state that the council should inform the Minister about the resource implications, it also refers to the resources available to the State. Such resources are only known to the Government and the Department of Finance. That is one of the points we are making. Ideally we would like to see the entire provision removed. However, it would be a step in the right direction if the Minister could modify it to the extent I have outlined.

Mr. Stanton

As stated earlier, I can see the benefit of possibly having the council prepare a costing. That is what the Minister just said in terms of advice the council might give him. However, the section reads differently. However, the fact that poor Opposition Deputies, who are so malign, have read this into the section means that others in a court of law could make a similar inference. The section basically states that the council must have regard to the resources available to the State. We inferred from this that it must know what money is available and take this into account when providing advice. The section could be worded differently and that might resolve the problem. However, there is an issue of interpretation at stake here.

Clarification is also required in respect of section 20(3)(b)(ii) which states that in giving advice to the Minister the council must “have regard to the practical implementation of that advice”. Does this mean that before giving advice to the Minister, the council must have regard to the implications for implementation? In other words, if something is not possible or practical but should be done in any event, will the council decide not to provide advice to the Minister to the effect that it should be done? Perhaps the Minister will explain this matter, having regard to the practical implementation of the advice provided. The provision in section 20(3)(b)(ii) qualifies the advice formulated and is different from section 20(3)(b)(i) in which, I believe we agree, the Minister is seeking a costing. If anything, section 20(3)(b)(ii) is more malign. Perhaps the Minister will reconsider the position.

Mr. N. Dempsey

I will be brief because I have already dealt with this in some detail. The amendment seeks to delete section 20(3)(b)(i) in which it is stated that in giving advice to the Minister the council shall “provide an assessment of the implications of that advice for the resources, including financial resources, available to the State”. It merely refers to the implications. The council may be obliged to state that if the Minister proceeds to implement its proposals in full, all his education budget may disappear. That is only a statement of fact. The section does not state that the council must indicate that 15% or 20% of the education budget will be used up and, therefore, it cannot provide the advice.

The Deputy inquired about the phrase "have regard to the practical implication of that advice". If the council decided that every school, irrespective of size, should have, for example, five resource teachers and that these should be provided immediately, it would not be a practical suggestion because we would be obliged to train the teachers etc. What is intended here, as with the Bill itself, is that if the council makes recommendations, it would indicate how it would envisage those recommendations would be implemented. There is no point in the council making a recommendation that cannot be implemented in a practical sense. The term "practical implementation" could mean that the advice or recommendation would be phased in over a period. I would never accuse the Deputies of being malign, I only referred to a malign interpretation of that particular section.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. N. Dempsey

I move amendment No. 173:

In page 21, line 15, to delete "educational disabilities" and substitute "special educational needs".

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 174 and 175, amendments Nos. 177 to 185, inclusive, and amendments Nos. 195 to 199, inclusive, are related. Amendment No. 175 is an alternative to amendment No. 174 and amendment No. 189 is an alternative to amendment No. 197. These amendments will be discussed together by agreement.

Mr. N. Dempsey

I move amendment No. 174:

In page 21, line 27, to delete "disabilities" and substitute "special educational needs".

Amendments Nos. 179 to 184, inclusive, are drafting amendments which change the wording but not the meaning of an amendment I accepted on Committee Stage from Deputies Enright and Stanton. We have been accused of being somewhat inelegant in the manner in which we accepted this amendment. The amendments ensure that in appointing the members of the council and the consultative forum, the Minister must have regard to the desirability of there being among those appointed people who themselves have special needs, their parents and their representatives. This change meets the spirit of amendments Nos. 175, 181 and 185. I understand this is one of the amendments I accepted on the hoof when we discussed it on Committee Stage.

Amendment No. 177 will reduce the number of nominations from the Minister for Health and Children from two to one. This will increase the scope for members from non-governmental bodies to be appointed to the council. As I indicated on Committee Stage, I want to ensure there is a proper gender balance in the composition of the council and the consultative forum. Amendments Nos. 178 and 180 are designed to achieve this by requiring that there be a minimum of six men and six women on the council and that at least seven men and seven women will be appointed by the council to the forum. In terms of ministerial appointees to the forum, amendment No. 183 will ensure that at least one must be a man and one must be a woman.

During Committee Stage debate a number of Deputies called for the Psychological Society of Ireland to be specifically named as a party which must be consulted by the council. Amendment No. 182 will meet this requirement.

A number of Deputies proposed that the membership of the appeals board should be drawn from people who have an interest in or knowledge of education, particularly special education. Amendment No. 197 seeks to accommodate this and I thank the Deputies who made suggestions in this regard.

Amendment No. 174 is consequential on the inclusion of the new definition of "special educational needs" to replace "educational disability". In brief, all of the amendments I have set down here are in response to amendments and suggestions made by Opposition Deputies to improve the Bill.

Mr. Stanton

I wish to raise a small technical matter which I may, perhaps, have read incorrectly. If so, I will stand corrected. I welcome the fact that the Minister has reduced the number of members the Minister for Health and Children can nominate, from two to one. However, he does not proposed to delete the words "(and equal numbers of men and women shall be nominated by that Minister of the Government for that purpose)." from section 21(4)(b). If the Minister can only nominate one, how can he nominate equal numbers? Perhaps I am reading it incorrectly but if not, I suggest he remove that phrase also. It could create problems otherwise.

I welcome the inclusion of the Psychological Society of Ireland and the other amendments brought forward by the Minister, especially amendment No. 184, which states: "The Council and the Minister shall have regard to the desirability of there being amongst those appointed under this section as members of the consultative forum persons who themselves have special educational needs, their parents and representatives.". That is important.

I also welcome the other amendments the Minister has taken on board, which we discussed in detail and at length on Committee Stage. I congratulate the Minister and his staff on that.

Ms O’Sullivan

I too thank the Minister for meeting our requests on a number of the amendments and for his amendments. He has gone further than I did on gender balance and I thank him for that. I look forward to seeing his ministerial colleagues follow suit.

I have one question. The issue of including people with disabilities, their carers and family members has been addressed by the Minister with regard to the appeals board and the forum, but not in the case of the council. Will the Minister respond on that? Amendment No. 175 in my name deals with the membership of the council. I know there are representatives, people nominated by the National Disability Authority, on it and that the Minister must consult with various bodies, etc. If possible, I would like to see either a person with a disability or a family member or carer on it. We should ensure this requirement is included in regard to the council also. I welcome the other changes proposed by the Minister.

Mr. N. Dempsey

On the question raised by Deputy Stanton, I thought we might have to agree another amendment on the hoof. However, it is all right to appoint one member from among persons nominated for such appointment by the Minister for Health and Children. The Minister can continue to nominate as many as he likes but there must be equal numbers of men and women. If he wants to nominate six people he can do so and the Minister for Education and Science can choose from among them. If the Minister is going to nominate more than one, he must nominate equal numbers of men and women. It is best to leave the provision there so that I do not get a list of six men from the Minister for Health and Children. He can nominate more than one but I must choose who to appoint. The provision is all right.

I thank the Deputies for acknowledging the amendments I am making here. Deputy O'Sullivan raised a point concerning the council. The National Disability Federation of Ireland, NDFI, has nominees on the council and it can nominate others, as the Deputy said. I assure the Deputy that the wording of the Bill is tight enough to ensure there must be people with disabilities or special interest in disabilities on it. With the current council we have selected, almost everybody on it has an expertise or direct involvement through family members with disabilities. A number of the members also have disabilities. The Bill is tight enough as it is.

Amendment agreed to.

Amendment No. 175 not moved.

An Leas-Cheann Comhairle

Amendments Nos. 176, 192 and 203 are related and will be discussed together by agreement.

Ms Enright

I move amendment No. 176:

In page 21, between lines 33 and 34, to insert the following:

"(d) a committee (or a sub-committee of such a committee) appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) to examine matters relating to the Department of Education and Science,”.

We consider that the Minister should consult with certain people or groups before he makes his appointments, one of which would be the Joint Committee on Education and Science, which is representative of all parties in the House. It would be good if the Minister allowed room for that committee to be included. He has not given anybody the power of veto by using the word "consult", however, it would be no harm if the committee had the opportunity to consult with him on this. There is a strong perception that sometimes the Minister merely rubber-stamps the documents presented to him. It would be beneficial if the committee had the opportunity not to interview the people concerned but to discuss the issue with the Minister.

Amendment No. 192 provides for the facility of tabling parliamentary questions. I recall discussing this issue in detail with the Minister on Committee Stage and I will strongly press this amendment. The Minister spoke about the role of the council and said that it should not be necessary to table parliamentary questions regarding it. However, I am not convinced that will ever be the case. As public representatives elected to this House, we need to be able to represent the people concerned. I accept that they may be able to appear before the Joint Committee on Education and Science. However, if Deputies have question to which they are not able to get answers from the council, or otherwise, they must have the opportunity to table parliamentary questions. The Minister is obliged, even though sometimes this does not work, to give an answer to a parliamentary question within three days. Sometimes they are extremely urgent. Members do not table questions merely for the sake of doing so. They table them for important reasons. The Minister is making me smile but it is important we are able to get a responses to our questions. Therefore, I will strongly press this amendment. There are many colleagues who would normally be seated behind the Minister who make use of this facility and would not like to be denied the opportunity to do so on behalf of their constituents.

Mr. Stanton

In regard to amendment No. 176, it is curious that before making appointments to the council the Minister will consult the National Association of Parents, recognised trade unions, staff associations and recognised school management organisations. He should also come before the appropriate Oireachtas committee and consult its members. Such consultation would be of assistance to him. If he intends to consult the other organisations on the making of such appointments, why would he not consult his colleagues on the Oireachtas committee and engage in the same level of consultation? In what type of consultation will he engage with the other groups that he would not be able to engage with the Oireachtas committee? I would like more Ministers to engage in such consultation before making appointments. I applaud the Minister on consulting the National Association of Parents, trade unions, staff associations and recognised school management organisations. I encourage him to also include the appropriate Oireachtas committee, which could play a helpful role. All members of the committee would only try to assist him. The Minister has set a precedent by engaging in consultation with other groups and I do not understand why the Oireachtas committee could not be included.

With regard to amendment No. 192 providing for the furnishing of information by way of parliamentary reply, the Minister will give responses to questions in the Dáil, but if the council is established and the Minister delegates certain responsibilities he currently has to the council, there is a fear that a future Minister may state that he or she is no longer responsible to the Dáil for a certain matter, that it is the council's responsibility, whose representatives come before the committee once a year, and therefore the information sought cannot be given. In such circumstances the role of Parliament would be reduced even further. The idea behind this amendment is that if a parliamentary question is tabled, the council would make the information sought available to the Minister who would then furnish it by way of a parliamentary reply in the Dáil, if that is appropriate. Certain confidential matters will not be put on record, but Members can table parliamentary questions on any almost any issue of concern to constituents and obtain a reply.

Amendment No. 203 proposes that the chairperson of the council shall come before the Oireachtas committee or a subcommittee of it. It is a standard type of amendment similar to that made to other Bills. It would be useful to include this amendment, otherwise I question if the chairperson could be asked to come before the Joint Committee on Education and Science when the chairperson is not mentioned specifically elsewhere in the Bill.

Ms O’Sullivan

I support these Fine Gael amendments, particularly the amendment providing for a parliamentary reply. Many organisations, councils and bodies are given certain responsibilities and accountability for them is distanced from the political process. When members of the public approach us with concerns, we wish to raise those and the tabling of a parliamentary question is a useful way to do so. We may get a reply to the effect that the Minister does not have responsibility for the area concerned and that it is the responsibility of the National Council for Special Education, the EPA or the NRA. The intention of this amendment is to guard against that and I strongly support it.

Mr. N. Dempsey

We had a long discussion on these matters on Committee Stage and I do not propose to repeat my reasons for not accepting these amendments.

Mr. Stanton

Surprise, surprise.

Mr. N. Dempsey

The thinking behind amendment No. 176 reflects a slight confusion concerning the roles of the executive and legislative arms of the Government. The setting up of the public boards under legislation passed by the Legislature is an executive function. The proper role of the Houses and its committees, including the Oireachtas Joint Committee on Education and Science, is to hold the Executive accountable for its decisions. It is not yet provided in our system that it is the proper role of the Houses or the committees to be involved directly in determining the composition of boards. Having said that, I would not include such provision in this legislation. The Deputies will recall that I said on Committee Stage that acceptance of this proposal would have wider implications right across Government. Therefore, I do not intend to accept the amendment.

However, there is nothing to stop a committee of this House at some stage, when it is aware a board is due for appointment, having a discussion about that and making recommendations. There is nothing a Minister can do about that other than listen to what is being said. We do not have the American system and I do not believe we will move towards it for some time yet.

Amendment No. 192 is not necessary. The provisions clearly provide for this type of information. Parliamentary questions will still be able to be asked of me on the general operation of the board and so on. The council will also be subject to data protection under freedom of information law. That means a person will be able to obtain all the information affecting him or her directly from the council. The council will be focused on providing information and advice to parents and children, including information on their entitlements. The necessity for parliamentary questions in that respect should not arise. However, it would still be possible for parliamentary questions to be tabled on a range of topics concerning the special education council and my responsibilities in that regard.

Regarding amendment No. 203, I have reconsidered this proposal since Committee Stage. Sections 28 and 29 provide for accountability to the Oireachtas by the chief executive officer of the council who will be the accounting officer. That is the appropriate approach rather than placing a statutory responsibility on the chairperson, as proposed in this amendment. I do not intend to accept it. If Members wanted to invite the council to discuss its policies and their implementation, I do not envisage that there would be a major problem regarding the chairperson being present. I have no doubt that the chairperson would be present, but I do not want to include such a provision in legislation. We should not place such statutory responsibility on a person who holds this position in a largely voluntary capacity and gives of his time on a voluntary basis.

Ms Enright

Regarding amendment No. 192, I tabled six questions last week to the Minister's colleague, the Ceann Comhairle, and they were all returned to me because I was advised the matter was the responsibility of the NRA. The questions I tabled related to the agreement between what I thought was the Government and the IFA in regard to national roads. In fact, the agreement was between the NRA and the IFA. The Minister will recall this from his time in another Department. If an agreement can be made, yet we cannot question later difficulties that may arise, it is time to question the point of our being here.

I appreciate what the Minister is saying but he is assuming that everything will work fabulously. We do not know if that will be the case. I am aware that the Data Protection Acts and the Freedom of Information Acts are in place. If one does not get answers through the freedom of information provisions within a suitable timeframe, one has the option of making an appeal. However, one is losing valuable time. If one appeals, one may not be successful.

If we adopt this amendment, we will know that we can ask parliamentary questions on specific cases. I am not just concerned with the broader issues which can be discussed with the Minister at a meeting of the Joint Committee on Education and Science. We can raise issues in the House on the Adjournment and propose an amending Bill, if necessary. I am worried that we cannot ask questions about individual cases. I would be loath to ignore this problem as to do so would mean that Deputies would be unable to ask parliamentary questions on behalf of individuals. The reality is that, whether we like it, the system being introduced in this Bill will fail a family at some stage. When people who have experienced such problems come to meet me and my colleagues, I do not want to have to say we thought it would work fine when we were considering the legislation. I do not want to have to tell such people that we chose to be unable to question the Minister on issues that related to them or their children.

Mr. Stanton

I am somewhat concerned by the Minister's comments on amendment No. 192. His comment that one will be able to use the freedom of information provisions suggests that the role of parliamentary questions will be diminished, perhaps quite severely. Time is often of the essence in these matters, as Deputy Enright said. Parents expect politicians to be able to ask questions in the House. I support the Minister's policy of delegating responsibility to different groups such as the State Examinations Commission to an increasing extent. However, I am concerned about the difficulties faced by parents and others who wish to get information quickly. One of the advantages of parliamentary replies is that information has been made available speedily to Deputies on all sides of the House. I pay tribute to the departmental officials who provide information on behalf of the Minister so quickly.

Amendment No. 192 suggests that the council should be required to provide the Minister with "such information necessary to furnish a parliamentary reply", particularly in respect of cases concerning students with special educational needs. Parliamentary questions can sometimes help to highlight issues, delays or problems and help to resolve such difficulties. The inclusion of this provision could be of assistance to the Minister. It might enable him to provide information when asked questions in the Dáil. Having acquired the information, he could decide whether to make it available across the floor of the House. I am surprised that he is taking the view that in establishing the various groups, we should diminish the role of the House and its parliamentary questions. In fairness to him, he has tried to enhance the role of elected representatives until now. This omission will diminish the role of politicians and add to the criticism of politics. I urge the Minister to reconsider the matter. If he does not accept amendment No. 192, he may decide to propose a similar amendment in the Seanad.

Amendment, by leave, withdrawn.

Mr. N. Dempsey

I move amendment No. 177:

In page 21, line 45, to delete "2 members" and substitute "1 member".

Amendment agreed to.

Mr. N. Dempsey

I move amendment No. 178:

In page 22, to delete lines 4 and 5 and substitute the following:

"(5) The Minister shall ensure that at least 6 of the members of the Council are women and at least 6 of them are men.".

Amendment agreed to.

Mr. N. Dempsey

I move amendment No. 179:

In page 22, lines 6 and 7, to delete "in the membership" and substitute "of there being amongst those appointed under this section as members".

Amendment agreed to.

Mr. N. Dempsey

I move amendment No. 180:

In page 22, line 26, after "forum" to insert "and the Council shall ensure, as far as practicable, that at least 7 of the members so appointed are women and at least 7 of them are men".

Amendment agreed to.

Amendment No. 181 not moved.

Mr. N. Dempsey

I move amendment No. 182:

In page 22, between lines 37 and 38, to insert the following:

"(g) the Psychological Society of Ireland, and”.

Amendment agreed to.

Mr. N. Dempsey

I move amendment No. 183:

In page 22, line 43, after "forum" to insert "and, as far as practicable, at least one of the members so appointed shall be a woman and at least one of them shall be a man".

Amendment agreed to.

Mr. N. Dempsey

I move amendment No. 184:

In page 22, between lines 43 and 44, to insert the following:

"(6) The Council and the Minister shall have regard to the desirability of there being amongst those appointed under this section as members of the consultative forum persons who themselves have special educational needs, their parents and representatives.".

Amendment agreed to.

Amendments Nos. 185 and 186 not moved.

Mr. N. Dempsey

I move amendment No. 187:

In page 23, to delete line 16 and substitute the following:

"Act, and

(c) contain a review of any other relevant enactments or instruments under enactments that affect, or may affect, the performance of the Council’s functions under this Act and make such recommendations to the Minister as the Council considers appropriate in relation to the amendment, repeal or revocation, as appropriate of those enactments or instruments.”.

I have proposed this amendment on foot of Deputy Stanton's comments on Committee Stage. It provides that the council will be able to review relevant laws and make recommendations on appeals and amendments, if it considers it necessary to do so. I hope it removes the concerns expressed by Deputies Enright and Stanton during the discussion on a previous amendment.

Amendment agreed to.

Ms O’Sullivan

I move amendment No. 188:

In page 26, to delete lines 38 to 41.

This amendment relates to the ability of a chief executive officer to express an opinion on Government policy.

Mr. N. Dempsey

As I said on Committee Stage, there is a need for clear lines to be drawn between the policy and executive functions of statutory agencies. The determination of policy is a matter for the Government, particularly the relevant Minister. It is not a matter for the chief executive officer of a board. I cannot accept the amendment because I do not agree that the chief executive officer of the council should have a role in criticising ministerial policy.

Ms O’Sullivan

Such people sometimes have interesting opinions.

Mr. N. Dempsey

That is right.

Ms O’Sullivan

It might be a good idea if we could hear such opinions. The chief executive officer of the National Educational Welfare Board has given us some good opinions on various issues from time to time. Having dealt with the board on some issues in Limerick, my experience is that it is working very well. Chief executive officers often have something to say, based on their experience of running organisations. It would be helpful if the Minister was in a position to hear such views on occasion, as they might inform him in respect of policy.

Ms Enright

I support Deputy O'Sullivan's amendment. The example she gave has probably occurred to everybody. This Bill was drafted before the chief executive officer of the National Educational Welfare Board made his comments. In a democracy we should have regard for the views of everyone. If we had to wait until the National Educational Welfare Board was fully operational throughout the country before we could see the difficulties, many problems would have developed without us being aware of them. It is important that everybody should be allowed to express his or her opinions. We are asking the council to do everything. In respect of the resources issue, for example, we mentioned during the discussion on an earlier amendment that the council had to have regard to the implications of its actions for the Minister. It is appropriate that the chief executive officer of the council should be able to express his opinion on the policies that will affect the operation of its functions.

Mr. Stanton

Section 30(2) of the Bill which states that "the Chief Executive Officer shall not question or express an opinion" reminds me of the politburo. Why should the chief executive officer not make a comment if he feels moved to question or express an opinion on Government policy? We will all lose if he cannot express an opinion on or question a policy that is wrong. I am sure any Minister worth his or her salt will be able to defend his or her policies if it transpires that a chief executive officer who has expressed an opinion or questioned something is wrong. Perhaps a debate on the matter might ensue in this Chamber. If there is an issue worth raising, perhaps we should state in legislation that "the Chief Executive Officer shall question or express an opinion" on the merits of any Government policy. We should enjoy the benefit of the chief executive officer's experience, knowledge and wisdom.

What is the Minister so afraid of that he wishes to muzzle the chief executive officer? In a free and open democracy he should not be saying, "You shall not question or express an opinion." I am amazed that he is seeking to insert this in the Bill. He is attempting to say, "Shut up and say nothing. Do not criticise me. Do not criticise the Government. It is not allowed. I am going to make it against the law to criticise me and, if you do, I might throw you into jail." That is absurd. If the chief executive officer has a valid point to raise, let it be made and if it is right, the Government should make a change.

Why is the Government so afraid of criticism and questions being asked? It seems to be on the back foot, defending itself all the time. If the chief executive officer makes a mistake, the Government should point out the error. The Minister should be able to have an adult discussion on the matter instead of saying, "You shall not." It is Old Testament stuff, "Thou shalt not speak, have an opinion or dare to raise a question against me." It is dangerous to say this to anybody in a democracy. Chief executive officers should be obliged to raise questions and freely air their opinions. The Minister should thank them for so doing if there is an issue that needs to be brought to his attention.

Mr. N. Dempsey

That was a wonderful piece of rhetoric from the Deputy, talking in terms of biblical commands. The chief executive officer is perfectly entitled to make his views known and question matters with the Minister or his officials. It would be a poor day for democracy if the chief executive officers of various boards decided they were not going to execute policy initiated by the duly elected Government and passed by the Oireachtas. We would have a wonderful democracy if they became the arbiters of policy, and if unelected persons throughout the State were in a position to challenge Government policy, knock it and express their personal views when they were supposed to be executing the policy decided by an elected Government. Democracy cannot work in that manner.

The way this works is that if a chief executive officer has an opinion or questions to raise, there is a forum in which to do so. If the chief executive officer does not like the policy and believes he or she cannot execute it, there is a simple way of making this known by way of resigning and, thus, expressing strong views on the policy.

Mr. Stanton

Does the Minister think it is that bad?

Mr. N. Dempsey

We would have absolute chaos if chief executive officers were to decide policy.

Ms O’Sullivan

They are not.

Ms Enright

They are just expressing an opinion.

Mr. N. Dempsey

We would have a wonderful time but would get nothing done if everybody decided what the policy should be. If I decide policy and a chief executive officer has responsibility for carrying it out, at least I am accountable to the House. The chief executive officer is not accountable for policy, although he or she is accountable for financial matters. This is the standard procedure which has been inserted in legislation and will be ad infinitum. I do not care what the Deputy says at this stage because if he was in government, he would be inserting the same provision in the Bill.

Ms O’Sullivan

I am still not convinced by the Minister because I can think of people who express opinions in various bodies. The Higher Education Authority is great for expressing opinions on all sorts of issues. Let us suppose the OECD undertakes a study of special education. Would the special education council not be able to express an opinion on how policy was developing in the context of a public debate on such an issue? It is quite legitimate for a chief executive officer to express an opinion. I will press the amendment because it is pertinent to the issue of public discussion. People should not be gagged. Deputy Stanton used lovely biblical language. I would much prefer to hear "Thou shalt" or "Thou canst", than "Thou shalt not."

Ms Enright

The manner in which the Minister has put this is slightly disingenuous. While we are asking chief executive officers to appear before the committee and allowing them to do certain things, we are not allowing them to question policy. A committee may be discussing the report of the Comptroller and Auditor General, in which he may make criticisms of Government policy or the council's operations, but the chief executive officer may not make any comment on it. The Minister is wrong to propose such a policy.

Mr. N. Dempsey

We are not saying chief executive officers cannot offer advice to the Government or produce a document containing suggested policies for the Government. They can do so but we are saying that once settled policy is in place, a chief executive officer cannot question it. That is the standard provision.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Acting Chairman (Mr. Sherlock)

Amendments No. 189 to 191, inclusive, are related and may be discussed together.

Mr. N. Dempsey

I move amendment No. 189:

In page 27, between lines 9 and 10, to insert the following:

"(3) The Council shall include in each report published by it under section 34 details of all gifts accepted by it during the period to which the report relates.”.

This amendment arises from a suggestion made on Committee Stage. It seeks to increase the transparency of the council by requiring it to include in its annual report details of any gifts accepted in that year. It meets the intent of amendment No. 190. I do not propose to accept amendment No. 191 as it would unduly restrict the ability of the council to invest moneys other than in trust arrangements. I do not think that was the intention.

Amendment agreed to.

Amendments Nos. 190 and 191 not moved.

Mr. Stanton

I move amendment No. 192:

In page 28, line 27, after "require" to insert ", including such information necessary to furnish a parliamentary reply".

Amendment put.

The Dáil divided: Tá, 40; Níl, 58.

Tá

• Breen, Pat.
• Broughan, Thomas P.
• Bruton, Richard.
• Burton, Joan.
• Connolly, Paudge.
• Costello, Joe.
• Crawford, Seymour.
• Crowe, Seán.
• Cuffe, Ciarán.
• Durkan, Bernard J.
• English, Damien.
• Enright, Olwyn.
• Harkin, Marian.
• Hayes, Tom.
• Healy, Seamus.
• Higgins, Michael D.
• Hogan, Phil.
• Howlin, Brendan.
• Lynch, Kathleen.
• McCormack, Padraic.
• McGinley, Dinny.
• McGrath, Finian.
• McGrath, Paul.
• McHugh, Paddy.
• McManus, Liz.
• Mitchell, Olivia.
• Murphy, Gerard.
• Naughten, Denis.
• Neville, Dan.
• Noonan, Michael.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• O’Keeffe, Jim.
• O’Shea, Brian.
• O’Sullivan, Jan.
• Sherlock, Joe.
• Stagg, Emmet.
• Stanton, David.
• Twomey, Liam.
• Upton, Mary.

Níl

• Ahern, Dermot.
• Andrews, Barry.
• Ardagh, Seán.
• Brady, Johnny.
• Brady, Martin.
• Callanan, Joe.
• Callely, Ivor.
• Carey, Pat.
• Carty, John.
• Cassidy, Donie.
• Collins, Michael.
• Cooper-Flynn, Beverley.
• Coughlan, Mary.
• Cregan, John.
• Curran, John.
• Davern, Noel.
• de Valera, Síle.
• Dempsey, Noel.
• Dennehy, John.
• Devins, Jimmy.
• Ellis, John.
• Fitzpatrick, Dermot.
• Gallagher, Pat The Cope.
• Glennon, Jim.
• Grealish, Noel.
• Hanafin, Mary.
• Haughey, Seán.
• Hoctor, Máire.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kelleher, Billy.
• Killeen, Tony.
• Kitt, Tom.
• Lenihan, Conor.
• McCreevy, Charlie.
• McDowell, Michael.
• McEllistrim, Thomas.
• Martin, Micheál.
• Moloney, John.
• Moynihan, Donal.
• Moynihan, Michael.
• Nolan, M. J.
• Ó Fearghaíl, Seán.
• O’Connor, Charlie.
• O’Keeffe, Batt.
• O’Malley, Fiona.
• O’Malley, Tim.
• Parlon, Tom.
• Power, Peter.
• Sexton, Mae.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.
• Wright, G.V.

Tellers: Tá, Deputies Durkan and Stagg; Níl, Deputies Hanafin and Kelleher.

Amendment declared lost.

Amendment No. 193 not moved.

Mr. N. Dempsey

I move amendment No. 194:

In page 29, lines 4 to 6, to delete all words from and including ", and" in line 4 down to and including "Board" in line 6.

The purpose of this amendment is to remove the requirement to hear an appeal within 30 days. Following on from the review of time limits which I have conducted, individual sections of the Bill contain deadlines for the determination of appeals. The provision is therefore no longer necessary and could create inconsistencies across the Bill, given the different time limits for determining appeals. The time limits for determining appeals are dealt with in the relevant sections so this could cause confusion if left in the Bill.

Mr. Stanton

I appreciate what the Minister has done with timescales but does this amendment mean the appeals board does not have to take account of any timescales? If we are removing the requirement to hold an appeal within 30 days of the date of receipt of the appeal is there another part of the Bill which compels the appeals board to bring forward its findings within a certain time? Is the Minister leaving this open-ended?

Mr. N. Dempsey

I hope I am not doing that. We went through the individual sections of the Bill, which contain their own deadlines for the determination of appeals. It is not necessary to leave in the 30-day requirement in the Bill. In some cases the timeframe is shorter and in others it is longer. There is a particular timescale for each case.

Amendment agreed to.

Mr. Crowe

I move amendment No. 195:

In page 29, between lines 10 and 11, to insert the following:

"(6) The chairperson and ordinary members of the Council shall be appointed by the Minister from among persons who have a special interest in or knowledge of education and in particular the education of persons with disabilities, or the law.".

Amendment put and declared lost.

Amendment No. 196 not moved.

Mr. N. Dempsey

I move amendment No. 197:

In page 29, to delete lines 11 and 12 and substitute the following:

"(6) The chairperson and ordinary members of the Appeals Board shall be appointed by the Minister from among persons who have a special interest in or knowledge of education and in particular the education of persons with special educational needs.".

Amendment agreed to.

Amendments Nos. 198 and 199 not moved.

Acting Chairman (Mr. Sherlock)

Amendment No. 201 is an alternative to amendment No. 200 and amendment No. 202 is related, therefore, amendments Nos. 200 to 202, inclusive, may be discussed together by agreement.

Ms O’Sullivan

I move amendment No. 200:

In page 29, lines 31 and 32, to delete "at such intervals as the Minister directs" and substitute "not later than the 31st day of March in each year in respect of its activities in the preceding year".

The purpose of this amendment is to get an annual report from the council but the Minister's amendment, amendment No. 201, addresses that issue.

Amendment, by leave, withdrawn.

Mr. N. Dempsey

I move amendment No. 201:

In page 29, line 31, after "intervals" to insert "(not being less than once a year) and in such manner and format,".

Amendment agreed to.

Amendments Nos. 202 and 203 not moved.

Mr. N. Dempsey

I move amendment No. 204:

In page 29, between lines 34 and 35, to insert the following:

38.—(1) This section applies to cases in which a person with special educational needs or, if the person with such needs is a minor, a parent of the person—

(a) makes a complaint to the Minister that the special educational needs of the person are not being met, or

(b) proposes to bring, or has brought, proceedings in any court seeking redress in respect of an alleged failure by the Minister or the State to meet those needs of the person (whether the failure to be alleged or alleged in the proceedings is expressed as amounting to a breach of Article 42 of the Constitution, a failure to comply with this Act or howsoever otherwise).

(2) The Minister may make regulations (‘the regulations') as respects cases to which this section applies enabling—

(a) a complaint mentioned in subsection (1)(a), or

(b) an alleged failure by the Minister or the State mentioned in subsection (1)(b),

to be the subject of mediation.

(3) The reference in subsection (2) to a matter being the subject of mediation is a reference to the matter being referred, in accordance with procedures specified in the regulations, to an individual or body appointed in accordance with the regulations (‘the mediator’) for the purpose of mediation being conducted by the mediator in relation to it, that is to say, mediation conducted with a view to resolving the issue or issues the subject of the complaint or the proceedings or the proposed proceedings concerned.

(4) The regulations shall provide that, for the purpose of resolving that issue or those issues, the mediator shall—

(a) inquire fully into each relevant aspect of the issue or issues,

(b) provide to, and receive from, the parties to the mediation such information and generally make such suggestions to each of them as the mediator considers appropriate, and

(c) on completion of any hearing (or the last of them where there is more than one hearing) conducted for that purpose, prepare and furnish to each of the parties a report in relation to the mediation,

and the regulations shall also contain the provisions referred to in subsection (5).

(5) Those provisions are—

(a) a provision prohibiting, subject to such exceptions as may be specified in the regulations, the disclosure of any statements made or information given by the parties to the mediation for the purpose of the mediation,

(b) a provision prohibiting, subject to such exceptions as may be specified in the regulations, the disclosure of the report referred to in subsection (4)(c) to persons other than the parties to the mediation,

(c) provisions specifying procedures with respect to the appointment of the mediator, and those provisions shall enable only—

(i) a body which is independent of the persons who will be parties to the mediation to make such an appointment (and such provision shall be in addition to any provision made by the regulations under subsection (6)),

(ii) an individual or body who or which is independent of those persons to be the subject of such an appointment,

(d) a provision specifying that mediation shall not be conducted pending the hearing and determination of an appeal under this Act that lies in respect of the matter concerned, and

(e) such provisions consequential on, or incidental to, the foregoing provisions or the provisions of subsection (3) or (4) as the Minister may consider necessary or expedient.

(6) The regulations may also provide that only a body falling within a class of bodies standing recognised for the time being by the Minister for the purposes of the provision referred to in subsection (5)(c)(i), may, subject to that provision, make an appointment of the kind referred to in that provision.

(7) A court hearing proceedings such as are referred to in subsection (1)(b), may, in making any decision as to the costs of those proceedings, have regard to, if such be the case-

(a) that the person bringing those proceedings refused to participate in a mediation provided for by the regulations in relation to the issue or issues the subject of those proceedings, or

(b) that that person did not participate in good faith in such a mediation, and, for the purpose of determining whether that person did not so participate in good faith, the court may have regard to the report referred to in subsection (4)(c) prepared in relation to the mediation.

(8) In this section ‘body' means a body corporate or an unincorporated body of persons.".

This is an enabling provision permitting the Minister to draw up regulations for a process of mediation. Where parents comes to the end of the road of the appellate process under this Bill they may remain dissatisfied with the services their child is receiving. At that stage parents may feel they have no option but to go to court to have this remedied. Mediation will present an alternative avenue for parents. It will provide a friendly forum in which parents, the council or health board can seek to resolve a dispute affecting a child's education. It is likely to prove to be a much more appropriate and flexible environment to air these issues than in a court where formal procedural rules and high costs can make the resolution of the dispute considerably more difficult.

The mediator, who will be an independent person, will have the power to inquire into the issues, to make suggestions to the parties and to report at the conclusion on the mediation. The process will be confidential to those involved. If a person chooses not to go down the mediation route but instead to pursue litigation, a court hearing the case can have regard to this in deciding on the award of legal costs. This does not in any way prevent a person going to court should he or she choose to do so. However, I hope it will provide the necessary encouragement for a person to exhaust all the mechanisms provided for in the legislation before going to court. In this way we can encourage the respect for rights and the proper provision for children with special needs rather than relying on litigation, the results of which are inherently uncertain, to impose a minimum standard on the State or service providers.

I am concerned that at present parents feel they have to go to litigation. That can take much longer. We have tried, through some of the measures put forward in the Bill, to ensure children will be looked after as these channels are being exhausted. This method is another means of assisting parents in their quest to ensure they get the education they seek for their children.

Mr. Stanton

I welcome the thrust of this large amendment. It is another fail-safe mechanism before recourse to the courts is taken. I welcome the Minister's reference to a friendly environment where people can go. We have stressed that is what is needed. Given that there are parents who are intimidated by officialdom I encourage the Minister to ensure the service is friendly, non-threatening, non-adversarial and not in a court room setting which can put people off, especially those who are not used to it. I ask the Minister to ensure the availability of this service is widely known and advertised as it is possible people may not be aware of its existence. That is a challenge for the Minister and his Department.

So far as I can see there are no timescales on how long the process will take. Can the Minister tell the House how binding the findings of the mediator will be? In other words, if the mediator finds in favour of parents, is that finding binding on the Minister or others about whom the parents may be worried?

I am concerned also about the relationship with the Ombudsman and whether he or she would have a role in this matter. The Ombudsman can be involved if people make complaints to him or her regarding a service that may not be up to standard in their eyes. In that case the Ombudsman can make a determination. That usually happens when all other avenues of appeal are exhausted. Can the Ombudsman get involved after the mediator? Does the existence of the mediator preclude the Ombudsman's involvement? Will the Minister tell us more about the appointment of the mediator? Who appoints the mediator and who will be the mediator?

In subsection (7) of his amendment the Minister implies that the courts may be constrained. I am not sure how they can be constrained. If a person refused to go the mediation route or if a person did not participate in good faith in such a mediation that is a serious matter. I am glad the Minister has not precluded people from going to court.

I would prefer to have seen this amendment on Committee Stage where we could have teased it out. The implications of this subsection are such that a person would probably be forced to go to mediation initially. Where would the process take place? What are the qualifications for mediators? Will there be a standing service or will mediators be appointed on a case by case basis?

On Committee Stage we discussed the provision of an advocacy service as many parents find it challenging to engage with officialdom. The would even find the word "mediator" difficult. There will be associated costs in putting a case and some parents will find it difficult to put one. If they have to bring somebody with them to advise them who will pay those costs? This question could apply to other appeals also. There could be huge costs associated with travelling if parents have to travel to the nearest education office or wherever the process will be held. Would the mediation service be held in the local school? Even that could be intimidating for parents. There are many questions that need to be teased out.

I welcome the provision for such a mediation service and perhaps the Minister will prepare a paper on it to allow us go through some of these questions. I am sure there will be other questions relating to this process. I take the Minister at his word that this will be a friendly service and in the long-term it will probably be less expensive for everybody if it prevents court action from taking place. Those are the questions that come to mind. There may be others.

Mr. F. McGrath

Amendment No. 204 is important because it has the potential to take much pressure off parents and families of people with disabilities. We know from parents who have taken legal cases in recent years that the experience is traumatic and stressful on the families, involves long delays and costs taxpayers money. This is an issue we must face up to. The vast majority of parents I know of who deal with disabilities do not want to get involved with the legal process. That we have a mediation service to deal with the issue is important. The bottom line for the parents is they want the services and do not want to get dragged down in legal costs.

It is very important that the mediator is totally independent and has a track record on disability issues. His or her interests, experience and ability are paramount. He or she will adopt a common-sense approach. From our experience of conflicts, whether in industrial relations or education, we know that a good mediator can prevent conflict, for example, in disadvantaged areas, the home-school liaison teacher plays a valuable role in mediating between the school, the classroom teacher, the children at risk, those opting out of the system and the parents. He or she works closely with the family and gradually draws the child back into education. Section 204 has the potential to create positives. A good mediator will save a great deal of money because he or she knows how to handle the pressure and defuse a situation.

Ms O’Sullivan

In some respects it is good to have a mediation process because it should deal with some problems that might otherwise go to court. However, I have a difficulty with section 204(7), to which Deputy Stanton referred. This provision is being introduced at a very late stage on Report Stage. What is the reason for this? Is it because it will be included in the disabilities Bill also? I suspect the mediator will be provided for in both Bills. I put that question for the purposes of information.

I would be wary of legislation that tells a court what it should or should not take into account. The Bill states the court may take into account that a person did not go to mediation. I have serious problems with this. Under the Constitution, people have a right to go to court. There is an implication in the section that when they go to court, it will be a negative point against them that they did not go to mediation. I would have very serious concerns about this constitutionally.

Mr. N. Dempsey

I thank the Deputies for their general welcome for this provision and apologise to them for inserting it at this stage. We had a discussion on Committee Stage about trying to take cases from the courts. Deputy Finian McGrath may have spoken on Second and Committee Stages about the trauma of court cases and it was on foot of this and a conversation I had with the Attorney General that this section is being inserted in the Bill. I thought it was a good idea to try to have an intermediate step first: there is the procedure, the counsellor, the principal and then the appeals body to give parents an opportunity if they are not satisfied. We are now adding a mediator to try to assist them. It is perfectly in keeping, as Deputies have acknowledged, to make it as easy and user friendly as we possibly can. The provision is designed to be friendly, non-threatening and non-adversarial. It will be a case of a mediator speaking to both sides, moving the matter forward a little on both sides and then trying to come to an agreement rather than adopt an adversarial approach.

We have not set down a timescale because the mediator will have to make a decision on whether he or she is making progress and it is better that this be done and done quickly. It will not be binding on anybody. If the parent does not want to accept it and is still not satisfied, he or she will still have the right to go to the courts. The mediator will be striving to reach an agreement but if an agreement cannot be reached, generally it will be the parent who will be taking the matter further if he or she believes the official side is being unreasonable.

A mediation service does not preclude an ombudsman applying to the council or the appeals board once they are scheduled under the legislation. It does not remove him or her from the scene. I would like to think that the mediator will be seen as an ombudsman during this part of the process. My intention is to provide for a recognised arbitration service that will be independent of the Department. I am not thinking of appointment of a mediator from the ranks of the inspectors. I am thinking more in terms of professional mediation. The Deputy asked if it would be a standing service but I honestly do not know. We could advertise the job of mediator on the basis of individual cases. We could send it to tender and so on.

The disabilities Bill will provide for advocacy. We have allowed for people to be accompanied by others to the mediation service. It will be an informal process. I would not envisage that there would be significant costs, for example, if a parent decided he or she wanted to bring somebody, I would presume that reasonable costs would be met.

Deputy O'Sullivan raised the issue of the Bill directing the court. Subsection (7) provides that the court may take it into account, equally it may not, if it does not want to. It is not stated the court shall to do so. We are not trying to interfere in the business of the court.

Ms O’Sullivan

It is a little like bullying to me. I think the Minister should have it looked at.

Mr. N. Dempsey

All right. If this service is available and people decide that they do not wish to use it for one reason or another, the court may take this into account. To be honest, I do not see a major problem with this.

Many of the points raised by Deputy Stanton will be dealt with directly in regulations rather than in the body of the Bill. It will provide for the appointment of an independent individual. We will ensure the mediator is totally independent of the Department.

Mr. Stanton

I wonder if the service can come in earlier, for example, pre-appeal. Do we need a mechanism for paying the costs associated with the mediation company? Will the service be local? Does the Minister envisage a mediator going to the house of the children in question or meeting locally in order that parents will not have to travel long distances to avail of the service?

Mr. N. Dempsey

If a person makes a complaint to the Minister that the special education needs of the child are not being met, the Minister makes the appointment with the mediator. Therefore, the costs will fall on the Minister who will be the employer. What was the Deputy's second question?

Mr. Stanton

Can the service come in earlier?

Mr. N. Dempsey

I would not envisage it would come in before then because we need to ensure all the processes are exhausted. This must be considered in the context where all procedures have been exhausted and there is a gap between what is being provided and what the parent believes needs to be provided. The mediator would come in to close the gap.

Amendment agreed to.

Acting Chairman

Amendment No. 205 in the names of Deputies Enright and Stanton arises out of Committee proceedings. Amendment No. 206 is an alternative to amendment No. 205 and amendments Nos. 207 and 208 are alternatives to amendment No. 206. Therefore, amendments Nos. 205 to 208, inclusive, may be discussed together by agreement.

Ms Enright

I move amendment No. 205:

In page 30, to delete lines 1 to 3.

Mr. N. Dempsey

Concern was expressed on Committee Stage regarding the scope of the health board's power to refuse to assist the council where a formal request for assistance is made. While a balance needs to be struck here, it is advisable to tighten the wording in section 38(3)(c) which provides that the health board can have regard to the resources available to it in deciding that it is not reasonable to comply with the request. If we were to change the word “reasonable” to “possible”, this would significantly restrict the discretion of the board while not imposing an unfair fetter on its power in this area. That is the purpose of my amendment No. 208. The remaining provisions grounding a refusal by the board are fair and reasonable and, therefore, I do not propose to accept the other amendments. We have gone as far as we can.

Amendment, by leave, withdrawn.

Amendments Nos. 206 and 207 not moved.

Mr. Dempsey

I move amendment No. 208:

In page 30, line 5, to delete "reasonable" and substitute "possible".

Amendment agreed to.

Mr. Dempsey

I move amendment No. 209:

In page 33, lines 18 to 20, to delete all words from and including "intel-" in line 18 down to and including "time)" in line 20 and substitute the following:

"learning disability, or any other condition which results in a person learning differently from a person without that condition and cognate words shall be construed accordingly".

Amendment agreed to.

Mr. Dempsey

I move amendment No. 210:

In page 33, line 22, to delete "Disabilities" and substitute "Special Educational Needs".

Amendment agreed to.

Acting Chairman

Amendment No. 211 in the names of Deputies Enright and Stanton arises out of Committee proceedings. Amendments Nos. 212 and 213 are related to amendment No. 211, therefore, amendments Nos. 211 to 213, inclusive, may be discussed together by agreement.

Ms Enright

I move amendment No. 211:

In page 33, line 23, to delete "shall come" and substitute "comes".

The purpose of this amendment is to ensure that the entire Act will come into force on a set date rather than when the Minister decides. This amendment is related to amendment No. 213 and I ask the Minister to accept them.

Ms O’Sullivan

My amendment No. 212 also relates to when Act comes fully into operation. It proposes that it should be no later than three years from the passing of the Act, which is reasonable.

Mr. F. McGrath

I support amendment No. 213, which states, "this Act shall be deemed to have commenced in its entirety three months after its passing." We want to ensure the legislation is implemented as quickly as possible. The Bill has much potential to radically change services for children with disabilities. There are many positive aspects to it. When discussing it, people should constantly focus on the issue, namely, the rights of, and the services for, the child, the identification of the child's needs and the provision of the service which suits the child and not the old fashioned way of having the child try to fit into the service. We have moved on from that. This legislation is a step in the right direction in regard to services. For too long, we have taken a conservative approach and the child has had to fit into the service. Now we have the opportunity to plan the service to suit the child's needs. The legislation offers that potential.

It is important we recognise that children with disabilities must be respected as human beings. It is also important that, where possible, children with disabilities should go to the school nearest to their homes like other children. I do not agree with sending children away from their communities and their homes to receive services which, sadly, happens to a minority of children with disabilities. I would like to see children with disabilities living and being educated in their communities. From the family point of view, disabled people should not have to fight a battle every day against the Government, bureaucracy and negative attitudes. These are the main points in, and the vision of, the legislation. It is important we take these views on board.

Acting Chairman

I point out to the Minister and Deputies that we are approaching 7 p.m. and these are the last amendments.

Mr. N. Dempsey

I will be brief. As we already discussed, commencing the provisions within a time frame which is unrealistic without the capacity to implement it would be counterproductive and, for that reason, I do not intent to accept amendments Nos. 212 and 213. I reconsidered amendment No. 211 and I have been assured that the current text is in order and does not require any amendment.

Deputy Finian McGrath spoke about the importance, spirit and vision of the Bill and so on. I do not want the Bill to become the butt of criticisms by including an unrealistic time frame. I would rather get it right than get it fast. As long as I am in this position, which I hope will be for at least another three years, I will aim to have the Bill fully implemented.

Mr. Stanton

Did the Minister say three weeks?

Mr. N. Dempsey

No, three years.

Amendment, by leave, withdrawn.

Amendments Nos. 212 and 213 not moved.

Bill reported with amendments and received for final consideration.

Question proposed: "That the Bill do now pass."

Ms Enright

I thank the Minister for accepting so many of the amendments which arose from Committee proceedings — it is a better Bill as a result. I also thank all the officials and the staff of the committee who were involved. We were able to discuss matters in much detail and I compliment the Minister on that.

Ms O’Sullivan

I too thank the Minister and his officials. It has been a productive operation both on Committee and Report Stages and much of that was due to the openness of the Minister in regard to accepting amendments.

Mr. F. McGrath

I would like to be associated with those comments. I thank the Minister for accepting many of the amendments. I get worried when I say things like that.

Ms O’Sullivan

The Deputy can be nasty tomorrow.

Mr. F. McGrath

As I said earlier, the issue is about providing services for children, giving them proper equality and getting away from rows and legal debates to enable them get on with developing to their maximum potential. I thank the Minister and his officials for their work.

Minister for Education and Science (Mr. N. Dempsey)

I thank the Members opposite for their contribution to the Bill. They approached it from the outset as I asked them to — with an open mind and a very positive approach — and that made it easier for me to be open. I thank them for the amendments they tabled and the suggestions they made. They have improved the Bill, and I thank everyone in the House and my officials for the work they put into it.

Question put and agreed to.