JOINT COMMITTEE ON JOBS, SOCIAL PROTECTION AND EDUCATION díospóireacht -
Wednesday, 14 Mar 2012

Education (Amendment) Bill 2012: Discussion

Chairman

I welcome everybody to this committee today which proposes to take submissions on the Education (Amendment) Bill 2012. I welcome Ms Breda Corr from the National Association of Boards of Management of Special Education, NABMSE. I understand that we will cover several groups today and perhaps Ms Corr will clarify that in her presentation. I welcome Ms Eileen Flynn from the Catholic Primary School Management Association, CPSMA, Bishop Brendan Kelly, chairman of the Council for Education of the Irish Episcopal Conference, and Ms Anne McDonagh, director of the education secretariat of the archdiocese of Dublin. I welcome Ms Margaret Gorman, assistant general secretary of the Catholic Primary Schools Management Association, Fr. Michael Drumm, chairman of the Catholic Schools Partnership, CSP, Mr. Ferdia Kelly, general secretary of the Joint Managerial Body, JMB, and also of the Association of Management of Catholic Secondary Schools, AMCSS, Mr. Noel Merrick, president of the Joint Managerial Body and the AMCSS and Mr. Noel Ward of the Irish National Teachers Organisation. I understand Mr. Billy Sheehan is here also.

The purpose of today's meeting is to discuss the Education (Amendment) Bill and any concerns that should be noted in advance of the passing of the Bill. I thank all those who are in attendance. The meeting had been planned for tomorrow and was switched to today with just one week's notice, so I thank everybody for coming here today and facilitating the committee and greater attendance from members. I appreciate it may have been awkward for our guests to change their diaries. The Bill will go to Committee Stage on 29 March, approximately two weeks' time, so there will be an opportunity to submit amendments following today's meeting if members feel necessary. I am aware the witnesses had the significant opportunity to engage with Senators on the Bill because it went through the Seanad first. I thank them for coming today. We appreciate them coming in to make their submissions.

Although most of those here have been before the committee previously, I will go through the protocol on privilege. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give this committee. However, if they are directed by the committee to cease giving evidence in relation to a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Our guests will now make their presentations and these will be followed by questions from members.

Bishop Brendan Kelly

Ar an gcéad dul síos, ar sheachtain na Féile Pádraig tá áthas orainn a bheith anseo agus tá muid an-bhuíoch daoibh as ucht an cuireadh a thug sibh dúinn a bheith anseo in bhur measc inniu. Feictear dúinn gur Bille fíor-thábhachtach é ar fad an Bille nua seo atá os comhair na Dála. Is dream muid go bhfuil ár saol tugtha againn don oideachas agus is mór an ónóir dúinn é a bheith anseo ag plé an Bhille seo inniu.

The Preamble to the Education Act 1998 makes clear that the whole school system is conducted in a spirit of partnership. However, we have concerns that the Education (Amendment) Bill may inadvertently undermine important dimensions of this partnership approach. It is on this key issue that we wish to made our presentation to Deputies and Senators today. Section 8 of the 1998 Act defines the patron of a school. In the Education (Amendment) Bill there is reference to "bodies representative of patrons". No such bodies currently exist and no definition of such is provided. It is, therefore, unclear then what is intended by this term. We submit that the Bill should continue to speak of "patrons" rather than "bodies representative of patrons".

There is need for agreement between the partners with regard to redeployment. A significant change in the Education (Amendment) Bill vis-à-vis the 1998 Act is found in section 6 - 24(5)(a). The proposed text states:

A teacher or other member of staff of a recognised school who is, or who is to be, remunerated out of monies provided by the Oireachtas may be redeployed to another recognised school in accordance with redeployment procedures determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform following consultation with bodies representative of patrons, recognised school management organisations and with recognised trade unions and staff associations representing teachers or other staff as appropriate.

This section places the redeployment scheme on a statutory basis and does not demand that there be agreement with patrons on redeployment arrangements. This is unsatisfactory, given that a partnership approach has worked very well for many years, as has been acknowledged by the Department. Why then should a successful system be changed? We, as Catholic patrons, have concerns about the redeployment scheme.

Ongoing agreement is necessary for the scheme to properly fulfil its goals while maintaining a balance between all the interested parties.

Our first concern is the implications for the entire panel structure of the changes in redeployment demanded by the Department. The panel system evolved as an agreement between patrons and the Irish National Teachers' Organisation and with the agreement of the Department of Education and Skills. Given current fiscal constraints, the Department is insisting on changes to redeployment arrangements. This raises issues about the overall structure of the panel system. While the system protects teachers' rights, it is arguable that insufficient attention is being paid to the rights of pupils and parents, and particularly to boards of management. In a time of fiscal rectitude these rights must be kept in balance.

Our second concern is the implications for boards of management as employers. There are important issues relating to open recruitment and the imposition of a particular employee on a school.

Third, a teacher applying to be placed on a panel of a different type of patronage can only be accepted by agreement of the patron of the panel receiving the person. Such a teacher, when accepted into a diocesan panel, will be required to respect the characteristic spirit of the school and adhere to what is required of any teacher in a Catholic school, specifically to the requirements of the board of management in relation to its obligation to uphold the characteristic spirit of the school.

Fourth, the patron and the board of management are legally responsible to uphold the characteristic spirit or ethos of the school. There are legitimate concerns that large scale redeployment of teachers could undermine the characteristic spirit of a school. In this context, the deed of variation is a crucially important legal instrument with regard to the same characteristic spirit or ethos of a school.

Under the 1998 Act, procedures had to be agreed with the Minister and the education partners. However, the new Bill stipulates that the procedures can be established following consultation rather than agreement. Section 6 of the Education (Amendment) Bill 2012 amends section 24(11) of the 1998 Act and states:

The board of a recognised school may, in accordance with procedures determined from time to time by the Minister following consultation with bodies representative of patrons, recognised school management organisations and with recognised trade unions and staff associations representing teachers or other staff as appropriate, appoint, suspend or dismiss any or all of the Principal, teachers and other staff of a school, who are remunerated or to be remunerated out of monies provided by the Oireachtas.

Section 24(3) of the Education Act 1998 states:

A board shall appoint teachers and other staff who are to be paid from monies provided by the Oireachtas and may suspend or dismiss such teachers or staff in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade unions and staff associations representing teachers or other staff as appropriate.

We submit that the Bill should be amended so as to reflect the requirements for agreement between the education partners, as found in this section of the Act.

Finally, we draw these issues to the attention of the Joint Committee on Jobs, Social Protection and Education because of our concern that the Education (Amendment) Bill 2012, as proposed, might inadvertently undermine the checks and balances that underpin our education system. The education partners have a long and fruitful tradition of working together to solve problems as they arise. We would wish for this to continue. Our considered view is that the provisions of the Bill rebalance the relationships of the education partners too strongly in favour of the Minister and the Department. This has important consequences for patrons, boards of management and the parents and children they serve.

We thank the committee most sincerely for listening to us today and we welcome any questions members may have.

Ms Breda Corr

Good morning, Chairman and committee members, and thank you for the opportunity to bring our concerns before you.

My name is Breda Corr and I am the general secretary of the National Association of Boards of Management in Special Education. My colleague on my left is Ms Eileen Flynn, general secretary of the Catholic Primary School Management Association. We have made a submission and we speak this morning on behalf of all the primary management bodies. They are An Foras Pátrúnachta, the Catholic Primary School Management Association, the Church of Ireland Board of Education, Educate Together, Gaelscoileanna and my own body, the National Association of Boards of Management in Special Education.

I will follow Bishop Kelly's point about the departure from the existing education model and speak briefly about that. I will also speak about special needs related changes, which are of great concern to my own organisation. I will then hand over to Ms Eileen Flynn.

Our first concern is the departure from the partnership model of education. We feel the Education (Amendment) Bill 2012 provides a mechanism for the Minister for Education and Skills to vary the appointment, suspension, dismissal and redeployment of teachers without the agreement of the management associations, patrons or trade unions. Article 42 of the Constitution provides for a partnership model of education, with the State working in tandem with non-State groups and agencies to provide education. This model is further reflected in the Education Act 1998 and places an obligation on the Minister to work with education partners in discharging his statutory function. The 2012 Bill constitutes a major departure from this model which is enshrined in the Constitution, in the case law of the Supreme Court and High Court and in the Education Act 1998.

We are not looking to override any of the procedures in the Bill. That may have been a misconception at an earlier stage. We wish to continue the practice of seeking agreement and finding a way forward in a practical way which has always been done through a model of genuine partnership. All of these things have been agreed to date and there has never been a veto. It is our view that careful consideration and legal analysis is needed before the Bill moves to the next stage.

I now turn my attention to the special needs related changes. In sections 4(c) and 5, the Bill contains a number of provisions streamlining the provision of services to students with special needs. The net effect of these provisions is far from clear, however. Even the reply to a parliamentary question by Deputy Stephen Donnelly did not clarify the implications of these provisions. Section 4(c)(ii) appears to present itself as an amendment restricting the Department of Education and Skills from providing support services which the HSE also provides and which would enable children with special educational needs to access education, which is their constitutional right. It is by no means clear what services come under this, because the Bill refers to health and personal social services within the meaning of the Health Act 2004. The Health Act 2004 gives a list of providers of health and personal social services but not a list of the actual services. It is anyone’s guess what the services are.

There is no positive obligation under any Act for the HSE to provide services supporting the education of pupils with special educational needs. Indeed, the absolute requirement for the HSE is to act in certain cases as set out in the Child Care Act 1991 and relates to children at risk of neglect of abuse. We all know the HSE has difficulty discharging its obligations under those sections. Given its current shortage of resources, facilitating a National Council for Special Education request under section 39 of the Education for Persons with Special Educational Needs Act 2004 could be a real difficulty for the HSE. This would, inevitably, lead to children who need these resources and services in order to access education, which is their constitutional right, being left without them.

I refer to a 1993 report by the special education review committee, which predates the 1998 Act. That highlighted the main deficiencies in the system and it also stated principle No. 7 of the report that the State should provide adequate resources to ensure that children with special educational needs can have an education appropriate to those needs. There are several recommendations with regard to services and these are included in the submission to the committee.

It is far from clear what are the implications of section 4 (c) and section 5 of the Bill. While they seem to be very innocuous, we are not sure what they really mean. In our view they should be further clarified before any section such as this is tabled for inclusion in the Bill.

In the case of section 5, it will leave students with special educational needs in a position that no State body is required or compelled to provide health, personal or social services for them. The EPSEN Act provides that it is the responsibility of the NCSE to request the HSE to provide those services and that same section 39 provides that this can be refused if there is a lack of resources. I welcome questions on those sections at a later stage.

Ms Eileen Flynn

I thank the Chairman for the opportunity to address the committee on our concerns regarding the Education (Amendment) Bill 2012. I refer to the points raised by Ms Corr and the issue about special students applies in all primary schools. In case members are unaware of the circumstances in which we work, we look after the advice to the boards of management of all primary schools, 3,003, approximately, and run by volunteers. I wish to emphasise one crucial point. Each board of management is an employer in its own right, unique and separate from the board next door. It is, however, charged statutorily with the duty of delivering an appropriate education for each child for whom it has responsibility. We need to keep those two points in mind.

I will deal with five issues briefly, some of them have been mentioned already. The first issue is that of redeployment which has worked, by agreement, with all the stakeholders, for generations. It is now appearing for the first time in a statutory context. As already mentioned by Bishop Kelly, what is different in this context is that the agreement piece is removed and the Minister, in effect, will determine the procedures as to who will be redeployed and will also determine which board will be the new employer. Not alone will this apply to teachers but it is clearly mentioned in the Bill that it will be teachers and other staff of the school. This has a far-reaching potential across the sector and the system.

In our view, the Minister may thereby well be interposing himself into the contractual arrangements that currently exist for those staff. This amounts in number to approximately 70,000 across the sector. My second point is similar. The Minister is going further in taking away agreement in regard to the procedures for the appointment, the disciplinary procedures, including suspension and dismissal of teachers and other staff, going so far as determining which unqualified staff can be employed in schools. In effect, the unintended consequences of this may well be that the Department of Education and Skills and the Minister will, in effect, be potentially drawn into every employment dispute that potentially can arise across the system. My third point is the extraordinary set of circumstances which already exist. The Minister already has extraordinary powers under section 17 of the 1998 Act. He has an extensive power to dissolve a board of management when it fails to comply with any order, direction or regulation in place from the Minister's perspective. In effect, under redeployment and the contractual arrangements for appointment and dismissal of teachers, if a board, albeit for the best of reasons, in trying to deliver the appropriate education, decides it cannot comply with what is being asked of it by the State, it may, in effect be dissolved.

My fourth point is about schools finding themselves in circumstances now where they could potentially be open to unfair dismissals proceedings arising out of the provisions in this amending Bill. This would arise where the State is prevented from paying an unregistered teacher. However, such a person may already have contractual arrangements with his or her board of management and the school is left to foot the bill which cannot be recouped from the State.

The final point is that there may well be a data protection issue in regard to the section of the Bill which deals with the Teaching Council and where the Minister will now be asking for the qualifications and the previous experience of persons who are to be employed in schools. In our view, this presents a significant issue which needs to be addressed. I am grateful for the opportunity to make those points.

Mr. Noel Ward

Táimid freisin buíoch as an deis a bheith againn ár ndearcthaí a chur os comhair an choiste mar gheall ar an Bhille thábhachtach seo. This is a relatively short Bill but it has quite far-reaching implications in many of its respects. It amends the Education Act 1998 and the Teaching Council Act 2001. The Bill contains 11 sections, and the INTO has significant concerns about two sections. I will summarise our concerns in the question as to who teaches our children. The Bill has a lot to say about who teaches and who may teach or who may be put in the place of a teacher in respect of children in primary schools. All of the evidence about teaching and learning in schools, in a number of recent OECD reports, point to the quality of the teacher being the primary determinant of education outcomes and of the quality of education. A number of steps have been taken in recent times to enhance the quality of teaching in this State, one of which is the extension of the preparation period for teaching with the B. Ed. degree programme which is the main entry route to primary teaching, being extended to a four-year programme in recent times. Postgraduate teacher preparation programmes have been extended from one year to two years. The Teaching Council Act 2001 is a key piece of legislation in terms of promoting professional standards and accountability. The INTO has serious concerns about the dilution of the Teaching Council Act 2001 by means of this amending Bill. I refer members of the committee to the Long Title of the Teaching Council Act 2001 which refers to enhancing the quality of teaching and promoting education and I refer also to the objects and functions of the Teaching Council in sections 6 and 7 of the 2001 Act which contain provisions to promote the improvement of the standards of teaching, the skill and competence of teachers, the promotion of teaching as a profession, the maintenance of a register of teachers, the determination of qualifications, fitness to teach inquiries and the council being a designated authority for the mutual recognition of qualifications. Section 30 of the Teaching Council Act 2001, which this Bill proposes to amend, is at the heart of the Teaching Council Act and states:

—A person who is employed as a teacher in a recognised school but—

(a) is not a registered teacher, or

(b) is removed or suspended from the register under Part 5,

shall not be remunerated by the school in respect of his or her employment out of moneys provided by the Oireachtas.

This section means that in order to teach in a recognised school in this State, a person must be a registered teacher and this is at the heart of the Bill. Otherwise, by law, any person can act as a teacher in a school. This is the core of the Bill for teachers, the requirement to register and all that goes with registration in the Teaching Council Act is key to teaching in a school. This section has not been commenced to date.

In order to protect, maintain and promote the quality of teaching in our schools, the INTO seeks three essential amendments to this Bill. The first refers to section 6 of the Bill which inserts a new section 24(8) into the Education Act 1998. This provides at page seven of the Bill that in certain circumstances for a person to be employed in a school, "in the place of a registered teacher". The Minister argues and has put the argument in the Seanad and on Second Stage in the Dáil that this is for the very exceptional situation where a school is absolutely unable to find a qualified registered teacher to teach in the school and that this is to be used in extremis. We believe there are other ways to deal with this matter. There are long-term solutions to it of the type used in other jurisdictions, such as the provision of panels of supply teachers. There should never be the need for a school closure or to send children home, spectres the Minister has raised if we do not allow this exception. In our view, the other teachers in the school would be prepared to take responsibility and there are other methods to cover the supervision of a class where a teacher is not available.

At a minimum, the word "may" in page 7, line 38, should be replaced with the word "shall". The word "shall" would require the Minister to regulate this area. As the Bill stands, it is discretionary and the Minister will be entitled to make or not make regulations. At a minimum, the very unusual and extreme circumstances in which a person who is not a registered teacher might be employed in a school on a supervisory basis should clearly be regulated.

The second amendment is simply anomalous and may even be an error. It is also in section 6 on page 8, lines 31 and 32. The repeated phrase in the Bill in regard to a person who is not a registered teacher working in a school refers to that person in the place of a registered teacher. It does not pretend that person is a teacher except in this one place in the Bill - page 8, lines 31 and 32 - where it refers to a person being employed in a teaching position. This person is not employed in a teaching position. This is not a registered person under Teaching Council Act and is not a registered teacher. This person is employed in a supervisory or caretaking position for a period of time and in circumstances in which we would hope the Minister will delineate and circumscribe very closely. We believe that needs to be replaced by the standard phrase.

The final matter we wish to raise relates to section 8 which is a very brief but important section because it seeks to amend the crucial section 30 of the Teaching Council Act 2011. The Minister gave our organisation a commitment to introduce section 30 unamended. That is what we seek. We do not believe there should be a provision for people who are not registered teachers to work in schools with children. We believe that to introduce an amendment undermines the central purpose of the Teaching Council Act. In the words of the Bill, it makes section 30 of the Act subject to the provision whereby persons can be employed in place of a registered teacher. We believe that is unnecessary and that such an amendment is totally inappropriate. We believe it would be unconscionable in regard to many other professions. In the case of many professions, it is not imaginable that if a qualified professional person is not available, somebody else could be employed and that we could amend the key professional legislation to allow for that. We seek the deletion of section 8 and believe that is the appropriate way to go. If for some legal reason, the Minister is advised that it is absolutely necessary to cross-reference with the Education Act, as amended by this Bill for the purposes of meeting a situation in extremis, we believe there must be some other formulation than making it subject to that section.

Teachers views of the Teaching Council and those of Deputies, in particular, were well amplified on Second Stage in the Dáil on 29 February and 1 March. There was much questioning to put it at its mildest about the Teaching Council. We believe it would be fundamentally mistaken and fundamentally unfair to the children in our schools to amend it in the manner proposed here.

Mr. Ferdia Kelly

On the last point on the Teaching Council, I put it to the committee the importance of recognising that there is a different situation at second level. I preface my comments by saying that every school should have fully qualified and fully registered teachers but there is a very practical situation at second level and we encounter it on a regular basis where one has specialist teachers and where it is impossible to recruit a specialist teacher in particular subject areas or in particular localities.

I am thinking of some of the practical subjects, such as engineering, construction or Gaeilge for which it is impossible to recruit at times. Likewise, in some of the more remote localities, it is very difficult to recruit. Last year when a metal work teacher resigned and moved to another school on the western seaboard but for the availability of a bachelor of engineering, who took the classes and managed both leaving certificate and junior certificate students through to their examinations, students would have lost out on the opportunity to complete their leaving and junior certificates in the subject.

We need a facility at second level where in extreme circumstances, we can recruit for a limited period of time people who are not fully qualified and fully registered.

Mr. Billy Sheehan

I wish to add a brief word which, in some respects, relates to what Mr. Kelly said. Why would a board of management employ a non-teacher or why should it have to employ somebody in place of a registered teacher? I think the problem is associated with the supply of teachers and how we organise cover for teacher absences. Efficient planning of teacher supply to cover absences has never been a priority. Many substitute teachers are doing substitute work while waiting for a real job. That is part of the nub of the problem. We need a regular supply of teachers to do this work but we have no structure in place for it.

Teachers regard subbing as something to do while in the queue to get a proper job. We believe part of the solution must be a structured supply panel system where we do not leave it up to individual schools to organise their own supply but where we have a more coherent system to provide teachers. We believe that could be done. The substitutes are paid anyway. It could be done in a cost effective way.

We have a concern that if there is a provision for the employment of people who are not teachers or not registered teachers, the position of how we address the supply of teachers will never be properly addressed because there is a fall back position, that is, we will get somebody who is a non-teacher to cover.

Deputy Brendan Smith

I welcome the witnesses. Bishop Kelly stated in his opening remarks that this Bill was fíor tábhachtach. That is very clear from the representative groups here this morning and I had the opportunity to meet most of the groups previously.

The document we were supplied with indicates clearly that there was not any consultation with the relevant stakeholders in advance of this legislation begin produced. If the Minister did not have the opportunity to consult with stakeholders, did the groups have consultations with Department officials involved in the preparation of this legislation?

Two or three witnesses referred to the proposed changes in regard to the appointment, suspension and dismissal of teachers. What is indicated in the document we have is that the competence of the employer, the board of management, will be completely removed if these proposed changes were implemented.

In regard to special needs, is it correct that the groups are afraid a lacuna will emerge where nobody will provide the services needed for these particular children in the context of the Department's responsibilities and obligations and those of the HSE?

In regard to the concluding remarks of Mr. Sheehan and Mr. Ward, I said on Second Stage that there must be the best possible prohibition on unregistered teachers being taken on in substitute positions. This goes back to the practice which, unfortunately, built up over the years of retired teachers taking up substitute teaching positions. That has been reduced somewhat. There is always a trait in people to take the handier option where possible so they will go for the unqualified person or the one who has retired, thereby depriving the unemployed and, in many cases, the young person from getting an opportunity of employment and experience. I strongly support prohibiting, if at all possible, the taking on of unregistered teachers. If we are realistic there may be geographic considerations where there is no access to the person who has the relevant skills. Provisions should, therefore, be made in extremis in those circumstances but the habit of taking the handy option and hiring the person who has left must be eliminated as much as possible.

Deputy Seán Crowe

I refer to the same issue and to the lack of consultation. Last week the committee spoke to the office of the Ombudsman for Children on this matter. The speaker highlighted the fact that the Department of Justice and Equality was regularly in contact with the office in regard to legislation but, for some reason, the Department of Education and Skills did not seem to engage to the same extent, or, in many cases, at all.

That is one of the worries about this Bill, if we are talking about a partnership approach and consultation. Do the delegates share that concern? How can we strengthen the Bill in this area? Do they have proposals? There is a greater responsibility for the Minister and the Department to consult, in particular in regard to changes in redeployment or the taking on of staff.

Do we know how many unregistered teachers are in the system? I am aware, as are all members, of circumstances where there have been difficulties in this regard in schools, especially in the area of special needs. There may be people in the education system who are not registered teachers but who have excellent qualifications to deal with children with special needs. Does the INTO award any leeway to such people who are already in the system and who have these skills? How can we resolve the situation for some teachers in the system who come perhaps from a crafts background and are not registered? We know of schools and areas where this is the case. How can we square the circle regarding this difficulty where staff are already in the system?

Will the delegates expand on their stated concerns about responsibility moving away from the board of management to the Department of Education in cases where, for example, a teacher is being dismissed? I refer to the uneven allocation of resources in the area of special needs, and changes arising. That is a concern many of us have with the Education for Persons with Special Educational Needs Act. At the time, the argument was that mainstreaming such children would not work unless the resources were in place. We all know about these situations. There was discussion of the Department's responsibility for children with special needs, the resources available, and so on but we all know the situation. For children with hearing difficulties, for example, or those need speech therapy, there is a very long wait. Can we put anything into the legislation to strengthen this area, short of full implementation of the EPSEN Act?

Chairman

I will take all the questions, if that is all right with the witnesses. There may be an overlap so it might be easier to take them all at once before replying.

Deputy Mary Mitchell O’Connor

I thank the delegates for their presentations. They made some very valid points. Could they expand for the committee on how the deed variation referred to impinges on the patron of the school? That might be helpful for members.

I have a difficulty with the role of the board of management, the inspectorate and the Teaching Council in regard to the dismissal of teachers. We all believe this does not happen but it can and does happen. Parents and the public are demanding a procedure regarding what is in place. After the discussion of recent weeks I personally do not know where the Teaching Council, the board of management or the inspectorate come into this and do not see how it will work out.

I have a question for Ms Corr. She spoke about the uneven allocation of resources and stated it would be restricted from now on. Does this mean that if, for example, we were having a planning meeting on individualised education programmes, IEPs, she would not bring in the HSE? Perhaps she might return on that.

Ms Breda Corr

Yes I will come back to that

Deputy Mary Mitchell O’Connor

My other question concerns the imposition of an employee from the panel which will have an enormous implication for schools. It means that the principal of a school must take whoever is sent and will have no input into what kind of a teacher is wanted, whether he or she wants an infant teacher or a teacher who works as Gaeilge, or whatever. That will have a significant impact and will take away not only the independence of a board but also what is best for the child, or for the children in the school in question.

The delegates made valid points and I thank them.

Deputy Aodhán Ó Ríordáin

I thank the delegation for its attendance and presentations. I have a brief point regarding the issue of unregistered teachers versus unqualified teachers. There is a big difference between the two. It is my experience as a former primary school principal that there are occasions when principals in certain parts of the country are desperate to get anybody to stand in front of a class, look after children and stay with them, especially anyone who has any qualification to fulfil those duties. If that person happens to be retired, that can be the reality many principals face. Otherwise they must split up the class, thereby impacting on the children. We need to have a realistic debate about retired teachers. I do not believe a retired teacher should ever be chosen over a newly qualified person who wants to get into the profession and improve his or her skills. However, we must recognise that sometimes newly qualified teachers do not want to go into certain schools. If there is a retired teacher who is familiar with the school, the type of school or the children concerned and who can look after them in a particular way, that should be recognised.

I refer, briefly, to redeployment. The characteristic spirit or ethos of certain schools was discussed and how a particular teacher might not match that ethos. Will the delegates give an indication as to what type of teacher would not match the characteristic ethos of a particular school? Why is it so important?

Again, on redeployment, I am aware of a situation where a certain bishop is in charge of a panel in a certain part of the country. He does not accept transfers, he refuses them. If a person is from a particular part of the country and wants to transfer to the area in question he or she cannot because the bishop says, "No". Surely we need to have an open investigation into how panels should be organised and how redeployment can happen. It should not come down to one individual giving a blanket "No" to every transfer that comes across his desk.

Deputy Anthony Lawlor

I thank the delegates for their presentation. I apologise for having to leave the meeting. I agree with Deputies Smith and Ó Ríordáin with regard to the use of newly qualified teachers in primary schools. When I qualified as a secondary teacher, I could not get employment because I had no experience and the only way a teacher can get experience is to start somewhere. I encourage unions and schools to take on newly qualified teachers where possible.

Where the secondary school loses a teacher for a short period in subjects like science and maths, the school may end up taking on a teacher with a qualification in another subject. The pupils lose out in that case whereas we want to keep continuity in our schools for those pupils. If the teacher is absent, that period of education is lost. I have suggested the idea of a panel, which is linked to the question of redeployment, of newly qualified or retired teachers specifically to teach, for example, geography. This panel could be called upon rather than picking up any secondary teacher to fit into the school.

Deputy John Lyons

I agree with much of what was said this morning. Some members met with officials from the Department and perhaps they can give feedback on the mood among officials to the proposals. Many of the proposals are common sense.

Ms Breda Corr

I will address the special needs issues, starting with Deputy Smith's questions. He correctly referred to it as the lacuna situation. The proposed section 5 of the Bill is to repeal section 7, which was introduced by the Education for Persons with Special Educational Needs Act and states:

‘‘(5) In carrying out his or her functions in respect of the provision, planning and co-ordination of support services, the Minister may, following consultation with the Minister for Health and Children, request the assistance of a relevant health board.

(6) A health board of which a request under subsection (5) is made shall comply with the request.''.

If that is repealed, we fear it will result in a lacuna.

In addressing the uneven allocation of resources, I will deal with the questions from Deputies Crowe and Mitchell O'Connor. We know there is uneven allocation of resources to children with special educational needs. This does not just apply to special schools but also to mainstream schools. In certain areas of Dublin, where there is a disability organisation providing services, the child will get the services required. If the child is depending on the HSE, it may be more difficult or patchy and the services may not be delivered as quickly. Our members tell us that people who have moved from one area to another often move back because they find services are not available to the child with special educational needs. Deputy Crowe asked how to improve it. A report on a pilot project was launched this time last year in the Clock Tower, Progressing Disability Services for Children & Young People. It is lovely on paper but has not been rolled out throughout the country. The resources may not be within the HSE to roll out the programme throughout the country. One of the pilot areas was Limerick and, put simply-----

Chairman

There is a telephone near the microphone and it is causing a problem. Telephones cause interference and also affect the Official Report.

Ms Breda Corr

In Limerick, a number of service providers and the HSE joined together to give an even allocation of time and resources to children with special educational needs in all schools. That was a pilot project and has not been rolled out. We also need to have no moratorium on recruitment. Does that answer the question?

Deputy Mary Mitchell O’Connor

Yes.

Ms Eileen Flynn

Deputy Smith referred to the Bill being introduced without consultation. It speaks for itself that this occurred. Perhaps it was unintended but it happened and some of these issues may not have emerged if there was consultation before the Bill was introduced. Deputy Crowe asked what we would do to rectify the position. If we restore agreement to the sections from which it was removed we would considerably improve and enhance what is required. If we restore the status of the stakeholders - the patrons, the board and unions - to what they had previously, it would improve the situation greatly. The major concern we have on behalf of the boards of management is that the moneys and scarce resources in the system may be diverted to fighting disputes in schools rather than kept in the front line. Through unintended consequences, the Minister may find himself drawn into contractual arrangements in place for teachers and others.

Deputy Mitchell O'Connor asked about the role of the board, the role of the Teaching Council and the role of the inspectorate in respect of dismissal and disciplinary issues. The extraordinary point is that we already have this in place by agreement under circular 60 of 2009. We are concerned when we see the word "agreement" removed. The role of the inspectorate is different to what it was. The Teaching Council comes in once all local procedures have been exhausted at the level of the employer - the board of management. The concern is that resources will be diverted to where they should not go.

Bishop Brendan Kelly

Ms McDonagh will deal with the question of patronage and the panel for redeployment.

Ms Anne McDonagh

I will address the operation of the panel, why it was changed last year and why this amendment Bill has been proposed. If a school loses a teacher because the number of pupils has reduced, the teacher is not made redundant but put on a redeployment panel if he or she has a certain number of years of experience. There is a Catholic school redeployment panel in each diocese, special schools and special classes have a national panel operated by the Department and Educate Together has a national panel operated by Educate Together. Gaelscoileanna have no panel as yet. A teacher is put on a panel and a Catholic school, for example, can only select from that panel. A board of management with a vacancy for a permanent position cannot advertise while there is a teacher on the panel. It must take a teacher from the panel. The main panel is made up of permanent teachers and those with five years' experience. Last year in Dublin there were 130 teachers on the main panel. The supplementary panel is made up of teachers with three years experience as a fixed-term teacher. Last year, there were 268 teachers on the supplementary panel. The main panel must be cleared before boards can move onto the supplementary panel and then boards must take from supplementary panel before they are allowed to advertise publicly. If the teacher remains on the main panel and has not been redeployed, he or she remains in the school as an extra teacher and is paid the full salary. In these times, the Department cannot sustain the practice. Last year, the Department introduced cross-diocesan transfers, where it recommended that if someone remains on a panel in another diocese schools can hire them. The Department also introduced the idea of transfer from another patronage.

There was never a problem previously about that because teachers could always apply to a patron for a transfer. If a teacher applied for a transfer into another patron body, that meant that teacher would be amenable to upholding the ethos of that school because if they were not they would not apply to that patron to get into that panel. The Education (Amendment) Bill is suggesting that the Department would transfer a teacher following consultation and not agreement and, as Deputy Mitchell O'Connor said, that means that a board of management would be faced with somebody who does not want to be in the school. Negotiation and agreement has always been successful, as Bishop Kelly said in his presentation, and I urge that the word "agreement" should be used. It has always worked previously and, therefore, the word "agreement" instead of "consultation" should be used.

Deputy Ó Ríordáin asked why all teachers would not wish to teach in all schools. If teachers have already taught in particular types of schools with different patron bodies and they are either permanent or have gained rights to go on a panel, it is their right to stay with those patron bodies. Everyone is entitled to that if they have already gained those rights in a school. If they wish to transfer out, they could apply to other patron bodies and transfer out.

On the question about the bishop taking transfers, it is true that some bishops do not take transfers when people apply. One problem with that is that last year a bishop accepted transfers from 27 people but subsequently found he could not clear his panel. It also meant that nobody in his area could get a job there. It does, therefore, cause difficulties. Bishops should decide they will take a transfer but only when their panel clears, but to take 27 and then find he could not clear the panels caused difficulties.

Mr. Ferdia Kelly

I will take up a number of the points made. As Ms Flynn stated, there was no consultation about this Bill. After we made submissions to the Department, we had telephone contact from Department officials to assure us there was nothing sinister in it and that we would continue on the partnership model, but why introduce these amendments if the intention is to continue with the partnership model? The partnership model works. In the past four years alone, those of us in the voluntary secondary sector have been party to the following agreements with the other education partners and the Department: redeployment around closure in surplus schools; a disciplinary conduct procedure; a professional competence procedure; a promotions procedure; the Croke Park agreement; and a review of the substitution and supervision scheme. All of those have been agreed and implemented. It is not simply a case of agreeing; it is agreeing and implementing, and they are working in our schools.

We have an effective partnership model and that is the reason we are seriously concerned that, in this Bill, the role of the board as employer will be diminished. As a number of my colleagues said, the board will continue to carry the responsibility that all employers carry. The boards are private employers. They carry the same responsibilities as any major company but their rights are being reduced. If the Minister can determine how we should appoint, manage and, God forbid, dismiss members of our staff, how can we fully engage as an employer with our staff in those circumstances? If it is not broken, why fix it? I wonder about that.

On the question of special needs at second level, it has always been our view that if mainstreaming of young people with special needs is the policy of the State, resources must follow. It is unfair on the young people and on schools to expect mainstreaming to be effective and give young people an appropriate education if we do not ensure that the resources are available.

I re-emphasise the point about the Teaching Council and section 30. This issue concerns the inability to recruit specialist teachers in Gaeilge, a number of the specialist subjects, French, engineering and construction, and particularly in some geographical areas. It is not about wishing to employ a local friend or anybody else. It is simply to try to ensure continuity of teaching and learning. Currently, we are operating under Circular 31 of 2011 which imposes certain restrictions on recruitment of retired, non-qualified or non-registered people. We are operating it but we need to have people in front of classes. No board of management would be so irresponsible as to put somebody who is unsuited in front of a class, but children are entitled to an education and in certain limited circumstances we must look beyond the qualified registered people to do that. It is a matter of supply. We have asked the Department and the Teaching Council to address the supply issue in some specialist subject areas, and it is a matter that must be addressed.

It is a pity Deputy Ó Ríordáin has left because I wanted to point out that, as an organisation representing denominational schools, it is only fair on anybody being employed in those schools that the school board ensures, before that person comes into the school, that he or she is aware of the value system under which the school operates. In the case of the denominational schools, they are Gospel values. That is only fair on the individual and on the school community because it must be remembered that the board is obliged, under section 15 of the Education Act, to uphold the characteristic spirit of the school on behalf of the patron. It is fair on everybody, therefore, that there is clarity as to where one is going and what is expected of one. The teacher will be asked if they will be supportive of these types of school. That is a fair question which deserves a fair response and I do not see any difficulty in that regard. The same question is asked in the redeployment scheme. Before a person is redeployed into a school, he or she are asked to support the ethos of that school and give that commitment, and that is reasonable.

Mr. Noel Ward

On the matter of consultation, this Bill did not come as a great surprise to any of us. A previous version of the Bill was introduced by the then Minister for Education and Skills, Mary Couglan, in 2010. This is different in some respects and it omits some parts of that Bill but when this Bill was published, we spoke to senior personnel in the Department of Education and Skills and put certain concerns in respect of it to them. We are with management on the point of agreement. We believe agreement should be retained in the Bill. However, in both the Seanad and on Second Stage in the Dáil, the Minister gave clear assurances on the record of the House regarding what he meant by consultation. If what emerges from this process is that this part of the Bill stands, we will be looking for the Minister to stand over those assurances in terms of real consultation.

Regarding the difference between unqualified and unregistered people and all that goes with that, there is no requirement on anybody to be registered as a teacher. The unfortunate reality is that the Teaching Council Act 2001 has not been commenced in its key Part, section 30, which requires personnel in schools to be registered. The fact that tens of thousands of teachers are registered shows a certain commitment to the Teaching Council and the registration process but there are many qualified teachers in schools who have chosen not to be registered, and there is no requirement on them to be registered. We would like to see that requirement introduced and it will only exist when section 30 of the Bill is commenced. Until then, there is no requirement.

Deputy Crowe referred to a leeway. There was a leeway on the introduction of the Bill where people without the normal teaching qualifications could become automatically registered on the commencement date. A couple of hundred teachers are registered in that way.

In terms of the priority for employing people in a situation where a school cannot find a registered teacher, there is a circular, and Mr. Kelly referred to this, which sets out a triage system through which a school must decide how to operate if it cannot find a registered teacher. Its first port of call is a registered substitute unemployed teacher and if it cannot find that person, only then is it allowed go to a registered retired teacher, in other words, a person with the appropriate qualification and registration who has retired, and we support that. The entitlement of a registered qualified retired teacher should be in the queue after an unemployed newly qualified teacher.

We further support the view that it is only at that point that any contemplation should be brought into play to make use of what the Minister has provided for, namely, employing an unregistered person in place of a registered teacher. I disagree strongly with the management contention that there has to be space to have unqualified, unregistered persons before classes. That space should be closed and eliminated in the longer term.

The redeployment system has worked well and by agreement, and we would prefer to see it continue to work that way. It is open to schools, in employing people from a panel, to interview them and make selections from within the panels. Many schools do that. Teachers arrive on the redeployment panel through applications and make a commitment in doing that.

Ethos is another day's work and we could have another discussion on it. I have had concerns about ethos matters over the years in a couple of well known instances. Schools are, in large measure, very well protected on the ethos front. The panel system has worked and operated very effectively. We would prefer to have agreement on it. It is a very valuable facility for teachers, schools and the Minister, particularly in the current climate.

Ms Margaret Gorman

We are concerned about the replacement of agreement with consultation. The Education Act 1998 provides for consultation with stakeholders in regard to any amendments. However, that consultation did not happen. A statutory provision has not been adhered to. It will be replaced with consultation. How will that happen?

There is a real concern that by replacing consultation we will not have real consultation if we do not have agreement. Agreement has worked very well. As Mr. Kelly said, if something is not broken one should not fix it. Agreement has also worked in other ways which may not be apparent. For example, many of the documents prepared for schools - with which we interface on the coalface every day - can be improved to make sure schools make better decisions on employment practices, etc. It is another key issue in terms of having agreement in order that we can improve documents. If the Bill does not provide for agreement and the provision says somebody else will decide consultation, no statutory provision enhances that.

People asked for further explanation on the role of the Department. We do not want to scaremonger. However, if one examines the Bill incrementally, when one adds sections together one finds the Minister becomes the de facto employer in schools. Supreme Court cases have decided the Minister is not the employer. However, when one says a person has the sole right to determine procedures, how a person will be disciplined, dismissed or suspended and who employs somebody who is unqualified, such a person would also have the power to remove the current employer.

We are concerned about the change because it means front line resources which should be going to the boards of managements to provide an appropriate education, which they are required to do under the Bill, will be affected. To some extent we come here with a very unselfish view. Every board of management has to put the pupil at the centre of everything. It is the centre of our concern.

If the person who dictates all of that is the Minister, he will be sued in regard to various matters and a huge amount of taxpayers' resources will go into defending claims or employment appeal tribunals. The money will go where we do not intend it to go. One of the greatest unintended consequences is that insurance companies will be the real winners because they currently have to pay for claims. That is why schools get insurance.

A very interesting point was raised on the distinction between unqualified and unregistered teachers. A board of management could have to employ somebody who is registered but is qualified for a different sector. A post-primary teacher could be registered to teach in post-primary schools but not registered to teach in primary schools. A board of management may still have to employ such a person because the Bill and circular providing for it states it has to take a person who is registered before someone who is qualified.

One of the things the Bill fails to provide for is somebody who is capable of being registered. People may have concerns about newly-qualified teachers, which we fully accept. Somebody may be qualified to teach and does not happen to be registered, but can be. It takes a matter of weeks to be registered but years to become qualified. Perhaps some of the provisions in the Bill, when taken together, have some serious unintended consequences.

Mr. Billy Sheehan

On the question of whether the wording used was about imposing teachers on schools, I do not see unintended consequences. Last summer 1,800 primary school teachers were redeployed in a very short period of time with huge co-operation from patrons, boards of management, principals, teachers and the Department. The system works well.

Ms McDonagh said 398 people were redeployed in the Archdiocese of Dublin, which is a significant number. The boards of management and principals selected people from lists they had been given to choose from. No one came and told a school it had to hire a teacher, the school chose who to hire. The question of imposition needs to be carefully considered.

Deputy Mary Mitchell O’Connor

What is being said is not quite true, as the delegates know.

Mr. Billy Sheehan

No, I do not know. The vast majority of the 1,800 people redeployed last year were redeployed from lists supplied by the Department. Boards of management selected teachers from the list. That is how the process works. There were difficulties last year with some departmental staff and visiting teachers who were not in employed in schools. When the Department withdrew visiting teacher services it supplied its own staff in schools.

On Ms McDonagh's point about transferring staff from panel to panel, we have sympathy with the view expressed. There is no point in a panel operator taking on people to redeploy when it does not have jobs for them. The panel is teacher is continuity of implement, not necessarily in a town or county of their choosing.

Mr. Noel Merrick

A different issue is agreement rather than confrontation. The agreement process has worked very well, as has partnership. We have a competency procedure and a procedure for the dismissal of teachers. I could not imagine a procedure that does not have the agreement of the parties. It has been difficult to reach agreement but it pays off and a lot of practical experience is brought into the process, rather than having a top-down model.

The second point, pertaining to unqualified teachers, is that there is the odd occasion, in secondary schools especially, when one cannot find a qualified teacher for love or money. It happened to me three years ago in the middle of the year. An Irish teacher became ill, came back for one week and was gone for three months. We searched the country looking for an Irish teacher, but there was not one applicant. What does one do then but find the best graduate with good Gaeilge and a lot of experience to teach the class? Otherwise, the subject would not be taught.

Ms Eileen Flynn

There is a new point I would like to clarify. There is sometimes a misunderstanding over the word "ethos" or, as it is described in the Education Act, "the characteristic spirit of a school". Every school has an ethos or characteristic spirit, regardless of whether it is a Church of Ireland, Catholic, multidenominational or Muslim school. There is a requirement in the Education Act for the board of management of every school, of every hue, to be accountable for upholding the characteristic spirit of the school. If one is in a gaelscoil, one wants a person with Gaeilge.

Bishop Brendan Kelly

Fr. Drumm might say a couple of words in response to Deputy Mary Mitchell O'Connor's question on deeds of variation.

Fr. Michael Drumm

The deed of variation is not an issue. It is not affected by the Bill, but it is perhaps a significant issue in the background. It concerns primary schools only and the various churches; it does not concern new schools. It concerns old schools, which include the vast majority of primary schools which were originally built on private land with a lot of State funding. This varied in the past 100 or 150 years, depending on when the schools were built. I refer to Catholic schools in the main but also to Church of Ireland and other reformed church tradition schools.

This is an important issue for us and patrons generally. In 1998, slightly before the legislation was enacted, the constitution of boards of management was changed, thereby putting in place the eight member boards. The new arrangement is representative of the local community. All of us welcomed the new boards and new constitution. The quid pro quo agreement with the patrons in the late 1990s regarding the change affecting boards of management was that there would be a variation of the lease. There is a lease attached to all traditional schools. Most have a lease between the owner of the property and the Minister or the Minister’s trustees. The Minister, on behalf of the State, was investing large sums of State money in the schools. A school, covering the property and grounds, is leased to the Minister normally on a 99 year basis, effectively forever. That was the intention. The deed of variation was agreed in the late 1990s such that the lease between the property owner and Minister would be varied to include a clause stipulating the Minister would not change or seek to change the ethos or characteristic spirit of a school, given that boards of management were now much more representative of the local community.

Our concern is that although the deeds began to be signed in the late 1990s and early 2000s, the process stopped for legal reasons on legal advice received by the Department. We negotiated a revised variation of the deed with the Department and our concern is that it is not signing deeds. We hope it will. This is a very important issue for us as patrons. Patrons have serious responsibilities. One could argue, from the implementation of the Education Act 1998 onwards, that the only key legal responsibility of a patron is to uphold the characteristic spirit of a school. That is the fundamental role. The board of management is the key body in the running of a school. The patron has been in the background legally since implementation of the 1998 Act. The deed of variation is a critical element, particularly for church-related patrons of the various denominations. We hope and anticipate that the Department will move forward on the signing of deeds.

Chairman

Does that clarify the matter?

Deputy Mary Mitchell O’Connor

Yes. I thank the delegates.

Ms Breda Corr

I have a very brief point to make. It was alluded to by Deputy Seán Crowe. It is very important for children with special educational needs to have qualified teachers. On occasion, in special schools especially, craft workers such as upholsterers and horticulturists may be teaching pupils in a FETAC setting. They are not qualified in the traditional way. Although such a teacher may be sought, the workers are employed because there is no qualification to teach upholstery or gardening, for example.

Chairman

I thank the delegates, as I appreciate they changed their schedules to be here. This discussion has been very useful and the transcript will be sent to the Minister and his officials for scrutiny. Members will have an opportunity to consider the subject again before Committee Stage of the Bill is taken. I hope we will have a chance to tap into the very useful presentations made today. We will be in touch with the delegates again. On 2 May there will be a debate here with the Minister and departmental officials on the Teaching Council Act 2001 and the Education Act 1998 on foot of our meeting last week with the Ombudsman for Children, Ms Emily Logan. We can certainly touch on some of the issues raised today to achieve clarity.