Amendments Nos. 1 and 2 are related and may be discussed together by agreement.
Education (Miscellaneous Provisions) Bill 2007: Committee and Remaining Stages.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
I move amendment No. 1:
In page 5, line 28, to delete "relevant." and substitute the following:
"relevant, and where an appeals committee finds that a school has acted—
(i) properly, in terms of notifying the student and his or her parent or parents at each step of the process towards sanction,
(ii) reasonably, in terms of taking the final decision to sanction the student, and
(iii) in accordance with its policy or policies and where—
(I) the policy or policies were well communicated to the student and his or her parent or parents, or
(II) the school had made reasonable efforts to communicate the policy or policies to the student and his or her parent or parents,
the appeals committee shall not overturn the decision of the school save in exceptional and extraordinary circumstances.".
I welcome the Minister to the House. There is concern among boards of management and VECs about the situation that potentially exists regarding the appeals mechanism. There is also a concern about the power of the Secretary General of the Department, based on previous overturns of appeals. In all those appeals, there was no indication that the Department was taking responsibility for anything. That is most unusual. In all eight cases that were overturned, the Department had palmed off responsibility onto other boards of management or VECs. That worries many people and I hope the Minister can deal with it.
In many of these cases, it was simply an administrative difficulty that was overlooked. The boards of management proceeded in the appeals with fairness and due consideration, but they are only human and they make errors. If the error is simply procedural, it is very unfair that an appeal would be upheld in favour of the disciplining child on those grounds, and against the boards of management and VECs.
In the vocational educational sector, a student or a parent has a right to an appeal in the first instance through a subcommittee of the local vocational educational committee and thereafter to the Secretary General of the Department of Education and Science. Once the appeal is made to the Secretary General, it is administered by an appeals administration section of the Department, which in turn establishes a three-person appeals committee to hear and decide on the case. This committee is serviced by an official of the appeals administrative section of the Department. The experience of VECs around the country in the operation of this scheme has been very negative. The biggest concern among VEC members is the willingness of members of the appeals committee and officials of the Department to apply strictly procedural requirements to members of the boards of management and VECs, who are respondents in the appeals cases, while patently failing to apply the same strictures to themselves.
I wish to give an example of this. The appeals administrative section of the Department gave advice to a VEC that it was in order for it to hold over a particular decision for a single day for a meeting of the committee. Subsequently, officials from this same section of the Department decided that this advice was in error. It used this very fact, that the VEC had delayed by one day to admit an appeal against it, to decide in favour of the appellant parent and against the VEC. The possibility of this scenario being repeated is what is causing concern.
There is a concern about a conflict of interest within the Department due to the make-up of the committee. Can the Minister say that the three people on the appeals committee have the necessary training and requirements to make those decisions? I do not wish to cast aspersions on the professionalism or otherwise of the members who are involved. It is of the utmost importance that the Minister can confirm this. It is a very serious situation because the smallest human error can have great consequences down the line. I am conscious of the fact that many of them may not yet have the proper training in crisis management and so on.
To allay some of the concerns that I have, the Minister should consider the establishment of an absolutely independent appeals board. The Ombudsman for Children Act 2002 could be amended to provide this facility and to ensure that independence would have to be seen to be in operation. That would provide an indication of independence in this instance.
Another matter about which I am concerned is the entitlement of the Secretary General to extend the period. In certain instances it may be necessary to request a report from a particular agency regarding the difficulties identified in respect of a pupil. The Minister will acknowledge that if a child is expelled from school today on foot of serious disciplinary problems relating to questionable behaviour aimed at his or her fellow students, teachers or other members of staff or school property, the likelihood is that because of the forthcoming Easter and summer holidays — and despite the 44-day rule — a final decision on the matter will not be handed down until next Christmas. The Minister's officials are shaking their heads to indicate that this would not be the case. However, the likelihood is that it could happen. The Minister is a former teacher. Is she in a position to visualise what would happen if a child were obliged to remain outside of school for the period to which I refer before being reinstated following an appeal? Can she imagine the humiliation that might be visited upon the teacher involved in dealing with the initial incident, the board of management or the school principal who would be obliged to deal with the child's reinstatement?
Six months ago there were media reports regarding a child who had been suspended or expelled from school and who met a group of his peers in the local town. He was clearly overheard expressing his delight at the fact that he would be rehabilitated and back at school within 30 days and that his intention was to make life miserable for a particular teacher.
This is an extremely serious matter. Amendment No. 1 in my name suggests the inclusion of the following in the Bill:
"relevant, and where an appeals committee finds that a school has acted—
(i) properly, in terms of notifying the student and his or her parent or parents at each step of the process towards sanction,
(ii) reasonably, in terms of taking the final decision to sanction the student, and
(iii) in accordance with its policy or policies and where—
(I) the policy or policies were well communicated to the student and his or her parent or parents, or
(II) the school had made reasonable efforts to communicate the policy or policies to the student and his or her parent or parents,
the appeals committee shall not overturn the decision of the school save in exceptional and extraordinary circumstances.".
Unfortunately, the exceptional and extraordinary circumstances to which the amendment refers do occur. It is important that the Minister should confirm that the Department will not overturn decisions simply for procedural reasons.
Amendment No. 2 states:
"(4A) Where a student has been—
(a) suspended, or
(b) expelled,
for the use, or threat, of violence against—
(i) another student,
(ii) a teacher or any other member of the staff of the school, or
(iii) property, whether held by the school or a person referred to in paragraph (i) or (ii),
the appeals committee shall have particular regard to that fact, and shall not overturn the decision of the school save in exceptional and extraordinary circumstances.".
Both amendments are reasonable and provide safeguards. I hope the Minister will consider amending the Ombudsman for Children Act in order to provide a mechanism that can clearly be seen to be independent. In addition, the power of the Secretary General to extend the time period should be clearly outlined in the legislation.
I do not propose to accept these amendments because they would destroy what we set out to do in the Bill, namely, provide balance. Schools are of the opinion that at present there is a lack of balance regarding the consideration of appeals because criteria are not set down. The amendment of section 29 of the 1998 Act seeks to provide an appeals committee with criteria it can consider in order to ensure that the rights of an individual child who has been expelled from school will be recognised and then balanced against those of the remainder of the student population and teachers and that cognisance will also be taken of the health, safety and welfare of the latter groups.
Amendments Nos. 1 and 2 automatically favour schools and would ensure that the balance to which I refer would not be put in place. This matter was debated at length on Second Stage. Bearing in mind that a student who has been expelled has a constitutional right to an education, it is important that a school can show that it has done everything possible for that student and that it has made reasonable efforts to ensure that his or her needs have been met. Equally, however, this must be balanced against the other elements to which I refer such as the safety, health and welfare of teachers, etc.
The balance we are seeking to achieve by way of amending section 29 of the 1998 Act is crucially important. In the past, school authorities were of the opinion that matters were balanced in favour of the individual. Senator Ulick Burke's amendments would balance it in favour of the school, which would not be fair to either party.
The way matters are set out in the Bill means that a range of issues must be taken into consideration. In addition, it deals with the type of incidents to which Senator Ulick Burke referred. For example, it refers to the "nature, scale and persistence" any behaviour on the part of a student. This will allow an appeals committee to give serious consideration to one-off incidents or a succession of incidents. A committee will also be obliged to consider what a school has done for a child, how this impacted on the other students and the rest of the school and how both of these fit into the overall context of the policies of the school.
Senator Ulick Burke referred to procedural issues. Such issues are, in fact, legislative requirements. Under the Education Act, schools are obliged to have policies on behaviour, bullying, health and safety and equality. Such policies are important in the context of the running of schools and they provide great security not just to teachers and principals but also to students and their parents.
It is critically important that even before children are enrolled in schools, they and their parents should be aware of the exact nature of both the procedures that will be employed if the rules are broken and the code of sanction. Students will, therefore, before they even enter their schools, be fully aware of what is likely to happen if there is a breach of the rules. This will provide great protection for schools.
If schools have in place proper policies and follow the correct procedures, they will be on to a winner. There is not, therefore, a need — as is the case in the Senator's amendment — to favour them. Equally, they must ensure that if they go to the extreme of expelling a student, they must follow the legal requirements set out regarding the relevant procedures to be used. A timescale is set down and schools must provide students and their families with notice of expulsion sufficiently far in advance to allow them to made alternative arrangements.
Let us consider the example to which Senator Ulick Burke referred, namely, the fact that the case of a student being expelled today would not be finally decided upon until next Christmas. He is completely wrong in that regard. If an incident happens today in a school and the authorities there decide to expel the student, 20 days notice must be given and the National Educational Welfare Board must be notified. That enables the board to work with the family and the student to find an alternative placement, if such is required, or at least to support the student. The student can remain in the school for that period. However, if the school is of the view that the student remaining would be a danger or would put at risk or affect the health and safety of other students within the school, the school can suspend that student for that time. There is no question of putting anybody at risk during that period.
The appeal, should the person take one to the Department of Education and Science, must be heard within 30 days. Even if the extension of time were given, which it would not be at this time of the year and only if it were to interfere with the likes of summer holidays, to ensure that sufficient allowance would be made for schools and parents to provide information, the appeal would be determined within a period of 30 days according to the legislation. Then there would be the hearing of the appeal and notification of it. Were an incident to occur today, there would be 20 days to allow the student, parents and the National Educational Welfare Board to act on it, and then 30 days until the appeal would be heard. Even if one allows for a week or two for the appeal to be heard, all that would be well sorted by the end of May. Meanwhile, the National Educational Welfare Board would work with the child.
Does the Secretary General not have the privilege of extending it if he or she so requests?
The period of that extension may not exceed 14 days. There would be no question of continuing it. That is to protect everybody, which is fair enough because we must ensure a child is not too long out of school in the event that he or she must return to it.
The appeals board comprises the most eminent people who have vast experience in education. We are conscious that people involved in appeals such as this would have the necessary experience. I assure Senator Ulick Burke that as with all appointments which I have made and which have been recognised in the other House by Fine Gael as being of persons of eminence, we would ensure people on appeals boards such as this would ensure they balance the rights.
The core of this amending legislation is the introduction of criteria which bring a balance into the considerations appeals boards must undertake and which they have not had to date. I genuinely fear Senator Ulick Burke would shift the balance from what people believe is in favour of the individual towards the school and would not reflect what is happening. I know they believe these particular considerations that must be taken into account by the appeals board balance the right of that individual and the right of the school. It puts it up to the school to ensure it has such policies, and these are clearly enunciated and the parents and students are well aware of them, but the school must do that anyway under the legislation. That is part of good administration. It will lead to better running of the school, but it also protects the individual child and his or her family by giving time to ensure the child gets an education. In the past people might have felt it was weighted against the school, but this at least helps an appeals board to be able to state the matters it must consider, and it is fair and open. For that reason, I do not propose to accept the amendments.
The Minister has said it all and I would have made the same points. The following questions occurred to me, however. Where would the hearings of the appeals board take place?
They need not be held in Dublin. They are held in independent local areas. For example, I was going through Athlone one day and met the appeals board in a hotel. It was an independent, neutral but local area convenient to everybody.
This is good legislation. It has been welcomed by all the educational partners. It certainly has tidied up the appeals area because when appeals were made to a board of management, there was no tight procedure for dealing with them. This legislation will make it clear to education administrators in schools how to handle such matters. If there is a code of behaviour, the policies are in place therefore, and the key to it, as the Minister stated, is to get that balance right. This legislation has done that. I welcome it and, from having spoken to other teachers, I know they do as well. It is clear. The procedures are laid out and all children in a school will know exactly where they stand in the case of policies and what will happens when they break the rules.
The Minister may have forgotten to deal with one matter. I welcome her comments on the question of an independent appeals board not comprising personnel within the Department. I accept fully the professionalism of the people chosen, the high esteem in which are held and their capacity to do the job, but as representatives of the Department of Education and Science, they obviously would have a conflict of interest in terms of their independence and that is why I suggested a mechanism whereby the Minister could amend the Ombudsman for Children Act 2002 to provide this role to him or her, who would be seen as clearly independent in this instance.
While the Minister states that, for instance, if the school has all of its policies, it will be on a winner, the reality is that every school had to possess those policies long before this Bill or before these matters began to arise. Every school that has thought educationally in the context of the prevailing environment possesses all of these policies and I suggest they have been crying out to the Department of Education and Science to give the lead, the indications and the framework on which these policies should be brought forward. There has been delay by respective Ministers down the years. The Minister, Deputy Hanafin, is to be commended on bringing forward the proposals.
The Minister stated that I want to place the balance on the side of the schools, but that is not so. On Second Stage, I clearly welcomed the balance within the legislation. However, the record of the decisions given clearly shows that the only reason that could be found and has been expressed and documented for the Department giving its decisions was non-compliance with procedures, and that has caused concern. I instanced one case of a vocational education committee where it was delayed for one day on the Department's advice and the Department returned the following day upholding the appeal of the child and stating that the VEC had broken the rules on the basis of delaying by that day. When the Department's advice given one day is turned on its head the next and the Department makes the opposite decision, how can there be general acceptance of fairness or balance? It is such cases that cause the problems and concern. One would want to legislate against the like of that ever arising again where mistakes were made, not by the school authorities, boards of management or VEC, but by the Department and accepted as an error on its part.
I hope it would be clear that where schools have abided correctly by each of the procedural steps, taken account of all of the ones highlighted in the legislation under the various headings listed such as reasonableness, nature and scale of persistence, educational interest to other students, safety, health and welfare of teachers, students, etc., and have taken out the relevant policies, the Department would not perform a somersault and make a decision such as that to which I referred. That is the only mechanism. It does not favour school boards of management, teachers and the main body of students. The Minister was very selective in saying that in so far as we were speaking of the students. It was very selective with regard to students. The majority of students in every school want to be educated in a tolerant environment and in co-operation with teachers and management. I want to make it clear that my amendment will affect only the individual students who cause disruption. I do not want to tilt the law on the side of teachers or boards of management because, as I stated on Second Stage, a balance is required. However, a balance will not be achieved if one individual causes disruption among his or her fellow students. I hope the Minister will incorporate my amendments and provide for the independence of appeals boards. I do not see them as independent at present and, despite their capabilities and capacities for fairness, many of those involved in the education sector will never be able to completely discharge their duties if an element of unfairness remains or the Department is seen as having a vested interest.
I do not understand where Senator Ulick Burke is coming from.
I am not surprised.
The Bill provides that everything will be taken into account.
The record shows that has not been the case.
Everything has been taken into account. Reasonableness is required and the interests of the offending child will be considered in light of his or her background and the school setting. What more does the Senator want? These provisions are in black and white. All factors will be reasonably considered in the procedure.
They should be.
It is there.
The very reason we are introducing this legislation is that schools believed the criteria set out were insufficient to enable them to look after the health, safety and welfare of other students. The issues to which Senator Ulick Burke referred arose prior to the introduction of this Bill, when there were no criteria or guidelines and no issues for the appeals board to consider. This legislation requires the board to consider other students. If an individual student has offended in a persistent, serious or dangerous manner, an appeals board must take into consideration the issues raised by the Senator, namely, the other children in the school and their teachers.
The appeals board comprises two independent people and an independent but full-time inspector of the Department of Education and Science. None of the three will be a full-time official of the Department. The Department does not have a vested interested in any school in the country.
We recently discovered that.
It is not a teachers' union or a managers' representative body. However, it has to uphold the constitutional right of young people to an education. I share that duty as Minister for Education and Science. Each three-person board will include an inspector who has an overview of schools through visiting them regularly and who will have an understanding of the situation. The other two independent people will have the knowledge and experience they need to make valuable contributions to the appeals board.
In regard to the VEC mentioned by the Senator, I have been legally advised that the admittedly erroneous advice offered by the appeals administration unit about the requirement for the VEC to issue its findings within 30 days was not given as a reason by the section 29 appeals committee for upholding the appeal. The days issue related only to the timing of issuing the information.
That is the basis of my amendments. Situations like that would never arise again.
In any event, both the VEC and the Department upheld the appeal, and it made no difference at all. The issue raised by the parent pertained to the conditions attached to the appeal at the VEC level, which the student won. The parent did not like the conditions and went to the Department. In both cases, the appeal was upheld.
Not all schools have the required policies in place. They certainly did not have them prior to a couple of years ago, which was the reason we did as the Senator asked and posted templates on our website for schools. All the schools have to do is personalise the templates and agree them with students, staff and parents. In this day and age, students need to know and sign up to policies on bullying and behaviour for the sake of protecting both schools and students. If schools set out such policies, everybody is protected. In the event of a serious incident leading to an expulsion and appeal, this legislation provides for fair and balanced criteria which will ensure the rights of all the students are protected. The issues of the past to which the Senator referred will no longer arise because these criteria are set out in the Bill.
Amendment, by leave, withdrawn.
Amendment 2 not moved.
Section 4 agreed to.
Sections 5 to 9, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I congratulate the Minister on introducing this fine Bill to facilitate school authorities in dealing with today's problems. It is clear she has real empathy with this matter. She has clarified her position on Second Stage and in response to the amendments brought today.
I thank the Minister and her officials for introducing this Bill, which has been widely acknowledged as important. I hope it will give balance to the situations which arise within schools. The Minister has stated her wish to introduce root and branch reform. Some roots have been certainly established through this Bill. Other roots will also have to be planted in the future, as will branches.
I hope the resources necessary for implementation of the Bill's provisions are made available at national level and not only in respect of the 50 schools already identified. Most schools in the country have been given the opportunity to make a submission. Schools that have not done so should be requested to make a submission. Every school must be involved to ensure the legislation is implemented successfully because the procedures and policies must be in place in every school. Few school principals can say they do not have problems with individual students now and again but it would be terrible if the schools that have come forward were identified as experiencing serious problems and placed at a disadvantage with competing schools in their areas.
The resources provided for schools in Ireland pale into insignificance when compared with those provided in other countries. I outlined examples earlier. I hope this issue will be addressed. Where children fall victim to situations such as this, there should be adequate staff and facilities to permit them to remain within the education system, even if it is outside the formal structure. They should receive continuing education and we should not be wanting on resources. For instance, court decisions are handed down regarding juveniles but no places are available to detain them. However, under this legislation, all those who cannot be accommodated within regular school structures will be assisted to continue their education. That is why I asked the Minister to consider carefully the outreach mechanism to address this issue. They should be provided with resources where such cases arise.
I welcome the legislation and hope it will lead to an environment where children can be taught without being disrupted by other students, teachers can get on with their job in the best interests of pupils and school management will not have to devote most of its time to procedural letters in response to this legislation. A number of schools are in crisis because of the difficulties associated with educational disadvantage and other issues which cause children to lose out. I hope the legislation will respond positively and quickly to these problems in order that it can be viewed as a flagship from here on.
Sitting suspended at 12.05 p.m. and resumed at 12.30 p.m.