Amendments 170, 170a, 170b, 175a and 175b form a composite proposal. With your agreement we will take them together for discussion.
SECTION 37.
I move amendment No. 170:
In page 18, subsection (1), line 39, to delete "give notice to" and substitute "register with".
This amendment is very simple. These are the circumstances whereby the pre-school service must give notice to the health board of its establishment and of its operation. I do not know what "give notice" means. Does it mean drop them a letter in the post, give them a phone call, or what does it mean? It is very bland and vague and unacceptable. There should be a formal register in each health board of all the pre-school services for the children as defined under Part VI of this Bill. Such a formal register should be kept. That is the proper way to do business. It is the only way to ensure that the authorities can keep a proper check on the situation.
I would like to point out to Deputy Yates that I think section 37 (1) is very clear. A person carrying on a pre-school service on the commencement of this Part shall give notice to the relevant health board in the prescribed manner. There will be a clear, definite system laid down for giving the notification the same as any agency or statutory body is obliged when giving notice pertaining to any matter affecting any citizen or centre or location. While the Government are committed to introducing statutory procedures for the regulation, inspection and supervision of pre-school services, we are also anxious to avoid creating an elaborate supervisory system which would cost a great deal to operate.
It seems that the notification system proposed in the Bill and which is absolutely clear in subsection (1) meets these two objectives. It provides a system of statutory control but it does not impose a huge cost on the Exchequer. What we propose is that there would be a legal obligation on persons carrying on pre-school services to notify the health board of their existence and failure to do so would in itself be an offence. On notification, the operator would be supplied with details of the regulations which the Minister for Health will make following consultations with the Ministers for Education and the Environment. Health boards will be required to have the services inspected from time to time and will be able to call on the assistance of inspectors from the Departments of Education and the Environment in the case of services which have an educational dimension or to do with the environmental area in local authority services.
In the event of serious or persistent failure to adhere to the regulations, the court will be able to impose fines and, more significantly, order that the service be closed either temporarily while improvements are being effected or for a longer period. These provisions are adequate to deal with any abuses that may arise in the area of pre-school services. I do not think it is necessary to introduce a registration process with all the expense and bureaucracy that would involve.
I am very disturbed to hear the Minister say it is not his intention to establish an elaborate supervisory or inspection structure. That is a code word for saying they do not intend to properly implement this legislation. I am disappointed to hear that because it is quite obvious the minimum possible to get by is all we are going to get under the present proposals.
In the part of the original 1985 Bill relating to pre-school services there was a register. I believe the sticky hands of the Department of Finance have got involved here and have sought to water this down to make it less effective and, to use the Minister's words, "not to over-elaborate with the structures". Over-elaboration means a basic, minimum register. That would be more than "in the prescribed manner" but we do not know what it is to be, whether it is reviewable, whether there will be an appeals system or what. This is completely up in the air and the more we probe into it the more obvious it is that this is inadequate. I ask the Minister to reconsider this and accept this amendment.
With regard to my amendment I would like to say that the Bill's teeth, particularly in this section, are slowly and painfully being pulled. This is a very fundamental area. It is a provision that parents and the people operating the pre-school groups need and want. I cannot see how we can go through this Bill and come through at the other end not having some kind of a register. It is very vague. There does not seem to be anything tangible there. It is very regrettable that this is not a register that is available publicly.
I think a register is absolutely essential. Apart from the standard it would set, it would do a tremendous service to the Minister and his Department and the Department of Education in so far as we would have a clear idea of where and how pre-school services were being served throughout the community and would help us with our State network. Surely a register showing how and where pre-school services are available has to be of the utmost importance and significance to the Minister and his officials. That is indisputable.
It is covered.
In what way?
Mr. Treacy
Section 42 (3).
First, there is an obligation placed on everybody in a pre-school service at the commencement of the Bill to notify the health board. If starting a new service, under section 37(2) the health board has to be informed. Under section 39 under the supervision provisions it says: "a health board shall cause to be visited from time to time each pre-school". The health board has to have a list in order that they can be visited. Section 40 talks about appointing officers. Section 41 carries that on and section 42(3) states: "a health board shall make available to any interested person information on pre-school services in its area whether provided by the board or otherwise", so they obviously have to have a list or register. To comply with those sections of the Bill there will be a register there. I think we are in the area of semantics. It is well covered by the various sections in the Bill. I have no problem about whether you call it a register or whether you say that you will notify them or whatever but a list will have to be kept to do all the things that we stated in the other sections of the Bill.
We cannot take any segment of the Bill in isolation. Deputy Dempsey has covered the ground very adequately. People setting up a pre-school service have to give notification that they are doing so. They will then receive the regulations from the health board. They will be subject to inspection and there will be consultations with the Minister for Education and the Minister for the Environment on these matters. It is obligatory on health boards to make information available on these services, whether they are run by the health boards or not, to the public or to anybody interested in this situation. I do not see any difficulty. I thought we were being very fair in the way we were administering this. I would be grateful in view of that, if these amendments were withdrawn.
On a point of information, if a person notifies of the commencement of a service or of services already running, once this becomes enacted does that mean that in order for him to be registered officially an inspector inspects or is it only that he may drop in from time to time? Does the registering, official acceptance and acknowledgement of this pre-school service depend on an inspector's visit, or is it given prior to an inspector visiting him in the next year or so?
I see the point you are making but you are talking about the operational situation that will commence immediately after the Bill is passed. When the Bill is passed our first job will be to draw up the regulations and that will be after consultations with Education and Environment and, obviously, the local authorities. Our second task will be the implementation of those regulations after discussions between the health boards and the Department of Health. That will be part of the operational structure that will be put in being when the Bill is passed. We cannot go into that until we first of all get the law right.
People have said that this is a matter of semantics. I do not agree. My understanding of the difference between giving notice and registering is that you can give notice to a health board and there is nothing the health board can do about it once you have given notice, that is it, period. But registration involves an element of the health board approving or not. In other, words the health board can decide not to register the centre. There is a difference and it is certainly more than semantics. What I was seeking to include was the option on the health board not to so register if they did not desire to do so. If all the requirement is to give notice, then there is no possibility for the health board to refuse, because once the notice is given that is it. That is my understanding of the basis of the original 1985 Bill and the Minister did not say why that was taken out.
Deputy Yates is over-simplifying the situation. We must take into account that there are services there already. We must further take into account the fact that once this Bill is passed those services will come in under the law. We must take further account of the fact that there will be prescribed notice, not just a bland simple notice of somebody faxing in information, or ringing up, or sending a simple letter to say that he has started or commenced. There will be prescribed, statutory, detailed regulated notice to be gone through. The regulations will be communicated to that person who is operating that service. Thereafter the regulations will be further implemented as the health board sees fit in consultation with the Department of Health, the Department of Education and the Department of the Environment.
We are down to the use of the English language but I would have thought "give notice" implies an action by one party. It does not give the opportunity of the health board to refuse that notice, whereas registration is very clear on that point. The Minister has not answered that question. There is a difference between the health board taking an action, because you can give notice on the right piece of paper and in the right way within the right time, but it does not give the health board the power to say "no". I think that is the whole purpose. If you are going to try and enforce standards you must be able to say that certain premises do not reach those standards and you are not being registered.
What is "in the prescribed manner"? What exactly is going to happen to existing services? Will they all individually be inspected when they give notice? Are we talking about a register?
We must take into account that we are dealing with children and the well-being and care of children. We are bringing in laws and they must be in line with existing laws and the existing systems. There is no requirement on anybody in this country setting up a national school to notify the Minister for Education that they are doing so. There is no requirement on anybody in this country setting up a hospital to notify the Minister for Health that they are doing so. There is no requirement on anybody in this country setting up a shop to notify the Minister for Industry and Commerce that they are doing so. But from the time they do so they are obliged under the law of the land to adhere to certain standards, to certain regulations, to certain requirements in a prescribed manner. We are doing the exact same here and there is no point in creating a layer of bureaucracy for a system like this that is not in tandem with other systems in operation. We have one of the best educational systems in the world and we have a very good modern health care system also. Surely in that situation we must be in tandem with what already exists in our country.
Despite the Minister's last disingenuous comment, I think we are all striving for excellence in whatever we do here. He has made my comments more difficult to say, because I was going to agree with his view on this. We should not delay over-long on this because, as far as I understood it when I read section 37, it was notification required but, obviously, they would have to comply ultimately with the requirements of section 36 which lay down the standards.
If people will recall even a relatively simple piece of legislation like the tobacco Act, it was a considerable amount of time before the regulations were drawn up. The regulations were the meat of the Act ultimately. There is a lot of work to be done after the passing of this Act by way of regulation on this section and on many other sections; I think a fair amount of debate will be required. I know the Minister consulted with the Opposition spokesperson on health in drawing up the Tobacco Bill regulations and I have no doubt that the same pattern will be followed in drawing up regulations under this Act. I would be satisfied enough with the Minister's stance on it, that there will be required notification.
Obviously, everybody would come within the regulations. We cannot spell it out in detail, although we have done a fair amount of detail on section 36, and we will debate that downstream. We are not going to nail down every possible option in the course of an enabling piece of legislation. As far as that goes, I accept the Minister's assurances in this regard and I think we should proceed.
I do not wish to delay the Committee unduly on this point but I think the Minister is flying by the seat of his pants at this stage. First, we are currently processing the Health (Nursing Homes) Bill and it is quite clear as regards the Department of Health's intentions about the registration of homes. I think that is the best analogy. If you have a gun or a dog, or up to recently if you went fishing, you must have a licence. I also feel you are not correct about hospitals. Hospitals are licensed and under the Maternity Homes' Act those who carry out specialist work also have to be registered. I disagree with you. I will withdraw amendment No. 170 but there is a fundamental disagreement here. I ask the Minister to consider this in conjunction with the section of the Department that is dealing with nursing homes, and he will find that giving notice is not the term that is being used.
Again, I am not quite satisfied. What worries me is that somebody gives notice in the prescribed manner, even after the regulations come out. Are those people allowed to continue and to set up, if they have not already done so, until such time as a health board shall cause them to be visited from time to time by an inspector? When does the actual official recognition or acknowledgment begin? Taking Deputy Howlin's statement into consideration, the length of time must be defined. How many inspectors? Will it take four years for an inspector to reach them to tell them that they are not within the regulations. That is my worry. I want to know if somebody could get official registration or acknowledgement without the visit of an inspector.
In relation to a question posed by Deputy Yates as to whether the health board can close these pre-schools down, that is dealt with in section 43 (1) (b) where it states: if somebody "contravenes the requirement of this Part or of any of the regulations made thereunder he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £1,000", or in subsection (2) where, in the case of a person convicted of an offence under this Part "the court may, either in addition to or in substitution for the imposition of a fine, by order declare that the person shall be prohibited for such period as may be specified. . .". From that point of view I think the health board will have to take a person to court before the pre-school can be closed down. I would like clarification on that from the Minister.
At the outset, may I say that once a bona fide notification takes place, that pre-school, nursery, cr�che or whatever comes in under the law. Once it is received in the health board that makes it mandatory on them to operate under the regulations and allows the health board, the Department of Education or the Department of the Environment to send in its inspectorate at any time, without any notice, to check the situation and clarify the position. Obviously, if it is not up to the standard the appropriate action will be taken and that will be encompassed in the regulations we hope to draw up as soon as the Bill is passed. I hope that will clarify the position to the satisfaction of my colleagues.
Just a very brief comment, there is merit in what Deputy Barnes has said and there might be an analogy in relation to an application for planning. There is a requirement that a decision is made within a prescribed period of time and, despite the huge volume of planning applications that come in, every site is visited by an officer of the local authority. There is no reason why an officer of the health board would not be required to visit any establishment that has been notified to them within a period of, say, four weeks. That could be added to section 37 (2) as follows:
a person who after the commencement of this Part proposes to carry on a pre-school shall give notice to the relevant health board in the prescribed manner and that health board shall inspect that premises within a period of four weeks.
If the Minister could consider the possibility of that on Report Stage to allay the fears of Deputy Barnes and others, it would be an advantage.
On the analogy with planning permission, the local authority would give planning permission but it does not enforce the planning permission ultimately unless there is a complaint made.
I am talking purely about inspection.
Yes, but they do not inspect when the building is built that it is built in accordance with the planning permission. They do not inspect everything. They are entitled to, but they do not and that is the reality. We are talking about reality in this Bill.
They should do.
There is a duty in the Bill in section 39: "A health board shall cause to be visited" so there is a duty on them to do so.
It would appear to me that there is a problem here which relates to the uncertainty which an individual would be faced with as the section is at present drafted. A person who did not perhaps comply with all, or even one, of the regulations under, say, section 36 (2) could face a fine of up to £1,000 under section 43. Places that are carrying on a pre-school service on the commencement of this part of the Act would certainly find themselves in a very uncertain situation. On the one hand they would have notified, or given the necessary notification, to a health board that they were carrying on a pre-school service and, on the other hand, they need not necessarily be absolutely certain — in fact, they would not be — that they had, in fact, complied with all of the regulations and, strictly speaking they would be subject to a fine under section 43. Therefore, I feel it would be desirable to introduce an amendment possibly on Report Stage to place people who are carrying on a pre-school service, or who wish to commence one, in a more certain position. It appears to me their position, as this section is drafted, would be most uncertain and, arguably, most unsatisfactory.
To allay the fears of Deputy Barnes in particular we must take into account the fact that for any inspection system to be successful it must be a random ex parte type system, that inspectors from any Department can go from time to time without notice to make sure that they know the exact situation. If you make it a structured stereotype inspection people could be ready for that and create an artificial service and when that is over for another 12 months, they could adopt the attitude that things are okay, there will be nobody around. We do not want that to happen. We want to have total flexibility for inspectors to go into any service at any time.
In relation to the points that have been raised, particularly by Deputy O'Donoghue and Deputy Howlin, I am prepared to have another look at this situation. I will look at Deputy Yates' points also.
Would the Minister look at the point that Deputy O'Donoghue and I took up as well. Perhaps there could be a time limit or something to show that an inspection has been carried out before the actual official registration took place.
Deputy O'Donoghue's most telling point was the point I was trying to make in a different way, which is that at the commencement of the service where they have given notice they might just as quickly be closed down, or that in the case of existing services people might find that they have given notice and thought they were all right and then the later parts of this Bill will rule them out. There is that uncertainty.
We cannot operate on the basis that we are just starting out afresh. We must acknowledge there are services there we must bring in. We want to standardise, we want regulations that improve facilities for these children rather than disimprove or reduce them. We just cannot legislate, regulate and terminate. That would be a disastrous situation.
If the Minister is considering some slight change to allow for inspections and so on, would he take into consideration that it would be grossly unfair to close down an existing service practically overnight which could cause more major problems? Would he consider the idea of, say, a gradual process, that the inspection takes place and the person is given notice they must do certain things and give them a period of time to do that? While an existing service may have its shortcomings, it is providing a service, and to close it down overnight could cause serious problems. I would ask the Minister to keep that in mind also.
I was constantly guided by that situation.
Amendment, by leave, withdrawn.
Amendments Nos. 170a and 170b not moved.
Section 37 agreed to.
Section 38 agreed to.