Seanad Éireann - Volume 157 - 24 November, 1998

Education (No. 2) Bill, 1997: Committee Stage.

SECTION 1.

Acting Chairman (Dr. Henry): Amendments Nos. 1 and 2 may be taken together.

Government amendment No. 1:

In page 6, subsection (3), lines 3 and 4, to delete “on the day that is one year” and substitute “three years”.

Minister for Education and Science (Mr. Martin): This amendment seeks to lengthen the period from one to three years within which all sections of the Act must be commenced after enactment. The Bill, as drafted, proposes a one-year limit. While I am committed to the implementation of all parts of the Act as quickly as possible, I must be mindful of the practicalities. It may not be possible to implement all sections within the one year period. Therefore, to be prudent and to allow for the drafting and laying of regulations where necessary I propose to lengthen the commencement period from one year to three years.

I assure Senators there is no intention to delay implementation of the Act. I am trying to be practical. When this matter arose during the Committee Stage debate in the other House, we rather optimistically agreed to revert to the inclusion of the one year period, but when I reexamined the various sections of the Bill and the Acts which would be consequential on its passing, I could not put my hand on my heart and say it would all be done in one year. Knowing the volatility of politics, I do not want to place such an obligation on the person who may occupy this seat in the future. I would hate to think it would take us three years to implement all sections of the Bill.

Mr. Ryan: Does the Minister not expect to be in office in a year's time?

Mr. Martin: Yes, but it is wiser and more prudent to allow for a three year timespan. I know Deputy Costello has tabled an amendment which seeks that all sections be implemented within six months. Knowing how slow the State can move at times, that would be difficult to do. This is a large Bill and there will be many consequential actions upon its enactment. My amendment is reasonable.

[339] Ms Ormonde: The Minister is being very fair. Given the details of the Bill and what will be involved in setting up the committees and implementing various sections of it, we all know it is absolutely necessary to give the Minister adequate time. We should go along with his view on this.

Mr. Costello: The Minister mentioned that I have tabled an amendment which proposes to reduce the implementation period by half, from one year to six months; he is trebling it. We are going in opposite directions. The reason I seek implementation of the sections within six months is that we have waited a very long time for this legislation. It has been in gestation since 1989 when the proposal was introduced by way of a Green Paper, followed by a White Paper, the convention, the consultations, the Education (No. 1) Bill and finally this Bill.

The Minister is proposing a three year period by which time he will be out of office and will have handed over carte blanche to a new Minister who will then be determined by the timescale of the legislation. I presumed the Minister would ensure the legislation would be fully operational during his time in office. On reading the functions of the Bill, I cannot see where the difficulty lies. We talk about the patron of schools, its functions and the inspectorate, all of which are already in place. These matters are provided for in the Bill and will be put on a statutory basis. We are talking about boards of management which we can discuss later. That matter has been set in train. The provisions concerning principals and teachers are in place. Some of the miscellaneous items, including the school year, grievance procedures, appeals, educational disadvantage and teaching through Irish, will be put in place. However, none of them is of such a substantial nature that it cannot be implemented by the Minister in the morning. The NCCA is already in place, but not on a statutory basis. This section states that what is already in place will be turned over and provided on a statutory basis.

I do not know where the problem lies. The Minister said there were technicalities, implications and so on. I am not prepared to accept an amendment which would extend the implementation period from one to three years, unless the Minister can say precisely where the difficulty exists as regards the corpus of sections, functions, class of school and so on referred to in the Bill. I would be inclined to go in the opposite direction. Now that we have this consolidating legislation, we should put it on a statutory basis as quickly as possible. The Minister should ensure it is implemented at the earliest possible date. I cannot accept three years as a satisfactory period of time.

Acting Chairman: I remind Senators that amendments Nos. 1 and 2 are alternatives and are being discussed together.

[340] Mr. Ryan: There seem to be many possible reasons for this amendment. I am still not clear what is behind it. I understood that when a Department produced a major Bill, parallel work was in train within the Department on its implementation. If that is not the case perhaps a course in the IMI is called for on how public bodies do business. No other agency would seek a fundamental change in the way it does its business without beginning the planning stage as the process of change was taking place. It does not have to be, and should not be done in series.

I am astonished as this is one of the best Ministers for Education we have had. We will wait and see. He has been imaginative but he seems to have given up and is not going to be able to see this out. This Bill is the Minister's monument, yet he is not going to see it through. I wonder what is going on. It is not legally obligatory to have all sections of the Bill in place before the next general election.

Mr. Martin: I am not saying that.

Mr. Ryan: If this amendment is accepted it will not be legally obligatory to have this Bill in force before the next general election. There are many other ways the Minister could have done this. For example, he could have asked for the power to extend the implementation of the Bill by another year by order by a positive affirmation of both Houses. He could have introduced a simple amendment which would pass through both Houses quickly but would require parliamentary scrutiny as to what caused the delays. Everything will have to wait as a consequence of this amendment.

I know what Departments are like. For example, the Freedom of Information Act stipulates that there should be a maximum delay of two or four weeks in Departments responding to queries. The maximum delay has become the minimum delay in all Departments. A maximum of three years will now be the deadline for everything, whereas a maximum of one year was the previous deadline. Someone persuaded the Minister to make this change and he has made a genuine mistake. I am disappointed he has taken the impetus out of this reforming legislation.

Mr. Fitzgerald: Fáiltím roimh an Aire agus gabhaim leithscéal leis nach raibh mé i láthair don díospóireacht ar an Dara Céim den Bhille. I support the Minister's amendment enthusiastically. We should commend his forthrightness and honesty in coming back to the House to say that the original implementation time of one year was unrealistic. A three year period is more so. This Bill places the administration of education, which heretofore was conducted by circular letters, on a statutory basis. Senator Costello, like myself, is a former teacher and he knows that this legislation will cause a tumultuous cultural change in the Department and in the education system. [341] Senator Costello's amendment is well intentioned but unrealistic. Even a shorter Bill with fewer and less complex implications for the administrative change could not be realistically implemented in six months. The Minister's approach is realistic, fair and honest.

Mr. McDonagh: It would be a pity to open the debate on an acrimonious note and perhaps with a division. There has been a huge amount of discussion on this Bill. All of us involved in education have seen the Green Paper and White Paper and we know the work done by the previous Minister and Government. The Minister, when in Opposition, was very much involved in the debate on this legislation and is familiar with its detail. Like Senator Costello, I am disappointed that the Minister is placing a three year term on the implementation of the Bill and I hope he will not adhere to this stipulation. I do not wish to score political points but, given the situations in our hospitals and in agriculture, it is likely the Government will not last three years. I would hate to see this Bill falling because of a change of Government and having to be reintroduced by a future Administration.

I would support a compromise of two years' implementation time. Three years is too long, considering the degree of debate and scrutiny the Bill has already received. We are ready to implement the Bill and I urge the Minster to accept my proposed compromise of two years.

Mr. Martin: I have no secret motivation in proposing to extend the implementation time of the Bill. It is now 12 months since the Bill was published and the Education (No. 1) Bill was debated for a previous two years. Not everything is in place for the implementation of the Bill. For example, the National Council for Curriculum and Assessment must be set up by ministerial order. Section 40 states “The composition of the Council shall be determined by order, made by the Minister following consultation with patrons, national associations of parents, recognised school management organisations, recognised trade unions and staff associations”. The ethos of the Bill is one of consultation and consensus. It will not be implemented by ministerial diktat. Some of the mechanisms for what is contained in the Bill are in place and some are not. Some mechanisms which are in place will have to be reinvented in consultation with the partners. Section 29 which deals with appeals, also refers to further consultations with the partners. Throughout the Bill there are references to the Minister's obligation to make orders following consultations with the partners.

Senator Costello mentioned boards of management. At primary level we have agreement with all the partners about the establishment of boards of management and their composition. It took two years of consultation and eventually arbitration and facilitation to arrive at that agreement. It was concluded last November following [342] more delicate diplomacy among the partners. We arrived at a very good solution which we are reviewing and which is working successfully.

A year is too short. On Report Stage, I might consider putting in place a review mechanism which would require the Minister to come before both Houses annually to advise on the implementation of the Bill. It is not my intention to wait for the third year to implement the legislation. The Attorney General's office advises that, because hundreds of orders must be made and regulations formulated, an implementation term of one year is not practicable. In proposing this amendment I am motivated by a desire to be practical.

Mr. Ryan: I accept that the Minister proposes this amendment in good faith. I have every sympathy with him that it took 12 months for the Bill to be passed by the other House. Perhaps he should speak to the Leader of this House who wanted to have the Bill dealt with in one sitting day.

Ms Ormonde: That is not true.

Mr. Costello: We would have had half an hour tomorrow morning for Report Stage.

Mr. Martin: The Bill was not being debated for 12 months. The entire process of drafting the Bill and arranging parliamentary time took that length of time. The large number of regulations resulting from the Bill will also have to be processed by the parliamentary draftsman's office. This takes time.

Mr. Ryan: The workings of parliamentary draftspeople is a mystery to those of us who have never been in Government. I would have thought that the parliamentary draftsman would have noticed the number of orders needed when the Bill was being drafted and would have advised accordingly. I am surprised by the extension of the implementation time from one to three years at this late stage. What has arisen since the Bill left the other House to cause this dramatic change in the estimated time for the implementation of the Bill?

I am very wary of Bills whose full implementation is not guaranteed in the lifetime of one Government. I have watched the Refugee Act languish after a change of Government and become unworkable. I am surprised that we may now see the implementation of this Bill drag on into the period of office of the next Government. The Minister believes that he or someone from his party will be Minister for Education and Science after the next election. Nevertheless, I would like to know what happened in the last week to cause this change.

Mr. Martin: We were too ambitious and we then thought about the difficulties.

[343] Mr. Ryan: Why did a competent Minister with an efficient Department only discover that in the last fortnight? We are dealing the first section of the Bill. The Minister must have thought about this matter before now.

Mr. Cregan: I am pleased to welcome the Minister to the House because I believe I was one of the first to recognise his abilities in the City Hall in Cork. He is doing a fine job. He deserves great credit and I wish him well.

If somebody wants to push this Bill through the House it is imperative that the Minister is not seen to make a mistake because the Bill must work. I am the only person present who is not a teacher. I am also the only person who did not get the primary certificate. Therefore, I would have a different opinion to Members but I can understand what the Minister is trying to do.

The Minister may be prepared to compromise. It would be better if the final Stages of this Bill were taken in this House. I also recommend a compromise of two years.

I understand the problems the Minister has dealing with teachers. I know how they work and how they can monopolise things, particularly during general elections. We should not be negative about this because the time has increased from six months to three years. I am on the Opposition benches but I understand what the Minister said. Can we accept two years and get on with the Bill?

Mr. Martin: I am prepared to accept an amendment which states two years.

Government amendment No. 1 to Government amendment No. 1:

To delete “three” and substitute “two”.

Acting Chairman: Is the amendment to the amendment agreed?

Mr. Costello: Before we agree I wish to refer to what the Minister said. I have looked at the areas where he said he might encounter difficulties which were the NCCA, boards of management and appeals mechanism. With regard the NCCA I cannot see where the Minister would not get that through in the morning. Section 40(1) states:

“… the Minister following consultation with patrons, national associations of parents, recognised school management organisations, recognised trade unions and staff associations representing teachers…”

This has been done already on a non-statutory basis. I am unsure where the new bodies that have to be consulted are mentioned. I have not heard of anyone being opposed to the NCCA and this provision should not take any more than a few days.

Boards of management are already covered. The Bill provides that “it shall be the duty of a [344] patron, where practicable, that a board of management will be established”.

Mr. Martin: We are mostly dealing in terms of implementation with second level boards of management. We have voluntary secondary, vocational colleges, community colleges, lay voluntary secondary schools and Church of Ireland secondary schools, all of which have different management models. We envisage we will need almost different discussion procedures with the various sectors at second level. This will take time. It will not happen overnight and some cases will be more difficult than others. We think the major sectors will come on board and will be able to implement this Bill. If we had, for example, six months to reach agreement with the bodies they, in turn, would have to go to their constituencies. They would have to deal with the parents' associations in each of those schools to make sure they have annual general meetings to elect their representatives on to the board, etc.

At the moment some schools have boards of managements but others do not. Many issues still have to be teased out. At primary level it took a full two years before agreement was reached and a further couple of months for that agreement to be implemented. We had to advertise in the media advising parents that they should belong to a parents association and that they had a right to have an annual general meeting and to nominate two members. Members may take a lot of that for granted. When a Bill is enacted it becomes law and it has to be procedurally correct. This takes time.

Mr. Costello: I understood that a great deal of that work had been done. The Minister confirmed that discussions had taken place over a long period but there is no guarantee that a board will be established after three years. It is an open ended section. I presume that is why the Minister inserted “where practicable” in relation to the establishment of a board. It only states “it shall be the duty of a patron”. It would be better to insert “to appoint where practicable a board of management”. By inserting six months, two years or three years we still do not have a guarantee that there will be a board of management in every school because the out clause has already been inserted. The Minister will be working hard to get as many boards of management as possible up and running but the legislation provides a mechanism in the event that there is no board established.

I would not like to see school owners or patrons never reaching a decision on the setting up of a board of management. This legislation already deals with this issue and a period of two or three years will not have any effect.

I know the Minister is operating from the best of intentions but if we consider it on the basis of a two year maximum period, then we should have an annual review mechanism. I also hope it will [345] be dealt with during the Minister's term of office.

Mr. McDonagh: I thank the Minister for agreeing to the Fine Gael suggestion which was mooted by myself and Senator Cregan. It is a reasonable amendment and I hope this legislation will be implemented within two years.

Mr. Costello: Can we adhere to what we have already agreed to?

Mr. Martin: Will we be dealing with Report Stage in the Seanad?

Acting Chairman: Yes.

Mr. Martin: We will have an opportunity to put down an amendment and deal with the review mechanism that Senator Costello is anxious that we include.

Government amendment No. 1 to Government amendment No. 1 put and agreed to.

Amendment, as amended, agreed to.

Amendment No. 2 not moved.

Section 1, as amended, agreed to.

SECTION 2.

Acting Chairman: Amendments Nos. 3 and 8 are related and they may be discussed together.

Mr. Costello: I move amendment No. 3:

In page 6, lines 15 and 16, to delete “, other than a school or a place providing university or other third level education,”.

This amendment provides for a centre for education. Under amendment No. 8 the words “a school” is deleted and substituted by “an establishment”. In the section it says that “school means a school. …”. Of course a school means a school and a house means a house but if a “centre for education” means a place where certain things happen, then we can say “a school” means “a place” or “an establishment”. Purely on the issue of propriety of language the word “school” should be changed to “an establishment” or “a place”.

In the Bill “a centre for education” is defined as a place “where adult or continuing education or vocational education or training is provided and which is designated for that purpose under section 10(4)”. Why do we need “other than a school or a place providing university or other third level education”? Why could it not be a school or a place which provides other third level education, perhaps university education? Should they be mutually exclusive? Any place the Minister designates should be capable of becoming an education centre. Why do we need to exclude certain areas? For example, many of the VEC colleges [346] are centres for education and they are almost designated as such — for example Ballyfermot senior college — it would have started off as a second level institution and there are many similar institutions, such as that in Inchicore. Coláiste Dhúlaigh would be a mixture of second level and further education. Is there any need to exclude certain premises which might provide a centre of education of a vocational or continuing education nature?

I presume with the Green and White Papers on adult education, the Minister will proactively seek centres to designate for this purpose if the amount of emphasis indicated by his Minister of State this morning is to be placed on this sector. It may well be that some of these centres could be existing community schools or colleges, or second level schools such as Coláiste Chonghaile in Dublin's north inner city, which will shortly be amalgamated with another school and which will have suitable premises. Such a centre for education could be in the saolscoil proposed for the docklands to where the National College of Industrial Relations is relocating. A new integrated approach to education is proposed there which would entail a centre for education similar to that suggested in the Bill offering an ongoing level of education rather than just third level education.

Our education system is tiered. Why should provision not be made on any premises capable of being designated a centre for education for a multiplicity of tiers of education, be they pre-school, primary, post-primary or adult education? If we are to define a centre for adult, continuing or vocational education or training, it should not exclude other premises or types of education which might be pursued in that premises.

Mr. McDonagh: There is a great deal of merit in what Senator Costello said. He has thought it out well. The Green Paper on adult education will be published shortly. The idea of a centre for education is more appropriate than ever before because there are many opportunities now. For example, in my capacity as an adult education organiser, I have seen the National University of Ireland, Maynooth, run diploma courses in local history in the Lackan Heritage Museum and Centre in County Galway. The word “centre” is very appropriate. We have discussed distance learning, broadening of education and adult education. What Senator Costello said makes sense and I appeal to the Minister to respond positively to his suggestion.

Mr. Martin: Amendment No. 3 deletes the words “other than a school or a place providing university or other third level education”. The Universities Act was passed last year. If we were to delete that phrase, the universities or other third level colleges could come within the legal remit of this Bill. That is not the intention because the Bill deals substantively with primary and second level schools. The term “centre for education” covers places or establishments outside [347] universities or third level institutions, centres where adult education exclusively takes place or colleges of further education which no longer offer second level programmes. We cannot delete the wording as suggested by the amendment because a separate body of legislation has been enacted after a long consultation period involving all the interests. Various Acts have also been enacted for institutes of technology. Furthermore, we will shortly publish the National Qualifications Authority Bill which will deal with the full spectrum of qualifications and awards beyond post-primary level. It will be specific in terms of qualifications in adult, continuing and third level education from colleges of further education and from all other bodies providing training qualifications, such as CERT and Teagasc.

The Green Paper on adult education published today is a comprehensive discussion paper on adult education. It would not be possible to embrace all which that entails within the Bill. We intend to produce a White Paper following a period of discussion on the Green Paper which will lead to decisions. Most of the sentiments expressed by Senator Costello can be dealt with in the context of other legislation and also in the context of Government decisions in relation to adult and continuing education and the allocation of resources to that, which is always the key issue.

I have no great difficulty with amendment No. 8 and am prepared to accept it.

Ms Ormonde: There is little to say on this matter because the Bill states that a centre for education means “a place, other than a school or a place providing university or other third level education”. To me, there is no discussion; I am very clear on it.

Mr. Ryan: When I first read Senator Costello's amendment I did not agree with it. Then I thought about the purpose of the section. I am confused as to the legal definition of “third level education”. If the Minister had said a university as defined by the Universities Act or a regional technical college or institute of technology as defined by the appropriate legislation, I would have understood exactly what he meant because they are covered by separate legislation. However, there are centres for education, schools and colleges, which cover the whole spectrum of education, particularly post-leaving certificate courses which, while so called, do not all have the leaving certificate as an admission requirement. Are the colleges which provide adult or continuing or vocational education or training and also some third level education, for example, PLC courses——

Mr. Martin: The State does not recognise any third level provision in any colleges of further education.

[348] Mr. Ryan: Except that it provides grants for people as if they were in third level education.

Mr. Martin: We have a specific PLC grants scheme which is similar to the higher education grants scheme in terms of income thresholds and maintenance rates, but it is a separate scheme for post-leaving certificate students. The definition section also covers Youthreach centres, for example. In the context of the Green Paper, we hope to develop what we are calling “multiplexes”, which would have a range of training and education provisions for out of school situations. For example, a multiplex could be developed in an area which does not have a great degree of added provision and it could cater for Youthreach, adult education and some element of training. It could even embrace FÁS as well as education inputs. The section is a definition section so some phrase is needed to define activity outside bodies defined within the Universities Act and the Regional Technical Colleges Act. That is what this definition endeavours to do. It is as simple as that.

Mr. Ryan: Is third level education defined somewhere in law?

Mr. Martin: No, just the bodies for which the State provides. We have defined what we mean by institutes of technology and other third level institutions.

Mr. Ryan: It will come as a surprise to many people to discover post-leaving certificate courses are not third level.

Mr. Martin: Lobby groups argue that they should be accepted as such but they are classed as post-leaving certificate courses. Different names are used for the institutions which offer them, such as colleges of further education, but the certification comes under the NCVA structure; they are not classed as third level.

Mr. Costello: That is not entirely satisfactory.

There are a number of PLC courses which lead and are stepping stones to degrees. Within the City of Dublin VEC they are pathways to degrees and there is accreditation from other universities in Britain and elsewhere. There is a movement towards this pathway system so they are in fact steps on the ladder of third level education and I do not think the Minister can simply exclude it, as such.

I understand the point he is making — that the centres for education we are dealing with here are separate from the university and Dublin Institute of Technology provision. However, this definition does not say that. It says it means a place other than a school or place providing university education. Why can the same place or campus not provide varying degrees of third level education, including continuing education and training? It would be better to say that what the Minister wants from [349] centres for education is a place where adult, continuing vocational education or training is provided, and forget the reference to university and the Dublin Institute of Technology.

In addition, one is talking about premises, a place or school where it is happening. As I mentioned earlier, we are trying to move towards the saolscoil, which is now attempting a holistic approach towards education on its campus. The National College for Industrial Relations in Milltown has made proposals to the Dublin Docklands Development Authority to set up a £21 million development on a site identified in the new authority's area.

Mr. Martin: Yes.

Mr. Costello: The NCIR will be approaching the Minister for £7 million and will be putting £40 million of its own money, from fund raising, into the project. It will provide a third level institution along with further education, including vocational training and PLCs. It will link up with secondary, primary and pre-school levels. It will try to provide its own model. It could provide university education as well as the type of education the Minister envisages for centres for education. The Dublin Institute of Technology, which will be relocating to the Grangegorman site, could very well provide the flexible type of courses that are now being provided by the vocational education committees. There will be space on the campus for such courses. I do not see why the existing VEC colleges that provide PLCs, which are effectively part and parcel of a holistic third level educational system, cannot do so.

Mr. Martin: They are not.

Mr. Costello: They are and I will tell the Minister why. Accreditation has been given to them from many universities abroad so that they can continue their studies. For example, the work that is being done in Ballyfermot senior college is now accredited for university and degree purposes and a number of people have been conferred with degrees arising out of the work they have done.

The simplest thing for the Minister to do is to define “centre for education” without reference to universities or other third level education, and simply say it is a place where adult, continuing education and vocational training takes place.

Mr. Martin: I would not be prepared to take out the term “university”. We have to be very careful that we do not go down the road where everybody thinks they can be everything. The National Qualifications Authority Bill will be a key Bill in that regard. At third level, for example, I believe in the retention of the binary system. I do not think that all institutes of technology should become, or aspire to become, universities overnight. They have a particular function which they undertake very well. They should be proud of that and should certainly advance. A [350] number of PLC colleges have done extremely well and have achieved excellence in niche areas, such as film animation at Ballyfermot. However, the vast bulk of PLCs are either at NCVA levels 1 or 2. The key issue is to provide for pathways of progression within legislation on to third level and in institutes of technology. We do not want PLCs to take over the work that institutes of technology are doing already. In fact, we should be trying to reduce the degree of duplication that takes place.

The School Attendance Bill will be coming on stream, but the key issue on the agenda is the National Qualifications Authority Bill which will deal with many of the issues to which Senator Costello referred. The Bill before the House is substantively about primary, secondary and other centres of education that are non-university and non-institute of technology based. That is basically what we are saying in the context of this Bill.

In terms of definitions in the section, it would be wrong to change that phrase simply to try and reflect on a major new scenario that Senator Costello envisages developing. The new college in the inner city proposed by the NCIR will not be a primary or secondary school. As part of its terms of reference, however, it may endeavour to provide certain education programmes that would facilitate second chance students — people who never got a chance the first time around. It may facilitate parents returning to education and a range of programmes like that, which a number of third level institutions are beginning to provide. However, that is covered by legislation which is already in place for third level colleges.

There is nothing stopping any third level college, be it an institute of technology or a university, from adopting and implementing programmes that would link it into second level schools in areas of disadvantage to encourage higher participation in third level education. There is absolutely nothing stopping any university from developing a particular interest in early education and providing link ups and research bases to primary schools. They are not doing it to any great degree, but nothing is stopping them from doing so. In fact, UCC was the first university to provide a BA course in early childhood studies because one or two people on the campus had a particular interest in that area. Dublin Institute of Technology has also developed very good programmes on early education. Many people involved in early education use that programme as a resource for their own work in society.

I do not think we need to get hung up about it in the context of definitions in this particular Bill. I have much sympathy with what the Senator is saying but we must be careful. One of the situations I inherited upon taking office was that many sectors and institutions had, in my opinion, ambitions that were miscued in some respects. We must always be mindful of the core mission of certain sectors of education and of our education system generally. We must facilitate growth and [351] development, but we must not lose sight of the fact that we are there to serve learners who have different needs. Some sectors can serve the needs of certain learners better than others. If we dilute the core mission of many of our sectors and institutions, we will dilute the quality of education overall.

Mr. L. Fitzgerald: The progress that has been made in providing adult and continuing education by a number of second level schools, including the VEC sector, is very commendable. There are no barriers to facilitating their further expansion and development towards full third level education. Nevertheless, I fully agree with the Minister that it is equally important to recognise each sector that is being served and what it is trying to attain. While there is much merit in what Senator Costello says, to follow his approach completely would significantly blur the current and future boundaries of certain areas of excellence. That may sound elitist, but it is not. Every area of education needs to promote its own objectives of excellence, whether it is at primary, secondary, PLC, institute of technology or university level.

It is equally important for each sector to be able to identify targets and seek to attain its level of excellence. What Senator Costello is proposing could have an impact in blurring those edges and we could lose sight of many of the goals that are legitimately being sought.

Mr. Ryan: The Minister is waving temptation in front of me at an enormous rate with some of the things he said.

Mr. Martin: I thought I was.

Mr. Ryan: It is a great pity that the Department of Education and Science still insists on defining university education as the pinnacle of education, essentially allowing universities to define everything else. Essentially they do so. They are the arbiters of everything and they are consulted about everything. The report on the forum on education established by the previous Minister, for example, was written exclusively by university academics. This happens all the time.

It is not so much that institutions which are not universities want to be university institutions, but that anybody who works in these institutions is aware that every student in every sector of third level education ultimately wants to get a degree. They do not believe any other qualification will ultimately be as significant. The universities have created a mystique about degrees which enables them to get away with extraordinary things, such as teaching students in a cinema in the mornings because classes had to be cancelled for the week of the Cork Film Festival when the cinema was in use. If an institute of technology did such a thing, public representatives, legitimately, would kick up murder. However, universities can get away with it.

[352] I wish the Minister had defined third level education as education provided by certain sectors. Then there would be no problem. Apart from that, he should instill into the thinking of his Department a perception of equality — which I believe the Minister has — about the different sectors in education. The Department is about 20 years out of date in terms of its perception of the relative roles of the sectors and does not yet understand what equality means in this context.

Mr. Martin: I must reject that.

Mr. Ryan: Of course the Minister must.

Mr. Martin: The spirit in the Department is far different and is very much what the Senator articulated, not in terms of universities, but in terms of education being an extremely broad canvas. Our focus in formulating policy is directed at giving that sector of the population which has not to date had access to education better opportunities of access. That is our objective.

The problem in this case is that the Universities Act has been passed. The title of the Bill clearly outlines the areas to be covered. We could not define all other sectors because the Attorney General would not permit it. This Bill relates to general education at primary and second levels and to adult and continuing education and vocational education and training. These are the sectors defined in the Bill.

Mr. Ryan: I agree the Bill is not about universities. However, I wish to raise one issue related to the Department and its perceptions, the National Board for Science, Technology and Innovation, which I mentioned on Second Stage. Not one person on that board works in the non-university sector of education. All ten are from the university sector. There is supposed to be a sector of third level education, equal to the universities, which deals with science and technology, but not one member from that sector is on the national board which advises the Government on policy in this area. However, according to the Minister, the Department views that sector as equal to the universities in terms of status and prestige. That is not true.

Mr. Martin: I did not appoint that board.

Mr. Costello: I put down the amendment to clarify the situation, but I am still not clear about it. The Minister spoke about the distinction between universities and further education. I have no problem with the Minister making that distinction although, ideologically, I have a problem with the distinction itself.

We are discussing a centre where this type of education will take place. The Minister has chosen to exclude two types of premises — one where a university provides education and the other where any other third level education is provided. There is no reference to pre-school or [353] primary schools, which are other premises where education is provided.

There should be a more integrated approach to education. The Minister can designate a place to be a centre for education under section 10(4). He might decide to designate such a centre on a university campus where university education is provided. He could also decide to designate one on a regional technical college campus. We do not know what the demands on the new legislation might be.

I do not understand why it is necessary to include a definition which excludes two sets of premises. Why not exclude primary school premises? The Minister might designate a primary school premises as a centre for a certain type of education. I am not happy with the language in this section. We are discussing the designation of a premises as a centre of education. That is defined as a place “where adult or continuing education or vocational education or training” takes place. It is the premises that will be designated, not the university or other third level centre.

If a premises can be secured on a campus, the university can provide the two types of education side by side. We are not interfering with the delivery of education by the university or with its accreditation. We are simply discussing the designation of centres.

Mr. Martin: I do not know why the Senator is exercised about this. Universities are autonomous under the Universities Act. That Act was passed by both Houses and it confers a certain degree of autonomy on the universities. No Minister could force a centre of education into any university. However, there is nothing in the universities legislation which prohibits universities from engaging in a range of new education programmes and developments. Likewise, there is nothing in the Regional Technical Colleges Act to prohibit innovation or development in those colleges.

We are not excluding anything; we are putting in place a definition which allows the Minister to define certain activities in Irish education which fall outside the university and regional technical college definitions.

Question: “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

An Leas-Chathaoirleach: Amendments Nos. 4 and 5 are related and may be discussed together.

Mr. Costello: I move amendment No. 4:

In page 6, line 27, paragraph (b), to delete “chronic”.

The Bill's definition of disability is good. However, under paragraph (b), disability is defined as the “presence in the body of organisms causing, or likely to cause, chronic disease or illness”. [354] The use of the word “chronic” is questionable. Surely there is a disability if there is a disease or illness caused by the presence of organisms. The danger is that the debate on whether the disease is a disability would focus on the word “chronic” rather than the illness or disease. The word should be deleted. It is extremely difficult to determine what is and is not chronic and what would be a disability by using that term.

Under paragraph (e), disability means a “condition, illness or disease which affects a person's thought processes. …”. “Affects” is a neutral word in that it might yield a good or bad result. Amendment No. 5 proposes the insertion of the word “adversely” between “which” and “affects”. The condition is not a disability unless there is an adverse effect which causes damage or harm. One could have a condition which heightens or increases perception or thought processes. The condition should adversely affect if it is to be a disability.

Mr. L. Fitzgerald: If the word “chronic” is deleted from paragraph (b) it will read “the presence in the body of organisms causing, or likely to cause, disease. …”. I am not familiar with the dictionary definition of the term “disease” but, if the amendment is accepted, diseases, even those of a temporary, passing or short-term nature, will have to be included in the interpretation.

Mr. Ryan: I agree with Senator Fitzgerald. The majority of people carry organisms in their bodies which can cause disease but to which we have built up resistance. For example, a large number of people carry the organisms which cause meningitis but most of them are fortunate enough not to contract the disease.

I have no intention of poking fun at serious matters but I disagree with the implication that only adverse effects represent disturbances. Anyone who suffers from manic depression can have a heightened perception of reality which others do not believe to be real. Therefore, I am not satisfied with the term “adversely” because it could be misinterpreted. On this occasion I do not agree with Senator Costello.

Mr. Martin: I do not propose to accept the amendments because our use of the term “chronic” is extremely important. The definition in paragraph (b) was inserted following comprehensive consultations with the various bodies which deal with disabilities. In addition, it is similar to the definition of “disability” used in the equal status legislation. Therefore, the wording used has been the subject of a great deal of examination. It must be remembered that professionals will be charged with assessing whether a condition is chronic.

Senator Ryan's point about the term “adversely” is valid because people can be affected in different ways by various ailments. In any event it is not necessary. The parliamentary draftsman has assured me that our definition will [355] deal with situations where people have been adversely affected by any condition or disease.

Mr. Costello: Does the term “chronic” apply to both disease and illness or does it apply to disease only?

Mr. Martin: It applies to both.

Mr. Costello: So the paragraph should read “chronic disease or chronic illness”?

Mr. Martin: That would be tautology.

Mr. Costello: I do not believe it would.

Mr. Martin: With the permission of the House I will return to this matter later. A similar debate occurred in the Lower House in respect of another section.

Mr. Costello: Use of the term “or illness” seems to suggest that such illnesses are not deemed chronic. If “and” was used, the phrase “chronic” would apply to the terms “disease” and “illness”.

Amendment, by leave, withdrawn.

Amendment No. 5 not moved.

An Leas-Chathaoirleach: Amendments Nos. 6, 14, 17, 22, 24, 30, 41, 45, 70 to 75, inclusive, and 95 are related and may be discussed together by agreement. Is that agreed? Agreed.

Mr. Costello: I move amendment No. 6:

In page 6, between lines 35 and 36, to insert the following definition:

“educational disadvantage” has the meaning assigned by section 32(9);

This amendment involves the insertion of the definition of educational disadvantage assigned by section 32(9). I consider this to be one of the most important amendments in my name. I am disappointed that the legislation does not appear to adequately address the problem of educational disadvantage. Section 32 (9) states that “In this section ‘educational disadvantage’ means the impediments to education arising from social or economic disadvantage which prevent students from deriving appropriate benefit from education in schools.”. I propose to include the term “cultural” so that the subsection will read “social, cultural or economic disadvantage”.

As stated on Second Stage, I am not pleased that the problem of educational disadvantage is being consigned to a subsection of one of the sections of the Bill which caters for miscellaneous matters. I propose that a section be devoted to addressing this problem which will confer on it the relevant degree of status and importance. The remainder of the Bill involves placing a statutory imprimatur on existing elements of the education [356] system which function effectively, whether these be boards of management, the inspectorate, the patron system or the National Council for Curriculum Assessment. However, there is no structure or mechanism in place to deal with educational disadvantage. For this reason, I am disappointed that the Minister's only proposal in this area involves the establishment of an educational disadvantage committee. I acknowledge that this represents an improvement on the current situation but I would have thought that a Bill of this nature would address the question of educational disadvantage in a holistic, integrated and structured fashion. However, that is not the case.

We have been informed that a committee on educational disadvantage will be established and provided with details of its work, its membership, etc. However, we do not know what will happen in terms of the recommendations because there is no obligation on the Minister to act on them. One of the amendments discussed with amendment No. 6 proposes that he should be obliged to act on those recommendations.

At present, approximately 20 per cent of young people do not obtain the full benefits of their second level education because they do not sit the leaving certificate. There has been much discussion about the number of people who fall through gaps in the education system. ASTI carried out a great deal of research in this area — which it recently published in its document “Issues in Education” — which shows that only 47 per cent of people aged between 26 and 54 have completed second level education and that it would take until the year 2015 for us to reach the attainment levels which obtain not only in European Union countries but also in the OECD countries.

There is a high level of educational disadvantage in Ireland. Unless we put in place the legislation structures or mechanisms to deal with this problem I fear that we will have missed an important and significant opportunity to address the gravest problem faced by the education system. People always refer to the need to have a good education system. I accept that we have such a system but it is only good for those within it. The system is not designed to prevent those who are vulnerable for social and economic reasons from dropping out of it or to encourage them to return.

The Minister and I agree on a large proportion of these matters. However, we differ in terms of the fact that I believe that the Bill could have been more proactive in providing a mechanism to address the problem of educational disadvantage. While I acknowledge that this essentially is a consolidation Bill, nevertheless, this is an area where vision could have been shown and where the Minister could have led from the front by providing a section outlining a programme to deal with educational disadvantage.

I suggest that the plethora of amendments I tabled in respect of the section should be incorporated into the legislation because they would [357] strengthen it. This could be done in much the same way that the Minister incorporated provisions relating to students with special needs. Provisions of that nature were an excellent leavening of the Education Bill. The Bill would benefit from a similar leavening as regards provisions dealing with educational disadvantage.

Mr. L. Fitzgerald: I disagree with Senator Costello. This is an area of which a number of us have experience and we have drawn a number of conclusions over the years. One of the most important of these is that areas such as this need definite foci. A separate focus is strongly needed in the case of disability and educational disadvantage.

It is my understanding that Senator Costello is proposing that disability, as we traditionally and historically understand the term and as defined and outlined by the Minister, and educational disadvantage, as both defined in section 32(9), should be coalesced. If that is what he is suggesting, it is the wrong road to go down.

Mr. Costello: Before the Senator goes down that road, I am not suggesting they should be coalesced. I am suggesting that while the Minister has focused very well on special needs and disability, there should be a similar focus on educational disadvantage.

Mr. L. Fitzgerald: The Bill deals comprehensively with special needs.

Mr. Costello: We acknowledge that.

Mr. L. Fitzgerald: Every aspect of the Bill which legislates for provisions, boards, access to schools, refusals, etc., deals with special needs holistically. Equally, the question of disability is addressed fully and forcefully in the Bill. I stand corrected as regards what Senator Costello said. However, my understanding was that his aim was that the two areas should have a single focus. I am strongly opposed to that. There are two distinct areas of expertise which must be focused on. Case studies done not only in Ireland but in the US and Europe indicate that when it comes to educational disadvantage, the multi-disciplinary expertise needed is quite distinct from the focus needed for dealing with disabilities or special needs.

Mr. Martin: I thank Senator Costello for putting down these amendments. I will deal with them comprehensively first and then I will go through them individually. I am happy to inform the Senator that I will accept his amendment No. 6 which provides for a definition of educational disadvantage to be included in section 2. It is already included in another section but the Senator wanted it included in section 2. Since the definition is clear enough, I do not propose to accept amendment No. 74.

The Government is very committed to tackling the problems of educational disadvantage which [358] is why in this Bill, as opposed to the Education (No. 1) Bill, we have provided for the establishment of a disadvantage committee. I see a proactive role for this committee in terms of the realistic assessment of existing policy, engaging in research and providing insights and recommendations to the Minister of the day in terms of new strategies to counteract disadvantage. In addition, the Bill provides that half of the members of the committee will be nominees from voluntary or other bodies working in the field. This ensures that one cannot simply appoint a committee comprising Government supporters irrespective of who is in Government. We want this body to be effective.

We have taken a number of initiatives on educational disadvantage. Legislation on its own will never deal effectively with the issue. It will always come down to resources and the Government must be prepared to spend money on educational disadvantage. We have developed an eight to 15 year old pilot project where we want to establish models of best practice in terms of identifying children at risk and then intervening. We have also signalled that we will be bringing forward the Education (School Attendance) Bill; perhaps educational welfare legislation is a better title than the old one. The Government has endorsed the heads of that Bill and it is currently being drafted. This will have significant implications for early school leaving and educational disadvantage.

I am not predisposed to accepting amendment No. 14 which proposes to include in the list of support services children who are educationally disadvantaged on the grounds that support services will obviously be available to children who are educationally disadvantaged. However, we do not want to limit the support services structure or the section in the Bill to children with educational disadvantage. They will be entitled to such support services like other children.

In a number of his amendments, Senator Costello wishes to include references to children with educational disadvantage. In the Bill we have divined educational disadvantage as applying to children who, because of social and economic disadvantage, are educationally disadvantaged. We need to keep a separate focus in terms of children with educational disadvantage as opposed to those with special needs. If we can keep the focus on children with special needs separate we will make more progress with them. I have strong views on this and the Bill has been significantly strengthened as it has gone through the House in terms of children with special needs. If the educational disadvantage committee became involved with that, it could dilute one or the other. Children with special needs need to be given a clear focus, which should be exclusive to make sure we get it right so that we improve the services which deliver special needs.

Our progress as a nation has been quite slow in terms of meeting the needs of children with special needs. Anything that does not keep the [359] focus clear would be a regressive step. Children who come from areas where there is unemployment or who are in socio-economic difficulty and experience educational disadvantage will require strategies and approaches that can be quite different to those which children with special needs might require. They may also require different types of intervention. Senator Costello has put down four amendments which would give effect to this and would attach provisions for educational disadvantage to sections dealing with children with special needs and disabilities.

Amendment No. 24 would impose an obligation on all schools to ensure that the needs of children with educational disadvantage are met. The obligation should be on the State as opposed to the school. This arose in terms of special needs. Originally when the Bill was published the obligation was on the school to meet the needs of children with special needs. When we debated that in the other House we accepted an amendment specifying that the Government of the day should have the obligation as the schools cannot do it if they do not have the resources. They cannot do it for children with educational disadvantage either if they do not have the resources. People felt it was unfair on schools, particularly as we know where the schools will be which deal with the vast bulk of children who experience educational disadvantage.

Section 12 provides for additional funding for schools having regard to their level of educational disadvantage. Section 21 provides for school plans to include equality of access to and participation in schools and the measures which schools propose to take to achieve these objectives. These provisions go a considerable distance to meeting the points raised by Senator Costello.

Amendments Nos. 70 to 75 relate to the educational disadvantage committee. As regards amendments Nos. 70 and 71 which relate to the establishment of structures, I am happy that the committee established by section 32, which also provides for the funding and staffing of the committee, will provide a sufficient structure for the present. It allows for the structure to be improved as time goes on.

Amendment No. 72 seeks to delete all references to resources. However, as the Senator knows, that is a standard part of legislation. Any disadvantage committee should have regard to resources. I would not like a disadvantage committee to look for the sun, moon and stars, knowing that no Minister is in a position to provide that. Many bodies like to do that. I would prefer an advisory committee that would not pennypinch, but that would have a realistic regard for what is possible in any one year. Very often that type of committee has a far better impact on policy. Those who keep looking for the icing on the cake type of solution are often discarded as their demands are not seen as realistic. People ask why they seek £400 million worth of expenditure in one budget when they know it will not be allocated? [360] That approach can reduce the credibility of the advice tendered. Those who advise Government should have regard to available resources.

Amendment No. 75 seeks to impose an obligation on the Minister to respond to any report of the disadvantage committee within a month and that he or she should receive a written reply in return. I oppose putting that obligation on a Minister. We cannot put in place a committee which would require a Minister to put in place ideas no matter how ridiculous they might be. The advisory committee should work in consensus with Ministers to seek to improve and to change policy for the better to cater for children with educational disadvantage. There should not be conflict. If it ends up as such, it will not be effective and will not lead to real change.

Mr. Ryan: I do not want to rain too much on the Minister's parade because I accept his commitment to educational disadvantage. The impediment to education arises from social and economic disadvantage. We will have economic disadvantage for as long as we tolerate the worst level of income inequality in the OECD. We have the most uneven income distribution in the entire OECD. The share of income that accrues to the top 10 per cent of people relative to that which accrues to the lower 10 per cent is greater by a factor of four and a half. This is worse than in the United States and the United Kingdom and spectacularly worse than in most civilised countries in Northern Europe which have low levels of disadvantage among children. The reason 28 per cent of children live in poverty is that their parents are victims of income inequality in this State. Not only must the Minister for Education and Science provide for this in legislation — which is probably the easier job — but he must persuade the Minister for Finance that there is an issue of income inequality. The Minister for Finance does not recognise that income inequality is a problem, not to mention that it needs a solution. This is how the Minister can begin to solve the problem of educational disadvantage.

On special needs, the Minister's argument about not confusing the issue is plausible. However, special educational needs as defined in the Bill is peculiar because it states “the educational needs of students who have a disability”, which is what most people think it means. It goes on to state “and the educational needs of exceptionally able students”. I have no argument with the introduction of recognition for the educational needs of exceptionally able students. I am sure the Minister was at a disadvantage in primary school because he was not recognised for his exceptional abilities. He made a point about mixing disadvantage with special needs. The same problem will arise by confusing children who have special needs because of disabilities with children who have special needs because of [361] exceptional ability. The Minister made a convincing case for separating those two issues.

Mr. Martin: The term “exceptionally able” refers to the society for gifted children. It is a paradox, but the gift of being gifted can almost be a disability in the classroom. There have been heartbreaking examples of children who were far ahead of their contemporaries and peers and who were being disruptive and not catered for. The legislation endeavours to give recognition to these children so that the schools and the Department will reflect this in their policies. There was the case of a child who was in third class in terms of age, was ready to go into first year at second level and who spent the last three years in sixth class and watched friends go on to secondary school. Perhaps this could be included in a separate line in the Bill, but we want to give some recognition to it. The numbers are not very high, but I do not think it dilutes the focus on children with special needs.

Ms Ormonde: I agree with the Minister that special needs and educational disadvantage are two clear-cut areas. The definition of special needs is already on the record of the House. I commend the Minister's proposals to set up the educational disadvantage committee in consultation with patrons, teachers' representatives, parents and student bodies to reflect policies as to how best to correct educational disadvantage. The Joint Oireachtas Committee on Education and Science has received many submissions on educational disadvantage and we are preparing a report for the Minister. The Minister has put a lot of work into setting up this consultation committee to see how we can best move forward. I do not know how we can correct this if we integrate special needs and educational disadvantage.

Mr. Costello: I want to dispel the notion that there is any attempt to integrate special needs and educational disadvantage. That is not the intention in any of my amendments. Because the Minister has introduced a provision in relation to special needs in various sections of the Bill I am suggesting that on a similar and parallel basis there should be provision for educational disadvantage. My complaint is that there is not a broad provision for this throughout the Bill.

The Minister said it is not proper to put the onus on the school to deal with educational disadvantage. If it will not be dealt with in the school, where will it be dealt with? I did not put the onus on the school; I put the onus on the school, the Minister, the board of management and the inspectorate. These provisions are divided throughout the Bill in the same way as the provisions on special education. The two are totally different. First, the objective of the legislation must be to put the onus on all the responsible bodies and partners. Each of the other sectors responsible for implementation of this legislation [362] is also responsible for providing an educational service to deal with the educationally disadvantaged. The responsibility is spread. If the Minister goes through it carefully, he will see all those major sectors — the boards of management, the inspectorate, the Minister and NCCA — have responsibility.

A committee is insufficient. Structures, support services and support mechanisms must be provided and resources must be spent. Section 32(6) states:

In preparing a statement as provided for in subsection (5), the educational disadvantage committee shall have regard to—

(a) the resources, including the financial resources available,

I would prefer if that provision was not there. I know the Minister always makes reference to resources but we are attempting to do something special in this area. This caveat should not exist. The subsection could have been omitted so that we know it will be done anyway and a special provision against it is not in the section.

Finally, I want the Minister to act on recommendations from the educational disadvantage committee and respond within a specified time. I suggested one month but that is not necessary. It was simply a suggestion to give direction to the Minister's thinking.

There is no implementation time or mechanism. No structure is being proposed. Members sit on the committee for three years before they are reappointed or resign. The Minister could receive many reports from the committee and that would be it. The legislation is inadequate in that respect. The issue of educational disadvantage should permeate this legislation and the structures required to deal with it should be accepted. There should be a commitment and a timescale for the Minister to respond to provisions.

While the Minister has agreed to accept amendment No. 6, the substance of my proposals has not been accepted. If it is not accepted the legislation will be defective. I could have proposed that the Minister restore an element of county boards as a mechanism for delivering it. Like the Minister, I was not in favour of regional boards, but I am in favour of a structure which can integrate on a local level. Instead, I attempted to accept the Minister's proposals and spread it across the various units of the legislation responsible for delivery. I would like the Minister to reconsider. Perhaps there could be more special provision for educational disadvantage in the legislation.

Mr. Martin: A Minister is not obliged to respond within a month to the recommendations of advisory bodies which have been established to date, for example the Higher Education Authority, and this is for good reason. There needs to be discussion with the body giving advice about its research and other matters. It would be wrong to place that obligation on it. There are many [363] provisions in the Bill guaranteeing equality of access and participation in schools and placing an obligation on the State and schools in this respect. However the key issue in terms of disadvantage is resources and legislation alone cannot remedy this.

Two other measures will impact on this, one is the school attendance Bill, or as I would call it, the education and welfare Bill which will, for the first time ever, create a nationwide service to deal with the prevention of early school leaving. It will have a preventative philosophy which will lead to the appointment of welfare officers to key areas throughout the country. At present there are only school attendance services for Dublin city, Cork city, Dún Laoghaire and Waterford. It is hard to believe the rest of the country is still serviced by gardaí. That is a key structure in terms of educational disadvantage.

The other key structure is a national educational psychological service. At present we do not have one. We do have an educational psychological service within the Department but many of those psychologists are busy with other work. However, not enough psychologists have been appointed. Before we talk about co-ordination at local level, let us establish the services to co-ordinate. There is no point forming committees to co-ordinate something which is not there.

An educational welfare officer will in time be appointed under the educational welfare board. Approximately 20 psychologists were appointed early this year, and another 15 are to be appointed and more next year. They with the home school liaison service should co-ordinate on educational disadvantage. This committee is a welcome first step. The Bill creates a dynamic and framework for improvement of the situation if it is merited in the future.

Every measure implemented by the Department of Education and Science and every Minister for Education and Science in the future should have a clear focus on educational disadvantage. We currently have this focus. Most of the emphasis is on plugging the gaps in educational and social disadvantage.

Amendment agreed to.

Mr. Costello: I move amendment No. 7:

In page 7, line 7, after “basis” to insert “(which may include Northern Ireland)”.

This amendment relates to a national association of parents and the establishment of its remit. It may be organised on a national basis and membership may be distributed over a substantial part of the State. My amendment adds to that by inserting” “(which may include Northern Ireland)”.

I am proposing this because a major area of primary education and the INTO's remit and membership cover sections of Northern Ireland. Whether a national association of parents covers [364] the whole island depends on one's political position. Nevertheless it is not inappropriate to allow for the extension to Northern Ireland. Provision is made for cross-Border co-operation and structures in the context of the British-Irish Agreement. The Minister spoke eloquently of his desire to extend the education system and services to Northern Ireland as far as possible. There is scope for co-operation and joint enterprise with his colleagues in Britain and Northern Ireland. A major focus of the British-Irish Agreement is to support and promote that as much as possible.

The remit of this legislation obviously only refers to the jurisdiction of the State, nevertheless, a hand of welcome could be extended to give a role on a cross-Border basis to Northern Ireland wherever parents organise State-wide, or over a substantial part of the State, or across Northern Ireland or parts of Northern Ireland, where people would be interested in coming together. We are talking about “a body of persons established by parents with objects which include representing the views and interests of parents with regard to education and assisting parents in exercising their rights and role in the process of the education of their children”. This does not interfere with any particular geographical remit. It is not something which interferes with the jurisdiction of the State. It is parents coming together for the purpose of improving education for their children, etc.

Mr. Martin: This is a testing provision to put before a Fianna Fáil Minister which he must reject. It is premature and it could be provocative to be frank. In addition, it is beyond my jurisdiction. This is the definition section and we are defining the “national association of parents”. The Bill states that it is “established and organised on a national basis” and Senator Costello wants to insert “(which may include Northern Ireland)”.

The national association of parents will be the representative body of all the parents associations in the Republic who are on the boards of management of all the schools within the Republic and who will be discussing with the Minister policies pertaining to those boards of management and schools. It would be inappropriate and wrong — I cannot do it — to extend that definition to parents associations which are outside the legal jurisdiction of the State.

I would much prefer — I know it is happening already — that the associations themselves engage in consultations and discussions with their counterparts in Northern Ireland to develop natural links over time. That is a far better way of doing it and developing an all-Ireland consensus than to pre-empt it via legislation.

We should also be mindful that there are moves afoot in terms of cross-Border bodies which are about to be established. We should allow that to happen. This could be interpreted as a provocative measure by the Legislature in [365] the South. For those reasons I would not recommend it.

Amendment put and declared lost.

Mr. Costello: I move amendment No. 8:

In page 7, line 39, to delete “a school” and substitute “an establishment”.

Amendment agreed to.

Acting Chairman (Mr. R. Kiely): Amendment No. 9; amendments Nos. 10, 11 and 79 are related. Therefore, amendments Nos. 9, 10, 11 and 79 may be discussed together by agreement. Is that agreed? Agreed.

Mr. Costello: I move amendment No. 9:

In page 7, between lines 39 and 40, to insert the following new paragraph:

“(a) provides early childhood education, or”.

I do not understand why the Minister has decided to have this interpretation of “school”. I know he has accepted that school now means an establishment which provides primary education but I cannot understand why he will not give each section of education its due in the definition and why he will not begin by stating that a school means a school which “provides early childhood education” or provides primary education or provides post-primary education or provides courses in continuing and adult education. Why should it be those which provide primary education “and which may also provide early childhood education”? It seems to be suggesting that pre-school education is subservient to primary education as seems to be the case in relation to post-primary education, in other words, two levels of education count, primary education and post-primary education. Anything else is less.

It seems that the Minister could as easily have adopted a more egalitarian approach to the legislation by giving equal place to the various sectors of education where they are provided in the school. I still do not understand why he decided to do it in this manner.

I would also have thought that it would be an appropriate opportunity for him to emphasise clearly that he is now embarking on providing a full blooded pre-school programme of education as he appears to be doing in continuing and adult education with the launch of the Green Paper today. I know he is referring to an education centre to provide that, but these distinctions should have been made. I do not know what the Minister means by “may also provide early childhood education”.

I remind him that pre-school education or early childhood education is not the same as primary education. That is quite clear. In terms of the provision of early childhood education, there is a constitutional guarantee to provide it also. Education is to be provided to a child at the earliest [366] moment at which education is of value to the child. That is primary education but in the Bill primary education is really what we call national primary education. I am arguing for each sector of education to be given its place in the sun. The particular wording which the Minister has presented seems to be stating that one sector of education is subservient or less than the other. That is where my disagreement lies.

Amendment No. 79 reads:

In page 34, subsection (2)(a), lines 5 and 6, to delete “early childhood and primary and post-primary” and substitute all”.

Why not include all education rather than determining it by those sectors?

Mr. McDonagh: I wish to refer to amendment No. 11, where I am asking to have the words “which may” removed. I speak in the context of the launch today of the Green Paper on adult education. I heard Minister O'Dea wax eloquently at the Aontas AGM on Saturday. He spoke about a new torch having been passed to a new generation of education providers and making schools all embracing.

The wording of the Bill leaves a doubt and a type of ad hoc situation. There is an onus on a school to provide courses in adult education. If we are committed to lifelong learning and talk about the Green and White Papers, we should be definitive here.

It is my dream to see schools open not only during the day but at night also. Yesterday in the context of the estimates for my council in Galway I appealed to the county manager, who told us there was about £20,000 more for public lighting, that these lights should be put outside schools and community centres. With the new torch being passed and adult education courses going on here, there and everywhere, there should be proper lighting in rural areas.

There is an onus on schools to provide adult education. I appeal to the Minister to remove the words “which may” and to be definitive and positive in moving forward in the context of the Bill. It is a simple request but it is important in the context of what we are talking about and the type of education at which we are looking as we approach the new millennium.

Mr. L. Fitzgerald: I thought there was a lot of merit in what Senator McDonagh was saying until I realised the core of his argument was based on the introduction of a ministerial diktat. The Senator wants to amend section 2(1)(b) to read “provides post-primary education to its students and also provide courses in adult, continuing or vocational education or vocational training”. As someone with experience of administration in primary and vocational education, I was impressed by the manner in which the vocational education sector promoted and expanded adult and continuing education. It has been a spectacular success in the City of Dublin VEC. Senator Costello [367] is also au fait with this as he is involved at that level.

If the words “which may” are deleted, the Minister will ensure that every second level school must provide “courses in adult, continuing or vocational education or vocational training”. That would be ruling by ministerial diktat which would be contrary to the spirit of consultation and consensus building in the Bill. This amendment must be rejected as being out of character with the Bill. I am sure the Minister would be the first to admit he had failed if he accepted the amendment, given that he introduced this Bill. The Minister should facilitate schools to provide such education and training rather than ruling by ministerial diktat. I have a strong and principled objection to this amendment.

Mr. D. Cregan: I ask the Minister to clarify the definition of “primary education”. Amendment No. 79 seeks to delete “early childhood and primary and post-primary” and substitute “all”. At long last we are discussing the huge problems in primary education compared to other areas of the education system. When does a child start primary education? Is it at two years old?

Mr. Martin: From four to six years old.

Mr. D. Cregan: Why are ages not mentioned in the Bill? Why does it not state that children are entitled under the Constitution to an education from the age of four? I am not saying that childhood education cannot start earlier or that young bright children do not need special training. We are arguing for particular needs for people, whether they are below or above school going age.

Senator McDonagh mentioned adult education and the fact that lights are needed outside schools which are used for this purpose at night. Why does this Bill not concentrate on the primary sector? Why is it being broadened to protect all sectors of education which have done well in comparison to the primary sector? What does the primary sector mean?

Mr. Martin: Approximately half of all four year olds and almost all five year olds enrol in primary schools. If we accept Senator Costello's amendment, we will ringfence early education within the primary school system, which we should not do. Early education is provided by different agencies, including the Department of Education and Science through the Early Start project and a number of pre-school traveller projects which have been in place for over 20 years.

We are going down a different track in terms of early education which is extremely important. I established the National Forum for Early Childhood Education which met in February. It was the first time we got everyone involved in early education together because until then, they were all watching each other and wondering who was [368] getting more and taking precedence over the other.

Early education covers every child from zero to six. I am a great believer in and advocate of early education. The Bill gives the Minister a framework to develop early childhood education. However, before we get to that stage, we must sort out where we are going in terms of early education.

The National Forum for Early Childhood Education produced a report by Professor Coolahan and his independent secretariat, which I published a week ago. It took on board all the submissions made by a variety of organisations at Dublin Castle. Our next move is to produce a White Paper on early education. It would be premature to try to deal with that area by referring to it in terms of the definition of a school or by placing it in the legislation.

A range of issues must be addressed, the most crucial of which is intergovernment co-ordination. Seven Departments are involved in early education, including the Department of Agriculture and Food through the Leader project, the Department of Enterprise, Trade and Employment through FÁS, the Department of Justice, Equality and Law Reform through the equality and law reform unit, the Department of Education and Science through Early Start and the traveller pre-school services and the Department of Health and Children through the health boards which fund IPPA playschools throughout the country in an uneven and unstructured way. The Child Care Act has also created difficulties as it defines child care facilities and pre-schools but excludes primary schools. We need to define the main Department, to create structures to facilitate intergovernment co-ordination and to ensure that Departments do not pass the buck and that there is no duplication.

The Bill facilitates the Department of Education and Science to set up the National Council for Curriculum Assessment which should provide curriculum guidelines for a range of pre-school facilities in the voluntary, private and State sectors. There is no reason that should not happen and the NCCA should not appoint a course committee or group of people to work on the curriculum for pre-schools. We must deal with a range of other issues pertaining to qualifications, for example, in terms of standardising the qualifications of those involved in pre-school education and ensuring there is a qualifications framework to improve their qualifications. That is why I cannot accept amendment No. 10.

The essence of amendment No. 11 would be to place an obligation on schools to provide for adult and continuing education. We cannot place such an obligation on every school, although it is desirable that schools should do it. However, experience shows that it works when a dedicated staff member has a particular interest in developing adult education and continuing education, and the rest tends to flow. [369] Some principals and boards of management may feel they have enough to do in terms of the existing difficulties within a school campus. We have identified schools — we do not publish this information — where retention rates are very low. It is obvious they are low because of educational disadvantages, etc. Is it not more appropriate that we ask those schools to concentrate on strategies to increase the numbers remaining at school as opposed to diversifying elsewhere and going away from their core responsibility in terms of adults and continuing education? We must also remember that adult and continuing education is provided in other areas. Some adults do not like going to schools; they prefer to go to a community centre, a health centre or even a family resource centre.

Mr. D. Cregan: Or college.

Mr. Martin : Yes, they may even go to college. The Green Paper published today will set out a separate framework for adult and continuing education. One of the reasons we will not adopt the word “all” in amendment No. 79 is that it is clear from the Green Paper and those involved in adult education that the needs of the adult learner are significantly different from the needs of the second level or primary level student. There may be a need for a different curriculum content or even different language provisions or teaching expertise. We may need to consider, for example, special qualifications for those involved in the adult learning arena. It would be wrong for the Bill to pre-empt the work of the Green Paper and the White Paper process. That might lead to different solutions from those we normally apply to the primary and second level systems. That is why we are stopping short of placing obligations on schools to provide adult and continuing education in all circumstances.

The NCCA ethos is primarily driven by the primary and second level systems, but that is not to say it will not have a future role in adult and continuing education. The Green Paper may suggest that the organisations involved in adult education should have a stronger input. At present they are not strongly represented on the NCCA. We know from the attendance at the launch of the Green Paper that a wide range of bodies are involved in adult and continuing education who would like to have an input into curriculum formulation for adult learners. We are not dismissing the points raised. A White Paper on early education is being prepared following submissions made in the light of the publication of the Green Paper. They are the appropriate contexts in which to deal with the issues raised by Senators.

Mr. Costello: I accept what the Minister said. I am pleased we will have a Green Paper on adult education and a White Paper on early education, two areas which have been neglected for so long.

[370] The Minister told Senator Cregan that primary education relates to four to six year olds. Pre-primary education is not being properly addressed at present. Is there any reason the definition of “school” should not include an establishment which provides early childhood education?

Mr. Martin: This is not just a general definition; it is a definition within the context of the Act. I do not have authority over many pre-schools and could not assume such authority overnight without consultation with all the bodies concerned. The Child Care Act has placed responsibility for a number of pre-schools with the Minister for Health and Children. The only way to work this out is through a consultation process with all those involved in the context of producing a White Paper on early education. To define it in that way would mean everything relating to a school under this Act would apply. That would not be realistic.

Mr. Costello: The Minister is saying that if we wish to bring this to its logical conclusion and if we are not going to deal with early education in this Bill, why include it here? Pre-school is referred to as “a school which may provide early childhood education”, but if the remit of this legislation does not extend to that and it is to be dealt with by the White Paper and future legislation, what is the purpose of pretending schools extend beyond two sectors, primary and second level? The Minister is stating that the other two areas may exist. There is a contradiction in his terminology.

Mr. McDonagh: Nearly every school has a special duties teacher with responsibility for adult education and as such this amendment would not put extra pressure on anyone. The appointments boards was on overdrive in the summer appointing special duties teachers. I am glad to hear the Minister say he recognises the role of adult education providers and that he will give them more scope to flex their wings in the future. I will not, therefore, press this amendment.

Mr. D. Cregan: I agree with the point raised by Senator Costello. Line 40, page 7 reads “(a) provides primary education to its students and which may also provide early childhood education. …”. If the Minister recognises that early childhood education may be provided in some schools, that should be promoted. One cannot have a number of Departments responsible for pre-school education. Such schools now operate on every corner and one often wonders if the children are being properly looked after. I am not suggesting they are not, but there is a danger they may not be. I would rather if the Minister, through this Bill, encouraged primary schools to take on responsibility for early childhood education.

[371] Mr. Martin: The Bill can facilitate that. It does not in any way impede the Minister making provision for early childhood education within the primary school sector. What the Bill does not do is seek to take overall charge of every pre-school. That would also require extra resources.

Mr. Costello: Somebody should have responsibility for pre-schools.

Mr. Martin: I agree. That needs to be agreed with the bodies concerned, it cannot be done by imposition.

Mr. D. Cregan: Those bodies are not objecting to the Minister taking responsibility for pre-schools.

Mr. Martin: The ideal way to go forward with this is by way of a White Paper. The onus will increasingly fall on the State to provide pre-school facilities in disadvantaged areas. We are all aware of what happened when the early start programme was introduced in some areas where community pre-school play groups existed. There was a great deal of controversy about the way that was implemented. We set up State facilities in areas where community facilities existed and other areas had no facilities. We need to work with local community groups, agencies and the Department of Health and Children.

There is a better mechanism through which early education could be dealt with through the NCCA. We are not sure the NCCA, as currently structured, is the proper structure within which to deal with adult and continuing education.

Mr. Costello: I thank the Minister for his clarification. What I had in mind in relation to amendment No. 79 was not that adult and continuing education would be dealt with by the NCCA or that university education would be dealt with by the NCCA, which will not be the case. This amendment refers to the bodies which will have representation on the NCCA. While I do not envisage people involved in adult literacy, continuing or third level education would have equal representation, the NCCA is such an important body, in terms of what it will mean for pre-school, primary and second level education, that those who deal with continuing and third level education should know what is going on as of right, but should not have sufficient representation so as to be a major influence. We would expect that people who represent those sectors would make the policy, draw up the papers and the curriculum and prepare the assessment modes and modules. However, we could allow a varying degree of representation from all facets of education. Any body that represents education outside of early childhood, primary or post-primary level would have a lesser degree of representation, as those areas will be subject to curriculum and assessment development. They should have a right to representation so that they know what is going on [372] and are able to pass it on to other sectors which follow, whether continuing or third level sectors.

Mr. Martin: My only concern is that the Green Paper on adult education may suggest an alternative way forward for the adult and continuing education sectors. That is why I was reluctant to deal with this in the context of the composition of the NCCA prior to the publication of the Green Paper.

Amendment put and declared lost.

Mr. Costello: I move amendment No. 10:

In page 7, paragraph (b), lines 40 and 41, to delete “and which may also provide early childhood education”.

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

Amendment declared lost.

Amendment No. 11 not moved.

Acting Chairman: Amendments Nos. 12 and 13 are related and may be discussed together.

Government amendment No. 12:

In page 8, paragraph (e), lines 31 and 32, to delete “including speech therapy and interpreting services” and substitute “, including interpreting services”.

Mr. Martin: The effect of amendments Nos. 12 and 13 will be to correct an error which arose during the course of discussion in the other House as a result of which speech therapy services would, inadvertently, have been confined to students learning through sign language. This was not my intention. Accordingly, this amendment makes these services available to all students.

Amendment agreed to.

Government amendment No. 13:

In page 8, between lines 32 and 33, to insert the following paragraph:

“(f) speech therapy services;”.

Amendment agreed to.

Mr. Costello: I move amendment No. 14:

In page 8, between lines 35 and 36, to insert the following new paragraph:

“(g) provision for students who are educationally disadvantaged;”.

Amendment put and declared lost.

Question proposed: “That section 2, as amended, stand part of the Bill.”

Mr. Ryan: The more I think about the definition of special educational needs the more [373] unhappy I am to link two completely different issues. It seems at variance with everything the Minister has said. It would not require an enormous amount of ingenuity between now and Report Stage to separate special educational needs as they apply to students with a disability and the special educational needs of exceptionally able students. I suspect these are the issues which worry the parents of children with disabilities. There is a tendency in society to push resources in the direction of winners rather than losers, if I can use that unhappy analogy. I am not going to make a big issue of this, but the Minister should consider separating these two issues before Report Stage. It is not correct to link them.

Mr. Martin: I will look at that issue.

Question put and declared carried.

SECTION 3.

Question proposed: “That section 3 stand part of the Bill.”

Mr. Ryan: The Minister is still being minded by the Minister for Finance. We have discussed this on previous legislation and I take it as my duty to say that I believe members of the Government are capable of looking after the funds voted to them by the Oireachtas. They do not need the supervision, usually of a junior official in the Department of Finance, as the Minister for Finance could not possibly do all the things he is supposed to do.

Question put and agreed to.

Section 4 agreed to.

SECTION 5.

Government amendment No. 15:

In page 9, line 39, after “anything” to insert “previously”.

Mr. Martin: This is a drafting amendment.

Amendment agreed to.

Section 5, as amended, agreed to.

SECTION 6.

Acting Chairman: Amendments Nos. 16, 18 and 19 are related and may be discussed together.

Mr. Costello: I move amendment No. 16:

In page 9, line 41, to delete “have regard to” and substitute “comply with”.

This amendment relates to those who are responsible for the implementation of the Bill and how they take that responsibility on board. The Bill states that they “shall have regard to the following [374] objects”. I am suggesting that we strengthen this provision by demanding that they comply with the objects of the Bill. Anyone can have regard to the Bill and dismiss it. It is easy to have regard to something and that is the end of it. The only reason objects are inserted in the Bill is to implement them.

Surely those responsible, whether the Minister, boards of managements, the inspectorate, the NCCA, principals, teachers and so on, must comply with the provisions and objects of the Act. Otherwise, what is the purpose in having a statutory Act? The objects, which are set out, include the constitutional rights of children; availability of resources; promoting equality of access; promoting opportunities for adults; promoting the rights of parents; promoting liaison and consultation; the national educational policies; the maintenance of the Irish language and so on. All these matters have to be complied with. I cannot see why the Minister should water down that to something as limited as “have regard to”. I am sure he will agree it is necessary to strengthen this provision.

Amendment No. 18 refers to the ubiquitous expression “as far as is practicable”. I am sure every Minister loves this phrase as it shifts the onus to someone else. It is a wonderful scapegoat. This clause should be abolished from all legislation.

Section 6(b) states, “to provide that, as far as is practicable and having regard to the resources. .” The Minister does not need all this. Surely one or other would do. He should proceed in accordance with section 7(1)(a) and section 7(4)(a)(i) which states that in carrying out his functions the Minister shall have regard to the resources available. That is enough for the Minister. He should leave out “as far as is practicable”. It should also be deleted from any other parts of the Bill. The term “resources available” is a sufficient caveat. The phrase “as far as is practicable” should be deleted from this section, from any other section in which it occurs and from all proposed legislation.

Amendment No. 19 is a technical amendment which attempts to improve the language of the Bill.

Mr. D. Cregan: Senator Costello has made a very good point. I do not intend to make many contributions to this debate because I do not feel I share the expertise of other Members.

Mr. Costello: That should not stop the Senator.

Mr. D. Cregan: The Minister succeeded me as Lord Mayor of Cork in 1992. We were both associated with an association for severely and profoundly mentally handicapped children. I speak with an awareness of what the Minster achieved in this area in Cork because he continued what I began. I do not seek any glory for what I began because it was not soon enough. At that time there were 29 profoundly and severely [375] mentally handicapped people in the city of Cork; there are now 32. They had neither educational nor other facilities. In 1993 we were able to provide a bus for the association and, with the help of a grant from the Minister for Education, Deputy O'Rourke, we were able to provide two full-time staff for half a year in the city. This is relevant to what is now happening nationally.

In 1993, parents of mentally handicapped children were obliged to go to the High Court and then to the Supreme Court where they argued for three weeks before their children's constitutional right to education was clearly stated. There are very few profoundly and severely mentally handicapped people. The needs of much larger and stronger sectors are met but handicapped people had to embark on a long and expensive campaign just to have their constitutional right stated clearly. Mr. Justice Rory O'Hanlon made his judgment after long argument by the Department.

However, these people are not being granted the education which is their constitutional right and they will never get it if it is conditional on the availability of resources. I know the Minister receives limited resources from the Minister for Finance but the primary education sector has been deprived of resources for many years. Must we now say to our mentally handicapped children that they can have their constitutional rights in theory but not in practice because resources are not available? Lack of resources must not be used as an excuse to deprive children of their constitutional right. They must be granted that right unconditionally. This Bill does not do so. Many experts in this field have expressed concern that the Bill does not clarify the level of educational service which is guaranteed to mentally handicapped children. The Supreme Court judged that they had a constitutional right to education and they must be given it. .

Mr. L. Fitzgerald: It is impossible to disagree with what has been said. I have no doubt the Minister would embrace the sentiments expressed by Opposition Senators. Section 6 sets out the objects of the Bill. They are stronger than aspirations; they are objectives. Section 7 is quite different. It defines the functions of the Minister. Section 6 sets out the aims and objectives for the delivery of a comprehensive educational service. It is refreshing to see these objectives set out in a Bill. I commend the Minister for that and I welcome section 6 for that reason. I believe he has got it right.

Mr. Martin: Amendment No. 16 seeks to substitute “have regard to” with “comply with”. Section 6 deals with the objects of the Act. They are fundamental principles just as the Constitution is a body of principles but, even in the Constitution, there must be a test of practicality.

In response to Senator Cregan's point, I met with the groups concerned and the argument was [376] made that somehow this Bill could be unconstitutional. When the Bill was initially published section 6(a) was not included. I inserted section 6(a) to ensure that the Bill was constitutional. No one can produce an unconstitutional Bill in this House. It would be wrong of me to produce a Bill that would seek to undermine the constitutional right of any child to a basic education.

Mr. D. Cregan: It was done.

Mr. Martin: There was no legislation in place to cover this. One could argue that the Constitution was not observed and that the Government of the day was tested in terms of whether it implemented a constitutional right. The case in question cost the taxpayer £250,000. I agree with Senator Cregan that the case should not have reached the courts, that parents should not have to assert their children's right to an education. I inserted section 6(a) to be doubly sure that this Bill contained a provision ensuring that all those concerned with the implementation of the Bill would have to give practical effect to the constitutional rights of children, including children who have a disability or other special education needs as they relate to education.

The functions of the Minister are set out in section 7(1):

(a) to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person,

…..

(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:

(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents as the Minister considers appropriate and in accordance with the Act;”

Until now the obligation was on schools in some instances. The obligation should be on the State and the Minister of the day.

Perhaps the Senators are aware that almost four weeks ago we announced a major initiative and then the Government took a decision following my recommendations after a re-examination of the situation within the Department. The O'Donoghue judgment was not being observed over the past 15 months in some cases. It provided that a special school for the severely and profoundly handicapped should be supplied with one teacher and two child care assistants. Up to four weeks ago not every special school had a teacher and two child care assistants, they may [377] have had one teacher and one child care assistant and the Department was meant to rob Peter to pay Paul. I have put an end to that and a Government decision gave an automatic staffing entitlement to all children with disabilities. Every severely profound handicapped child now has an automatic entitlement to be in a class of six with one teacher and two child care assistants. Every child with autism will have an automatic staffing entitlement of one teacher and one child care assistant. Four weeks ago the State did not recognise autistic children as being an educational category in their own right and requiring an education service and provision in their own right.

In terms of resource teachers we have put in place an automatic entitlement to wherever there is a cluster of 12 children with special needs in mainstream education that they should have a resource teacher allocated to them. In relation to child care assistants in mainstream national schools, we have an automatic provision for children who need the help of a child care assistant to arrange and provide for a whole range of needs that that child requires. Again, until recently child care assistants were not appointed to national schools. Every Senator will be aware of representations made by parents that their child's needs were not being catered for in a given national school — for example, their toilet needs, etc.

The Government has initiated a series of automatic entitlements. Even if we objected to the pupil-teacher ratio and stated that it should be lower, there was another one agreed between the social partners and the Government with regard to national school children but there was never a similar staffing schedule agreed for children with special needs. A lot of this over time had more to do with implementation and a commitment to implement, than it had with Acts or anything else.

The Constitution has always provided for free access to an elementary education and very often cases are brought to court to define what that means. The O'Donoghue judgment defined it. The O'Hanlon judgment provided for one teacher and two child care assistants for every six children who were severely and profoundly handicapped. The State did not contest the case when it reached the Supreme Court but it did allow the case to drag on for two to three years.

My aim is to ensure that the parents of the future do not have to go to court to assert their children's basic entitlement to an education. We can never be sure in every situation and there will always be arguments and disputes. Again, the State should be generous when dealing with disputes.

I am afraid the terms “have regard to” and “as far as is practicable” are always part of legislation. The term “as far as is practicable” is used in section 6(b):

… as far as is practicable and having regard to the resources available, there is made available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people;

[378] This should be the objective of the Bill. The section entitled “Objects of Act” is dedicated to principles. This is the first time that an objects section has been included in education legislation or any other type of legislation. This should be noted. These are fundamental principles and they should inform what happens within the system. It will be a good day's work if we pass this legislation.

The term “as far as is practicable” should not be interpreted as a phrase that will stop things from happening. At some stage there needs to be balance in what is happening and most people would appreciate that. I am only 15 months in office and the issue always boiled down to resources. As Minister for Education and Science I made a decision to get the resources.

Why was there not such a provision in the past? As the Minister, I decided not to stand over this and I approached my officials and asked them to quantify what is required. Why should there be court cases every month? I am not saying this legislation solves this problem but I want to find out what is needed and then approach the Government stating what is required and that we want the following staffing schedules for children with disabilities. The Government agreed and I was allocated £4 million for 1999. That is my Department's estimate of how much it will cost but if it costs more then we will have to get more funding.

Mr. D. Cregan: I am not saying the Minister did something wrong——

Mr. Martin: I know that.

Mr. D. Cregan: The Supreme Court held that the case referred to gave rise to a constitutional obligation on the part of the State to provide free primary education for disabled children to the same extent it has done for other children in the community. The Supreme Court also provided an award of £0.25 million because the Department claimed that children did not have a constitutional right. They continued to claim this for a full three weeks.

Mr. Martin: The then Government did.

Mr. D. Cregan: It was the Department of Education acting on behalf of the Government. The Minister can interpret it any way he wishes, but they had to go to that length to prove it.

The point I am making is that, in comparison to other areas and other educational groups, handicapped children are not doing as well. The Minister said that section 6(b) provides that “as far as is practicable and having regard to the resources available….” Again, for comparative reasons, we are putting handicapped children in the same category as others.

[379] Mr. Martin: Section 6(a) does not mention resources.

Mr. D. Cregan: Section 6(b) reads as follows:

… as far as is practicable and having regard to the resources available, there is made available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people.

Section 6(a) contradicts section 6(b). Section 6(b) refers to the quality of education appropriate to meeting the needs and abilities of those people. With respect to those people, we will never know the extent of their ability because they are not receiving educational benefits.

I thank the Minister for providing additional facilities in the past month for these children who did not receive such resources until now. The first children to receive facilities were from Cork and that was thanks to my efforts and those of the Minister. When Deputy O'Rourke was Minister for Education she provided two nurses. However, little or no money was provided and a case had to be taken to the Supreme Court to obtain it.

I will not let this rest. The Bill gives the right to education subject to resources, practicability, ministerial discretion and availability. While the Minister means well and has argued at Cabinet level that such people should not have to resort to the courts, the Bill still does not protect them accordingly.

Mr. Martin: I do not agree. This is the first legislation which includes a provision obliging all those covered by it to give practical effect to the constitutional rights of children, including those with a disability or other special educational needs, as they relate to education. That is in paragraph 6(a) which was included specifically to meet concerns articulated by parents of children with special needs. Paragraph 6(b) is a general principle which applies to the education of everyone and covers second level and primary schools. For example, people may request the provision of a 600 pupil school in Castletownbere or elsewhere, but we have to be realistic. There will always be disputes about the provision of education, for example, people arguing over the location of a primary school. Paragraph 6(b) deals with that.

Mr. D. Cregan: Education is a constitutional right, but in the case of the handicapped, the issues of resources, availability of money and ministerial discretion come into the equation. While it is fine for me to make the point to the Minister and for him to show concern, at the end of the day it does not mean very much. Circumstances may change in three or four years. A different Minister could be in office in the next three years who would have a different view, which means ministerial discretion is what counts, not constitutional rights. I have been a Member [380] of the House long enough to know that, so I will not leave until I receive a commitment in this area.

I compliment the Minister on what he has said and I know his concern is genuine. However, under no circumstances can people in either House say we are protecting the handicapped in terms of resources. We still will not specify in legislation that these people have a constitutional right to those resources. Without question we should specify that and allocate resources accordingly. The Minister has made some effort in this area and I congratulate him on it. This is long overdue and he knows it. However, under no circumstances should it be specified in any Bill that resources for people with special educational needs should be provided at ministerial discretion or when they become available. People have a constitutional right to such resources.

Mr. Martin: No Minister or legislation can undermine a constitutional right. Successive Ministers and Governments may have failed——

Mr. D. Cregan: They have failed since 1937.

Mr. Martin: ——to implement those rights and shame on them for that. However, that is a different issue. Legislation can never undermine constitutional rights because it would not pass the test of constitutionality and could not be enacted. No Bill can ever undermine a constitutional right. Although we were advised by the Attorney General's office that it was not required, because of the concerns expressed, we included a provision in paragraph 6(a) to make doubly sure we could not and that the intent of the Bill was not to undermine the constitutional right to an education.

Ms Ormonde: I compliment Senator Cregan. He told me he would be on the attack this afternoon on the issues of disability and the mentally handicapped which we discussed at length earlier. Many people have expressed an opinion to me down the years and I have dealt with the debate in schools on whether there should be special or integrated schools. That is an ongoing discussion. It is not a question of lack of commitment.

I commend the Minister for inserting in the Bill the constitutional right of those with a disability to an education. He has given an indication of his intention. He has already made a commitment in this area to classes of six for each teacher. He has spoken about provision being made for autistic children, of resource teachers, of support in the form of child care assistants and of how people with a disability can be integrated into the system as far as practicable.

That is where I see that phrase coming into operation and not where Senator Costello sees it. The phrase must be used and I am delighted it is because I have to work the system as far as practicable to make the school structure acceptable to some mentally handicapped children. It [381] was not possible to cater for all of them in a school setting. That said, it must be acknowledged that there are insufficient resources but the Minister has made a commitment and has become emotional about it this evening.

I believe the perception that the mentally handicapped and those with disabilities are not catered for will be put to bed. The Bill guarantees equality of access and opportunities for adults and this deals with the suggestion that such people are not catered for once they leave the school system. The Bill promotes the right of parents to send their children to school. The Minister has clearly shown he has dealt with this in great depth. Senator Cregan has a right to air his views. However, the Minister has acknowledged that the House as a whole is very concerned about this area and I know he will give a firm commitment that there will be an improvement during his term of office.

Mr. Costello: It is good to see us all waxing emotional. Senator Cregan certainly put the case strongly for the special educational needs of people with disabilities. I welcome what the Minister has done recently, especially concerning autism and special staffing needs. I have tried to have a commitment to the whole area included in the Bill. It is one thing for the Minister to take an initiative but it is another to have a legislative structure with corresponding commitments.

The Minister did not address my two amendments, although the debate seems to have progressed to the totality of section 6 and other areas to which no amendments have been tabled. However, it impinges on my amendment that the wording “Every person concerned in the implementation of this Act shall have regard to the following objects,” which includes special needs, should be changed to “Every person. …shall comply with the following objects”. That places a greater onus of responsibility to implement all the objects.

Amendment No. 18 would at least go some distance towards meeting Senator Cregan's point. It seeks to delete the words “as far as is practicable and”. Both amendments would strengthen the legislation and give some proactivity to these objects to ensure that everybody who is responsible, in whatever area, would fulfil their obligations in relation to the objects of the Bill.

Having said that, it still falls short of what Senator Cregan said. I take his point on board because I also have been circulated with a very good report by the HOPE project concerning the Education (No. 2) Bill, in which they addressed the Bill as amended. The HOPE project cited a number of quotes from Mr. Justice O'Hanlon's judgment in the O'Donoghue case, the most telling of which was:

I am convinced, on the evidence, that the provision of free primary education for children severely or profoundly handicapped, mentally and/or physically, requires a much greater deployment of resources than was thought [382] appropriate even as recently as 1983, when the Blue Report was completed.

There is nothing in this statement of objects that suggests a much greater deployment of resources for the severely and profoundly mentally handicapped.

Section 6(b) states:

to provide that, as far as is practicable and having regard to the resources available, there is made available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people;

Between now and Report Stage, could the Minister come up with a separate amendment to try to encompass something that would get round the words “as far as is practicable and having regard to the resources available” in terms of people who are severely or profoundly handicapped?

None of us has tabled an amendment directly to that effect. Such a subsection would recognise the Supreme Court's decision relating to a “greater deployment of resources” than would be the norm for other sectors, including children with special needs, and would specifically cover children who are severely or profoundly handicapped. We are not talking about enormous numbers, but it is a significant minority that has never been dealt with adequately.

Mr. D. Cregan: That is right.

Mr. Costello: An initiative such as that which the Minister has taken should be transferred into the objects of this legislation, or go beyond it into the functions of the Minister. However, once it is in the objects it means that everybody concerned with education, including the Minister, principals, teachers, boards of management and the inspectorate, has a responsibility in this area. If we can come up with some such amendment it would go a long way towards satisfying the concerns that have been expressed, particularly those of Senator Cregan, and to address this problem once and for all, ideally in this legislation.

Mr. Ryan: I listened to what other people had to say, which is usually very good for me and I do not do it often enough. One would want to be very careful about our Constitution which guarantees the right to primary education. However, the great and the good who reviewed the Constitution found no reason to extend equivalent rights to shelter, health or income. By implication, even though they did not say it, they criticised the guarantee of free primary education contained in the Constitution. The argument they used was about resources and the fact that these matters were essentially ones for political debate and decision rather than constitutional. One has reason to be wary of the constitutional guarantee and where it might end up, although not with the current Minister, I hasten to add, but in principle.

It is undoubtedly true that if the phrase “as far as is practicable and having regard to the [383] resources available” was in the Constitution the O'Donoghue case would have been lost.

Mr. D. Cregan: It would have been.

Mr. Ryan: Of that there is no doubt. That is the sort of phrase that many in our society would like to see inserted into the Constitution. My problem with the word “practicable” is that in its defence in the O'Donoghue case, the Department argued that the child in question was not capable of being educated, in other words, it was not practical to talk about this child being educated. Although I have not discussed it with them, I suspect that is one of the reasons the parents in question are extremely unhappy about the phrase. They had the experience of being told it was not practical to educate their child. That is why the phrase causes the hurt.

I want to make a minor suggestion concerning the constitutional guarantee of primary education. Section 6(a) states:

to give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs, as they relate to education;

The constitutional rights of children only relate to primary education. It is doubtful if an argument about resources could ever win in this State in terms of primary education. I am convinced, for instance, that if parents of pupils attending any primary school in an unsanitary or otherwise unhealthy condition took a case to the courts under the Constitution, they would win. If a case was taken because of an absence of a level of teaching available in the rest of the country due to a shortage of teachers they would win as well. In a case like that, parents would win because of the constitutional guarantee. The Minister and the Department could argue all they like about resources and the courts would say: “The Constitution says you must provide it”. That is the reassurance people need.

As regards the separate issues of “resources available” and practicality, I suspect that what is intended is an aspiration beyond the minimum guaranteed under the Constitution. It is not within the capacity of the Oireachtas to put a qualification of practicability or resources on the provision of primary education. Therefore, it would probably be more sensible to make clear in this section the distinction, if that is what it is meant to be, that there is an unqualified constitutional right to primary education but that the questions of practicality and resources apply to anything beyond that. That is the only place where practicality and resources can apply.

Mr. Martin: That is a valid point. That, in essence, is the issue.

Mr. D. Cregan: It is because it is a constitutional right. The section does not say that one [384] is getting a constitutional right, it mentions “as far as is practicable and having regard to the resources available”. I thank Senator Ryan for his contribution which broadened the point.

Section 6(a) states:

to give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs, as they relate to education;

Will the Minister consider tabling an amendment on Report Stage that would protect the handicapped by using the words “to give every practical effect to the constitutional rights of children”? I would settle for that compromise, as I did with regard to the period of two years earlier. Would Senator Costello agree with that? I think that covers it all.

I thank the Minister for the time he has devoted to this debate and for his sincerity.

Mr. Martin: There is a considerable background to this. I took much legal advice on this matter, even before it went to the Lower House. The Department's legal adviser was as absolute about this as Senator Ryan articulated it in terms of the unqualified nature of the constitutional right to primary education. My legal advice was that in reality section 6(a) was not required.

With regard to the O'Donoghue judgment, it was appalling that the State did not contest the case when it reached the Supreme Court. In essence, the judge asked if the State was contesting it and the State's counsel said it was not. It affirmed the action. In other words, the State spent two or three years going through the system and conceded the case at the last hurdle. That was the unacceptable aspect, in my opinion. It should never have been allowed to happen although I do not wish to make a political point about it. It is over now, but it cost £250,000 to get to that stage.

I am not a lawyer, but I am not sure the inclusion of the words “every practical effect” would add to or detract from the provision. I will certainly examine it before Report Stage and ascertain if it would strengthen the provision or deal with the point made by Senator Ryan.

However, I caution Senators in that regard because there is the issue of mental age versus chronological age. Until now, in certain systems chronological age was used to define the end of primary education for a child with a disability. My view differs. In such a situation in Cork, for example, I have made provision to ensure that children over 18 years of age can still attend a primary school. That has satisfied some of the parents' concerns. Their argument was that the child had started school at eight or nine years of age, chronologically, but was still getting a primary education. Therefore, we must be careful how we define this. It might be safer for children in that situation to leave the provision as it is. However, I will examine it further with my legal advisers and the Office of the Attorney General. [385] This section deals with the objectives of the Bill, not the specific functions of the Minister. Objectives, by nature, are general. That might sound strange, but one cannot comply with an objective in its specific terms. One has regard for the objective. The Office of the Attorney General is quite strong on this issue and with regard to the terminology used in legislation such as this. I thank the Senators and I accept the sincerity of the case they made.

With regard to the phrase “as far as is practicable”, one can look at it in two ways. There is a need for balance with regard to what is and is not practicable in all the provisions of this legislation. As Senator Ryan pointed out, second level education after 15 years of age is not a constitutional right, although in the school attendance Bill we hope to extend the school leaving age to 16 years or until the student has a qualification. That would be a new departure. Even if the Constitution does not provide for such a limit, it does not mean the Legislature should not do so. One could argue that the Constitution is deficient now in terms of how one defines an elementary and a primary education.

Senator Ryan also referred to the constitutional review group. I would oppose any attempt to dilute the right to a primary education.

Mr. Ryan: The group's position is that the guarantee to primary education is an anomaly because it has already stated there should be no guarantee for health, housing, income or anything else. If the group states these are political issues, there is no reason the guarantee of primary education should be anything other than an anomaly. It makes me nervous.

Mr. Martin: I have extremely strong views on that.

Mr. Ryan: The Minister and I will be at one when the referendum is held.

Mr. Martin: I consider health a basic entitlement as well.

Mr. Costello: The Minister did not say anything about the substitution of the words “comply with” for “having regard to”.

Mr. Martin: My legal advice is that I cannot do that.

Mr. Costello: Is that it?

Mr. Martin: I explained that the section deals with objectives. They are fundamental principles which should underpin everybody's involvement in education. One can comply with a rule, regulation or law, but principles are something one has regard to and implements.

[386] Mr. Costello: They are not just principles, they are objects.

Mr. Martin: Yes.

Mr. Costello: There are principles and objects.

These are not just underlying principles, but the objects or targets to be achieved. The Bill deals will equality of access, opportunities and rights. One must comply with rights, not just have regard to them. It is not quite the same as principles. I am not sure the Minister has received good and comprehensive legal opinion on this.

There is a world of difference between complying with something and having regard to it. If I have regard to something, I take cognisance of it or consider it. However, if I comply with it, I am making a more proactive response. I am conforming to it and taking responsibility for that compliance. It is a different ball game. Perhaps the Minister would check the legal advice again.

Mr. Martin: I will.

Mr. Costello: If Senator Cregan's suggested inclusion of the words “every practical effect” strengthens the requirement for the provision of resources, I would be happy. However, as Senator Ryan pointed out, there are two authorities. There is the constitutional guarantee of free education to everybody at primary level, which brings somebody to the age of 15, but children in their late teens also have special education needs. Section 6(a) will provide that every practical effect is given to children's needs at primary level. Does that mean the child is covered by section 6(b) after that, which provides for those needs “as far as is practicable and having regard to the resources available”?

Paragraph (b) uses different language in that it provides that an appropriate level and quality of education is made available to people “resident in the State”. It does not refer to students or to children. Is the legislation only limiting education within practicality and resources to people when it is above the constitutional requirement? Can one take paragraphs (a) and (b) separately and acknowledge that special resources over and above the norm will be made available to children who are guaranteed an education by the Constitution and, after that, the clauses of practicality and having regard to resources will take effect? Why is the phrase “people resident in the State” used when the earlier sections refer to children and students?

Mr. Martin: That phrase is included because the Bill provides “generally for primary, post-primary, adult and continuing education and vocational education and training. …”.

Mr. Costello: Effectively, they are two separate sections.

Mr. Martin: The word “people” covers adult learners as well as children.

[387] Mr. Costello: Is the essence of the O'Donoghue judgment provided for in section 6(a)?

Mr. Martin: Yes.

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

Amendment declared lost.

Mr. Costello: I move amendment No. 17:

In page 9, paragraph (a), line 44, after “who” where it firstly occurs, to insert “are educationally disadvantaged or”.

Amendment put and declared lost.

Mr. Costello: I move amendment No. 18:

In page 10, paragraph (b), line 1, to delete “, as far as is practicable and”.

Amendment put and declared lost.

Mr. Costello: I move amendment No. 19:

In page 10, paragraph (b), lines 4 and 5, to delete “the needs and abilities of those people” and substitute “their needs and abilities”.

Question: “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

Progress reported; Committee to sit again.