Education (Amendment) Bill 2012: Committee Stage (Resumed)

Tuesday, 31 January 2012

Seanad Éireann Debate
Vol. 213 No. 1

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Debate resumed on amendment No. 3:

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I thank the Minister for his response. However, it is by no means clear what the effects of the proposed provision will be. In his speech to the House on 25 January, the Minister did not clarify or give comfort as to what practical changes this would make for schools, both mainstream and special. He has assured us today that no services will no longer be delivered as a result of this change. However, this provision appears to present itself as restricting the Department of Education and Skills from providing support services which the HSE also provides. If it is duplication the Minister is worried about, let us draft an amendment which prevents duplication.

One of the problems with the provision is that it is not clear which services will come under it and how pupils and schools will be affected. It seems to be at odds with section 13 of the [16]Education for Persons with Special Educational Needs Act 2004. If it is not amended, it will become a matter for the National Council for Special Education to make requests of the HSE under section 39(1) of the 2004 Act to assist with the implementation of particular individual education plans, IEPs, and the provision of services, namely, those which the Department will not provide, which are necessary for the implementation of the IEPs.

The problem is that section 39(3)(c) of the Education for Persons with Special Educational Needs Act allows for the HSE to refuse such a request where it does not have the resources to meet it. In other words, there is no positive obligation in any Act for the HSE to provide quasi-educational services to children. Most of the absolute requirements on the HSE to act in certain cases are set out in the Child Care Act and relate to children at risk of abuse or neglect. The HSE has difficulty discharging even its obligations under those sections. Given the current shortage of resources, facilitating a request from the National Council for Special Education could be a serious difficulty for the HSE.

Is the Department of Education and Skills abandoning this problem? This will leave us with a situation where the HSE may or may not live up to its responsibilities and the Department of Education and Skills can in the future, on the basis of this legislation, shrug its shoulders and say it is not its problem.

Minister for Education and Skills (Deputy Ruairí Quinn): Information on Ruairí Quinn  Zoom on Ruairí Quinn  I thank the Senator for raising this matter. I am informed that the legislative framework will be regularised in accordance with the de facto position, which is that the provision of speech therapy services is a matter for the HSE. That is not to say that my Department is washing its hands of the issue, which I believe is the Senator’s concern. The regularisation will take place following consultations between the Departments of Health and Education and Skills. The legislation reflects the operation on the ground.

Speech and language support therapy is and always has been provided by the Health Service Executive for schoolchildren who have been assessed as having communications difficulties. This position is already acknowledged by the Oireachtas through the provision of voted moneys to the HSE to deliver such services. As such, the Houses of the Oireachtas are familiar with this ongoing practice and have voted moneys for its delivery. The proposed provisions will not impact on the availability through the HSE of speech therapy services for children with special educational needs. There are no skilled professionals within the Department or the NCSE who would be in a position to provide these services.

This is a de facto recognition in legislation of what has been the practice for some time. The services will be provided through the HSE, as is the case. It is not a question of the Department of Education and Skills washing its hands of the situation: it does not have the skilled personnel to deliver the service and it was never the intention that the Department would have those skills. This is a service provided jointly by the Departments of Health and Education and Skills. The legislative framework will be regularised in accordance with the de facto position.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  What harm is being done by the current situation? It seems that, in terms of having a proper vision for education, the Department of Education and Skills should continue to have responsibility in this area, even if the service is de facto to be delivered by the HSE. How, if through this legislation the Department’s responsibility is being removed, is it to have clout in this matter and from where will come the Minister’s calling card with the HSE and Minister for Health in the future? What mischief is the Minister trying to address in making this change?

[17]Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I am addressing the situation where in previous legislation, prior to delivery of the service, there was an ambiguity in terms of responsibility and delivery. Previous legislation provides for the Department with responsibility for a particular service to deliver, regardless of its ability, professionally or otherwise. The Senator will be aware of the disputes that arose with particular educational facilities which had quasi-medical facilities built in but which were not being occupied because we had no power to compel the predecessor of the HSE to deliver the services.

  4 o’clock

The regulatory framework will be addressed. The power which I, as Minister for Education and Skills, will have will be through Cabinet collective responsibility. Moneys are voted by the Oireachtas to the HSE, which has, inter alia, a responsibility to deliver these services. It was pointless us having partial responsibility and no capability. That was the stuff of turf wars, in which there was an aspiration and no capacity. That is the way this started out. The reality now, against restrained and restricted resources, is that the public organisation to which moneys are voted by the Oireachtas, which has the technical and professional capability to deliver the services, should be empowered and required to do so. I will ensure there is proper communications between the Departments of Health and Education and Skills to make this happen, thus ensuring no confusion in the legislation. This is clarification of existing legislation.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  It was stated in this House a couple of weeks ago that a person with two watches will never know the correct time. The Minister is, through enactment of this legislation, clarifying for schools that the HSE provides these services.

I cannot support the amendment and must side with the Minister. As someone who has worked as a teacher for the past 35 years, I know how the system works in practice. I support the Minister on this issue.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  I apologise for coming late to the debate. I seek clarification on a number of matters. Will the Department of Education and Skills have the power to compel the HSE to deliver the service?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  No. In reality, it never had such power, as the Senator is aware.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  Will the Department have a say in how the service should be delivered, for example, as regards whether it would be better if it were school or cluster based?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I would not be so brave as to state anyone has the power to say anything to the HSE. In reality, however, we can express what our preference would be. Even the Minister for Health encounters difficulty on occasion in obtaining responses from the HSE. The legislation recognises the reality in straitened times. We have the power of persuasion and the NCSE, the agency responsible for dealing with people with special educational needs, will do everything possible within its remit. The Senator is a professional in this area and will be aware that sometimes there is a combination of special educational needs in a particular instance. Where that combination includes a difficulty in communicating through language, the power we have — we never had the budget to allow us to do so — is to make a compelling case to the NCSE which is an autonomous body and can then put that case to the HSE. Beyond this, we do not have the power to compel or prescribe. That would be for the professionals.

Senator Mary Moran: Information on Mary Moran  Zoom on Mary Moran  I welcome the Minister. As I agree with the Government on this matter, I cannot support the amendment. As a teacher, I am of the opinion that the two must be kept separate. The key is that a link is provided through resource teachers. It is good that [18]this is the case because when it is recognised that a child requires assistance in communicating, speech therapy or other services can be provided.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  I welcome the Minister’s absolute certainty with regard to what the Bill does and does not do. I take his point about the HSE not responding to anyone in the past in a reliable way. However, should I take from what he said that the legislation will not improve the position for anyone? If, for example, a psychologist makes a recommendation to the effect that a child needs speech therapy which is education based, the HSE could state that, in the context of resources, it is not possible to provide such a service. That would bring us back to square one. What would improve for the child involved? I accept that the NCSE, an autonomous body, will be involved and that it is linked with the Department of Education and Skills. However, I am still trying to identify how what is proposed represents an improvement for children who require services. Will the Minister outline the nature of that improvement?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  From her professional knowledge of the educational sphere which surpasses that of most Members, the Senator will be aware that the Department never had available to it the skills necessary to deliver the services in question in the first instance. The aspiration set out in previous legislation was not matched by delivery on the ground. We could not deliver to meet the gap in respect of possible or explicit responsibility because, from a legislative point of view, we did not have the power to compel people who possessed skills which were not part of the skill set of the Department. Those of us in the Department are not speech therapists. What we are doing is providing clarity and avoiding an ambiguity that would invite turf wars. If there is a failure on the part of the HSE to deliver speech therapy services, both Houses of the Oireachtas and I will be obliged to place the focus of attention at Cabinet level on the Minister for Health because the services to be provided by means of the moneys voted to his Department and, through it, the HSE must be delivered. What we are doing is tidying up legislation which does not match facts on the ground.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  I accept what the Minister has said. Would it not have been desirable, for the sake of the children and the service they need to improve their learning or social skills, for the legislation to introduce a measure whereby it would be possible for the Minister to compel the Department of Health to deliver the service? I ask this because two weeks ago the Minister for Health spoke at a conference in Galway and stated that he had ensured joined-up thinking for the first time on autism, in conjunction with the Minister for Education and Skills, by having one principal officer common to the Departments of Health and Education and Skills. Would it have been possible for the Minister to have arranged joined-up thinking with the Minister for Health on this issue so the HSE could have been compelled to deliver the service required by children when they need it?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  The Senator knows from her time in the House that no Minister has the power to compel any Government agency to do anything if the Department in question does not provide funding in the first instance. We do not give money to the HSE and accordingly we do not have power. We can make requests and seek co-operation, but to compel we need to write the cheques and we do not do so for this agency.

Amendment, by leave, withdrawn.

Amendment No. 4 not moved.

Government amendment No. 5:

[19]

Amendment agreed to.

Section 4, as amended, agreed to.

Question proposed: “That section 5 stand part of the Bill.”

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I will not take up too much time because we have already had this debate. Although it seems to be very stark and the reverse of joined-up thinking I accept the Minister’s bona fides in this matter and I believe in the need for good administration. However, it looks too much like the Department of Education and Skills washing its hands of responsibility. Sometimes one must keep a hand in, even when one does not have power, so one can have one’s nagging rights. I completely understand and respect the Minister’s commitment to using his nagging rights at the Cabinet table. I have listened very carefully to him and I know he is a thoughtful man. However, there is something deficient in this approach.

Section 5 states, “Section 7 of the Act of 1998 is amended by repealing subsections (5) and (6) (inserted by section 40 of the Education for Persons with Special Educational Needs Act 2004).” Section 40(5) of the Education for Persons with Special Educational Needs Act states, “In carrying out his or her functions in respect of the provision, planning and co-ordination of support services, the Minister may, following consultation with the Minister for Health and Children, request the assistance of a relevant health board” and section 40(6) of that Act states, “A health board of which a request under subsection (5) is made shall comply with the request”.

This is power of some type for the Department of Education and Skills, and this power — or responsibility more to the point — is being lost. The Minister previously referred to the effect of this section as being a technical amendment. I do not consider it technical. The Minister will no longer have the function of requesting the assistance of the relevant health board in respect of planning, provision and co-ordination of social services. The bottom line will be that nobody will be compelled to offer the vital support services should the HSE decline to do so. I cannot see how this is good news.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  This is a follow-up to the debate we had earlier. It must be understood that the section we propose to amend predates the establishment of the HSE. The thrust of my argument is a repetition of what I have articulated. To make the system work departmental responsibility must be assigned to a group of people who are subject to Cabinet responsibility and collective direction. We hope to get the joined-up co-operation of the various national services and agencies but this is a legal clarification of what has emerged from the past and which no longer fits the contours of the present.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I raise the same concerns I raised regarding the earlier amendments. Can the Minister reassure me and the House that the Minister for Health has that positive responsibility for delivery of health therapies in schools and that this will not leave a gap in that regard? The reality for many children with special needs is that they cannot avail of an education without the appropriate health therapies. The Minister is saying these provisions will not impact on what is being delivered but, unfortunately, in many cases the health therapies are not being delivered and that is holding back children. I am in favour of availing of education. I understand the need to ensure the Department of Health has a clear responsibility but I want to be assured that the Minister for Health has that responsibility and that somebody will be co-ordinating and checking that both the health and the education components are working [20]properly. I appreciate that is the job of the National Council for Special Education as an agency but at ministerial level and at the Cabinet table will the Minister for Health have a clear responsibility for the delivery of health therapies in schools?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  Subsections (5) and (6) have been inserted in section 7 of the 1998 Act by section 40 of the Education for Persons with Special Educational Needs Act of 2004. These subsections provide that in carrying out his or her functions in respect of the provision, planning and co-ordination of support services, the Minister may, following consultation with the Minister for Health and Children, request the assistance of a relevant health board and that health board shall comply with this request. Given that section 2 of the Act has been amended and given the responsibility of the Health Service Executive in this regard, subsections (5) and (6) of section 7 are no longer required to allow the Minister for Education and Skills to request the assistance of health boards to make speech therapy provision. These sections of the Act predated the establishment of the HSE and the enactment of the Disability Act of 2005.

The Department of Education and Skills remains committed to supporting the co-ordinated delivery of services to families of children with special educational needs and it will continue to work with service providing partners in the health and disability sectors through the cross-sectoral team as established under the auspices of the Minister with responsibility for disability and mental health and of the national disability strategy stakeholder monitoring committee.

Question put and declared carried.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Amendments Nos. 6, 16, 42, 46 and 47 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 6:

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  The purpose of section 6 is to enact a revised text of sections 23 and 24 of the Education Act to provide for the appointment, suspension, dismissal and payment of teachers, including principal teachers and other staff, in accordance with procedures put in place by the Minister following consultation with the education partners.

Section 6 also provides for an addition to section 24 of the Education Act for the employment, in certain exceptional and limited circumstances, of people who are not registered teachers under the Teaching Council Act. This is probably one of the main sections in this legislation.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  I seek a number of clarifications on this issue. As the Minister stated, this is probably one of the main sections in the Bill. The Minister will recall we had a lengthy discussion on Second Stage on the issue of the agreement in place previously as opposed to consultation now. I seek clarification on one or two issues with regard to that. In the case of panel redeployment, for example, in the event that the Minister——

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  There are a number of amendments to this section.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  Yes, there are a number of later amendments to it.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Yes, there are, but we are discussing amendments Nos. 6, 16, 42, 46 and 47 together.

[21]Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  We are on section 6.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Yes, but we are dealing specifically with amendments Nos. 6, 16, 42, 46 and 47.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  I will revisit the point I was making later.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Is amendment No. 6 agreed to?

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  Are we still also dealing with amendments Nos. 16, 42, 46 and 47?

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Does the Senator wish to speak to those amendments?

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  Yes, I wish to speak to amendment No. 16. I thought the Cathaoirleach was only dealing with amendment No. 6.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  I will let the Senator back in.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I accept we will discuss the substantive issue about untrained teachers later but I oppose amendment No. 16 on the basis that it proposes to remove the words “purpose of implementing section 30”. As I will discuss later, I am strongly of the view that at this juncture we should implement section 30 of the Act of 2001 in regard to the restriction on the use of untrained teachers.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I understand what the Senator is trying to do. Substituting the words “purposes of section 30” for the words “purpose of implementing section 30” is essentially a technical amendment. The substance of it is that we are substituting agreement with the word consultation. That is at the core of it. There may be other points of clarification. I do not believe that “implementing section 30” as against “purposes of section 30” is a material change. That is not my understanding of it.

Amendment agreed to.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Amendments No. 7 and 37 are related and may be discussed together.

Government amendment No. 7:

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  This amendment proposes that the revised sections 23 and 24 of the Education Act 1998 are designed to clarify the hierarchy within the legislation. Where publicly funded posts are concerned, the numbers and the qualifications of teachers, along with teachers’ terms and conditions of employment, flow from the authority of the Minister and the Minister for Public Expenditure and Reform. This is the position in the existing legislation at section 24(2) and (5). While there is a reordering of the subsections, there is no change to the powers of the Ministers for Education and Skills or Public Expenditure and Reform.

However, the existing provisions in the Education Act also provided that procedures for the appointment, suspension and dismissal of teachers were subject to the agreement of certain education partners. From time to time since the enactment of the Education Act, particularly in regard to making redeployment arrangements for surplus teachers, the question has arisen as to whether this requirement for agreement of each and every one of the parties listed in the legislation must be secured before changes to procedures could be made. An argument raised in regard to redeployment is that it is effectively an appointment procedure and is therefore subject to such agreement. Some parties have also asserted that they must have a veto in regard [22]to the redeployment of primary teachers. In consequence, a doubt has been cast over the State’s authority generally to determine employment matters in regard to teachers and other staff employed in schools in publicly funded posts.

The doubt that has been raised is that the power given to Ministers in specific areas by virtue of section 24(2) and (5) comprises the requirement to reach the agreement of all concerned when it comes to specific procedures to implement on the ground those matters that are defined by existing legislation as subject to determination by the Ministers. This is an anomalous position. The purpose of the revised section 4 is to eliminate any doubt about the capacity of the Minister for Education and Skills to ensure that matters he may have determined are not set aside by virtue of any party withholding agreement when it comes to implementation. The Bill’s provisions maintain the right of the Ministers to determine the numbers, qualifications and terms and conditions generally of those who work in schools. The requirement for agreement in arriving at appointment, suspension or dismissal procedures now changes to a requirement for consultation.

The purpose of amendments Nos. 7 and 37 is to clarify that this pertains in respect of appointment procedures also. A similar approach is also taken to redeployment, which will now be provided for specifically in the Education Acts for the first time. This is because of the memorandum of understanding on the employment control framework. Redeployment and appointment fall under the umbrella of the terms and conditions of teachers as well as being connected with the numbers of teachers that may be appointed.

Senator Feargal Quinn: Information on Fergal Quinn  Zoom on Fergal Quinn  The Minister has explained that well. It seems that in that situation, where there is a question of consultation or agreement, to say there must be 100% agreement before a particular step can be taken is unrealistic, as 100% agreement is seldom obtained. There is always somebody who is out of line. The Minister has explained it very well and I support his view.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  I ask the Minister for clarification on the question of redeployment of a teacher who is on a panel when, after consultation, there is no agreement by a school to take a particular teacher from the panel, or a teacher remains on the panel. With this legislation, the Minister will have the power to overrule that decision following consultation and appoint a teacher from the panel. For example, would he see it as appropriate if a teacher who did not have fluent Irish was required to teach in a Gaeltacht area? How would he respond if a teacher who did not believe in the particular ethos of a school was appointed to that school? As I understand it, the responsibility of a school’s board of management is to provide an appropriate education for its children and to ensure the teachers of those children are able to fulfil the requirements of the role. In the first case I mentioned, this requirement would be fluent Irish, because it is a Gaeltacht school; in the second, it would be that the teacher would uphold the ethos of the school, be it Church of Ireland, Catholic or non-denominational. I would like the Minister’s answers to those two questions.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I agree with the remarks made by Senator Quinn. I accept that there are times when it is difficult to reach 100% agreement. However, I hope that “consultation” will mean real consultation and that concerns will be taken into account. As the Minister mentioned in his own speech last week, partnership has been a key aspect of education, and I trust the Minister will use his power to make decisions as a last resort. Partnership is important in the sector and is one of the key aspects of its success over the years.

[23]Senator Mary Moran: Information on Mary Moran  Zoom on Mary Moran  I add my support. As has been stated, it is unusual to get 100% agreement among everybody. The important thing, as previous speakers said, is consultation. It is the fairest way.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  Like most of the previous speakers, I can see the need, very occasionally, for a decision to be made where things are being held up because people are unable to come to an agreement. As a result of this change, would it be possible for the panel, for example, or the figures for the following year to come out that bit earlier, particularly for the first year, to give the authorities a little more time? In 99.9% of cases, this will all be done without the need for the Department to come in and make a decision. I would like that to happen.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I thank the Senators for their constructive interventions on this point. I will respond to the query made by Senator Healy Eames. Before last year, when a teacher became supernumerary to the pupil-teacher ratio, PTR, in a particular school, he or she stayed on the panel and, in many cases, stayed in the original school. That luxury ended when we lost our economic sovereignty. Under the memorandum of understanding with the troika, not only must we reduce our current budget deficit to 3% of GDP by 2015, we must also reduce costs in the public service by reducing numbers. It is known in the jargon as the ECF, the employment control framework. Many Senators will have been lobbied last spring when employment concerns were rising.

We were given a flat indication and I compliment Mr. Martin Hanevy and Mr. Pat Burke in the Department of Education and Skills for the way in which they negotiated, under existing legislation, with a number of teachers who had become supernumerary and who, for the first time, could not be left on the panel and in the school but who became a barrier to the employment of new, young teachers. The reality was that no new teacher could be hired until we cleared the panel. That meant redeployment. I also thank some of the patrons who extended spaces for employment to teachers who had been teaching in schools of a different ethos. There are many positive lessons to be learned from what happened last year. The good thing for professional teachers coming into the education system is that due to growing demand, dealing with the ECF has been offset by the number of new demands for teachers.

Senator Healy Eames asked two specific questions. The first was about the Gaeltacht and gaelscoileanna. It would not be reasonable to impose upon a gaelscoil or a Gaeltacht school a person who manifestly was not qualified to perform the required functions. I will leave resolving that to the professionals in the area. I also do not think that somebody should simply be able to say: “I will only go here and not there,” and so forth. There are rights and responsibilities. With regard to ethos, in some cases it will be a matter for an understanding patron, on the one hand, to accept a tolerant and diplomatically prudent teacher. The teacher’s defiance, if there was to be defiance, in terms of not moving from the panel into a new job would mean that some newly qualified teacher would not get his or her job.

Furthermore — I have discussed this with professional colleagues in the Department — the words “consultation” and “agreement” are very simple words, but it can be strung over a long dispute as to what constitutes consultation and the extent of agreement. I would be happy to enter into discussions, in an IR framework, with the educational partners to get a general consensus on the definition and meaning of “consultation” and “reasonable agreement”. Every time there is a dispute or every time somebody is affected, therefore, we would not have to start ab initio defining what we mean by consultation or agreement. However, I would sooner put it in the flexible framework of social partnership and a Croke Park-type agreement, rather than inscribe it in statute law.

[24]Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  I am delighted with the Minister’s statement that he would be prepared to go into consultation under an IR framework. I asked that question of him the other day but did not like to ask it again. I am very pleased.

As regards ethos, when I was applying for my first job as a principal many years ago, I was brought before a Sanhedrin of three respectable, strong priests. They asked me if I thought somebody without religion could teach religion. I said “Yes”. My competitor for the post said “No”. I got the job. The basis for it was that all things being equal, a professional can do a professional job. In fact, my son’s religion teacher at his secondary school is a confirmed atheist.

Senator Darragh O’Brien: Information on Darragh O'Brien  Zoom on Darragh O'Brien  Will the Senator clarify “confirmed” atheist?

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  Very good, Senator.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  I am grateful for the Minister’s explanation. He has indicated what he considers reasonable and that he does not see the point, for example, of imposing a teacher who is not fluent in the Irish language on a school in the Gaeltacht. That explanation is very helpful. I also welcome the Minister’s undertaking that in another domain — through an industrial relations framework, for instance — he will examine what may be encompassed within the term “meaningful consultation”. It might be helpful to have an exchange of CVs in a redeployment situation so that accurate information about a teacher’s capabilities at a given point in his or her career could be conveyed, as opposed to schools relying on bush telegram that undermines the professionalism of teachers.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Does the Minister wish to comment further?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I thank Senators for their contributions. I am happy to follow up on my undertaking, together with the social partners, to work towards a practical, working definition of what consultation and agreement might involve.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I join other speakers in welcoming the Minister’s assurances in this regard. I support the provision on that basis.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I listened with great interest to the Minister and my colleagues. To some degree, we are already engaged in a debate that relates to several of the amendments I have tabled. The Minister is talking a very good talk about patrons being flexible and teachers not being so dogmatic as to refuse to be deployed from a panel into a school which may or may not be their first choice. The word to describe the happy scenario the Minister suggests is “agreement”. However, this does not negate the reality that this legislation is replete with references to matters being determined by the Minister, in some cases with consultation with various bodies and in other cases with only the concurrence of the Minister for Public Expenditure and Reform.

It goes back to the question I posed. What mischief is the Minister seeking to remedy? If he is reassuring us — I hope he is right — that agreement is likely to be reached in all of these scenarios, then why not trust the status quo? It is one thing to say to people that one expects that agreement will be reached but, at the end of the day, the decision will ultimately be the Minister’s. It is easy to talk about people being reasonable and agreeing on issues when they know, and the Minister knows, what will happen if they do not agree.

It seems that the only situation in which there is genuine partnership is where even the legislation acknowledges the need not just for consultation but for consensus. I observed on Second Stage that the constitutional underpinning of the provision of education services in this State does not, or should not, lend itself in quite the same way to ministerial fiat in regard to [25]these matters. It is fine when one is talking about water services and septic tanks. Important as those issues are, we are talking about education in this instance and it is important to bear in mind that the primary educators are parents. That is the constitutional underpinning for all of this. Despite the Minister’s undoubted goodwill in this matter and the goodwill of all involved, I am not reassured. What I see is erosion of the idea that things must be agreed between the different stakeholders in education in favour of a more centralising notion.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  I take the opposite view to Senator Mullen on this matter; perhaps I do not have as benign a view of human nature. Just as a prospective hanging will concentrate the mind, this provision may be of assistance in encouraging people to reach agreement. I have seen cases where 20 classes in a particular area will be without teachers on 1 September because the schools in question will not appoint that one last person from the panel.

In saying this, I am not speaking within the European Union framework of economics. Rather, I am speaking from the perspective of ensuring what is best for the standards and quality of teaching and learning in schools. If agreement is not possible at the eleventh hour in a particular case, there must be a facility whereby somebody can step in and make a decision. It is very rare that such a situation would arise but where it does, even after all the industrial relations procedures have been gone through, it is reasonable that the Minister should have that responsibility. It is necessary to ensure our schools function properly.

Senator Mary Moran: Information on Mary Moran  Zoom on Mary Moran  I agree with Senator Jim D’Arcy on this issue. It will not always be possible to get agreement; that is human nature. Therefore, it is important that there be somebody at the top, that is, the Minister, with the deciding power. That said, I welcome the Minister’s undertaking on the redeployment, for example, of teachers to gaelscoileanna. It is important that consideration be taken of the particular school and the particular teacher.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I thank the Senators for their contributions. I understand Senator Rónán Mullen’s concerns. However, we are talking about a very clear and defined area of potential industrial relations difficulties, namely, the redeployment of a teacher who has become supernumerary to one school and is appointed to a panel from which he or she must, under the employment control framework, be redeployed before new recruits can be entered into the education system. The provision is ring-fenced in its applicability to that scenario. If he is not satisfied the Senator will have a further chance to raise this matter on Report Stage — I am not inviting him to do so, but he will have that opportunity.

It is important to stress that the Department of Education and Skills does not normally work by fiat. We receive our mandate and resources from this and the other House. Moreover, some might argue that the Department has, over time, been far too consultative and facilitative in its engagement with the education partners. It is not the culture of Marlborough Street to issue fiats, whatever else one may say about it.

It being one of the youngest languages in the world and a polyglot or fusion of other languages, the English language has a rich treasury of words with the same meaning. For example, another word for agreement is “unanimity”. Unanimity also implies a veto, as we have seen in the dialogue of the European Union in terms of Council meetings. In this case, we are talking about a potential industrial relations situation. The Senator will know from his own work that there could be officials on the employer’s side and on the union side and that they may, following consultation, reach an agreement as to what is reasonable. However, the individual concerned could simply refuse to give his or her agreement, essentially exercising a veto. The provision relates to those very few occasions when such a situation may arise.

Last year there was very successful redeployment of a large number of people who found themselves on panels. Good work was done by senior officials in the Department, but they [26]came back with the observation that it would be wise to modify this proposal by way of a miscellaneous item of education legislation. I have gone further than that, because I do not want to carve it into statute law. I am saying to the social partners in education, who have a good ongoing working relationship — the Senator and others who may want to have their voices heard, particularly on the patron side, can also have an input into this — let us get a broad understanding of what “consultation” and “agreement” mean in order that we do not have to debate their meaning ab initio in every individual case.

I say that without prejudice. Senator Feargal Quinn, who has a great deal of managerial experience in these areas, made an important point about the difficulties that can arise. A 100% agreement is a rare beast and somebody may want to be unco-operative. The consequences of a lack of co-operation are not neutral and affect other people who, for example, may not get a job until an ECF supernumerary is redeployed.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I will respond to the Minister’s remarks about redeployment being required, by implication, by the troika and issues with our economic sovereignty. Redeployment is good in itself and work was started on it many years ago. It is important to acknowledge that often, when different education changes are being discussed in the House, there is a tendency to rely on the current economic environment as an excuse for everything, which is unfair. I met representatives of the troika with other members of my party when they were here some weeks ago. They made it very clear that provided the Government reaches the overall targets, the troika has not told any Department what must be delivered upon. It is important for people outside the House to see that not everything is being constantly blamed on the deal done with the IMF and EU. Rational issues such as this should be seen as they are, and the Minister has rightly pointed out that redeployment, with the appropriate safeguards, is an important part of an effective public sector.

I agree with the Minister on the section and I am reassured by the comments to the House regarding consultation and ensuring there is not a particular issue for Gaeltacht schools.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I welcome the Senator’s intervention and support. She has probably spent more time on Marlborough Street than I have so far, as I have only been there 11 months. Last March and April there was a barrier to the employment of new teachers until all the people on a panel were cleared from that year. There has been redeployment and the Senator is absolutely correct on that point. People lingering on a redeployment panel into the next academic year should not prevent new recruitment but last spring and early summer it had an effect until the panel was cleared.

Amendment agreed to.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Amendments Nos. 8, 10, 38 and 39 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 8:

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  Section 8 reads: “Section 30 of the Act of 2001 is amended by substituting “Subject to section 24(7) (inserted by section 6 of the Education (Amendment) Act 2012) of the Education Act 1998, a person who” for “A person who”. Amendment No. 41 reads “In page 9, line 41, to delete “section 24(7)” and substitute “subsection (8) of section 24”. I am told this is predominantly a technical amendment.

[27]Section 8 provides for a minor change to section 30 of the 2001 Act to cross-reference the amendment of section 24 of the 1998, provided for in section 6. Section 30 of the 2001 Act has not yet been commenced. That is the Teaching Council Act.

Amendment agreed to.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Amendments Nos. 9, 11 and 36 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I move amendment No. 9:

All of these issues are related but essentially, we are back to the debate about what “consultation” and “agreement” mean. I propose a range of amendments and this amendment relates to the numbers and qualifications of teachers and other staff of a recognised school. These issues should be determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform. As the Minister knows, I am arguing that we should talk about consultation and agreement of bodies representative of patrons, recognised school management organisations and any recognised trade union or staff association representing teachers, or other staff as appropriate.

Amendment No. 11 relates to a similar issue, namely, the terms and conditions of employment of teachers and other staff of a recognised school. Amendment No. 36 relates to dismissal. The issues are clear-cut. The partners in question do not feel they were consulted on the preparation of the legislation. It does not augur particularly well from their point of view. The preamble to the Education Act 1998 specifically refers to the shared objective of education being provided in a spirit of partnership between the various stakeholders. Any move towards the Minister having the power, without consultation and agreement, to set such issues as, for example, the dismissal and suspension procedures and terms and conditions of employment for teachers, would be in direct contravention of the preamble and the spirit of partnership upon which the model of education here is founded and on which it has thrived to date. The various stakeholders are being sidelined and this is ignoring and devaluing the huge contribution made by voluntary members of boards of management.

If I heard the Minister correctly, he suggested that one could say there was sometimes too much consultation by the Department of Education and Skills in the past. We need to talk about that. That is a big statement. Is that the reason the various stakeholders were not consulted prior to the legislation being brought forward? That is not the way to go. I respect the Minister’s grasp of his brief. He should explain to me if there is something I do not understand. The legislation is causing concern. What I say is reasonable and logical. I am concerned that we are devaluing the contribution by voluntary members of boards of management. I understand the requirements of the ECF, employment control framework, and the financial and other constraints on decision makers at the moment. However, I look on it as a person who benefited from a good education for which I am very grateful. I have a vested interest in that I am a member of the board of trustees of the CEIST secondary schools. It seems that when one appoints a teacher one conducts an interview and one tries to select the best candidate for the job. One views it through the lens of what is best for the student.

[28]Senator Power said redeployment was a good thing. Surely it is a necessary evil rather than a good thing. Once one begins to talk about redeployment panels one is talking about less choice and less authority for those who have the responsibility to make an appointment for the benefit of the students who are in their care. Without wishing to over-simplify the issue, one could view this through the lens of what is good for bureaucracy or what is best for children. In any conflict between the Department of Education and Skills — I intend no disrespect to the personnel involved — and the board of management of a school, backed up by patrons and trustees, I would trust the board of management. I would favour the subsidiarity principle. I trust the judgment of the members of a board to decide what is best for the children in their care when they want to make an appointment. There are certain realities that we must negotiate and deal with in terms of redeployment but let us not try to suggest that it is the answer to all prayers and that it does not contain problems because it does. If a situation arises from time to time and one cannot empty a panel then there is probably a reason for that. We must be open about that. I am concerned about deliberately ignoring and devaluing the contribution by voluntary members of boards of management. The Minister should correct me if I am wrong — I am totally open to that — but I wonder why there was not consultation prior to bringing forward the legislation. The board members have a right to consultation and to make an input into a process that intimately affects and restricts how they run the schools for which they work so hard. I do not need to tell the Minister about the amount of voluntary work being done by committed people on boards of management, etc., on other people’s behalf.

In the Minister’s previous Seanad contribution, he mentioned how the Department had embraced consultation and agreement, but a legislative requirement to this effect is not evident in the proposed subsections 24(2), (3) or (10). It may be the Minister’s intention to consult and to seek the agreement of various stakeholders, but the Bill does not oblige him or his successors to do so. It could be argued that these provisions represent a unilateral amendment of the contracts of employment of thousands of publicly employed individuals. There could be contract law and employment issues. I will reserve my position in this regard, but I wish to flag my concern.

The 1998 Act and other legislation make it clear that the board of management is the employer of teachers. Would these sections have the effect of altering the relationship between the employer and the employee without the agreement of the supposed employer?

The Minister referred to the powers he is seeking under these sections as being solely an administrative convenience to be relied upon in cases of emergency, but there is a question of whether he is transferring the attributes of an employer to the Department of Education and Skills in a way that might have implications in terms of liability. Although it is a separate question, it is worth asking whether the Department, the Minister and the taxpayer will be exposed to additional risk.

Without the checks and balances when one has an obligation to consult and agree — this obligation should be included in legislation, given the distinctive nature of education — the level of discretion granted to the Minister by this section is almost legislative. The power to decide hiring and firing mechanisms unilaterally is being delegated. Other sections of the Bill define in detail the Minister’s power to make regulations in the context of the Teaching Council, yet there is no defining objective listed in this provision. Questions arise.

Senator Feargal Quinn: Information on Fergal Quinn  Zoom on Fergal Quinn  I support Senator Mullen’s comments. It may seem that I am contradicting my comments on the need for 100% agreement, but there is a difference between boards of management and individuals. It is difficult to reach agreement with individuals, in that one among a large number will invariably disagree. If we give individuals the right of veto, [29]operating the system would be impossible. However, there is a difference in the case of boards of management. If the boards and the Minister disagree, at some point or other we must pressure the Minister to recognise the opinions of the boards and the representative bodies of those involved in education. The difference between consultation and agreement will always pose a difficulty. There is no problem with the former, but there is with the latter. The idea that the Minister would be forced to accept a different view must be taken into account.

There is a difference between negotiating with boards and negotiating with individuals, as 100% agreement in the case of the latter is difficult. When one deals with a representative body or a school management body, however, it is possible to strengthen the Minister’s hand to encourage agreement rather than just consultation.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  This is very much like what we have discussed already, but I take the point that there is a slight difference. Rather than weakening boards of management, if this is done right, in the context of the Minister’s reference to agreement and consultation, it could empower them. In most cases, boards of management are not sufficiently consulted in the filling of vacancies in schools. In the North all applications are reviewed by the board and must tick a certain number of boxes. This ensures all those selected for interview are in possession of certain competencies. That is very rarely done in this jurisdiction. Instead, it is generally the case that the first the board members know of a teacher is immediately after his or her appointment when they are summoned to ratify the appointment. It could be done differently. Will the Minister indicate whether he is moving in that direction?

Senator Rónán Mullen has said there is a reason a person on a panel is not appointed to a post. That may or may not be the case. It could be, for example, that an applicant is not on good terms with a former principal who may have sent the message that the applicant is not a good teacher. That has happened. The basic competency of a teacher is judged by an inspector. Once he or she has the necessary inspector’s reports, that should be it. Some time ago there was a proposal that boards of management might have responsibility for assessing teachers’ performance on a scale such as that applied to civil servants for the purpose of assessing eligibility for increments. Such a move would empower boards and improve teaching and learning in schools. However, it was not deemed acceptable at the time.

Everything we do must be focused on the quality of teaching and learning in schools. If these criteria are met, we can move ahead. In supporting the Minister on this provision I note that there is nothing substantially different from what we have heard already.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I apologise if I repeat anything that has been said already. I intended no discourtesy by my absence from the Chamber for the beginning of the debate. I had to undergo a minor medical procedure and the surgeon was only available today. I came here as quickly as I could.

I have a major aversion to the word “stakeholder”. I know what it means, but I do not like it. However, I suppose it is necessary to use it in some circumstances.

I agree with some aspects of Senator Rónán Mullen’s contribution. I went to two schools, one of which was extremely good and the other appalling. As far as I could tell, it had nothing whatever to do with the board of management in either case. I certainly agree that the criterion should be what is best for children. It is splendid that people give up considerable amounts of time on a voluntary basis to serve on boards of management.

I may be confusing matters, but I seem to recall Senator Rónán Mullen saying he had served on some 114 boards.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  That was a misunderstanding. I was referring to trusteeship bodies.

[30]Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I thank the Senator. I would be concerned if there was a question of a block interest. The Senator probably corrected the matter after I had spoken on the last occasion. To my mind, if we have individual volunteers making up the board, they have a very important contribution to make. However, if there are people sitting on multiple boards simply to represent particular interests, I have less respect for them as — to use that horrible word — stakeholders.

While consultation is generally positive, I am a believer in ministerial responsibility. If, however, an amendment to change a couple of words were tabled, he might consider it because, as matters stand, the Bill appears almost to confer the power of veto on particular groups. In circumstances where the Minister was incapable of achieving agreement with the representatives of the patrons, recognised school management organisations and any recognised trade union or staff association representing teachers, etc., the amendment seems to suggest that failure to secure such an agreement would preclude him or her from taking the action he or she would wish to take. Again, I could be wrong but that is what appears to be the intention.

  5 o’clock

I respectfully ask the Minister to consider a slight alteration to the amendment tabled by my two colleagues in order that it would read “the Minister after consultation with and having sought the agreement of”. I do not believe it is necessary to obtain agreement. Engaging in consultation and seeking agreement are good. During a fractious career — and perhaps to the surprise of some colleagues in this House — I have come to be regarded as something of an alpha male within certain organisations. I have always sought that decisions be made and, if a majority existed, that they be rushed through. It was actually female members of the various organisations to which I refer who were able to demonstrate that if, after careful discussion, it is possible to persuade everyone to one’s point of view, then decisions will be copper-fastened and people will not continually try to reopen the debate on dead issues.

I suggest that the amendment would be acceptable if the term “having sought” were included. The only difficulty which might arise could be practical in nature. Will the Minister indicate both the number of bodies involved and how many of them would have to be consulted? Would it be possible to delegate responsibility to someone in order that he or she might engage in the relevant discussions on his behalf? There are such serious matters arising in respect of education — from primary all the way through to post-third level — that it would not be possible for the Minister spend all his time involved in consultations with boards of management. Perhaps the amendment could be tinkered with before Report Stage. In that context, the Government’s advisers might be in a position to come up with a suggestion which would not tie the Minister into being obliged to hold endless meetings with boards of management but which would still ensure consultation took place and attempts would be made to secure agreement. The Minister should not be obliged to comply with a requirement to reach agreement with every interest group.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  This debate on this amendment is useful because it has given us the opportunity to discuss other issues. I acknowledge the way in which the Minister answered my previous question on ethos and the competence of teachers in the context, for example, of the teaching of Irish. As Senator Mullen pointed out, however, there have been cases where matters relating to the redeployment panel could not be resolved and where teachers were not taken off it as a result of word on the grapevine to the effect that they were not very competent. The Minister will now have an overarching power which will allow him to appoint such teachers to schools which previously might not have wanted to avail of their services. Will he indicate what he proposes to do in respect of teacher incompetence? I accept that I am referring to a small number of individuals in this regard but nevertheless it is a factor.

[31]I acknowledge what Senator Jim D’Arcy said, namely, that it is not always the case that a teacher might be incompetent but rather that he or she might not be well liked. It is never helpful when information of that nature gets onto the grapevine. We must be honest and state that a small number of teachers might not be competent. That is the case with any profession. What is the Minister doing to resolve this issue? What mechanisms have been or will be put in place to make the redeployment of teachers easier?

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  I have never come across difficulties involving teachers who remained on the redeployment panel for a long period and who were eventually taken on by schools. I am extremely interested in what Senator Norris had to say and I await the Minister’s response to him. Did I understand the Senator to have stated that he attended two schools, that one of these was good and the other bad and that whether a school was good or bad had nothing to do with its board of management? Boards of management are responsible for running schools and that is where the problem lies. They have both the power and the responsibility but at times they are not encouraged to use the former or exercise the latter.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I should explain that the schools to which I refer were outside that system.

Senator Mary Moran: Information on Mary Moran  Zoom on Mary Moran  Boards of management may have power but much of the time those boards may not even be consulted. I have personal experience of this matter and I am aware that the first one will hear about a particular teacher being employed is when one receives a telephone call to ratify his or her appointment. There might have been no consultation prior to said telephone call being made. What the Government is proposing will give rise to a vast improvement. I previously taught many pupils who became teachers and who ended up on the redeployment panel. I can only describe those to whom I refer as being excellent teachers and I have written numerous references for them because they are the brightest sparks for the future. We want to retain these individuals rather than educating them and then seeing them leave the country. The legislation seeks to improve matters in this area.

Senator Healy Eames referred to the competency of teachers. What the Minister is proposing in the context of changes to the Teaching Council and in respect of compulsory professional development will be of assistance in that regard.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I welcome Senator Norris to the debate. I do not know where he was up to now but he may have been receiving treatment from a psychic because he has anticipated much of the debate that has occurred and a great deal of the etymological exploration of the difference between words such as “agreement” and “consultation”. His long years of experience in the Seanad appear to travel with him outside this Chamber.

Before dealing with the specifics of the amendment, I wish to deal with a number of general issues. The history of the control and management of our schools is well known to all Senators. The system in this regard is 181 years old this year. From 1922, when the State came into legal existence, the manager of a school was a sole person appointed by the patron who, in 92% to 93% of cases, was the Catholic archbishop or bishop of the relevant diocese and usually — but not always — the local parish priest. Under that hierarchy of command and control, being a manager meant that one had absolute power. That is something many schoolmasters know to their cost. I include in that regard the late John McGahern who was summarily dismissed from a teaching post in Clontarf because he offended the bishop of the day and the manager was instructed to dismiss him. In 1976, when the then Minister for Education, Mr. Richard Burke, introduced — on foot of an election campaign pledge give by the then coalition Government — the participation of parents, teachers and others, I suspect that in order not to frighten the [32]horses, particularly those in Drumcondra, the words “manager” and “management” were retained. The board of management has expanded to contain ten or eight and Senators are familiar with the present structure. However, they have never been managers. It is more accurate to describe them as boards of governors. They have very limited powers and the real managers of a school, as anybody will tell one, are the principal and vice-principal. They have the responsibility for the school’s day-to-day affairs. A board of shareholders or directors has a chairman but, in making the educational experience happen every day in our primary schools, the chief executive officer is in my view the principal. The terminology has been passed out.

The new section 24(10) to be introduced to the 1998 Act by section 6 of the Bill states:

Accepting the amendment proposed by Senators Quinn and Mullen would mean it would read as follows, and this is qualified by the debate we had earlier:

I am not sure what safeguard the amendment will necessarily give that is not already there. The amendment introduces the words “and with the agreement” following “the Minister after consultation with”. We would have consultation and agreement prior to being able to proceed and dispose of a non-performing school or principal.

The suggested amendment from the university Senator from the other university panel would include — based no doubt on practical experience —“having sought the agreement of”. We are back to the philosophical question of consultation and agreement. I have already said, but I will repeat it for the benefit of Senator Norris who was not here, that I am prepared to work with the social partners, including the representative bodies of patrons and others, to get a working definition of what “consultation” means and, being slightly repetitious, that “agreement” does not mean unanimity or veto and “consultation” does not mean diktat or imposition. As we have found in the past, sometimes precision in legislation can be too complicated in the area of human relations, which is what we are discussing.

The reason this is necessary is because in the past when a difficult situation arose one did not have to resolve it there and then before one could hire new teachers. This is the fundamental difference. Whether we would repeal all of this following our recovery of economic sovereignty would be a matter for other people. It is one of the experiences that has come out of last summer. I must state informally I was told difficulties arose and it was due only to good co-operation from various patron bodies — I have already paid tribute to one of them, namely, the Catholic Church — with regard to taking into its schools in southern Ireland a number of teachers not working for schools under the patronage of the Catholic Church but from another ethos.

[33]In the logic of what I have rejected and accepted in the past I cannot accept this amendment because it would go back to where we were with regard to consultation and agreement. The amendment would mean mentioning consultation and agreement in order that it would be a belt and braces approach; the Senators are seeking a consultative process and a process that would require agreement, which is unanimity. As I see it, this would be a veto. It is not necessary. I have no doubt as to the motives of Senators Mullen and Quinn, but it is excessive in the context of where we are and I cannot accept it.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I thank the Minister for his response which, if I may say so, was very thoughtful and informative, and for which I am grateful. As it is not that late, I do not have that excuse for saying I did not quite follow one objection the Minister raised with regard to the wording of section 24(10) relating to suspension or dismissal. We are clear that what we propose does not draw in the requirement for agreement before a person can be suspended. We are discussing the way in which procedures are arrived at. I do not think there is any misunderstanding there.

The key word is “agreement” and whether it should be there with “consultation”, but if this was all there were between us and the Minister I would happily settle for deletion of the word “consultation” in favour of “agreement” on Report Stage. I take the Minister’s point that there may be a degree of superfluousness or superfluity — I will defer to Senator Norris on which is the correct word — in having both “consultation” and “agreement”. However, as the Minister stated, we are back at the same point on whether the relationship was good in the past. The Minister hinted it was not good and that too much consultation took place in the past and there was too much waiting on the viewpoint of various parties. The Minister also cited the co-operative spirit, but this all comes down to the fact that he prefers not to have to depend on this co-operative spirit in the future.

I have said what I said about education. I am not happy that we go from Archbishop McQuaid to the Minister for Education and Skills, and there is a bit of this happening. As one person involved in the boards of management of schools asked me, is this representative of a new culture and command style in the Department of Education and Skills? It does not fit the requirements of education.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  The Minister spoke about getting a definition of “consultation”. Will he have it for Report Stage?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  No.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  When are we likely to have it?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  It is outside the legislation. It would not be statutorily defined. It would be following consultation——

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Regulation.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  No.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I see. In that case I quite like my idea of having sought agreement.

I thank the Minister for his good wishes and hope the person involved was a psychic because he removed a lump and stated he did not think it was malignant.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I will respond if I may because this is the meat of the Bill. Legislation must be precise in how it is drafted. If one deconstructs section 24(10) and examines it one sees it states the board of a recognised school may — it then goes to the operative verbs —[34]suspend or dismiss or both. The operative agent is the board of a recognised school, and the sentence goes on to qualify how it may make decisions in accordance with procedures determined from time to time by the Minister. These procedures include: consultation with bodies representative of patrons; recognised school management organisations; and recognised trade unions and associations representing teachers or other staff as appropriate. These are bodies such as the Irish Primary Principals Network, IPPN; the Irish National Teachers Organisation, INTO; the National Association of Principals and Deputy Principals, NAPD; or the Association of Secondary School Teachers of Ireland, ASTI. Having referred to these, the process then goes to the operative point of suspending for whatever reason the board deems to be appropriate. With all due respect to the two Senators, I do not see what additional powers or qualifications the board would have if we were to insert the words, “the board of a recognised school may, in accordance with procedures determined from time to time by the Minister, following consultation with and with the agreement of bodies representative of patrons, recognised school management organisations and any recognised trade union or staff association representing teachers, or other staff as appropriate ...” suspend or dismiss a non-performing school principal or staff. This is a case of belt, braces and bicycle clips. It appears to be superfluous.

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

Amendment declared lost.

Government amendment No. 10:

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  The purpose of the amendment is to provide for the amendment of section 38 of the Teaching Council Act 2001. This provision clarifies a function of the Teaching Council with regard to programmes of teacher education and training provided by institutions of higher education and training. Section 38 states: “The Council shall, from time to time, (a) review and accredit the programmes of teacher education and training ...”. This may be interpreted as requiring the council to accredit all of the programmes it reviews. For the avoidance of doubt, the Bill contains a provision to allow the council to accredit programmes where it is appropriate to do so. Amendment No. 47 was dealt with as it was grouped with amendments Nos. 6, 16, 42 and 46.

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  To confirm, we are on section 6, amendment No. 10.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  Are we not on section 10?

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  No.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  On a point of clarification, in my copy of the Bill line 48 reads, “appointed by the board and who are to be ...”. The amendment reads: “to delete “to be” and substitute “, or are to be”. I do not understand this. Is it the intention to delete the word “and” and insert “or”? The Bill reads, “... who are to be ...” and the Minister is proposing to insert “or are to be”. The verb “to be” is included twice. It seems confusing, or it might just be my stupidity. The Minister proposes to delete the words “to be” and insert “or are to be”, but they are already included in the Bill. This is confusing because phonetically “or” and “are” sound the same. I apologise to the Minister.

[35]Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I am sorry for the inelegance of the text which I am sure James Joyce would not have written in that way. Perhaps he might have used the words “who are or who are to be” remunerated. I understand that is the sense intended.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Will the Minister repeat what he said?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  Perhaps the words “who are or who are to be” might have been used.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  In that case, the second——

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  Present or future tense.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Yes, but that is not what is stated in the Minister’s amendment. Will he give me that form of words again because it makes it clearer? Should it read, “... or who are to be”?

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  The Minister might review the text when he is looking at the matter again.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  We will seek clarification. Let us reflect on the drafting of the text to ensure we have the proper wording. We will come back to the matter on Report Stage.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I thank the Minister. There is confusion, as the Minister appeared to accept in what he said.

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  Is the amendment agreed to?

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  The Minister has said he will consider the matter again.

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  I accept that, but it is subject to the Minister coming back with an amendment on Report Stage.

Amendment agreed to.

Amendment No. 11 not moved.

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  Amendment No. 12 is in the name of Senator Rónán Mullen. Amendments Nos. 13 to 15, inclusive, are alternatives to amendment No. 12. Therefore, amendments Nos. 12 to 15, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I move amendment No. 12:

We are back to the discussion on the issue of redeployment, the concept of which is not defined legally in the Bill or elsewhere. A lack of precision in legislative drafting will only set the stage for future disputes and possible judicial reviews, resulting in further costs to the taxpayer. The word “redeployment” is used by the Department as shorthand for a set of procedures designed to avoid the necessity to pay a teacher’s redundancy entitlements at the expense of the autonomy of schools to recruit appropriate teachers and manage the turnover of staff. Such a mechanism should be nothing more than a temporary solution employed to solve a problem until a more permanent solution can be arrived at and such a temporary solution should not be placed on a statutory footing.

[36]I have no doubt that some very fine teachers make their way from panels onto the staff of new schools or schools in which there is a vacancy. I am in no way impugning the quality of many teachers who have been surplus to quota and are on panels, but who, ultimately, gets to decide whether to make an appointment? That is not a matter that should be removed so dramatically away from the influence of school managers of boards of management.

I note the Minister’s informative analysis of the way management has evolved in schools. He has outlined the de facto position. I know this to be the case where de facto the manager is often the principal. That is a source of concern because with the best will in the world it is not ideal that we have strong principals and weak boards of management. That is the reason the role of chairperson of the board of management is crucial. It is up to schools, patrons and trustees to ensure strong, informed and competent chairpersons of boards of management are in place. I make this point as an aside. I am not in any way impugning or seeking to denigrate the quality of teachers who find themselves on panels, but an issue arises about who, ultimately, gets to make the call about whether to make an appointment to a school.

When a job is advertised and there is no question of a panel being formed, it is clearly the prerogative of the board of management to pick the best person for the job. By definition, the use of a redeployment panel system involves the possibility that sometimes the best person for the job will not be chosen, and that is a key issue. That is why we should view this mechanism as a temporary solution employed to resolve a problem until a more permanent solution can be arrived at. I have warned of the danger of putting such a temporary solution on a statutory footing. Redeployment is a fundamental interference with the capability of boards of management to run their schools and recruit appropriate staff. In reality, different schools, even in physically proximate areas, will have different needs, education models, ethos and so on. It is about many issues, be it religious values, the Irish language in some cases or basic competence in other cases, and we cannot presume that the needs of every school are uniform.

Redeployment also presumes that one teacher is the same as the next and has the same skills and training but teaching is not a one size fits all profession. Different teachers will bring different experiences, strengths and qualifications which may benefit one school more than another, and that is a big issue. That is the reason this is such an important question. Foisting teachers upon schools without allowing them to assess applicants for suitability does not sit well with any claim to have children at the heart of our education system. This has the potential to militate against the pursuit of excellence.

The Minister has stated that the EU-IMF framework requires redeployment to ensure that the State stays within the limits set by the employment control framework. Surely making suppressed posts redundant and thereby terminating the employment of the holder of a post rather than redeploying him or her is the more logical and obvious way to achieve those targets. It is a question we should at least debate. Keeping the suppressed post holder on a panel and continuing to pay in that respect does not achieve what the Minister claims he wishes to achieve.

I have raised the question of the employer in this context. Are we moving to a position where the Department will be construed as the employer? In many ways that would seem to be the logic that flows from the powers the Minister seeks under this Bill. The board of management may well be a titular employer but the Department is becoming the entity with all the powers and rights normally accruing to an employer. That raises the question of whether the Department will be open and subject to all the judicial and statutory processes to which employees are — those of court actions, employment appeals tribunal hearings, equality tribunal proceedings and so on and dealing with the binding judgments of those fora. If a redeployment decision by the Minister or his Department were to lead to some kind of miscon[37]duct, or some other issue were to lead to a court action and to an award, where normally the board of management, as I understand it under the law, would be the body with liability in such a case, will there be extra liability on the part of the Department in the future where mischief flows from a redeployment decision made by the Minister? I would be interested to know if any consideration has been given to that. These are legitimate questions which flow from the changes the Minister proposes.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  The Senator proposes on page 6 of the Bill to delete lines seven to 34. Is that correct?

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Yes.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I want to be clear about what we are talking about. This is a long section and we have moved backwards in terms of chronological pages to address this area. The operative phrase is “in accordance with redeployment procedures determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform following consultation” and so on. Is that the focus of the Senator’s attention? It is the redeployment reference.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Yes, this is an amendment about redeployment.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  The reason for the reference “in accordance with redeployment procedures determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform” is the Croke Park agreement and the fact that in return for agreement by the social partners and the representative organisations there would be no compulsory redundancy. That is the essence of it. It is couched in this way because one cannot put an agreement such as the Croke Park agreement into necessary legislation, or it would not be advisable or best legislative practice to do so. That is what that means. There is an undertaking in return for certain assurances — with which the Senator will be familiar — about the permanency of employment commitment from the social partners on the trade union side to be productive and flexible in terms of productivity, which is in the course of being delivered, and that is what is there. If a person refused redeployment, in some circumstances there might have been another sanction, and that is what this is attempting to address. Removing that does not give the person any additional cover, rather the position is quite the contrary.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Am I right in thinking the Minister is saying that this is embedding the terms of the Croke Park agreement in the legislation by putting the redeployment procedures on a statutory footing? I am opposed to putting redeployment procedures on a statutory footing in this way. To quote by beloved father, “I am cutting stubbles here”; we are both cutting stubbles in revisiting ground that has already been travelled. This is something that is at best a temporary solution. There is something imperfect about the concept of redeployment panels for all the reasons I have given in that they raise questions about what is ultimately being prioritised, the best person for the job or the need to keep people in employment. I am sympathetic to the need for some kind of a balance there. We want to act justly towards people who are competent teachers and find themselves surplus to requirements in a school. They have to be looked after as far as possible but there is the balancing issue of the right of boards of management and of the other parties in education, but specifically boards of management, to appoint the best person for the job. Those are the issues that are in tension sometimes.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I will try to assist in that regard. The intent of the changes being proposed under the new section 24(5) is to strengthen the legal basis for the redeployment of surplus teachers. In that respect, the Senator is correct. While having fully efficient and effective [38]teacher redeployment arrangements has always been an objective of the Department, it has assumed, as I said in an earlier response to Senator Power, a critical dimension in the context of the EU-IMF framework. This is because of the ceiling on numbers under the employment control framework and the imperative of staying within the limit and, as I said, we also have obligations under the Croke Park agreement.

The allocation of teachers is a function of the pupil-teacher ratio and the population of schools both at primary and secondary level and, by definition, it varies every year because of a decrease in enrolment, an increase in demand or whatever. There could be an allocation of additional teachers and so on and there must be a basis for it. A different regime was in place in the past. If the allocation resulted in a surplus of teachers being in the vicinity, they were put on the deployment panel. I am being repetitious but the Senator is entitled to hear this in the context of this argument and the debate, for those who will read it, will make more sense. We are not in that space any more. In the old days there may have been a few teachers who for whatever reason be it ethos, the patron body or, as Senator Jim D’Arcy and others have said, they may have had a reputation, justified or otherwise, no prospective employer wanted to take on and they could not have been foisted upon them at that time so they stayed supernumerary and the Department absorbed that extra cost. We do not have that discretion any more. To encourage redeployment, with a carrot and stick approach effectively, and we cannot fire——

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  More stick than carrot.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  No. In these days the carrot is having employment and a pensionable job; it may not be in the same place as one is currently employed but many people do not have a sense of that in that we have 440,000 people unemployed.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Yes. I accept the Minister’s point.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  This is the view of the section of the Department. It is considered that we need these extra legal powers to avoid litigation and dispute. We have endeavoured to have as much consultation as possible with the social partners in regard to this in the area. I stress that it is not an attempt to undermine or take away the discretionary powers of patron bodies and individual schools to hire or to refuse to hire individual staff. We have had one year of operating this and we have had a good experience with all involved. However, the people involved on our side felt it was necessary to have clarification and a strengthening of the legislation in this area on behalf of the Minister. Otherwise, if I or the negotiating staff within the Department who conduct the negotiations — it is not the Minister who does the negotiating — could not get the agreement, we could not employ the extra or new teachers. There would be an impasse whereby if a school required teacher capacity, we could not authorise it because the Department of Public Expenditure and Reform would not authorise it. We would not get sanction for that new employment unless we had cleared out the panel, and that is what we need.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I will be brief as I do not wish to keep this discussion going all evening. I am grateful to the Minister for his responses. There are two questions however. The Minister said there has been a year of this——

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  There has been one cycle of experience.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Yes. Has it been negative without the legislation in place?

[39]Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  No, but people would say we were lucky.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Would it not be better to wait and see how it pans out, to see whether this can be achieved through agreement and to see if the current system works? If the Minister is not sure it is broken yet, why is he seeking to fix it? He is certainly not obliged by the troika or anyone else to put these redeployment procedures on a statutory footing. On the other question I asked, has the Minister or his Department given any thought to issues of liability that might arise? The Minister is putting this on a statutory basis, whereby it will be very much under ministerial control. There will be consultation but the redeployment procedures will be a ministerial decision. Does the Minister foresee that this could lead to situations where it could be argued, if there is some type of legal action as a result of a redeployment, that there could be a greater degree of liability on the State?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I am not sure in what sense liability would fall on the State. What would it be liable for — imposing a teacher on a reluctant employer?

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  They might not have chosen otherwise, and it goes on to cause——

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  Let the Minister finish. The Senator can respond then.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I am not entirely sure and I do not wish to hazard a guess. I will revert to the Senator on Report Stage with a specific note on it. It is a fair question but I do not have a clear answer immediately to hand.

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  The question is: “That the words proposed to be deleted stand.”

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  On a point of clarification, I was not pressing that issue. I presume I do not lose my right to bring forward an amendment on Report Stage if I utter the word “Níl” to the question.

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  Is the Senator withdrawing the amendment?

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I am happy to withdraw it. I will consider my position in advance of Report Stage.

Amendment, by leave, withdrawn.

Government amendment No. 13:

Amendment agreed to.

Government amendment No. 14:

Amendment agreed to.

Government amendment No. 15:

[40]

Amendment agreed to.

Government amendment No. 16:

Amendment agreed to.

Acting Chairman (Senator Terry Leyden): Information on Terry Leyden  Zoom on Terry Leyden  Amendments Nos. 17 to 33, inclusive, are related and alternative to each other. Amendment No. 41 is also related. Is it agreed that amendments Nos. 17 to 33, inclusive, and No. 41 be discussed together? Agreed.

Government amendment No. 17:

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I am fully committed to ensuring that, to the greater extent possible, only qualified and registered teachers are employed in recognised schools. Section 30 of the Teaching Council Act 2001 currently provides that a person employed as a teacher cannot be paid from the public purse unless he or she is a teacher registered with the Teaching Council. The Irish National Teachers Organisation, INTO, and the Association of Secondary Teachers of Ireland, ASTI, have argued for the commencement of section 30 without qualification.

While the position of employing only registered teachers is a very desirable and logical one, it does not always reflect the practicalities at school level. Schools may, at short notice, have to engage a person in place of a registered teacher who might be sick or unable to attend school for some other reason. Despite the high numbers of newly qualified teachers, principals can experience genuine problems in sourcing a registered teacher. If there were no exception to this requirement, students would almost certainly have to be sent home.

The Bill will permit the Minister of the day to regulate the conditions attaching to the employment of an unregistered person in these circumstances. These conditions can include a requirement than an unregistered person can only be employed if a registered teacher is not available to take up the position; a limit on the length of time for which an unregistered person can be employed; a requirement that an unregistered person have certain minimum qualifications; a requirement that the Minister consent to the employment of an unregistered [41]person; a limit on the subject or purposes for which the person will be employed; and a requirement that the school retain evidence as to why it has been unable to employ a registered teacher.

Much of this has been done administratively. In Circular 31/2011 issued by the Department in May last year, the employment of an unregistered person is limited to a continuous period of five days at a time, and schools remain under a continuing obligation to source a registered teacher. Schools must also prioritise registered teachers over unregistered people. As a result of this approach, if there is an adequate supply of registered teachers, schools will have to employ them over unregistered people. However, the regulations will ensure that a school does not have to close simply because it cannot find a registered teacher when there is an unforeseen absence.

I have considered providing exceptions for people in the system who have let their registration lapse and for those whose registration with the Teaching Council was pending at the time of their employment. I considered permitting the employment of people in teaching positions in these two situations being paid at the unqualified rate of pay. However, in light of union representations, I have decided not to provide for these two categories and the purpose of amendment No. 17 is to limit the exception to having to be registered to the urgent and very short-term needs of schools.

Amendment No. 20 is required to correct a printing error in the Bill. I thank Senators for amendment No. 21 dealing with the same point.

Amendments Nos. 22 and 27 to 29, inclusive, are consequent to the substitution for subsection (7)(c) of a new subsection (8) which provides for the only circumstances in which the employment of an unregistered person is permitted.

Amendments Nos. 30 to 32, inclusive, are drafting amendments to clarify language in the Bill following advice from the Office of the Parliamentary Counsel.

The purpose of amendment No. 23, raised by myself and Senators Averil Power, Thomas Byrne, Mark Daly and others, is to remove the unnecessary reference to “in so far as possible” because the provision already refers to the desirability of employing only registered teachers to teach. I thank the Senators for their amendments.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I appreciate that the Minister’s amendment is to make the provision more limited. However, it is still regrettable to provide, for the first time, for statutory recognition for unqualified personnel, particularly in the current economic environment when there are so many young, qualified teachers looking for work. As I did on Second Stage, I urge the Minister to follow through on his commitment to enact section 30 as it stands and not to provide for statutory recognition of the placement of unqualified personnel in charge of the education of pupils. Our group has tabled a proposal to delete all of the sections relating to the employment of unqualified personnel. Failing this, important textual changes need to be made which are contained in amendments Nos. 19, 23, 24 and 26.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  I suggest the teaching of children by unqualified teachers will not be as good as teaching by qualified teachers, just as the worst room in the best hotel is better than the best room in the worst hotel. However, from time to time it is impossible to find a qualified teacher, notwithstanding the number of young teachers who are unemployed, and it is more difficult at certain times of the year. The Minister is making provision for very limited number of circumstances which need to be provided for in legislation because of the Teaching Council Act. While the legislation is not perfect, it is necessary. Where perfection is not possible, we [42]have to go with something less. The provision to impose a limit of five days will give school principals cause to pause for thought considering that a replacement will be required after five days. Therefore, they will make an extra effort to find a qualified teacher. A school must show evidence that it has searched to find a qualified teacher. This is a very important provision in regard to which I support the Minister.

Senator Mary Moran: Information on Mary Moran  Zoom on Mary Moran  All Members agree that it is preferable to have qualified teachers teaching children, where possible, but there are exceptional cases. I am in agreement with the Minister on this point. I taught music which is very much a minority subject and sometimes it was difficult to find a substitute teacher to teach subjects such as music or physics. A person with a relevant degree who is not a qualified teacher could be employed in such circumstances. We have to make allowances for such cases, rather than see a school close, as has been cited.

I refer to the Minister’s circular of last May on retired teachers. This is a proposal that needs to be considered. Retired teachers on pension are being re-employed. This is one aspect we need to examine with regard to qualified and non-qualified teachers.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I look forward to receiving the Senator’s support for amendment No. 35.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  This is a very capable Minister who gives consideration to matters. We had experience of him in this House in previous sessions and it is always a pleasure to discuss matters with him. I have a couple of questions for him. He says his initial instinct was to allow teachers who had perhaps inadvertently allowed their registration to lapse or whose registration was pending to be included, but that following the receipt of trade union representations, he changed his mind. I ask him to explain why he thought it was a good idea because it is and the reasons the trade unions have adopted this attitude. As I am a member of three trade unions, I am not anti-trade union and happen to think the Minister’s party is not socialist enough for my taste. Therefore, I am not speaking from a right-wing perspective.

The Minister seemed to talk about persons who were partially qualified. He did not actually use that phrase, rather I am employing it. I think he said something about individuals who had some qualification. What constitutes a partial qualification? If people are completely unqualified, they are just like goatherds or shepherds, simply keeping students in their places. If they do not have knowledge, they cannot impart it. In having somebody who is completely unqualified and has no knowledge to impart to the young people in his or her care, the students concerned would be much better off having somebody who had inadvertently allowed his or her registration to lapse. If such a person was to give a guarantee that he or she would complete his or her re-registration, or if registration was pending, there would be a much stronger argument for including them than for using persons who were completely unqualified.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I have a number of brief technical questions. It may be that the drafters of the Bill have already spotted them, but there are three technical issues to be considered. One is not so much a technical drafting issue, but in the proposed section 24(7)(c)(ii) there is a reference to the continued established tenure of a person in a teaching position under an existing contract of employment. The goal of the section appears to be to allow the Minister to provide that certain teachers, most likely those who have already——

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  To which section is the Senator referring?

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Section 24.

[43]Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  On which page?

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Page 7. Section 24(7)(c)(ii) reads:

Given that the goal of the section is to allow the Minister to provide that certain teachers, most likely those who already have contracts of indefinite duration or who would be entitled to them under the Protection of Employees (Fixed-Term Work) Act 2003, be allowed to continue to be paid from the public purse. However, the terms used in the subsection are not clear. If the Minister is seeking discretion to extend and define the exceptions he is carving out of section 30 of the Teaching Council Act 2001, surely it would be advisable to delineate that discretion; in other words, I am asking whether there is a need to add appropriate definitions in the interpretation section of the Bill of the terms “tenure” and “existing contract of employment”, given that a new power is being given. It seems there ought to be such definitions. Perhaps there is a definition somewhere or in other legislation.

My other two questions are relatively simple. One relates to the proposed section 24(8) on page eight, line six, which begins with the words “Notwithstanding the Act of 2001”. I presume there are a couple of words missing. Perhaps the missing words are “the provisions”.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Perhaps the word “of” should be deleted.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Perhaps it is superfluous.

Section 24(9)(f) reads:

Am I correct in thinking one of these words needs to be changed to “unregistered”? Perhaps I misunderstand the wording, but I would have thought the paragraph should read “...evidence that it has been unable to employ a registered teacher in the place of an unregistered teacher in a recognised school”. I apologise if I have mistaken the intent of the text, but it is not clear to me.

Senator Martin Conway: Information on Martin Conway  Zoom on Martin Conway  As Senator Mary Moran has raised the issue to which I was going to allude, there is no point in going over that ground again.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I wish to respond to Senator David Norris. The intention was to introduce section 30 of the Teaching Council Act 2001 without qualification. It was absolute in that it did not, as it should have, take account of unusual circumstances. The net point was that one could not be paid from moneys voted by the Oireachtas if one was hired on a temporary basis and not a qualified teacher. That was the thrust of the legal advice we received on the [44]section and it was the subject of much discussion at the teachers’ trade union conferences last Easter. We changed the position in a circular, not the legislation, by making a recommendation that, where possible, only qualified teachers be employed. In the past a school to be closed could have happily sent its pupils home in the expectation that somebody would be there. However, that expectation is now unreasonable and does not fit with the reality of home life arrangements where both parents are frequently working outside the home. The modification mentioned was made.

There are references to a registration that has lapsed or is pending. The reason is that the Teaching Council is not a representative of the trade unions; it is the professional organisation of the teaching profession, in the same way that the Medical Council is the professional organisation for doctors and the Royal Institute of the Architects of Ireland is the professional organisation for registered architects and so on. Significantly, it is the disciplinary body which will withhold recognition from teachers who fail to comply with the terms and conditions of their registration. Earlier in the legislation, in amending the Teaching Council legislation, we are giving powers to the council to state one can only re-register as a teacher if one has complied with certain requirements in respect of continuous professional development, a standard applied by most professional organisations. One has to upgrade one’s skills and demonstrate that one has maintained one’s skills level through a prescribed set of courses.

  6 o’clock

The great critique of some of the Senator’s right-wing colleagues, not his I hasten to add, is that one cannot get rid of a non-performing teacher. The peer group of the Teaching Council will have the capacity to refuse registration, if it so chooses, and decide that one of its colleagues has failed to meet the standards laid down. Recently, in the Law Library, a prominent practitioner at the Bar had his licence to practise cancelled because of the publicity surrounding a certain case in which clients had been defrauded of money. Obviously, I cannot name the case in question. Clearly, the Bar Council found that a person acting as a barrister had misled his clients and acted fraudulently and against its rules. Therefore, as a result, he lost his licence to practise.

There has been controversy within teaching circles that the requirement to pay a registration fee of €90 a year with no return service is onerous; it has been the subject of conversation in certain staff rooms. Some ask why they should pay, given that they will receive nothing in return. As and from the commencement date of the Bill, the Teaching Council can require payment and do for its profession what other professions do for their members. That is the thinking behind the provision.

Senator Rónán Mullen had a query about a particular section.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  The first issue I raised concerned section 24(7)(c)(ii) which reads, “the continued established tenure of a person in a teaching position under an existing contract of employment, or...”. I asked whether this provision was appropriate, given that it would allow the Minister to provide that certain teachers should continue to be paid from the public purse.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I will confirm the position on Report Stage, if necessary. I seem to recall from a briefing I received that there is a small diminishing category of persons who were admitted into teaching and have contracts of employment but who would no longer qualify for such contracts today. However, they are still in good standing. Therefore, it is to allow me to provide what would be described in another world as a grandfather clause to allow the established tenure of the persons concerned to continue so as to not put their existing contracts of [45]employment at risk. This is a normal transitional clause when moving from one set of standards to another.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  To assist the Minister, there were two other technical queries. It appears a couple of words are missing in section 24(8) which begins with the words “Notwithstanding the Act of”.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I accept responsibility for this. It seems to be a drafting issue; the reference should be to “a non registered teacher”.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Forgive me for asking, but to whom was the Minister referring when he mentioned “right-wing” colleagues of Senator David Norris?

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  My right-wing colleagues.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I was referring to the university on the far side of the River Liffey.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Would the Minister care to enlighten us?

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  No one on this side of the House is saying the alternative should be to send children home if there is not a qualified teacher available. Except in the case of one teacher schools, this should not be necessary. Certainly, in the short term it should be possible for the other teachers in the school to fill in for a day or two. I accept it may have been necessary to do this in the past when so many extra teachers were hired that it was difficult to find a qualified substitute. If ever there was a time to commence section 30, this is it. Given that there are so many unemployed qualified teachers, this is the wrong time to give statutory recognition to unqualified personnel.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I am in the unusual position where I am less satisfied after hearing the Minister’s response. I will explain the reason. On the position of persons who have allowed their registrations to lapse, if this is a tactic to avoid being de-registered for reasons of bad behaviour, which is not likely, that would be a reason not to allow them to continue to teach. Where a registration has lapsed, the Minister has made a reasonable point on the need to upskill. However, I refer to someone who had taught successfully for a number of years but in respect of whom there had been a lapse of a year, during which time some minute question of upskilling might be raised. I note such a person would still have a competence and a qualification in that area. There can be no argument or the Minister has not advanced an argument that an unqualified person would be a better person to teach the children simply because a person’s registration had been allowed to lapse. Senator Jim D’Arcy appears to disagree because an admonishing hand has been raised.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  I went the wrong way. I was confusing the Senator with the Chair.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  That is fine. It appears as though an opportunity is being missed to hire someone for whom a degree of upskilling has not been achieved at some level but who would be better than someone who was completely unqualified. Why not let them teach? While I may have completely misunderstood this provision, I seek clarification of this point.

Senator Mary Moran: Information on Mary Moran  Zoom on Mary Moran  In response to Senator Norris, for what it is worth I will add my tuppence-ha’penny. When the regulations stipulating that one was obliged to register with the Teaching Council were introduced a number of years ago —mea culpa— I was one of those [46]who forgot to re-register at the end of that year. It simply was a time lapse as I was too busy in the classroom. I also mentioned this point during the Second Stage debate last week but when I went to re-register, I was obliged to go through all the formalities again. I was obliged to supply every single result of every university examination I had taken. Moreover, I was obliged to undergo Garda vetting again after 22 years of teaching, which took a certain amount of time. I rang the Teaching Council and asked why I was being obliged to do this. I asked the reason I was being obliged to pay €90 simply to be able to say I was a registered teacher. This is the reason I welcome the change whereby the Teaching Council will have more power and will ensure the teaching quality is of the highest standard. I agree we will have better and more compulsory professional development. As for the business of registering as a teacher, one had a window within the first six months in which one could register without being obliged to produce any documentation. However, if one failed to so do within that timeframe, one was obliged to go through the process of submitting all one’s qualifications.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I will address my point to the Minister. While the point raised by Senator Moran is an extremely good and important one, it is from the perspective of the teacher. I am approaching the provision from the point of view of its value and benefit to the child. Consequently, the Senator has not actually answered my question, although perhaps the Minister will do so. I suggest children would be better off with a teacher who is qualified, even if he or she is not registered for some reason, like the case of the Senator, who obviously is a good teacher. She has taught me a certain amount in the brief time we have spent together in Seanad Éireann. She is a classic example of a qualified teacher who, by oversight or overwork or through the passage of time, can be left unregistered. Such a person is completely qualified and there is nothing malicious or wrong in this lack of registration. One should not deprive children of that qualification simply because registration has lapsed. It is a technicality; it is a bureaucracy. If such teachers re-register or give a pledge to so do, why not let the children have the benefit of a qualified teacher? Is a qualified teacher not better than an unqualified teacher? In circumstances in which it is possible, should children not have the benefit of such a qualified teacher if there is no other inhibiting or negative aspect?

Senator Mary Moran: Information on Mary Moran  Zoom on Mary Moran  The distinction being made in this regard is the difference between a qualified teacher and a registered teacher. A qualified teacher has all his or her qualifications but has not registered with the Teaching Council, whereas to be a registered member of the Teaching Council, one must be a qualified teacher.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Are circumstances which——

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Senator Norris will appreciate we cannot keep going over and back within the Chamber.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  All right. I am sure the Minister will respond.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  In circumstances in which a teacher is not registered or has let his or her registration lapse, he or she can still teach as an unqualified teacher. No one is preventing such teachers from going into a school for the aforementioned five days. Moreover, I am sure that such individuals would get the job before an unqualified teacher.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I thank the Senator. That appears to be the answer.

[47]Senator Averil Power: Information on Averil Power  Zoom on Averil Power  As Members are scheduled to conclude this debate at 6.30 p.m., is it intended to extend this timeframe because important amendments are outstanding in respect of retired teachers and other issues, such as Garda vetting for temporary personnel and so on? If possible, I ask that the allocated time be extended.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I am here to co-operate with the House, as the Cathaoirleach chooses.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  The Minister may reply to the questions.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  There have been a number of questions. Is Senator Norris satisfied with the response he received?

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Yes, it has been answered adequately by Senator Jim D’Arcy. My concern was that a teacher who was unregistered would be precluded from teaching but I note such individuals may teach as an unqualified teacher. I thank the Minister, as this resolves the problem completely for me.

Amendment agreed to.

Amendments Nos. 18 and 19 not moved.

Government amendment No. 20:

Amendment agreed to.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I move amendment No. 21:

It is the same amendment as that proposed by the Government in amendment No. 20.

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

Amendment declared lost.

Government amendment No. 22:

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I seek clarification because Senator Power has made an important point. Amendment No. 21 was precisely the same amendment as amendment No. 20 and if it has been defeated, surely the Government’s amendment also has been defeated and must be put again. This is an interesting parliamentary point.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  We are on amendment No. 22.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  No, as far as I am concerned, Members are on amendment No. 21. They should not move on because they have voted down an amendment that states——

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  There was a vote on amendment No. 21.

[48]Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  While I will yield to the Cathaoirleach’s superior knowledge, it is an interesting point.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  The same amendment is achieved in different ways.

Amendment agreed to.

Government amendment No. 23:

Amendment agreed to.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I move amendment No. 24:

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

Amendment declared lost.

Government amendment No. 25:

Amendment agreed to.

Amendment No. 26 not moved.

Government amendment No. 27:

Amendment agreed to.

Government amendment No. 28:

Amendment agreed to.

Government amendment No. 29:

Amendment agreed to.

Government amendment No. 30:

[49]

Amendment agreed to.

Government amendment No. 31:

Amendment agreed to.

Government amendment No. 32:

Amendment agreed to.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I move amendment No. 33:

I believe the Minister has accepted this amendment. I think we can agree on it.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It concerns a drafting error. Well spotted.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Is the amendment being accepted by the Minister?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  Is it the same issue we corrected already? The context of section 24(9) is the inability of a school to source a registered teacher in a substitute capacity to temporarily fill a teaching post held by a teacher registered with the Teaching Council. Paragraph (f) permits the Minister to make regulations requiring a school to keep records as to why it could not engage another registered teacher in place of the registered teacher who, for whatever reason, cannot be at school. Therefore it is not necessary. The amendment has been misread.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Would the use of the word “another” be better? This does not seem clear. I take the Minister’s point that there is a true meaning which I had not spotted.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  We cannot have a discussion on it at this stage.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I am advised that this was checked with the Parliamentary Counsel and the existing wording was insisted upon. It would not win a Nobel prize for literature.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Is the amendment being pressed?

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  The Minister has given a very good response as to why I should not press it.

Amendment, by leave, withdrawn.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I move amendment No. 34:

[50]We have not discussed this issue. Some Members are aware that the amendment refers to a requirement that someone acting on a temporary capacity in a school be subject to Garda vetting and clearance in accordance with standard practice for registered teachers. There is a clear gap and if someone wishes to be registered, there should be a process to ensure children are protected. Registered teachers should be subject to vetting. It is possible that someone could continue to act in a temporary capacity in different schools without this provision. I hope the Minister will accept it.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I am prepared to accept this amendment. It is a belt and braces approach, as it concerns registered teachers. There will be vetting in any case.

Amendment agreed to.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I move amendment No. 35:

This relates to a proposed new restriction on the hiring of retired teachers by schools. I raised this issue when we discussed the legislation on Second Stage and there seems to be a particular problem in that despite the number of qualified young teachers who are unemployed, available and looking for work, schools are taking on retired teachers who have a full pension. As Members noted last week, this may arise because of convenience as it is easier to pick up the telephone and call someone who used to work in the school or a friend of a teacher in a school. It is wrong, especially in the current environment, as this stops young, qualified teachers from gaining the experience they need to get a permanent job. It would be a positive step to insert this new requirement. Retired teachers can still be hired before anyone who is unqualified would get the job but a school should only resort to hiring a retired teacher if it has taken every possible step to secure a young, unemployed teacher for a position. I hope the Minister will adopt the same attitude that he took towards the last amendment.

Senator David Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I would be interested in the Minister’s reply as the question of hiring retired teachers has been raised previously. As someone involved in the teaching profession, I know it is important to give people a chance. I heard this matter being discussed on the wireless and the point was made that the hiring policy would only operate for a short period, and a change might not be of any significant advantage to young people. On the other hand, any experience is beneficial and I am very happy to support Senator Power’s amendment for that reason. It is important to give young people an opportunity and prevent them from having to go abroad to seek work. It is tragic that young people involved in so many professions now, including teaching, nursing and so on, should have to go abroad. They would have received a very good education in the State, at least partially at the taxpayers’ expense. If the amendment looks to have the desired effect, I ask the Minister to consider it positively.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  This is a good amendment. Young teachers are the best qualified I have seen in a long time, and as a Senator noted, their enthusiasm for the job is enormous. As these [51]people should be given first priority in any teaching position that becomes available during the year, I support Senator Power’s amendment.

Progress reported; Committee to sit again.


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