Oireachtas Joint and Select Committees
Wednesday, 15 January 2014
Joint Oireachtas Committee on Education and Social Protection
General Scheme of Education (Admission to Schools) Bill 2013: Discussion (Resumed)
I welcome everyone. The first thing I must do is read the note on privilege. I draw your attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. However, if you are directed by the committee or myself, as committee Chairperson, to cease giving evidence in respect of a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise or make charges against a person, persons or an entity by name or in such a way as to make him, her or it identifiable. That includes corporations, Departments and so on. I emphasise that point and, as Chairperson, I would have to step in if people did not comply. I advise you that the opening statements you have submitted to the committee will be published on the committee website after the meeting. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him, her or it identifiable.
The Education (Admission to Schools) Bill 2013 is on the agenda today. In September last, the Minister for Education and Skills, Deputy Ruairí Quinn, published a draft general scheme for the Education (Admission to Schools) Bill 2013 as well as draft regulations for discussion ahead of enacting the legislation. Applying to all 4,000 primary and post-primary schools, the proposed regulations aim to underpin a fair, consistent and transparent enrolment process that would preclude school places from being allocated on the basis of waiting lists and prevent schools from seeking deposits or payment as part of the admissions process.
The draft general scheme and draft regulations were referred to the committee for consideration. The committee undertook a process of consultation on the general scheme resulting in a considerable number of submissions that are now under consideration. We received over 50 in total. We have already had two hearings to give groups an opportunity to present the key points of their submissions to the committee and to respond to whatever issues were raised by the members. The people we invited in specifically looked to come before the committee. It is unusual to have individuals before the committee although that is what we have today. The committee decided it would be good to include individuals and not only groups. All in all, when these sessions are complete we will have had approximately 25 groups or individuals in, a substantial number. The meeting today will consider the final hearings on the issue.
I welcome Sr. Marie Céline Clegg, Loreto Education Centre, Mr. John Suttle, Ms Derval Duggan, Mr. Noel P. Malone, Coláiste Chiaráin, Croom, Limerick, Mr. Gabriel McCabe, Ms Eithne Read O'Doherty and Ms Eukaria O'Grady. The format of the meeting is that each witness will make an initial presentation, strictly no more than five minutes in duration. It is important that people do not simply read their submission. Rather, the committee is seeking an overview to allow sufficient time for questions and answers. This will be followed by questions from members of the committee. To get proceedings under way I invite Ms Clegg to make her presentation.
Sr. Marie Céline Clegg:
I represent Loreto Education Trust, which has considered the proposed legislation and associated regulations against the backdrop of the discussion paper on a regulatory framework for school enrolment, published by the Department of Education and Skills in June 2011. The trust had welcomed the original intention of a new framework as articulated in the discussion paper, namely, to regulate "only those aspects of enrolment policies and practices where a common or national approach may be desirable, and otherwise to provide the maximum discretion to schools". Having consulted with stakeholders to the extent that the limited timeframe allowed, it is our view that the extent to which the proposed legislation confers a right on the Minister to prescribe and regulate in respect of each stage of the admissions process is excessive.
The Loreto Education Trust board respects the autonomy of boards of management in the exercise of their statutory responsibilities while providing clear guidelines, from the perspective of the patron, regarding what constitutes an inclusive school environment and the implications of that for admissions policies. It is our contention that the role of the board will be diminished in the scope of its decision making and autonomy by the proposed level of ministerial regulation regarding all stages of the admissions process.
There are some specific concerns. While our written submission has addressed in considerable detail the main concerns about the general scheme of the Education (Admission to Schools) Bill 2013 and the draft regulations on policy and process, I wish to refer in particular to several issues.
Our written submission has addressed in considerable detail specific concerns about the general scheme of an Education (Admission to Schools) Bill 2013 and the related draft regulations on policy and process. I want to refer now in particular to several issues.
The requirements specified in the Bill in relation to the publication of a school’s policy on admissions are those already being met by the vast majority of schools. The requirement of the stated intention in the introduction to their admissions policies with regard to all details of the Equal Status Acts 2000–2011 seems unnecessary. If people already comply with the Equal Status Act in every respect it is possible that having to insert a large amount of legislative detail in this regard will make the policies less accessible to parents and guardians.
The new section 33 makes provision for the Minister to regulate on all stages of the admissions process with particular emphasis on the content and the manner in which the admissions process must be conducted by schools. This is ministerial involvement at its most extreme in terms of micro-managing. Imagine, for example, the implications of ministerial involvement in granting derogations in respect of the past-pupil criterion across the diversity of schools throughout the country.
Another issue of concern is the offer of "provisional places". As public representatives, members are aware that parents and guardians want to know whether their child has a place. Delays and uncertainties cause very understandable tension and worry at a time when they need reassurance. There is a lack of reality in regulation 32, in this regard.
The balancing of rights is an important governance and management function in schools as it is for the Government. Article 26.3 of the Universal Declaration of Human Rights states "Parents have a prior right to choose the kind of education that shall be given to their children". Protocol 1, Article 2, requires the State to respect the right of parents to ensure such education and teaching as is in conformity with their own religious and philosophical convictions. The UN International Covenant on Economic, Social and Cultural Rights unambiguously upholds this right.
Accountability is being sought in the proposed legislation respecting arrangements for those who wish to withdraw from religious instruction, as is their constitutional right, but there is no corresponding emphasis on accountability in relation to the rights of those who wish to have religious instruction as an integral part of the curriculum in accordance with the characteristic spirit of the school as articulated by the patron in the exercise of its statutory responsibility.
The highly prescriptive nature of the proposed legislation is illustrated in sections 33(m) (iii) to (ix) of the Bill which describe how the regulations will "prescribe" in respect of every aspect of enrolment, format, content etc. We suggest that a set of guidelines accompanying a regulatory framework, concentrating on key principles only would be a much more appropriate means of ensuring compliance by schools rather than the sledge-hammer approach of the current Bill and regulations.
Mr. John Suttle:
This committee has been asked to review proposed legislation to deal with admissions in schools in Ireland. The proposed legislation however ignores the elephant in the room, religious discrimination in admissions. A religious apartheid system of education is being introduced into our national schools. This is illegal. It is in breach of the Constitution and of international human rights agreements into which the State has entered and it is in breach of the Equal Status Act 2000. All schools receiving any support from the State must abide by the two principles of the national school system which are one, all religious denominations together in the same school, and two, with separate religious instruction. These are the two pillars of the national school system.
This State was founded by the Anglo-Irish Treaty of 1921. This treaty is only three or four pages long with 18 clauses, 17 of which refer to political, financial and military matters. Only one, No. 16, has a social dimension which is to ensure that the provisions of the national school system carry through into the new State. This provision was carried through directly, using virtually the same words, into the Constitution of 1937. The provisions of the Constitution remain unchanged today, with parents having a right to privately funded denominational education, but where there is any State funding, all such schools must live within the two pillars of the national school system. The Equal Status Act 2000 continues these rights, under section 7(2) religious discrimination on admission to schools is banned. The exception in section 7(3)(c) does not apply to national schools because it is limited by Article 44.2.4oof the Constitution.
The basis for the ethos of all national schools in seen in the foundation documents of typical schools. There are thousands of documents available to show that the ethos of all national schools under all patronages includes a commitment to be open with equality to children of all religious denominations. Religious instruction is allowed and encouraged in national schools but there are limits. Separate religious instruction worked perfectly well until the early 1970s and can work today. Children have a constitutional right to be allowed to go to their local national school without attending religious instruction. There has never been a report from any State body that recommended that our children should be divided at four years old into different religious denominations for their education. In fact there have been many Government-sponsored reports that have condemned what is going on. In 1996 the Constitutional Review Group said that the integrated curriculum, which was introduced in the early 1970s, is illegal because it removes the constitutional right of children to withdraw from religious indoctrination. This illegality remains today.
In 1998 in the Supreme Court, Mr. Justice Barrington inferred from Article 44.2.4oof the Constitution that "if a school was in receipt of public funds any child, no matter what his religion, would be entitled to attend it." In 2011, the Irish Human Rights Commission, in its report on religion and education, stated that Article 44.2.4oof the Constitution.provides that there may not be discrimination between different denominations in the State and that children have the right to attend State-aided schools without attending “religious instruction”.
There has never, however, been a direct judgment in any court, or a Government report directed specifically at religious discrimination in admissions policies. The report of the Forum on Patronage and Pluralism in the Primary Sector is the closest the State has come to seeking specific advice on how to deal with religion and primary education. The advisory group considers that enrolment policy in a stand-alone school should not discriminate on grounds of religious belief. This report has been turned completely on its head by the actions of the State.
The committee should be careful about whom it listens to. Schools at primary level receiving State financial support are national schools. The committee should watch out for anyone who never uses the term "national school", but always replaces it with "primary school", "parish school", "denominational school", "Catholic school" etc. The senior people involved in education understand very well that all primary schools receiving State funding must abide by the constitutional and legislative provisions which only allow for schools under the national school model, that is all religions together in the same school with separate religious instruction.
This is another disgrace for this country. We are heading for another humiliating redress programme. Nothing has changed in the Department of Education and Skills since the Ryan report condemned its support for the Catholic Church above the well-being of children, and above the law. This country has suffered from religious sectarianism for too long and just when our national schools were becoming multicultural, we are breaking the law and going against the Constitution to create religious apartheid in our schools. I hope that this committee will support the equal rights enshrined in our Constitution.
Ms Derval Duggan:
As a citizen, a parent and a teacher I welcome the opportunity to participate in this discussion.
The declared intent of the Bill is to ensure greater equity, to reinforce the principle of maximum accessibility and inclusiveness and to require that schools will not discriminate in admission. Several areas require amendment if the Bill is to achieve its stated goals. Head 3 refers to schools to which the provisions of section 7(3)(c) of the Equal Status Act apply which states: "[such a school] does not discriminate where it admits a person of one religious denomination in preference to others or where it refuses to admit a person who is not of that denomination, where it is proved that refusal is essential to maintain the ethos of the school".
Underhead 9 the school can refuse to admit the child even if the National Educational Welfare Board or the National Council for Special Education has designated the school for a child who has no place. There is no definition of the proof required but in the regulatory impact analysis a religious body expressed concern that such a designation might mean having to accept a person who does not actively support the religious ethos of the school. The Bill does not explain what happens if every school in an area refuses a child on these grounds but the regulatory impact assessment refers to the cost of providing home tuition for such students. Under these provisions religious discrimination will continue in 3,500 of our 4,000 schools. I am concerned also that parents have no right of appeal against the designation of a school which will undermine their ethos.
Under head 4 there is a requirement on a board of management to consult with parents before approving the admission policy. This requirement should be strengthened as currently it is too easy for school management to ignore parents’ views in the development of policy. Head 4 requires the admission policy to set out the position of the school in regard to its arrangements for upholding the constitutional rights of any students who do not wish to attend religious instruction. If religion class is scheduled during the school day extra teaching resources may be required for the students who do not wish to attend. For primary school students there is no practical way to uphold their rights under the current integrated curriculum. Schools must not be allowed to tell parents to remove their child from school, as some do at present.
Heads 5, 6 and 7 propose the repeal of section 29 of the Education Act which deals with the refusal to enrol a child. A child refused a school place by the principal of a school must now appeal to the board of management, whose decision is final. Given that the principal, board of management and patron develop and approve the admission policy, an appeal to the board cannot be viewed as independent. An independent appeals process would provide reassurance to parents and better feedback to the Minister.
If the Oireachtas passes the Bill in its present form it will simply add another layer of hypocrisy to the rules, laws and international commitments governing our education system. The Equal Status Act confers unequal status; the Employment Equality Act confers inequality; the Constitution states the State will not endow any religion but taxpayers pay primary teachers to spend 10% of their day teaching religion; the Teaching Council code of professional conduct states that teachers must, "uphold human dignity and promote equality", but there is no dignity for children in hearing theirteacher disrespect their family’s beliefs; thousands of school mission statements welcome diversity but some children are made to feel very different or are turned away; the Minister says that anti-bullying policies must emphasise the dangers of homophobic bullying while the patron of most of our schools teaches that homosexuality is "an objective disorder"; the Constitution recognises the inalienable rights of parents in the matter of their children’s education but religious organisations control both the schools and the curriculum at primary level.
In its consideration of the Education (Admission to Schools) Bill 2013, I ask the committee to be more ambitious for our children so that children in the 21st century are not paying the price for nineteenth-century segregation and sectarianism. Our public schools should not be Catholic, Protestant or Muslim. Education is about children, not churches. It is about children fulfilling their potential, going to school locally with their friends, making new friends, respecting and being respected by their teacher, feeling proud to belong to their class and their school community. Children should learn together in school, just as they will study, work and socialise together throughout their lives.
Members of the committee are legislators and they should act now. They should ban religious discrimination in all admission policies; establish an independent appeals procedure for refusal to enrol a child; amend or repeal section 37 of the Employment Equality Acts; repeal section 7(3)(c) of the Equal Status Act and section 2 of the Education Act; repeal rule 68 of the rules for national schools; implement a common moral and ethical education syllabus for all students. Members have the power to give all our children the education system they deserve.
Mr. Noel Malone:
As an experienced principal I urge this committee to review these proposed regulations in light of the experience of the Limerick area post-primary schools common application system. I refer in particular to the Minister's proposal to extend a similar system to other parts of the country. Limerick is an area of the country that has grappled with the whole issue of educational inequality for many years and remains the only area in the country where a common admissions and application system applies. It is, therefore, an ideal test case for the application of these regulations. I welcome the fact that the Bill has included the right of the Minister to impose a similar system elsewhere. However, it is with some alarm and regret that we note the Minister’s assertion:
On this point in particular, I believe the Minister should insist on a common admissions policy across all participant schools, with geographical location as first priority, after brothers or sisters of existing students. Unfortunately, in my experience in Limerick, it is widely perceived that the system as it operates is unfair and discriminatory, and the last thing such a system needs is light touch regulation.
It is not the intention, in such a scenario, that the schools concerned will be required to apply a common policy. Rather that each school will continue to apply its own policy, in that only the process will have to operate in co-operation with other schools.
A key characteristic of schools in Limerick is the lack of social mix. This has negative consequences on those lower down the social hierarchy and brings additional advantage to pupils in these schools which are almost entirely middle class in their social composition. The centralised procedure has caused considerable anguish and uncertainty among parents and children. If children do not get their first or second preference school they may be left with the very last of their preferences. Ironically, participant schools are given a certain level of protection from any imputation of perpetuating inequality, by using the scheme as a kind of cover. Schools cannot be allowed to continue to operate independently in terms of their admission criteria, and therefore decide their selection criteria with no independent scrutiny. Of course, this really becomes relevant where demand exceeds supply.
Generally speaking, there is an aging population within the city boundary. Most of the growth in population is in the suburbs and outlying areas. In some areas with large and highly sought-after schools, the profile of the immediate area is one of an aging and sometimes affluent population, so those schools must draw from a larger catchment area. Unfortunately, in many instances this is largely contrived. Vast swathes of population are often ignored in favour of other applicants living significantly further away. This can mean children are travelling substantial distances away from their home by private bus or car. A key point is that current admissions policies do not observe the spirit of inclusiveness, even though many claim to do so. This has to change. If it does, greater equality of opportunity will follow.
Some schools apply preferential criteria, such as favouring children living in certain affluent areas, children from cherry-picked traditional feeder schools, brothers or sisters of past pupils, sons or daughters of past pupils and so on and finally, all others. In effect, very few places are left in this last category, as the schools have pretty much wrapped up their preferred clientele and end up sending refusal letters to many disappointed 12 year olds.
This leads to an extraordinary situation where some children have right of entry although they live some distance from the school while other children are refused, even if they reside adjacent to the school, or indeed attend the local feeder primary school. Surely, proximity to a school should have a higher ranking than when a child has a father or mother who attended a generation earlier. This could be construed that this is a means by which a certain social class is protected and the best students are cherry-picked to the detriment of those schools who genuinely strive for inclusivity.
The fact that the Minister may now consider granting a derogation to permit a school's admission policy to include a past pupil criteria of up to 25% will skew the process and cannot be explained away by defending its inclusion on the basis of tradition. If it is accepted that tradition can be used by a school to discriminate against other applicants, the very basis of the proposed regulation is undermined. Who will oversee the selection of this 25%? Where is the transparency of selections? Surely, this will give licence to some schools to continue to actively favour the socially advantaged, academically gifted or those who have exceptional sporting prowess. Furthermore, this proposal appears to reward those schools who have adopted such discriminatory practices in the past by limiting this derogation to those who allowed such a provision in the past five years, effectively penalising those schools which have embraced a much more progressive and open admissions policy.
There is no real justification for giving preference to children of past pupils or, to a lesser extent, siblings of former pupils. Again, this is always discriminatory and unfair. The proposed limit of 25% should be withdrawn and no derogation should be applicable. Instead, a fair and reasonable geographical radius in respect of any particular school in a city or rural location should be agreed. This would put all students in the agreed catchment of that school on an equal footing. Where there is an oversubscription for that school, other priorities can be addressed. Allocations to each school should be based on a common agreed admissions policy, on a genuine lottery basis, and should be centrally managed by the local education centre. This would make the system completely transparent and avoid any suspicion of manipulation.
I very much welcome the spirit and philosophy behind this draft Bill. However, unless the fundamental issues I have outlined are addressed, the current iniquitous system may be preserved under an illusion of fairness. These proposed changes are long overdue and I urge the committee to consider this submission in the spirit of true equality and justice for our children, regardless of background. They deserve nothing less.
Mr. Gabriel McCabe:
As a foster parent, I am here today to bring to the committee's attention the ways in which the proposed Bill promotes discrimination, exclusion and the social isolation of children in care. The State, as corporate parent to these most vulnerable members of our society, is, by way of these provisions, denying their very existence. In the United Kingdom, United States, Canada and Australia, 40-page policy documents are in place detailing the educational treatment of children in care and the admissions entitlements applicable to them. There is not one paragraph or even one word about children in care in this Bill. What parent, corporate or biological, would treat its most vulnerable child in this disgraceful manner? We have seen the same attitude before in this country in the case of the Magdalen laundries, industrial schools and clerical child sex abuse scandals. We were in denial about such matters in the past. The provisions of this Bill, as it currently stands, prove that in 2014 we are still in denial about our treatment of children in care.
I ask the committee to show leadership, wisdom and foresight by recommending to the corporate parent of these children - that is, the State, as represented by the Government - that they be granted equal status with their international peers and given highest priority when it comes to admissions to schools. The onus should be placed on school authorities to prove the student's unsuitability for the school rather than the child or carer having to prove the suitability of the child for the school. In England in 1988 a status of highest priority was granted to looked-after children. This was reaffirmed in education regulations published in 2006 and again, despite strong challenges from school authorities looking for increased autonomy, in the school admissions code of 2012. These provisions guarantee the admission of looked-after children to their preferred schools.
There are approximately 4,000 school-going children in care in Ireland and there are 4,000 schools in the country. In other words, we are talking about an average of one child in care per school across all classes. It is hardly a major burden on each school to do its share to alleviate the plight of these disadvantaged children. In May 2013 a report commissioned by Ms Emily Logan, the Ombudsman for Children, and undertaken by the ESRI and the children's research centre at Trinity College, Dublin into the education of children in care in Ireland was published. The foreword to the report refers to children in care facing "multiple obstacles to the enjoyment of their rights". Three months after the publication of this report, the corporate parent of these children - namely, the State - published this proposed Bill, which ignores the very existence of the children for whom it bears a significant responsibility.
In 2006 and again in 2011, the UN Committee on the Rights of the Child, following its audit in Ireland, highlighted the failure of the State to put in place a comprehensive and systematic system of data collection on children in care. This failure, the committee noted, represented "a serious impediment to evidence-informed policy-making and practice". The State has continued to ignore the UN in this matter and, eight years later, no such study or data exist. The ESRI report states, on page 33:
At the level of national education policy, children in care are not visible, as such... [C]hildren in care are not the focus of any specific policy initiative within the [Department of Education and Skills]. Nor are children in care the focus of targeted initiatives [by] the NEWB, the National Council for Special Education (NCSE), or the National Educational Psychological Service (NEPS).These children are apparently invisible.
Low educational achievement is the dominant theme in international research on children in care. In an article in The Guardianin September 2011, the situation in England was outlined as follows:
Last year, 49% of looked-after teenagers failed to get five GCSEs, compared to 7% of all pupils. While the situation is improving, the Adolescent and Children's Trust (Tact) estimates that it will take this fragile group 50 years to match the average achievements of other 16-year-olds. At age 18, the statistics are just as gloomy. Only 7% of looked-after young people make it to university, compared to 40% of their peers.The particular barriers to educational achievement for children in care include, among others, issues relating to early life trauma, school attendance, discipline, behaviour and peer or social relations. Failure to gain admission to appropriate local schools is a strong barrier to social integration, mental well-being and continued attendance at school. Children who are forced to attend schools outside their own community have great difficulty integrating with other children from within the community in which they live. This leads to loneliness and isolation, contributing to mental health issues that can have a significant impact. What these children do at the weekend and during holidays is as important to their development as what they do at school, particularly in the case of adolescents. In addition, arriving to school in taxis with a different person each day singles these children out among their peers and leads to bullying and isolation which, in turn, lead to poor school attendance and the resultant under-achievement. The cost of transport and social care worker time is a cost that would be far better directed to providing children's educational support needs.
The granting of highest priority status to children in care is the international norm in developed, English-speaking countries and should, by way of this Bill, be extended to children in this situation in Ireland. Such a development is not the solution to all ills, but it would be an important cornerstone in helping children to integrate socially within the community in which they have been placed. This would lead to increased school attendance and provide the child with an environment where he or she can improve the likelihood of academic success. Failure to address the educational and social needs of these children leads to homelessness, poverty and contact with the criminal justice system. To better understand social isolation, I urge members to read my daughter's care leaver's statement in the supporting documentation and the warning about exclusion in The Guardianarticle I have distributed. I conclude with a statement from that article in reference to legislation in England: "Barnardos and Tact also fear that the education bill, in giving heads more power over exclusions, will be to the detriment of looked-after children, who are already nine times more likely to be excluded...".
Ms Eithne Reid O'Doherty:
I am a former teacher and school development planner and am currently a practising barrister and member of the section 29 appeals panel. I am here today in a personal capacity rather than as a representative of the panel. I am opposed to the provision in the Bill that there will be no appeal against a decision of the board of management of a school refusing enrolment. Instead, I am advocating for the retention of an independent appeals body and arguing, moreover, that it is unconstitutional not to have such a body. We are dealing here with three constitutional rights - the rights of the child, the right to education and the provisions in Article 43 regarding fair procedures.
My submission to the committee focuses on four main points, namely, the constitutionality of the Bill in respect of the role of the principal and board of management, the Supreme Court decision in the St. Molaga's school case, the notion of equal status under EU law, and the relevance of the Charter of Fundamental Rights of the European Union, which is directly applicable in member states. The role of the principal, as defined in the Long Title and in heads 5 to 7, inclusive, is to implement policy. This represents an incorrect use of language - the role of the principal should be to apply policy, while it is the role of the board of management to implement policy. Policy is formulated by boards of management through a process. Implementation involves a range of steps, including a consideration of such issues as the characteristic spirit of the school, procedures, criteria and so on. It involves a consideration of the provision for special educational needs and the particular ethos of the school. There are many steps in a policy and it is formulated through a process.
The word to be used here is "apply". At present, what is happening in schools is that the administrative work relating to the policy is delegated to the principal. He or she must send out forms and take receipt of them when they are completed and returned, apply the relevant criteria - which is a mathematical exercise - and then place them in folders or whatever. The decisions regarding who will receive a place is usually made by the staff of the school and then a list is presented to the board of management. The difficult cases will then be discussed by the board of management. That is what happens at present and the board of management ultimately makes the decision. I am of the view that this should still happen and the use of the relevant word is wrong. There should be daylight between the decision maker and the decision.
The board of management is the decision maker and that must remain the case. In order to maintain the integrity of the three constitutional rights, under Article 40.3 in respect of fair procedures, there can be an allegation of bias if there is no redress in respect of a decision of a board of management. The board of management is the decision maker and it also makes decisions about the allocation. That is why we have the external appeal. The second of the rights are those of the child under Article 42A. There has never been litigation in respect of this provision in the Constitution and we actually do not know what it means. The State guarantees to vindicate the impresciptible and inalienable rights of the child but what does this mean? Then there is the right to education, which is an extremely strong one. This is the only socioeconomic right provided for in the Constitution at Article 42.4.
We are introducing an item of legislation to disapply constitutional rights. Previous speakers advocated the retention of an independent appeals mechanism. I refer to Mr. Caoimhín Ó hEaghra from An Foras Pátrúnachta, who referred to it in the context of reform. The reform should be to widen the remit. We are talking about a panel of individuals who now have expertise. What people did not pick up on before today was the mediation service. Section 29(4) of the Education Act 1998 makes provision for a mediator to be provided, if that is deemed suitable and workable. The Department always makes mediators available in section 29 cases. Mediators work between schools and the persons making appeals. There is a communicative role in this regard and the fostering of good practice. All of this happens and 27% of cases are resolved on the ground.
In the case of the Board of Management of St. Molaga's National School v. the Secretary General of the Department of Education and Skills, it was decided that a board of management is the decision maker in the context of policy formation. In that case, the stages of policy formation relating to the school's decision to exclude children, who were subsequently approved for admittance under section 29, were evaluated. The matter went to the High Court and on to the Supreme Court. As indicated in my submission, the Supreme Court upheld the High Court's decision to the effect that the integrity of the decision remained with the board of management.
In the context of the decentralisation of decision making and as flagged by the Minister for Public Expenditure and Reform, Deputy Howlin, in some areas budgets will be allocated to boards of management to decide on class sizes and the number of teachers. Here we are again seeing the copperfastening of the decision-making role of the board of management. In my submission I also included details of an Equality Tribunal case as a statement of the current practice in one school. In the case in question the section 29 panel directed the Secretary General of the Department to recommend the enrolment of the child involved in the school. The child, who has a disability, was still not enrolled in the school and the matter was referred to the Equality Tribunal as an equality issue. I urge members to read the details relating to the case in question as an example of what is happening in some schools between principals and boards of management.
Ms Eithne Reid O'Doherty:
The final point I will make is that the EU Charter of Fundamental Rights and Freedoms has been litigated in a seminal employment equality case in London. The charter only applies in the context of EU legislation but - unlike the European Convention on Human Rights, which is persuasive - it is directly applicable. As a result, it is going to be invoked and we are going to see a constitutional challenge in the courts.
Ms Eukaria O'Grady:
Good afternoon. My name is Eukaria O'Grady. I am a citizen and a teacher and I work in education. I previously worked with children in care for a local authority in England in the context of education admissions appeals and how their human rights are affected. I will just briefly talk members through my slide presentation.
Ms Eukaria O'Grady:
That is fine. I will just brief members on what the presentation contains.
My focus is on head 3, which relates to section 15(2)(d) of the Education Act 1998, and the allowance that is made in respect of discriminating under section 7(3)(c) of the Equal Status Act 2000. I was shocked when I discovered that such discrimination is allowed, particularly in light of everything I, as a citizen, had read in recent years from the Irish Human Rights Commission, etc. I acknowledge that the proposed education (admission to schools) Bill 2013 will bring about a great deal of change and that much of the work relating to it is absolutely brilliant. However, I am concerned about the discrimination to which I refer. When such discrimination is allowed under the Equal Status Act 2000, it means that someone must provide proof of denomination or membership of a denomination in order to access a State-funded right to education. This runs contrary to constitutional and human rights. In that context, I refer, in particular, to the European Convention on Human Rights by which this State is statutorily bound since 2006.
When it comes to parents, what is involved here could be a violence of their conscience and law preference and particularly with regard to those whose children attend the 1,700 stand-alone schools. Why should parents be obliged to disclose this information? In turn, this breaches their constitutional rights and those rights they are guaranteed under Articles 8, 9 and 14 of the European Convention on Human Rights. Under the latter articles, people are not obliged to disclose the information to which I refer. The main point I am trying to make is that this matter does not revolve around religion, ethos or ethics. As is the case with any institution, one can state that one will sign up to and respect the mission statement, ethos or ethics. However, one should not be obliged to prove membership of a denomination in order to access a human right that is State-funded with taxpayers' money.
The next part of my presentation relates to stipulations and requests from the Department of Education and Skills and the line Minister, Deputy Quinn, issued in September and October. When seeking submissions, the Minister stated that the system is quite unfair and arbitrary, indicated that he wanted to make it more inclusive and said that he would respond to reasonable suggestions. The Irish Human Rights Commission, the relevant boards and the Equality Authority all submitted papers on this matter to the Department. The most recent of these is the report of the advisory group to the Forum on Patronage and Pluralism in the Primary Sector, which states that the derogation in section 7(3)(c) of the Equal Status Act 2000 may impede the duty of the Department of Education and Skills to provide for education for all children. I was highly confused because the request for submission even states that this matter requires further consideration in the context of possible amendment. We have included the derogation in the draft scheme of the Bill, which makes the State legally culpable. Education law experts Mawhinney and Glendenning stated that the refusal to maintain the ethos of schools has yet to be teased out in law. That is where we are going. If we include the derogation in the eventual Bill, that will be the next step because we will be legally culpable. If we proceed with what is proposed, we will be operating contrary to all the advice we have received and for which we have paid - including that from the forum - because what has been put forward impedes our policy of education for all. We will become legally culpable in the context of children's rights under the Constitution and we will also be legally culpable before the European courts. Is that the next step if what is proposed is included?
I included some recommendations and remedies in my presentation. The Equality Authority has stated that if it is eventually passed, the legislation may need to be amended. It referred, in this regard, to an incident where 50 non-Catholic children could not gain admission to their local school and where a charity had to provide them with emergency access to a school. Similar incidents could arrive if that to which I refer is included in the eventual Bill. Until the principal Act is amended to exclude discrimination under section 7(3)(c) of the Equal Status Act 2000, there must be a response to reasonable suggestions. Such suggestions have been made and even if the relevant provision is included, the Oireachtas must respond and indicate why it is the case. As citizens, we deserve to know that.
My final point relates to how, in circumstances where we are legally culpable, we explain how a five year old cannot gain admission to his or her local school because his or her parents cannot provide proof of membership of a particular denomination and is obliged to attend a school five miles away from his or her home, family and neighbours. How is it possible to justify this in legal terms? How can one explain it to the five year old involved?
The remedy is that the city and county councils could do the administration of admissions. They could go to the school and that is what happens in England.
In terms of children in care, in England all SEN provisions in terms of legislation apply to children in care. Under this Bill SEN provisions can come under a directive of the National Educational Welfare Board. This Bill presents great hope and I hope it can provide the equality which we as citizens and a nation, on the basis of what has been put forward by all the advisory boards, are capable of ensuring is put in place.
I thank Ms O'Grady. She kept within the five-minute timeframe even though I interrupted her.
We will move on to questions and our committee has a practice of starting with the Opposition spokespersons. I call Deputy McConalogue.
I join our chairman in welcoming all of our guests and thank them for taking the time very much in an individual capacity to access this Bill and come forward with their very considered thoughts on it and their proposals on how it may be improved. As this is our third hearing on this Bill, we have discussed many of the issues with which our guests have dealt. I do not have too many questions but I will ask a few before I pass on to fellow members.
The first speaker, Sr. Marie Céline Clegg, made the point that as many schools are following the procedures proposed already, that what is proposed is excessive. To flip that back, I would ask if most are doing it already, why would it be such an issue to enshrine it in legislation? She also referred to the procedures in the Bill for those who wish to remove themselves from religious instruction within the curriculum and that there is not also the right for those who may wish to have it. She might elaborate on that point.
The points made about children in care are ones the committee has not discussed in depth previously. They were put very well and provide much food for thought, as do the wider legal arguments which were put. Our guests have given us much food for thought and I thank them for giving of their time.
I thank our guests for appearing before the committee. As Deputy McConalogue has said, this is our third session of hearings on this Bill. Many of the issues addressed were raised in the previous two hearings but I believe this is the first time we have touched on the subject of children in care. As Deputy McConalogue said, there is some thinking for us to do on that. One of the advantages of dealing with legislation in the way we are doing so now is that we get to discuss and tease out all these issues before the Bill is published. That is one of the advantages of having groups and individuals appear before the committee.
On the appeals process, I do not want to put our guests on the spot as people who sit on a board, but a consistent theme in nearly all the presentations to date has been the need for some review of what is being proposed in the heads of the Bill with regard to the buck stopping at the board of management, having regard to the removal of the section 29 appeals process. The only option open then to parents is a High Court judicial review, which clearly would not be used as much as the section 29 process. When the Department officials appeared before the committee we put it to them that what they were proposing did not make sense. To follow the process, we are now saying that the board of management sets out the policy, the principal implements it or applies it and if a parent disagrees with how that has been implemented or applied, he or she can appeal it to the board of management which set out the policy in the first place. That does not make sense. The only option open after that is a High Court judicial review, and there has been much food for thought in that regard.
The only concern I have about the removal of the section 29 appeals process is that having regard to the number of appeals, a great number have been upheld. That proves the value of the process. When Mr. Loftus from the Department appeared before the committee he was upfront in saying that the appeals process, as it currently operates, is not ideal and is flawed. Our guests who sit on one of these boards might have opinions on how we can approve an appeals process. I do not want to put them on the spot in their capacity as members of the board, but they might have opinions on how we can move on from the proposal in the legislation that the board of management is the final appeals process for parents, noting that we are removing the section 29 process. What are their opinions on that and how do they envisage we can improve the Bill in that area?
The guests' presentations were probably some of the best we have had at this committee, considering that they are members of the public and not necessarily spokespeople for a national organisation.
We must totally re-evaluate our education system as often as we possibly can. We do not do it often enough. Our education system is something we have inherited from the past. We as a committee visited Finland and if one talks to anybody in Finland about what is the underpinning ethos of their education system, they all know what it is. It is equality and they will constantly remind one that it underpins their education system. I do not think that we have re-evaluated what ethos underpins our education system. It possibly is the choice of parents - our ethos is what guides our education policy - and that is something with which I personally am not comfortable.
I have a problem with the obsession we have in Ireland, for historical reasons, of linking education with religion. When I became a school principal the first thing I was told was to pare down every decision I would make to make sure that the child was at the centre of it. Far too often in education we pare down decisions we make - there are geographical considerations, ethos and many interest groups - but far too often children are not at the centre of those decisions. That is why I am pleased that the vast majority of presentations today had children fundamentally at the centre of what we are trying to achieve.
I was particularly taken by Mr. Malone's presentation. He works in this field. The issue of admissions comes to the head where demand exceeds supply. A minority of schools will use their admission policies to keep their schools as mono-cultural and middle class as possible. There will be school A, school B, and school C and in my constituency school C tends to get all the Traveller children, all the immigrant children and all the children with special needs and the other schools will utilise their admission policy and their ethos to ensure that they stay as mono-cultural and middle class as possible because they are all in competition with each other and they all need the numbers to keep the school going. Such inter-school rivalry and inter-school competition is another problem in our education system.
In terms of the 25% limit, I completely agree with our guests. With regard to the idea that a son or grandson or a daughter or granddaughter would have priority admission over somebody else, what is proposed in the Bill in this respect is an improvement but it is not perfect and I do not believe anybody would suggest that it is. The 25% limit is an improvement but I do not believe it is necessary. If one's father did not go to secondary school or if one comes from another part of the country or from another country, how can one compete for a place in a secondary school on that basis?
I am striving, as I believe other people are, for a society and a republic where children go to school together and nothing else is important. We have not got our head around that yet and everything else seems to be more important. Mr. McCabe has raised a very important aspect which we have not considered properly up to now. It is incumbent on all of us to take what he has said on board and to work on it and make sure it is reflected in the Bill because he is talking about the most vulnerable children, provision for whom needs to be reflected in legislation.
I thank our guests for their presentations. The spirit of what we are trying to achieve is acknowledged but the nuts and bolts of it will be more difficult to achieve.
Sr. Marie Céline Clegg:
The specific question related to whether there is a need for legislation given my claim that the majority of schools are compliant at the moment in terms of general legislation pertaining in particular to admissions policies. When the Department of Education and Skills did an audit in 2008 on enrolment policies around the country the outcome was that there was no major concern about admissions policies and their implementation.
On the need for legislation, if we take for example the National Educational Welfare Board guidelines on school code of behaviour, I would argue that they are complied with to the letter in practically every situation. They are a set of guidelines emanating from a piece of primary legislation. What we object to in our submission is the level of detail and the role of the Minister in regard to every aspect of the admissions policy formulation and implementation.
With regard to the implementation question, it is evident that patrons take a huge interest in the manner in which boards of management are fulfilling their statutory responsibility. If boards of management are made to feel that they do not have a significant autonomous role to play, guided by main underlying principles which the Minister has every right to formulate, that will undermine the role of the board of management as a statutory body. Boards already act voluntarily. Patrons also have a role in admissions policies and they also act voluntarily. They are not funded by the State for the role they fulfil. It appears that the intention behind the legislation is one of achieving greater inclusiveness, social inclusion and social cohesion but that is achieved as a central tenet of policy and practice not through legislation on its own.
Ms Eithne Reid O'Doherty:
I thank Deputy O'Brien for his question, which I welcome. I do not necessarily agree that the section 29 process is flawed. The jurisdiction is narrow in that it is confined to section 29 of the Act and we work within it on enrolment, suspension and expulsion. We are talking about enrolment today. One can always improve. Currently, in terms of the role we play, mediation has not come up in any of the discussions yet, but a mediator can speak to the parties. There is often an inequality of arms in that one is talking about a school board of management that is quite conversant with the legislation, the system and the language. On the other hand one might have a parent with literacy difficulties who is not a professional who seeks to get equality and justice for his or her child. Our job as mediators is to explain the issue and what is happening and to give the parents a voice without being biased or partial. We redress the imbalance at the mediation stage. The second stage of the mediation is that we attempt to get a resolution where both parties can win if there is fluidity and they can move towards a resolution.
Where there could be improvement is in the provision of more training. There is an expert panel in place. Some people are there for quite a while and they have a lot of experience. One could broaden the remit of the training to include training by the Office of the Ombudsman. I mentioned Article 42A. We do not know what it means yet until it has been litigated. The Ombudsman is the expert on it as the office has carried out research. I read that 42% or 47% of all complaints coming to the Ombudsman concern education so there is expertise in the office on the matter. The Irish Human Rights Commission and the Equality Tribunal are other places where training could be accessed. We do not deal with equality issues. They are dealt with in a different forum.
I am sure the Bill will be enacted with amendments. The parental rule derogation of 25% will have to be monitored. Who will do that within the system? Schools say they are full. How do we know when that is the case? Who makes the decision? We are talking about accountability and transparency. An external body could review and inspect in certain cases.
To go back to the St. Molaga’s case, the school said it was full for very objective reasons. It had made decisions on health and safety grounds and educational practice that it was full and it refused children. The Supreme Court looked at the case and said that the section 29 committee, as well as having a review jurisdiction would also have a full right of appeal, which means it sat in the role of the board of management when it made the decision to refuse the children. It is important to retain an independent appeals mechanism to sit in the place of the board of management and to examine how it reached decisions through its policies and processes and to question whether it made the right decision in terms of capacity and the allocations involved at the implementation stage.
I will stop Ms Reid O'Doherty. We will come back to her but I will allow Mr. McCabe and then Mr. Malone because specific reference was made to them. Does Mr. McCabe have any comments to make? Some speakers welcomed his presence.
Mr. Gabriel McCabe:
Yes I do. Admission to school is one very narrow aspect of the needs of children in care. There is a wide educational need and a support system does not exist. The evidence of far superior supports in other countries still leaves children in care with low educational achievement. The three important issues that affect children in care are protection, education and social integration. The Bill will not do anything specific for protection or education but it will certainly help children enormously on the social integration side. Mental well-being is a serious issue for children in care. It is exaggerated when children are pushed out of their community and they are strangers in their community who spend long, lonely times in their room or during school holidays when they do not have association, which is especially vital for adolescent children.
Mr. Noel Malone:
I thank Deputy Ó Ríordáin for his comments. While I spoke about the Limerick situation it was in the context of the Minister’s view on implementing a similar approach in other parts of the country. It cannot be like everything else because it changes everything once one has a geographical area and one operates on a centralised basis. One of the things we lack, as Deputy Ó Ríordáin said, is transparency, openness and the social mix on which we need to work hard to achieve. I would be disappointed if we accept 25% as a great move forward. It is great but why should we not get it right? I do not see why we cannot get it right from the beginning. Like the Deputy, I am a firm believer in looking at tradition and seeing how we can improve it. Otherwise, nothing will ever change.
Very few schools would come here today to talk about this unless to get at other schools or because they perceive another school is gaining an advantage. I come from a position of strength. I would like the committee to remember that. I have 150 first-year students every year. My school is one of those with an excess of students so I have everything to lose by what I say. I am not griping about my colleagues' schools that are doing this and that.
I firmly believe that in going about our business we must consider what is right for the children. I came from a disadvantaged background and I was given an opportunity to attend a middle class school, which transformed me. That is the reason I am here today. I feel very strongly about this issue and I see the advantage in a school such as Coláiste Chiaráin, where we have children from a wide mix of backgrounds, in that the disadvantage element of our DEIS status has become less of an issue, which is a wonderful achievement. I am very proud of that. I thank the Deputy for his comments.
I do not have a question. I just want to say that the members of the panel are the most articulate, passionate, informed and alert group of people to have come before us in my short time as a member of this committee. I congratulate them on that because that is what this process is supposed to be about. We then try to influence the Bill by bringing into being the witnesses' suggestions. I was very impressed by the presentation. Some of the information was new to my ears, especially the 4,000 places for the young people in care. I just want to congratulate the witnesses because the work they put into their submissions in terms of their knowledge and what they brought to the committee is unique. I have learned a great deal and I hope to bring much of what the witnesses said to the way we will try to influence the Bill.
I thank Ms Duggan who was so articulate in making her submission but I would caution her slightly against making generalisations. There were many generalisations in her submission in so far as anti-bullying and the dangers of homophobic bullying are concerned, and patrons of schools and most teachers saying that homosexuality is an object of disorder. That is not true.
I caution against doing that. I know the point Ms Duggan is trying to make, and she is right about equal status and that children are children regardless of how they come on this earth, but what she said is not true. They are generalisations. I felt her submission was somewhat generalised in parts. It is not a criticism; it is a caution.
I must leave to go to the Seanad but I wanted to thank the witnesses. I will be in touch. It was an education and a pleasure to hear their submissions and I hope we will be able to do something in the Bill to satisfy many if not all of their concerns.
I echo the comments made by other speakers. This is a particularly informative debate. I am sorry I missed the first two submissions but I will read the transcript. I was delayed at an earlier meeting.
I wish to pick up on two specific issues. Like other members I was intrigued by the points made about children in care. That was probably more of an oversight from the point of view of the Bill, which reflects the general point the witnesses made that other countries have proper guidelines. As this is a much broader issue than admissions, we should have an overall system that looks out for these children from an education and health point of view and ensure there is a proper comprehensive policy. It is a reflection of that lack of priority given to terminal care in general that they were not even thought of when this legislation was being drafted but it is a very important point.
The draft scheme as published would address some of the issues. I was touched by the story Mr. McCabe's daughter told in the two page personal testimony she sent to the committee. She referred to having to travel from her area to a school in another area and finding herself at home on summer evenings and not knowing any of the children she meets in the shop. Part of that problem is to do with waiting lists in that she said she was at the bottom of the waiting list for the most local school because she had sought a place too late. The abolition of waiting lists will address some of that issue but I can still see a problem arising where exceptions are allowed for parents or siblings who attended the school because equally those rules would have put her at a disadvantage. Is Mr. McCabe asking that the committee would suggest that children in care are put at the top of the list as a priority before other criteria in the legislation-----
I just wanted to be clear about what Mr. McCabe wants.
On the second issue, every group that has come before the committee mentioned its concerns about section 29. The management bodies told us they were nervous about being put in that position. The boards of management do not want to be the last port of call in deciding on an application only to find they are exposed to legal action because they cannot prove there was proper independence and the whole process becomes nasty. Equally, not all parents would be comfortable with that and having to trust that it would be given a fresh look if the same people are deciding at a later point in the process. Do the witnesses believe the existing system should change or what would they recommend as an alternative that would still have those elements? Independence is crucial, and it must be a fresh process, but is the existing system with its requirement for the Secretary General of the Department to be involved and ultimately sign off on it correct? Should we be looking at an independent national or regional committee that everybody would have confidence in but that would not be overly cumbersome?
I have some questions, the first of which relates to the point made by Ms Reid O'Doherty. The Bill deletes the previous section 29 but brings in a new power for the National Educational Welfare Board to designate that schools must take not just special needs pupils, but students who have been refused admission because of oversupply or whatever. What are the witnesses' views on that? I will come back to them on that point.
I am very interested in the common policy idea. In my area we experienced a problem, which has lessened in recent years, in that there was more demand than supply at primary level due to the boom in young families and so on. I found that what excluded most people was the first come, first served policy where parents had to put down their child's name when they were born. The issue that has arisen a lot today is to do with the religious discrimination. I agree with that in principle but in my area the schools that are the most inclusive in terms of a social mix are the Catholic schools. We can have a situation where at one end of the spectrum students in Educate Together schools are almost totally white and middle class whereas at the other end of the spectrum 80% or 90% of the children excluded from those schools were immigrants. The first come, first served policy can discriminate against people who are immigrants, Travellers and those with a social disadvantage, but a common admissions policy might be a way to get schools to co-operate and ensure students can get into a local school if that is what they want. I would be interested to hear any comments from the witnesses on that.
I will call witnesses who did not contribute a second time. I will start with Ms Duggan who may wish to respond to the issue raised with her.
Ms Derval Duggan:
Absolutely. I have been a practising teacher for ten years. I taught in France as well as in different types of schools in Ireland quite a number of years ago and more recently and I see the penetration of the religion of the patron in the school, particularly at primary level, as a serious issue. As a parent one does not know what is happening in one's child's school. It depends sometimes on the teacher. One teacher can be quite religious while another is not. I stand by what I said about the teaching on homosexuality. I have taught young men in my school who are gay but the school's relationships and sexuality education programme can be delivered through the ethos of the patron. If the patron is Catholic, that is what is being taught in the school, depending on the teacher, but I would not agree that I am generalising in a vague way. I am being precise. I know what happens in schools. I have the issue of my children not being baptised and not having any religion, yet they have to attend a school with a religious patron because we could not get them into an Educate Together school.
I know what it is like to have that conflict at home, to want to support one's child's school and teacher but yet, one's beliefs and values are being disrespected every day. Only last week I was told to keep my children at home instead of sending them to a service in school when I asked if they simply could be minded somewhere else. There are many serious issues for parents like myself. Many people simply go along with it and say they will get them baptised, because it just cuts out those problems or they will go along with the communion because that is what one does. This is not Iran or Saudi Arabia; we are supposed to be a democracy in the 21st century.
Mr. John Suttle:
I agree with Ms Duggan. Again, three of the presentations made today pertain to religious discrimination in admissions and what is happening within the schools after children gain entry. I understand the Chairman has stated previously that many Catholic schools are highly inclusive but in Dublin, the right of a child to enter the school has been taken away. Children should not be waiting for the privilege of being invited to attend a school under Catholic patronage. They have the constitutional right and that is not implemented in the Chairman's area or any other area in Dublin. Many inclusive schools have Catholics-first admissions policies. Again, when it comes to section 29 appeals, the board of management is the instrument that introduces Catholics-first admissions policies and it is nonsensical to consider that the board of management might be the last port of call in appealing against its own policy. If section 29 is to be enhanced, fine, but section 29 definitely should be kept because it is working quite well as it stands. However, it certainly could be enhanced. I wish to agree with Mr. Gabriel McCabe on a side issue. Again, this was a very good presentation but it is very serious when a child must leave his or her area to attend school and the isolation that this causes is a serious matter and can last a lifetime. Children have the right to attend their local school and every child on the road should be allowed to attend his or her local school. If the religion of their school is not what they wish, they have an entitlement to withdraw.
Sr. Marie Céline Clegg:
A number of these issues are very closely related. The principle of diversity, diverse provision, parental choice and the right of a patron to run a particular kind of school all are running through the various issues that have been mentioned today. I was glad to hear the Chairman mention that voluntary Catholic secondary schools are noted for the level of their inclusion. In an ideal situation, there would be no problem were we, within this country, to have denominational, multidenominational and non-denominational provision in every area. However, that is unrealistic in terms of resources and there then is a question of a parent having the right to access what is his or her choice, even if it means travel to another area. However, I also worry regarding the kind of reference to the effect that if a school is coming from the Catholic perspective, there is little or no respect for those of other faiths and none. The evidence is there is a high level of respect for those coming into a Catholic school who come either from other faiths or none. However, as I mentioned in our own submission and again today in the brief introduction, we are talking about a balancing of rights. I believe it would be agreed that only in countries in which there is a completely non-democratic regime does one not have a recognition of the rights of faith schools to exist in the public space and to be funded. Consequently, in terms of section 7(3)(c) of the Equal Status Act 2000, it certainly presents problems in situations in which there is a stand-alone school. I believe this to be particularly true in the context of primary schools. However, as for the possibility in a given area that if there is a Catholic school, and no other Catholic school is available to parents who want a Catholic school, there is considerable pressure on that Catholic school to give preference to those of Catholic denomination. I am sure this also is true of other denominations but I just happen to be coming from the Catholic perspective, because I am coming today from the Loreto Education Trust.
To clarify, because I would have made this point at the previous meeting, I do not favour a model of Catholic education. I favour a model of State multidenominational education. However, I suppose it is just in terms of how things work out in practice, that it is not just the birth certificate requirement as being the only discrimination. First come, first served is another one. I should clarify that while they are inclusive, I am not stating that I agree with that model.
Ms Eukaria O'Grady:
This actually is off my own point but relates to that of Mr. McCabe regarding children in care. I used to work in admissions in England for children in care. Senator Power asked how they got priority. When that Act was changed, one of the first things they did when introducing the law pertained to special needs law. While the Education for Persons with Special Educational Needs, EPSEN, Act for young persons has not yet come into effect, the proposed Bill provides that an education welfare board can direct, in respect of someone who might have a special need. As Mr. McCabe has proved in his report, children in care have special needs in that sense. The majority actually do come under the EPSEN provisions for reasons such as mental illness or things that may have happened. This could be a way of amending the draft Bill quickly to include children in care, which obviously is essential.
As for my own point, I really believe the issue is not ethos and religion, as that is something that can be discussed after admissions. We have an unfortunate position in Ireland, which I believe Deputy Ó Ríordáin noted, which is that historically, religion and education went together. I am aware that in the Stanley letter of 1833 they did not and then everyone pushed for them to be pushed together. However, it is something to be discussed afterwards, because these are voluntary schools, the majority of which are State-funded and that is the anomaly we have. There are 1,700 schools that are stand-alone and 80% to 90% of voluntary schools are State-funded by the taxpayers. The census recorded that the second religion is no religion and this needs to be reflected. It is just a proof of membership of denomination and the religious instruction can then be discussed after admission, because then the human right is respected. Ultimately, the admissions Bill is about children's rights to education and above admissions or schools rights, this is about children's rights to education. It is a human right and as a country, we must show we are doing that.
Mr. Noel Malone:
I revert to the issue of the common application system to concur with what has been said there. I have been a principal for 15 years and this common application system has been there for nearly as long as I have been a principal. In my experience, a highly positive aspect is that religion has not really played much of a part because one does not apply particularly under those kinds of terms. I have never heard that being an issue in the context of the 16 schools involved. However, to revert to my original point, the real problem is in respect of social class and mixture. It is extraordinary to me and I find it to be incomprehensible that a kid can come to a school from another county altogether while a kid living across the road or in a primary school across the road cannot get into the same school. As for the section 29 issue, speaking as a practising principal, we all hate them because they are terribly cumbersome and terribly long, there is a great deal of work involved therein and usually it is not really about some of the aspects about which people have spoken today. Usually, it is about a problem with the admissions being fair in the first instance. In many cases, it is not really about not having enough room. Any of the section 29 appeals with which I have been involved certainly have been skewed situations, such as where a child might be living across the road from a particular local school but has been advised he or she is not very clever and another school would be very good at handling the child's particular needs because it is very good with additional resources or whatever, and the child should go there.
Perhaps that person cannot then get into my school because we are overwhelmed because we take all comers as such and they take a section 29 appeal, not against the school that is right across the road from them but against ourselves. Therefore, it is complex. Fundamentally, religion and other such matters will not be an issue if we think of geography first. Primarily, within reason, one should be able to go to one's local primary school, and that is what needs to be looked at.
I would recommend a common application system. In many ways, there are many advantages to it. However, it needs to be fine-tuned. Certainly, I would hope the Minister provides that, whatever about the 25% anywhere else, in the context of a closed group it has to be a common playing field.
Ms Eithne Reid O'Doherty:
I do not see how it will work in practice. First, there is no definition of oversubscription, whether it is when they have two over, ten over or 100 over. Supply and demand seems to be working in some areas. Some schools are very popular and people head towards them. Other schools are less popular and they have free capacity. There is the issue of dealing with the significant oversubscription in some schools. Other schools will say it works out over the summer in that parents apply to multiple schools, they have their choices in priority and it works out. As the school places get filled, come the month of August the child has a place.
As for the designation of a place by the National Educational Welfare Board to override a school policy, how will it stand constitutionally? There is the aspect of ethos and characteristic spirit.
As to whether it will work in practice, I do not know. There is a need for it in some areas to get children into schools. They take section 29 appeals against multiple schools. That happens where the child is looking for a place. If it could be sorted out with some to say the child will go to that school, it would rectify the problem.
There is an appeal from that. The draft does not yet state where the appeal is to. As a result, one would suppose an appeals body will be retained for this as well as the designation by the special educational needs council.
I would recommend to the special education needs council that a quota of places be allocated in each school for children with special needs. There are some schools that have a very small intake of children with special needs. It should be representative of the common population of those with special needs. They all are clustered in some schools. Some schools will say there is 30% special needs in their schools at second level and some schools have none.
On another improvement, I note section 29 appeals were hit but they provide for accountability, transparency and the fostering of good practice. I have seen over the years that schools get better in their practice when they have been subjected to a hearing. One improvement would be to publish decisions. Whatever body is put in place as an independent appeals mechanism, its decisions should be published. People would know what they were coming to and they would know the reasoning. It would foster good reasoning within the committee or tribunal.
I will go back to section 29 appeals. I take on board Mr. Malone's analysis that these are cumbersome and nobody likes them. Parents do not like them. The Department does not even like them. However, the reality is they are useful as well. In 2012, there were 355 section 29 appeals. Some 141 of those were resolved, and I presume that was through the mediation process. Only 66 appeals were upheld. Therefore, 147 appeals of decisions in terms of enrolment were not upheld. In 2010 and 2011, the comparable figures were 171 and 121, respectively. In that regard, one of the big issues is that while section 29 appeals are cumbersome and time-consuming, there is a value to them. What is being proposed in the heads of the Bill in terms of getting rid of that appeals mechanism is not best practice and it is something that the Department needs to look at.
I still have not heard how we would enhance the process. Apart from the mediation that Ms Reid O'Doherty outlined, I still have not heard any concrete proposals on how we can enhance the process. As a principal, has Mr. Malone any ideas on how we can enhance it? There is a value to it.
Mr. Noel Malone:
Probably. That is the point. Maybe it is the nub of where the solution lies. Going back to my original point, it is often the case that a section 29 appeal is taken against a particular school but the issue may not be about that school at all. It might be that the particular child has been brought from Billy to Jack between many different schools and this school happened to be the one that is the subject of the appeal. First, regarding the board, ombudsman or whoever makes the decision, the number involved should be much smaller. In my experience of section 29 appeals, the review boards tend to be a bit big. Second, the person making the decision should be able to explore options beyond the particular school in question because that might not necessarily be the best solution. If the board, in looking across the city and county of Limerick, for instance, found a solution, it should be able to ask whether it would be a better solution for the child. I understand that power does not exist at present. The appeal can only deal with the particular case, parent A against school B, which is restrictive. There should be scope for the education centre. We are not utilising the education centres enough, and that is why I mentioned that they could be involved on a lottery basis in terms of applications.
Mr. Noel Malone:
They could be, but the education centres have a bigger role in terms of the Department. It has been utilising them much more. The education centre administers the common application system in Limerick, for example. All applications go into the education centre and they come back out for schools to decide, "Yes" or "No". The centre administers them. All that is required is that all schools would have a common, fair and reasonably transparent admissions system and that places would be allocated by the education centre. That in itself would provide a level of independence and fairness because the education centre represents nobody. The education centre represents the best interests of all in the locality. The education centre could be one possibility. What is more, there should be more power, if a section 29 decision is retained, to come up with solutions that go beyond the particular school and the particular child.
Mr. Noel Malone:
In Limerick, it has an enhanced role by arrangement. It does a very good job. That is why I suggest it. Those centres have no particular axe to grind. The Limerick one is doing a particular job. In effect, it is a secretariat. It is administered by the administrators and there is an integrity from the beginning. People trust it. That is the bottom line.
All engagements parents have are not with the individual school in Limerick, where there are 16 schools, but with the education centre. When one applies to a school, the school sends the application to the education centre. Today, for example, we got a letter from the education centre stating the following students have applied to us as their number one choice. We will say "Yes" or "No", send them back to the education centre, and by Friday it will move on to the number two choice, and then the number three choice. It is administered completely in that regard. That model could be looked at. It would be transparent and probably alleviate many of the issues we have with section 29 appeals because it would be independent and an education centre or other body would have the scope to think outside the box and think beyond the particular case of a student trying to get into a particular school, because it may not even be the best fit.
Mr. Noel Malone:
That could be. At present, it is not the case. That could certainly be a point, that they would act as mediators. They are in all parts of the country. They are probably more familiar in terms of teacher training but they are getting a more enhanced role.
The Department is very much of the view that they have a future. This could be examined.
On the question of the heads of the Bill, there is provision such that an independent person can be appointed by the Minister to implement a policy or organise co-ordination between schools. That might be the appropriate mechanism. Are there any other questions? I will allow everybody to wrap up and make final comments or responses.
Ms Eukaria O'Grady:
With regard to Mr. Malone's point, the arrangement works very well in England. One applies to the city and council, and that is what happens with children in care. The authorities look after the system to ensure a fair and non-arbitrary process. The only issue I am aware of at present concerns the interview process of schools, particularly secondary schools. Perhaps this needs to be examined because meeting parents before the child applies stops schools and boards of management from being fair. I believe the education centres are run by the professional development and training service. That will be PDSTs here but that is definitely what works in other European countries.
Mr. Gabriel McCabe:
With regard to highest priority, I can give members a copy of the relevant English legislation. It is very unequivocal in defining the meaning of "highest priority". I have supplied this information to the committee in digital form.
If provision is made for children in care, I ask that the wording be chosen carefully. If "local school" is referred to, it should be noted it may not be the most appropriate school for the child. I ask the committee to take that into account.
Let me outline a little case history in regard to the policies. We live approximately 200 yards from our local secondary school, which is built on land that was acquired under compulsory order from my wife's family, who have lived in the area since the 1800s. My daughter, who is present, and her brother - the first two - were excluded; they did not qualify. My 12 year old son is due to enter secondary school in 12 months, and he is well down the list of names for admission to the school. Bearing in mind the approach of extending the waiting lists so schools can work off waiting lists, one should note that in our particular area it will be 12 years before that aspect of discrimination will cease. Every September, my son, who has special needs, goes back to school and meets 30 familiar faces and one unfamiliar one, a new teacher. It is at least mid-October before he can settle in and begin to function well within the classroom. If he is faced with 30 new faces and ten new teaching faces, he will be absolutely devastated. He relies on the support of his peers who can manage him and, more important, his peers' parents, who are a great support in managing his behaviour and needs and ensuring he is well integrated socially in the community. He will be excluded if there is no provision for him in this regard.
Clearly, I am very much in favour of the committee considering a far more comprehensive education policy for children in care. On placement, the children are well behind their peers educationally and there is a large gap to be made up. They then face the barriers of exclusion and social isolation, including the effects of the trauma that resulted in their being brought into care in the first instance. To overcome all those barriers is a huge challenge for them. I ask the members to look at the children's particular needs in a broader sense. I thank all the members for listening to me.
Mr. John Suttle:
Parental choice in regard to denominational education has been mentioned. The constitutional provisions in Ireland are stronger than in any other country in Europe. They are different from those in other countries in Europe. Parents have a constitutional right to send their children to a religiously exclusive school in Ireland but only one that is privately funded. Article 42.1 uses the term "according to their means". Parents do not have a constitutional right to send their children to a religiously exclusive State-funded school. In fact, the State is obliged to provide free primary education, but only in schools that are open to children of all religious denominations. The State is not allowed to support in any way a school that has religious exclusion as part of its admissions policy. The idea of having Catholic, Protestant and multidenominational schools all State supported seems acceptable to most people, but if the State got involved, it would involve religious apartheid in schools, or the separation of children of four years into different religious groups. The State is excluded from involving itself in that sort of thing. It is not allowed to support schools that are not open to all religions.
The forum on patronage and pluralism has made many recommendations in this regard. However, all the State seems to be doing at present is focusing on areas where the children of all religious denominations are going to school together. However, they are going to school together where the patronage of all the schools is Catholic. At present, the State is taking one of these schools and changing its patronage with a view to making it the non-Catholic school in the area. If this is done in Dublin, where Catholics-first policies are in every national school under Catholic patronage, there will be an area divided into Catholic and non-Catholic schools. This is nonsensical and ridiculous, and it completely goes against the thrust of what the forum wanted to achieve. The forum made eight recommendations that could be implemented without legislation to try to make all schools receiving State support appropriate for taking children of all religious denominations, which is the children's constitutional right. The State is not doing anything in this regard. The forum recommended that rule 68 be removed, but this is not being done. The forum recommended that the Minister raise awareness of the constitutional rights of children, but I do not believe this is being done. It was recommended that religious education be a separate subject, but this is not being achieved. It is recommended that religious education and sacramental preparation should not encroach on the general curriculum, but this is not being achieved either.
Sr. Marie Céline Clegg:
We have had the benefit today of hearing an account of how the common application system operates and all the values and benefits that go with it. If it is being considered as a very possible option, it should be examined very carefully. There are many difficulties associated with it that did not emerge today. It is not that they were being hidden but that we have not had the opportunity to examine this in great detail. It is quite possible to have a common application system and yet have soft barriers and a level of non-inclusion. I appeal to the committee to bear that in mind.
A second point that I regret has not arisen today, perhaps because time is limited, concerns the implications for the role of the principal under the emerging legislation. I am not sure how many people have experience of direct contact with principals at present but the level to which this has the potential to add yet more to their workload is unbelievable.
With regard to the requirement that schools be inclusive, if the legislation that emerges emphasises the underpinning of principals, I would go fully with that. The level of micro-managing, to which I referred, is still an issue. I recommend to the committee that it examine this very carefully as it will have implications for everybody throughout the system.
I appeal that the requirement to be inclusive be balanced with clear recognition of the right of a patron to run a particular type of school, both in the Constitution and in the various EU instruments that have been mentioned today, and the right of parents to choose a particular kind of school. I ask that we focus on the balance of rights. The danger is focusing on a particular right while forgetting the overall fabric.
In examining the emerging legislation against the background of everything that has been heard today, we should consider its workability in real terms in order we will not emerge with a sledge-hammer arrangement.
I used the word "sledge-hammer" deliberately in my initial statement because it would worry me hugely if we did something for all the right reasons but, unfortunately, the outcome does not benefit anyone throughout the system if it is overladen with an overly directive approach. I thank the committee for the opportunity to appear and to engage with the other witnesses.
Ms Derval Duggan:
The issue I would like legislators to take into account is the protection of the constitutional rights of children. I am happy that it is provided for in the Bill but I do not see how they can be protected under the current integrated curriculum.
I would like members to look forward 20 or 30 years in the context of what kind of education system we want. If this Bill proceeds as drafted, it will perpetuate religious discrimination. As previous speakers mentioned, we will end up with a two-tier system. Parents want the best quality of teaching and learning for their children and they want the school with a good reputation. The National Parents Council has conducted surveys and the patron is not the most important thing for us as parents; it is whether our children are happy and will receive quality teaching and learning. I hope this does not happen but I am afraid that it will transpire that the schools that have been operating for a long time with a good reputation will remain under religious patronage and all the new schools that are currently being built will be run by everybody else or the people who are not happy to pretend they are of a religion and there will be segregation. Academic segregation, which is also an issue currently, will worsen. That would be a disgrace in the middle of the 21st century. I would like members to think ahead about what we want for our children.
Ms Eithne Reid O'Doherty:
I refer to the independence and fair procedures aspect of the role of the principal and the board of management, which is constitutionally protected. It has been brought up ad infinitumas this stage but there will be litigation. The bottom line is boards of management will find themselves judicially reviewed or sued.
The independent appeals mechanism could be enhanced with great involvement of society and greater knowledge. I have thrown out some ideas but such a mechanism needs to be retained. The publishing of decisions is a safety valve. They are written, one can refer to them and there is good reasoning. It is good practice.
I refer to equality issues. The Bill provides that one must provide for such issues but that is superfluous. The Equal Status Act 2000 covers this. Currently, there are tensions, which have been raised during the meeting, around the religious aspect and the constitutionally provided denominational aspect of schools as opposed to the child's right to attend any establishment. Then there is the protection of section 7(3)(c) of this Act. Where does one refuse to protect the denomination aspect of the school? There will be legal change in this regard and I can see it coming through the High Court invoking European legislation. Religion is only one discriminatory ground that has been addressed. We are still looking at the Traveller situation and the Stokes case, which is under appeal to the Supreme Court, and at disability. Gender has not been fully addressed either. I would like the debate on equality issues opened up. Policies should be put before boards of management and they should be supported in regard to what they want to say in them and how they run their school. The right to education includes access. Article 42.4 refers to access. How will one receive people into one's school and how will participation be fostered? The debate needs to be opened up.
Mr. Noel Malone:
Sr. Marie Céline Clegg referred to the common application system. There are drawbacks and no principal is probably happy with it but then no system is perfect. Where there are drawbacks, they mostly relate to inequality in terms of a common admissions policy. In this country in the 21st century surely we can agree what are the fundamentals, having taken up any of the issues raised by all of us. We all want the best for our children. We want equal access and we want to give them the best, regardless of religion. Why can we not agree on fundamentals through the Department and the vehicle that will shape the future of our children's lives and have that widely accepted across the board? From that point on, we would probably achieve diversity, which we are all looking for, and equality.
Many of the issues that have been raised, including section 29, would become less important if all schools applied fair fundamentals. I am sorry they are not in place at the moment. The 25% provision is a particular problem for me. If I was in Hong Kong, my son would have right of entry to the school I attended in Limerick and a child living across the road from it would not. If people look at this in those stark terms, that will explain what 25% means in reality. That is a significant percentage.
I am in a DEIS school. In the context of the common agreed admissions issue, what would be better than DEIS kids attending all sorts of schools bringing their DEIS funding with them rather than putting them into a ghetto-type situation and giving them loads of resources. I wonder whether that is good value given the financial accountability in the State because very often one is compounding disadvantage upon disadvantage. Children should be given an opportunity to attend different schools and, through parental choice or otherwise, to explore other options and to bring the DEIS funding them to give them the extra edge they need.
I thank all our guests. I echo the comments of members regarding the excellence of the presentations and the replies to questions. It was informative for the committee. It confirms our decision that in future when we hold hearings, we should include a good mix of individuals and groups. That has worked well during these hearings. I also thank those who have followed the proceedings in the public gallery. Some people made written submissions but did not have an opportunity to make a presentation at the hearings. They will be also be closely scrutinised. I thank the members.
We have concluded the hearings and we will shortly draft a report. Everybody who made a submission will be updated about that.