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.