Wednesday, 19 May 2021
Education (Leaving Certificate 2021) (Accredited Grades) Bill 2021 [Seanad]: Committee and Remaining Stages
I move amendment No. 2:
In page 5, line 24, after "appropriate" to insert "(taken as a whole and not any one individual('s) result)".
I expected there to be debate on amendment No. 1. I flag to Deputies who are leaving the Chamber that I am likely to push amendment No. 3, which is coming up very soon, to a vote.
Yes, I have moved amendment No. 2. The purpose of the amendment is fairly straightforward. It is a concern that has been relayed to me by a number of students. A commitment was previously made that the collective junior certificate data of the cohort or year group would be used to determine the accredited grade, not any individual's performance. This is possible and as I understand it, it was done last year. Even where there is churn within a cohort, it is possible to unify the individual results and therefore to treat them as a collective. The data are significant, and individual students are worried about their junior certificate, which may not have been as good as it could have been or as good as they would have liked. What we are seeking in the amendment is a clear commitment from the Minister that the accredited grades will not be based on individual data. I would like to get a commitment from the Minister in that regard to the effect that it will be based on the collective group.
As I said in the Seanad when the same amendment was tabled, I agree with it in principle but I must reiterate the point that I made on that occasion in response to what is being requested by the Deputy. Fundamentally, the process of standardisation will operate at national level. It is preferable to use aggregate or cohort data, as the evidence is that the use of junior cycle data in the regression model is of better predictive quality when done at a class group rather than an individual level, which is the same view as the Deputy has expressed.
The amendment as drafted is potentially problematic. In general, some flexibility is needed on precisely what is included in the standardisation process rather than being overly defined by the Act. I cannot agree to the amendment, as in certain cases it is necessary to rely on the individual junior cycle result of an individual student, where that student is typically an out-of-school learner or a student pursuing a subject out of school. This was the case in 2020 in respect of calculated grades and it is set out in the published national standardisation group report.
In addition, in order to ensure we were being clear about the junior cycle's potential use in standardisation, the guide to State examinations and accredited grades for leaving certificate 2021, which issued in February, stated: "Though the prior performance of the class group in Junior Cycle may be used in this process, the individual performance of the student at Junior Cycle would not be a determinant of their performance at Leaving Certificate, other than when the subject is being taken outside of school." However, the accredited grades system is, overall, subject to the determination of policy by me. Specifically, section 2(2)(d) operates "in accordance with such policy directions as the Minister may give". On that basis, in rejecting the amendment, I am happy to include in my determination under section 2(1), which is our intention in any event, a policy direction expressly stating that the junior cycle and leaving certificate data used in the process of standardisation will be aggregated or cohort data subject to the flexibility referred to above in limited cases.
I am not pressing the amendment. I appreciate the Minister's response. Overall, I am broadly reassured by it that the results of the cohort will be used rather than the results of individuals.
I am not entirely convinced that it makes sense for an individual student who is an out-of-school learner and who is not part of a cohort to have his or her junior certificate results used. I have in mind circumstances in which somebody had a bad experience at a school, went through a difficult time and did a poor junior certificate but when they went to a different school such as a post-leaving certificate, PLC, type of institution and did significantly better in the leaving certificate. In such a case, I do not understand why the individual's junior certificate results would be used, given that his or her circumstances may have changed very significantly. If there is to be a national standardisation against the traditional bell-curve standardisation that is used, I imagine that it would probably be more reliable in standardising those results than an individual's junior certificate results. It seems to me to be potentially problematic. In any event, I accept the Minister's point and I will not press the amendment. I am encouraged by her statement that the approach of the Department will be that the results of the cohort rather than the individual will be used.
I move amendment No. 3:
In page 5, between lines 28 and 29, to insert the following: "(iv) be set out in writing and published by or on behalf of the Commission prior to the issuing of results to each candidate;".
I will be pressing this amendment. It is an important amendment. There was an awful lot of controversy last year and much of the discussion was about standardisation. We are trying to identify potential flaws in the legislation but we support it and want to see it progressed. We will support it on Final Stage. We must be especially careful this year given the controversies in other jurisdictions about the methods of standardisation, primarily in relation to school profiling, but also the very significant error we had here that led to the downgrading and upgrading of many students' grades. That had implications for third level places. The third level sector responded admirably in ensuring that those whose grades were downgraded secured places.
We do not want to have a repeat of last year's scenario when a significant error was not spotted until after the fact. A crucial way of preventing that is allowing the formula of the algorithm to be published and scrutinised publicly. That would be a benefit as there is a transparency issue involved and the trust of students in the process is called into question. It would be helpful if the algorithm was no great secret and was published. The Minister informed my office at an earlier briefing that it would be published before results would be issued. However, she rowed back from that in the Seanad when she indicated it would not be published. This amendment is intended to ensure the Minister publishes the algorithm, as that would be the right, necessary, transparent and fair thing to do. It is essential to ensure the errors of last year are not repeated.
I agree with the principle behind this amendment in terms of transparency in how the process of standardisation would operate.
However, the amendment seeks to have the process of standardisation published in advance of results day. This is not something that can be agreed to as the final composition or application of the process will not, or at least may not, be known right up to the day of the results.
I can commit, at a minimum, to doing what we did last year in having the technical detail of the model and standardisation process published on results day. I am also happy to commit to publishing any other information on the process of standardisation in advance of results day. That is what I was clear we would do, and any information that could be published in advance of results day can be published in advance.
We will be able to comment more on what it would be hoped to publish on the standardisation process once the standardisation process for 2021 has been developed. However, it is an iterative process and the algorithm used for the standardisation process will not be finished until the end of that process. Accordingly, I cannot accept the amendment as drafted.
I find that difficult to comprehend. This process has already started, the company has been engaged and the Minister is recruiting another company for additional scrutiny, which I welcome. It is 19 May and we have June, July and into August for this to take shape. I do not understand why the Minister suggests this work will never be done until the results are out. I find that very difficult to comprehend.
Surely, there has to come a point where those who are responsible for drafting the formula, and who have given as much consideration as possible to all the different factors, are able to say they are satisfied with it and confident in it. As the Minister is holding on to this until the very last minute to ensure error does not arise, if anything, publication would potentially identify error at an earlier stage because it would be the subject of public scrutiny. It is with the intention of avoiding last year's difficulties that I am urging transparency in this regard. I am not saying it has to be out next week but it should be out before the results. There is no good reason not to publish it before the results day. What particularly happens on the results day? Obviously, the results come out but no changes can be made to it. Surely, if there are errors, we want those changes to be made and we want that to be spotted. If it is going to be kept under wraps until the last minute, that is not going to happen.
I want to be very clear that there is no intention of keeping anything under wraps. There is no intention whatsoever of concealing any detail. What is important to remember is that the process of standardisation is just that: it is a process, not a static formula. It is very important to point out that even if we were to look at the written leaving certificate exam in terms of that process, it also contains and has always consistently included standardisation. As to, for example, publishing the marking scheme of the written leaving certificate exam, that is never publicised or published until after the release of the results because, again, the standardisation process works there as well. There is an alignment between the written process and the accredited grades process this year or the calculated grades process.
There is no question of not wishing to co-operate. As I said earlier, it is an iterative process and any detail that can be released in advance will be released in advance but, certainly, all of the data that need to be published, in a similar fashion to the publishing of the marking scheme for the written exams, will be published at the time of the results, and it is similar for the algorithm.
To be clear, I appreciate there is no bad faith or anything like that in not publishing this. I appreciate the Minister is not deliberately concealing anything. However, the fact remains this formula and the process connected to it will not become public until after the results are issued. It is different from marking schemes, when we take into consideration the controversies here and elsewhere over the past 12 months and the difficulties that have become very apparent with standardisation and the risks that exist. It is in the interests of addressing that and ensuring confidence in the process that we are calling for this to be published and, accordingly, tabling this amendment. I will be pressing the amendment.
I move amendment No. 4:
In page 6, to delete lines 10 to 12.
Amendment No. 4 relates to the appeals mechanism. As the legislation is drafted, the mechanism operates only on the basis of how grades are transmitted to the Department. The mechanism is technical, limited and unlikely to make any difference for the vast majority of students if there is an error or problem with accredited grades. The amendment is to allow for a more substantial appeal, which many students were seeking last year. They wanted an opportunity to have a broader appeals process. Could the Minister provide for that by way of regulation?
There are a number of reasons and grounds for rejecting this amendment. As a matter of policy, the provision of estimated marks is grounded fundamentally in the professional judgment of teachers and school alignment before submission to the SEC. The definition of "estimated mark" in the Bill provides clarity on what professional judgment is understood to encompass. The process through which professional judgment is exercised would make it impossible that another person unknown to the student could be expected to review the evidence as a candidate's teacher had done, acknowledging that some of it will have been based on observation over the course of the senior cycle, and then be asked to provide an estimated mark that could be compared to the one initially provided. This would make the design of such an appeals system, even if it were desired, extremely difficult and potentially impossible. The appeal process would be highly likely to last several weeks, if not longer, and impede the candidate's progression to further study, or at least not facilitate it in terms of later rounds of offers. For these reasons, it is not possible to accept the amendment.
I move amendment No. 5
In page 7, between lines 22 and 23, to insert the following: "(b) Where a review is carried out, the Commission shall afford the candidate an opportunity to be heard.".
These amendments relate to where there is false information or wrongful communication. It is important that there be protections and very severe sanctions but we must be confident that, where the sanctions apply, the person deemed responsible is responsible. Given the significance of the consequences, whereby grades can be withheld, which has implications for the rest of a student’s life, his or her career and access to third level, it is only fair that the student accused would have the opportunity to have his or her version of events heard in any review and to put his or her case. I am not saying the student's version of events would necessarily be accepted but it is a question of him or her having the opportunity to be heard.
Sections 4 and 5 will operate in accordance with such procedures as may be prescribed. In that regard, regulations are being drafted that give effect to the provisions concerned. I have already indicated to each House, including today, that there will be a robust review process that will not lead to decisions being made without considering individual circumstances.
While the operation of the provision is always subject to the constitutional protection of fair procedures and natural justice, and while regulations are in development, section 7(2) expressly requires that the regulations provide for what the amendment would provide for. Section 7(2)(a) specifies that the candidate will be notified should a report in regard to a communication under section 4 be made, or what has been referred to as canvassing, or if false and misleading information is given, as provided for under section 5. The candidate then has the opportunity to "make representations to the Commission". In this way, the candidate is afforded the opportunity to be heard as the amendment intends. In addition, before any decision to withhold accredited grades is made, a review is carried out, and any decision arising to withhold results must be accompanied with reasons for the withholding and is subject to appeal. Therefore, there is a second opportunity for the candidate's views to be taken into account. I want to make it abundantly clear that there is every opportunity for the student to be heard. There is a robust review mechanism and a further appeal. There is no question but that the student will be heard at every opportunity.
I am broadly willing to accept that. I will make a general point and then return to the specific issue. There is a bit of a difficulty with this Bill that has arisen regarding other Bills over the past year. I am referring to where regulations that follow the passage of legislation are of a significance that goes far beyond the usual significance of regulations. The regulations under discussion are important. In ordinary circumstances, it is fair to insist that they be made available before a Bill passes into law. There is a very tight timescale and we are not going to slow down the passage of this legislation but the Minister should have regulations such as those in question available and ready to inspect before we vote so we can understand what will happen when so much of the detail is left to regulation. Having said all that, I accept what the Minister has said. I am satisfied there is a reasonable opportunity to be heard, at least according to what she has described. This is vital. In general, I am not entirely thrilled that so much is left to regulation and that we do not see the regulations before having a chance to vote on the final Bill.
I move amendment No. 6:
In page 7, between lines 29 and 30, to insert the following: "(7) The Commission shall not decide to withhold all or any of the accredited grades as provided for by subsection (5), where it can be shown that the candidate had no knowledge of the communication that was made for his or her benefit by the first-mentioned person.
(8) Where a communication is made without the candidate’s knowledge as prescribed for in subsection (7), the Minister shall make regulations providing for the first-mentioned person to be liable to a fine.".
Siri does not agree. Siri does not have a vote. We discussed this matter on Second Stage.
It is an important amendment. The point was perhaps misunderstood, so to clarify, there should be no toleration of canvassing or interference. There has to be a clear message to everyone, including students, parents and anyone connected with a student, that teachers and school staff are off limits, and that they should not seek to put them under any pressure. I am thinking of teachers living in our communities, especially smaller rural areas, where they could be going to the same shops as the students and parents, and might be involved in the GAA team, the soccer or such. Under no circumstances should it be considered acceptable that they be put under any pressure, implication or anything of the kind. It is important that teachers are protected from that. I believe and am hopeful that there will not be many instances. I hope that there will not be any instances of this kind of behaviour over the course of the next few weeks and months because I hope and believe that students understand that teachers and school staff are under significant pressure in this process too. The point of this amendment is not in any way to undermine that but to ensure that those who are responsible for bad behaviour carry the burden of it.
It is far from inconceivable that a parent or somebody connected to a student could canvass or lobby a teacher or a member of school staff on behalf of a student without the student's knowledge. I do not believe that that is difficult to conceive of at all. In such circumstances, where that can be demonstrated, I believe it would not be fair on students for the sanction to be the withholding of their grades, given the implications it has for their career and for their access to third level education. A substantial fine for the person who is responsible would be more appropriate, which I have provided for in this amendment. In the instance that somebody challenged the Department or the State Examinations Commission in court on the basis of grades being withheld for actions that the person was not party to, responsible for or did not have any hand, act or part in, I think the State Examinations Commission or the Department would be on thin ground. I urge the Minister to make alternative provisions. There have to be significant sanctions but they should apply to the person who is responsible.
The procedure under which a review will be conducted will seek the views of the candidate, the student, in respect of any report made of canvassing. Section 7(2)(a) expressly provides that the student or candidate will have the opportunity to submit representations. If the student was unaware of any canvassing, the candidate has the opportunity to make that case in his or her representations, and if he or she makes that point, the review must take this into account when reaching any decision. The candidate enjoys the protection that, fundamentally, any decision following the review must be reasonably based on the information available to the review. As the intent of the amendment is already provided for, including by virtue of legal principles, the amendment does not improve the Bill.
With regard to the drafting of the amendment itself, it could have unintended consequences and does not develop or elaborate on the policies or principles to be applied in determining how a candidate would show that he or she had no knowledge of a communication or in how the person making any communication would himself or herself be afforded fair procedures. The ultimate objective is to offer an opportunity to ensure that canvassing does not take place and to provide protection in relation to that. It also provides protection to the student as students can make representations declaring that they were not aware of the canvassing. That will be taken into consideration during the review. I do not accept the amendment as proposed.
I do not agree with the Minister's interpretation of the legislation. I refer to section 4(5)(b), which states,: "The Commission may, following a review referred to in paragraph (a), withhold all or any of the accredited grades comprised in the Leaving Certificate 2021 in respect of any candidate by whom, or for whose benefit, the communication concerned was made." That is the only sanction envisaged in the legislation. It states clearly "for whose benefit", as it would potentially be, even if they had no benefit or desire to get involved in such lobbying or canvassing. It is far from inconceivable. The Minister appears to have conceded the principle but I am not confident in her interpretation of the legislation. It states clearly that this can be withheld. There is no qualification of that in this section. All that the sections the Minister has quoted do is talk about the process for a review. What if the review concludes that there was lobbying and canvassing, which is substantiated, and finds that the student was not aware of that? Either the Minister is saying that there will be no sanction for anyone or the sanction is the withholding of grades and it will apply anyway. Which is it?
Students enjoy the protection that, fundamentally, any decision following the review must be reasonably based on the information available to the review. We must be clear that the objective is to ensure that no canvassing takes place. The staff involved in the accredited grades process use professional judgment. They deserve protection from interference. Their professionalism should be the only objective in the accredited grades process. There must be a mechanism to ensure that happens and is supported. That is currently provided for in the legislation. If anything is done to the detriment of that, action must be taken. That is provided for here. I have every confidence that it will be upheld in the truest and best sense of the law as it should be. It is important for those procedures to be in place.
I am more concerned now than when I first submitted the amendment. All the Minister has talked about is the review that happens afterwards and the procedure. I am sure that they will be heard and have a chance to make their case, which is why I withdrew the previous amendment. There are only two potential interpretations of what the Minister is saying. She has not been clear on which is correct. If there is a third, tell me. The first is that somebody is unaware of lobbying or canvassing on his or her behalf, that is demonstrated, and the grade is withheld anyway, because there are no other sanctions. Alternatively, the implication of what the Minister is saying is that it will not be withheld but that there is no sanction for the person who did the lobbying or canvassing, so nothing will happen. If that is the case, there is a perverse incentive, a danger and an encouragement which has to be prevented. There has to be a sanction for the person who is responsible. It is one or the other and the Minister needs to tell us which it is and how she intends to fix it.
We need to be clear that the provision the Deputy is quoting states "may", not "must". The provision is enabling, not requiring, the State Examinations Commission to act. Where there is a determination that action is required to be taken, action will be taken. As I said, this is an enabling mechanism, not a requirement. There must be consequences if the professional integrity of those who are providing the estimated marks or have any involvement in the provision of the estimated marks and accredited grades process is being interfered with. I am clear on that.
The Minister is not being clear. Yes, it states "may" and there is discretion, but if that discretion is not used and the Minister is saying that it may be the case, where it is only fair to the student that it not be used, she has not provided any other sanction.
The Minister has not provided for any sanction for the parent or the person connected to the student, which may be another teacher. Who knows what kind of person might be involved? It is immaterial. The point is the student is not involved. The Minister has not provided for any sanction for such a person. Yes, the provision says "may" and there is room for discretion. That is right because each set of circumstances will be different. However, unless provision is made for circumstances in which somebody else does something that interferes with the process without the student's knowledge, an incentive will exist. The Minister needs to be clear on this. I have given her two possibilities but she has not told me which applies.
We will have to agree to disagree as to clarity. I am very clear the sanction is outlined in the Bill. Where such cases are found to have arisen, the penalty is the withholding of the grade. I will again be clear. There is no requirement for this to happen. There will be a review. Again, the provision says "may" rather than "must". It enables the State Examinations Commission, SEC, to carry out a review rather than requiring it to do so. The section allows for a full review to take place and an adjudication to be made. If it is adjudicated that a person provided false or misleading information, the penalty will be the withholding of the accredited grade.
My final contribution will be a question. If a review finds that lobbying happened or, to give a particular example, if it finds that a parent lobbied, and if the review accepts the student did not know, there will be no sanction for the student. What is the sanction for the parent? Is there any?
As I said, as part of the review process the SEC will take into consideration all of the evidence before it. There is one sanction. I would suggest it is the most severe and significant sanction. If there is a case to be answered, the potential sanction is the withholding of the grade.
Chris Andrews, John Brady, Martin Browne, Pat Buckley, Matt Carthy, Sorca Clarke, Rose Conway-Walsh, Réada Cronin, Seán Crowe, David Cullinane, Pa Daly, Pearse Doherty, Paul Donnelly, Dessie Ellis, Kathleen Funchion, Gary Gannon, Thomas Gould, Johnny Guirke, Marian Harkin, Brendan Howlin, Alan Kelly, Claire Kerrane, Pádraig Mac Lochlainn, Denise Mitchell, Imelda Munster, Catherine Murphy, Paul Murphy, Johnny Mythen, Gerald Nash, Cian O'Callaghan, Louise O'Reilly, Darren O'Rourke, Eoin Ó Broin, Donnchadh Ó Laoghaire, Ruairi Ó Murchú, Aodhán Ó Ríordáin, Aengus Ó Snodaigh, Maurice Quinlivan, Patricia Ryan, Seán Sherlock, Róisín Shortall, Brian Stanley, Pauline Tully, Mark Ward, Jennifer Whitmore, Violet Wynne.
Cathal Berry, Colm Brophy, James Browne, Richard Bruton, Colm Burke, Peter Burke, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Ciarán Cannon, Joe Carey, Jennifer Carroll MacNeill, Jack Chambers, Niall Collins, Patrick Costello, Simon Coveney, Barry Cowen, Michael Creed, Cathal Crowe, Cormac Devlin, Alan Dillon, Stephen Donnelly, Paschal Donohoe, Francis Noel Duffy, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Joe Flaherty, Charles Flanagan, Seán Fleming, Norma Foley, Brendan Griffin, Simon Harris, Seán Haughey, Martin Heydon, Emer Higgins, Neasa Hourigan, Heather Humphreys, John Lahart, James Lawless, Brian Leddin, Marc MacSharry, Josepha Madigan, Catherine Martin, Steven Matthews, Paul McAuliffe, Michael McGrath, Joe McHugh, Aindrias Moynihan, Michael Moynihan, Jennifer Murnane O'Connor, Hildegarde Naughton, Malcolm Noonan, Darragh O'Brien, Joe O'Brien, Jim O'Callaghan, James O'Connor, Fergus O'Dowd, Roderic O'Gorman, Christopher O'Sullivan, Pádraig O'Sullivan, Marc Ó Cathasaigh, Éamon Ó Cuív, Anne Rabbitte, Neale Richmond, Michael Ring, Eamon Ryan, Brendan Smith, Niamh Smyth, Ossian Smyth, David Stanton, Robert Troy.
As the time permitted for this debate has expired, I am required to put the following question in accordance with the order of the Dáil on 18 May: "That, in respect of each of the sections undisposed of, the section is hereby agreed to in Committee, the Schedule and Title are hereby agreed to in Committee, the Bill is accordingly reported to the House without amendment, Report Stage is hereby completed, and the Bill is hereby passed."