Joe O'Toole (Independent)

I have listened with interest to the contributions of Senator Fitzgerald and the Minister of State. The Senator referred to the State's requirement to make "proper" provision, whereas the Minister of State referred to the requirement on the Minister to make "adequate" provision. Neither word appears in the legislation nor in the relevant section of the Constitution. This is precisely the point of the amendments. Is it not strange that both the Senator and the Minister of State used the words we are trying to insert in the legislation? The Constitution does not use the term "proper provision" used by Senator Fitzgerald, as he is entitled to do. It should be in the legislation and that is what I am trying to do. The term "adequate provision" to which the Minister of State referred should be included in the legislation.

As regards how the process might work, Senator Fitzgerald is correct that the word "adequate" is subjective. I chose the word carefully because I believe it would be a breach of the Ministers and Secretaries Act of 1924 for Senators to try to restrict or constrain the Minister as regards exercising his judgment, as required, in the provision of money. In other words, I have tried to find a balance by recognising there are two aspects to this job.

If the amendment were accepted, the Minister would make a judgment as to what is adequate provision, about which we can argue. At least, however, he would be required to make adequate provision. There is a major difference between "adequate provision" and "provision" because the latter does not require him to make a judgment and allows him to allocate any amount of money, however small.

The difficulty with the Constitution is the line in Article 42.4 which states: "The State shall provide for free primary education." It was a smart man who included the word "for" in this context because the State has never provided free primary education. The same line as Gaeilge is: "Ní foláir don Stát socrú a dhéanamh chun bunoideachas a bheith ar fáil in aisce." For some people the words "ar fáil in aisce" effectively mean the Constitution as written. While this was never intended, it is the way it is written.

By qualifying the word "provision" with the word "adequate" or "reasonable" one does not prevent the Minister for Finance from doing his job but requires him to make a judgment on what is "adequate". This is the reason I propose to insert the word.

The second issue concerns the words "out of the moneys available." It is a two stage operation. It is the Minister for Finance's judgement as to what constitutes adequate provision for children with special educational needs and he will draw up his Estimates and send the allocated funds to the Department of Education and Science or the Department of Health and Children. The Minister for Finance should then have no further part in the process. The money has been allocated and it should be at the discretion of the relevant Departments to spend that money as they see fit. They can demand more money but it will still be in the Minister for Finance's gift. This does not interfere with the Minister's ability to do his job as what the Minister of State described as the "Accounting Officer of the Government".

The allocation decision passes through the Accounting Officers of the Departments before coming to the Minister for Finance and in this way everyone has done their job properly. Provision can be a mere red cent but adequate provision means that the Minister for Finance must be able to account for and explain the allocation he or she has made to the Committee of Public Accounts or any other party which might challenge him or her. Under the terms of this Bill, one can make the argument for a specific allocation but one cannot make the Minister for Finance comply whereas if the word "adequate" is used——