Richard Bruton (Dublin Bay North, Fine Gael) | Oireachtas source

I thank the Senators for their contributions. This issue was raised on Committee Stage in the Dáil and we sought to draft an amendment that would be constitutionally sound and we did produce such an amendment. A range of amendments were tabled by other Senators and we sought legal advice on how this could be done robustly. It was very clear that in order to be robust, the right to priority of access has to be based on the child and seen from the child's perspective. It was not acceptable to go back to the parents.

When we were discussing this, some Senators were critical of the word "pedigree" being used, but this was in the context of the parents speaking to the child in Irish. That referred to the child and the parent and would be discriminatory as between children who were not living with their parents or other circumstances. The legal advice was very clear that the priority of access had to be enshrined in the child.

It is very clear elsewhere in the Bill that priority is not achieved by attending a preschool, whether a naíonra or an English speaking preschool. Attending a preschool does not give a child entitlement to priority access to any school, nor a Gaelscoil either. The legal advice is that the child must have a very high level of fluency. The definition is a level of fluency in the Irish language in relation to a student means a level of fluency indicative of what would be expected of a student who uses the Irish language as a normal means of communication in a non-educational environment, taking into account the age and any special education needs of the child. It very clearly does not deal with a child attending a naíonra to achieve a level of competency. It uses the word "fluency" which is a high bar.

The legal advice is that this would be a high bar and one or two years attending a naíonra would not meet this requirement as having achieved an age appropriate level of fluency. Fluency is as it states, namely, that the child uses the language normally in his or her communications in non-educational circumstances. The child has to exhibit high competence in using the language.

In terms of testing that level of language competence, the parent must provide the evidence to the school of this level of competence. It would mean the parent volunteering the material that will back this up. It is for the parent to present to the school the evidence of fluency. The fundamental test is that level of fluency would regress if the child were not admitted to the Gaelscoil. That is the basis on which everyone agreed we should apply this.

Many of the other amendments tabled by Deputies were seeking to root this in something that is happening to the parents. That is not a constitutionally acceptable basis to do it. What is happening here is that a child must exhibit in a normal means of communication in a non-educational environment that level of fluency appropriate for his or her age, in other words the child is used to speaking in Irish and the parent is in a position to provide evidence to demonstrate that. That can be described and we will certainly describe in more detail what that means.

The difficulty is that one cannot set out some test of the child's grammatical level of language. We are not willing to apply interview procedures or entry tests because we believe they are wrong as the basis of access to our schools. That is the criteria throughout the Bill. We are trying to steer a narrow course between breaching some of the fundamental principles of the legislation not to take into account parents and their competence and not to be applying interviews, that children are forced into the school to pass tests. We have to leave it as a loser formulation but it is a high bar and it is intended to be a high bar.

We will of course provide guidance to schools and ultimately in section 29 appeals, the appeal committee will have to assess this. I admit that it is not absolutely perfect in the way that some people would like to see it defined because they would like to talk about Irish being spoken with one or other of the parents, but the constitutional advice is that this would be discriminatory and wrong. We are very clear this is the best way of doing it. It is constitutionally robust and it allows a distinction to be drawn between a child who uses Irish as a normal language in non-educational activities and the child who has attended a naíonra for one or two years. That is the intention and the purpose of it. Attendance at a naíonra will not be the basis on which one can get priority of access to a Gaelscoil.

The extent to which we can elaborate beyond the definition is probably more a question of judgment but we can certainly offer guidance as to how that judgment should be exercised.