Thursday, 7 February 2019
Qualifications and Quality Assurance (Education and Training) (Amendment) Bill 2018: Committee Stage (Resumed)
I wish to address the matter of stakeholder engagement, which has been of great concern to Senators. I also want to remedy and remediate the indiscretion in that regard. I wanted to ensure that it would be procedurally possible for the Joint Committee on Education and Skills to continue with its proposed stakeholder engagement once the Bill had been introduced in this House. The joint committee has decided that such an engagement will commence once the Bill completes its progress through the Seanad. I understand that it will be procedurally possible to do this before the debate on the in the Dáil commences. This is priority legislation that will strengthen the regulatory framework for further and higher education, as well as for the English language sector. Therefore, I hope Members from all parties will co-operate to ensure that the stakeholder engagement does not result in any delay to the progress of the Bill.
I am very pleased to be back here having had the debate during the previous session. When this Bill was last before the House, it was just days after the closure of Grafton College. This closure highlighted issues surrounding employment practices in the English language education sector. I wish to provide the House with a brief update on developments relating to this provider since last December. I can report that those learners who were enrolled in Grafton College at the time of its closure have now been transferred to other schools in order to complete their courses. This was achieved under learner protection arrangements put in place by Marketing English Ireland, MEI. I thank MEI and its members alongside the staff of Quality and Qualifications Ireland, QQI, and the Department of Justice and Equality for their efforts in supporting these students. I have been informed that a liquidator has been appointed in respect of Grafton College and that this case now has the status of a formal insolvency arrangement. In such cases, it is the responsibility of the liquidator to make applications on behalf of employees for payments from the redundancy payments scheme in respect of statutory redundancy and from the insolvency payments scheme in respect of wage-related entitlements. Employees of Grafton College should direct queries in this regard to the appointed liquidator, which is happening.
One of the key objectives in bringing forward this legislation was to ensure that Ireland has an English language sector in which we can all have confidence and which provides a quality education to international students coming here to learn English. There is no doubt that teachers and staff in this sector are a central element in ensuring the quality of that educational provision. I made a commitment in December to appoint an experienced mediator to meet the bodies representing employers and employees in the English language education sector to explore the potential for a set of minimum employment standards that could be agreed for the English language sector. Last month, I formally appointed Mr. Patrick King, the former general secretary of the Association of Secondary Teachers in Ireland, ASTI, to this role and issued invitations to the various stakeholders from the sector to engage in this process. Mr. King has met with a number of these stakeholders, including trade union representatives, to discuss and identify the key issues impacting the sector. I encourage all relevant stakeholders, particularly providers, to engage meaningfully in this process. It is in all our interests to strengthen the quality of English language provision in Ireland. This is something I am committed to achieving. When we last debated the issue of employment practices in the English language sector I accepted the principle behind what Senators were aiming to achieve with their amendments in this area. We are all in agreement that situations such as that with respect to Grafton College should not occur and that English language teachers should not go without pay or be prevented from accessing the full suite of employment rights supported by the State. My primary concern is that any proposals to involve QQI in employment right issues would be consistent with the existing legal framework and consistent with QQI's regulatory remit. Otherwise, such proposals will be unworkable and open to challenge.
I accept the principle of the Labour Party amendment that has been accepted by this House. It provides that the codes of practice that providers will need to comply with to become eligible for the international education mark, IEM, will include criteria relating to compliance with quality standards for the recruitment, employment and necessitation of employment of employees, and with employment law generally. It further provides that in establishing requirements in these areas QQI shall consult with trade unions or staff associations that represent the employees of these providers. As I mentioned, I fully accept the principle behind the Labour Party amendment. However, I have asked my officials to obtain the advice of the Attorney General to ensure that the wording of the amendment is consistent with the existing legal framework of employment rights. I will not be seeking to remove the amendment on Report Stage or subsequently. I am willing to work with Senator Ó Ríordáin to ensure that the wording of the amendment is consistent with the legal advice from the Attorney General's office when it is received.
Given the additional measures I have undertaken in response to issues highlighted by Senators, namely, the mediation process and the acceptance of the principle of Senator Ó Ríordáin's amendment, I hope we can concentrate our efforts on these measures and that the Senators will not press other amendments in this area.
I wish to inform the House that I will bring forward a further amendment to section 60 of the Act of 2012 on Report Stage. This will be a technical amendment only to align the text of this section with the new requirements being introduced for the protection of enrolled learners.
I move amendment No. 63:
In page 34, line 6, to delete “section 56.”,” and substitute the following:“section 56, and(c) the provider has established procedures for demonstrating full compliance with relevant employment legislation in respect of employees employed as English language teachers.”,”.
I move amendment No. 64:
In page 34, line 18, to delete “and” and substitute the following:“(b) the compliance of the provider with relevant employment legislation in respect of employees employed as English language teachers, and ”.
I move amendment No. 66:
In page 34, after line 38, to insert the following:
“Amendment of section 61 of Principal Act (Arrangements for providers of international education mark)
26. The Principal Act is amended by the insertion of the following section after section 61: “Arrangements for providers of international education mark
61A. (1) A provider authorised to use the international education mark under section 61(7) shall comply with this section.(2) A provider shall establish procedures for demonstrating their compliance with relevant employment legislation in respect of employees who are employed as English language teachers.
(3) Notwithstanding the generality of subsection 2, a provider shall be required to demonstrate for the duration of their authorised use of the international education mark that—(a) no less than twenty percent of these employees are employed under contracts of indefinite duration,(4) If a provider cannot satisfactorily demonstrate compliance with this section to the Authority, the Authority shall refuse to authorise the use by the provider of the international education mark, giving reasons for the refusal.
(b) they are in compliance with section 9 of the Protection of Employees (Fixed-term work) Act 2003 in respect of these employees,
(c) only employees determined as self-employed under section 300 of the Social Welfare Consolidation Act 2005 are treated as self-employed for the purposes of remuneration,
(d) work performed by these employees outside of class contact hours is recognised and remunerated appropriately,
(e) that procedures have been established allowing employees to avail of all leave entitlements in accordance with the Organisation of Working Time Act 1997 and the Parental Leave Act 1997,
(f) all relevant pay scales in respect of these employees and, if applicable, increments available for experience and/or length of service have been published on the provider’s website, and
(g) any differentials in remuneration are not solely based on whether English is the first language of such an employee.
(5) The Authority shall publish guidelines for providers for the purposes of compliance with this section.
(6) Nothing in this section may be construed as affecting providers in the State operating without the authorised use of the international education mark.”.”.
Government amendment No. 67:
This is a technical amendment to clarify the definition of a protected programme default event. The definition applies to an event where a provider has accepted moneys from learners. This amendment extends this to include instances where a provider accepts moneys paid on behalf of learners. This may occur in cases where the learner receives perhaps a scholarship or, for example, in the case of an international student, funding from his or her government to study in Ireland. That is the technical nature of this amendment.
Government amendment No. 68:
Amendment Nos. 68 and 77 will facilitate the orderly transition over time from the existing arrangements for learner protection under the Act of 2012 to the implementation of the learner protection fund. Under these amendments, providers must maintain compliance with existing learner protection requirements until a ministerial order appoints a date for this transition to the new fund. This transition period can last for a maximum of three years following commencement of this Bill.
I move amendment No. 69:
In page 36, lines 27 to 30, to delete all words from and including “prior” in line 27 down to and including “programme” in line 30 and substitute “and prescribed at the start of the year and shall be paid in quarterly instalments thereafter”.
I thank the Minister and her officials for meeting us yesterday. It helped me to understand, clarify and discuss some of my concerns. I tabled amendments Nos. 69 and 78 at the request of a wide number of obligated providers who are deeply concerned at the uncertainty and lack of direction from the Department and the authority on how the fund and fee system will work. Amendment No. 69 would provide certainty in terms of how the fee will be paid to the fund by requiring that it would be done at the start of the year and paid in quarterly instalments. We discussed this yesterday and I believe we need to further tease out some of these matters between Committee Stage and Report Stage. Amendment No. 78 would require the Minister to consult with obligated providers before issuing regulations in this area.
These are two simple straightforward requests that would give some confidence to providers in terms of how this Bill will impact on them. I await the Minister of State's response to them and I hope she can consider accepting amendment No. 78 , which is the one I will press, depending on her response.
I thank the Senator for tabling these amendments and for her hard work. I am aware that a number of providers will be only engaging with QQI for the first time on this new Bill and there may be a level of anxiety about some of the requirements that will be placed on providers that wish to have the programme validated by QQI. This is understandable but I assure Senators and providers that QQI has well established procedures in place for consulting with providers before fees for their various services are recommended to the Minister for approval.
While I cannot accept amendment No. 69, I assure Senator Ruane that the facility she is requesting is already contained in the Bill. This is provided for in the amended section 65(3), which enables QQI to determine when the annual charge will be paid by a specific class to the provider. QQI will have the flexibility to engage with providers to determine a suitable date and the structure of that payment of this charge. I hope that satisfies the Senator on that point.
On amendment No. 78, which she has raised, it is important to note that the annual charge applied to QQI will vary between providers due to the variety of factors and the criteria set out in the Bill. The Minister for Education and Skills would not be in a position to consult annually with providers subject to the fund on the individual rates that will apply.However, I am willing to accept the principle behind the Senator's amendment and, therefore, I propose to table an amendment on Report Stage in the Seanad or subsequently to provide for QQI to consult with providers before the relevant fee is determined.
Amendment No. 78 would provide for far wider consultation on how the sector is impacted in general rather than solely on the very specific area of the fee only. I accept in principle that the Minister of State will come back on Report Stage. However, in light of her qualifying that by stating "or subsequently", on Report Stage, I will table a variation of the amendment that might be more acceptable to the Minister of State.
Amendments Nos. 70 to 76, inclusive, are related and may be discussed together. Amendment No. 76 is a physical alternative to amendment No. 75. Amendment No. 75 is consequential on amendments Nos. 72 and 74. Amendment No. 76 is consequential on amendments Nos. 70 to 73, inclusive.
I move amendment No. 70:
In page 37, between lines 25 and 26, to insert the following:“(n) the Marino Institute of Education,”.
These amendments provide for additional bodies to be added to the list in section 28 of institutions which will be exempt from paying into the learner protection fund. Since Second Stage of the Bill, I have discussed with the Minister of State the potential problems that may arise from the amendments and I ask her to put on the record why this amendment would not work in order to give people in that sector an understanding of why certain educational bodies cannot be exempted.
Amendment No. 73 provides that not-for-profit community education organisations would be exempted from paying into the fund. I understand the rationale for the Minister of State's rejection of the amendment but it is crucial that she explain her reasoning on the record.
Amendment No. 70 relates to Marino Institute of Education and the Minister of State has tabled an amendment to address that issue.
I cannot accept amendments Nos. 71, 73 and 76. However, in response to amendment No. 70, I tabled amendment No. 74 which will exempt Marino Institute of Education and Mary Immaculate College. Senator Byrne raised the issue of Mary Immaculate College on Second Stage. The institutions are principally publicly funded and amendments Nos. 72, 74 and 75 correct their omission from the original list of exempted bodies. However, I cannot accept amendment No. 71 relating to the IPA at this time, although there is merit to the proposal. In order to be consistent with the other bodies that are exempted from the fund, I ask Senator Ruane to allow me and my officials time to consider it further. It is my intention to return with an amendment in this regard on Report Stage.
I cannot accept amendment No. 73 which proposes to exempt not-for-profit community education providers from the learner protection fund because there is no obligation on providers to engage with QQI. It is only if providers wish to have their programmes validated by QQI that they may have to contribute to the learner protection fund. The community and voluntary sector is not a homogenous group. QQI currently has approximately 130 providers which have self-declared as community and voluntary. It is a very diverse group of providers with an equally diverse cohort of learners. Some self-declared community and voluntary providers operate on a for-profit commercial basis and charge fees to students for programmes. Protection for enrolled learner measures are necessary to ensure that the payments made by students are safeguarded in these cases. Some community and voluntary providers will automatically be exempt from paying into the fund. The QQI has advised that approximately 25% of its providers in this category only deliver programmes up to level 3 on the national qualifications framework. These tend to be short programmes of less than three months duration. Similarly, any programmes in respect of which moneys are not paid on behalf of a learner will be exempt from the fund. This would include, for example, programmes that are publicly funded by the Exchequer such back to work schemes or upskilling programmes offered by education and training boards. It is the intention that the protection of enrolled learners fund charge will only apply in circumstances where a provider accepts moneys from or on behalf of a learner in respect of a programme with a minimum duration of three months. The learner protection fund charge will be developed by QQI in consultation with all relevant stakeholders against a set of criteria, including the number of learners enrolled on the programme, the level of the fees charged by the providers and the risk weighting. I indicated earlier that QQI will specifically be asked to consult with providers before the level of payment into the fund is agreed. I assure Senator Ruane and other Senators that I fully appreciate and strongly support the valuable role played by the community and the voluntary sector in providing education and training opportunities to marginalised communities, as demonstrated by the very significant funding resources provided to the community and voluntary sector to undertake these important training and education activities.
I move amendment No. 79:
In page 46, between lines 27 and 28, to insert the following:
“Amendment of Schedule 3 of Principal Act
35. The table to Schedule 3 of the Principal Act is amended by the insertion of the following:
|10A.||Universities Act 1997||New Section 52A||Insert the following new section after section 52: |
‘Title of Royal College of Surgeons in Ireland
”.Depending on the response made by the Minister, I may withdraw the amendment and resubmit on Report Stage. As one can see from the list of Senators who have seconded the amendment that it has cross-party and group support. I do not wish to rehash all that I said in my contribution on Second Stage, other than to point out that the college is considered a university everywhere else in the world. It is important that the college be considered not alone a university but a university of distinction, which it has been. The college has alumni all over the world in influential positions. The college has produced many great doctors and physicians and it trains nurses and pharmacists. This is an independent, not-for-profit university with campuses located in several parts of the world. The college has received awards from The Lancetfor its work in sub-Saharan Africa. There have been issues and difficulties in the past from a technical point of view but I am given to understand - and I can be corrected - that the Office of the Attorney General no longer believes that it is illegal or not possible but that further work may need to be done. This amendment has cross-party and group support and I am not prepared to allow it leave this House without it being addressed. I thank the Minister of State for all of the work that she has done on this legislation and I know that she would like to see it progressed. This is a matter is important in respect of our capacity to attract doctors and trainees to this country, many of whom keep their connections with this country for decades. They have fond memories of Dublin and Ireland as a consequence of spending their student and formative days here. I will not labour the point but I thank all of the other Senators, groups and parties who have supported the amendment, which makes sense and is long overdue. Senator Swanick, no more than myself, is certainly not prepared to let this matter leave this House without being resolved.
On behalf Fianna Fáil, Senator Swanick and myself, I reiterate what Senator Reilly has said about this matter. He has given us a beautiful and eloquent history lesson so I shall not repeat what he said or try to improve on it. I must stress to the Minister that this amendment will not be allowed to leave the House unless it is addressed.
I support the amendment tabled by Senator Reilly and many others. It is bizarre that the Royal College of Surgeons of Ireland is allowed to describe itself abroad as a university of medicine and health science but is prohibited from doing so in this State.
For almost a quarter of a millennium, the RCSI has been a leader in the field of medical education. It is a statutory body, which was founded by charter in 1784, and it has the same statutory status as Trinity College Dublin. The RCSI was around to witness the birth of St. Patrick's College in Maynooth in 1785 and the Queen's colleges in Belfast, Cork and Galway in 1854. Throughout all of this time, the college has set standards in Irish third level education rather than follow them. The Times Higher Education World Rankings 2019 has ranked the RCSI second only to Trinity College Dublin, out of the nine Irish institutions that feature on its list, and ranked the RCSI in the top 250 universities in the world.
In 2015, we allowed the college to be referred to outside of this country as a university. Why then did we restrict the college from calling itself a university within this State? The anomaly seems odd and I am sure it is unhelpful to the college, particularly abroad. The use of the term "university" is not one that is conferred casually, and rightly so. There is ample evidence that the RCSI more than meets its exacting educational standards. The college is an international leader in supporting healthcare professionals through high quality education, research and service. We should remove any impediments that will prevent it from continuing its work and, ultimately, enabling people to live longer and healthier lives. I, therefore, support the amendment. I also support the call made by Senator Reilly that this matter must be addressed within this House.
Sinn Féin does not support the amendment. We recognise the important work of the RCSI and applaud its staff for the service that they provide by training surgeons, who work in our hospitals, as well as students who are spread all across the world. However, we have concerns.
We must remember that the RCSI has a campus in Bahrain where widespread human rights abuses have taken place in hospitals in which RCSI students receive training. Ceartas - Irish Lawyers for Human Rights has called on the Irish Medical Council to not approve the RCSI Bahrain campus for accreditation because of these widespread abuses carried out by the autocratic and sectarian regime that rules Bahrain with an iron fist. Many former students of RCSI Bahrain have been arrested, tortured and imprisoned because they treated victims of the regime's security services. They simply did what was demanded of them by their Hippocratic oath yet Bahrain continues to violate their medical neutrality. Most relevant to the amendment is the fact that the RCSI has refused to condemn the regime for such actions. Ceartas has plainly stated that RCSI Bahrain has "an education programme integrated with health systems connected to torture, discriminatory conduct in the provision of healthcare and employment of medical staff, and consistent violation of the rights to freedom of expression". We are deeply concerned about the RCSI's connection to this brutal regime and that this name change would grant legitimacy to the campus in Bahrain. We are, therefore, not be in a position to support this amendment.
We would, however, like the Minister to comment on a couple of related questions. If this amendment were to pass, and the title of RCSI was amended to include university, would there be any change to the status of the employees? Would they become public servants similar to those employed in other Irish universities or is it simply a change in title rather than a change in structure?
I am sure all Members will join in the condemnation of human rights abuses in Bahrain and urge the Government to express its concerns and the concerns of everybody in this House regarding human rights abuses in Bahrain. The abuses have come to light due the bravery of some people in who oppose the regime in that state.
All we can deal with is the amendment that is before us, which relates to the ability of the RCSI to refer to itself as a university in this State. My understanding is, and thanks to the work of my colleague, Deputy Jan O'Sullivan, and officials in the Department of Education and Skills, that the RCSI can promote itself and refer to itself as a university abroad but not in Ireland, which goes to the heart of the matter. This is a ridiculously anomalous situation that needs to be addressed.
I have led many trade missions, for example, to various parts of the globe and I was often accompanied by leading figures in the pharmaceutical industry and medical devices sector. It was rare that I did not meet somebody who was trained in the RCSI and who benefitted greatly from that. The work they have done has greatly benefitted the states in which they live and serve as medical professionals. We are all very proud of the work that the RCSI has done, and continues to do, in this country. Significant investment has been undertaken by the RCSI in its facility and further significant investment is planned to expand the services provided by the college.We can be proud of what the RCSI does here in Ireland. My local hospital, Our Lady of Lourdes Hospital in Drogheda, of which I am very proud, is a member of the RCSI hospital group. I know there are difficulties for Irish hospitals in competing against one another to attract and retain staff, and that university status is very important in that context.
I appeal to the Minister of State, as Senator Reilly and others have done, to have this matter ultimately addressed in this House. This is where this amendment originated and, out of respect for this House and for the clarity of thought that has been expressed and articulated here, it is where the amendment should be addressed, not in the Dáil or anywhere else, but here. I am happy to withdraw the amendment on the basis we can resolve the issue here, possibly on Report Stage. I am interested to hear what the Minister of State has to say. It is a matter for this House and I want it resolved here. I want a clear commitment from the Minister of State to that effect before we proceed further.
I also lend my support to the amendment as proposed. As Senator Nash said, we can only deal with the amendment in front of us. Given the fact it started in this House, we would like to see it finish in this House. On a point in support of the amendment, when it comes to advertising jobs for the RCSI, in particular trying to attract people to come back to Ireland from outside, not to have it recognised as a university is certainly an impediment to filling some posts. There is an urgency around the resolution of this issue. While I agree to it being withdrawn today, I hope it will be resolved in the near future in this House.
I thank all Senators who have spoken. I also thank the ten Senators who put their names to the proposed amendment. To single out one, Senator James Reilly has me haunted on this issue, but I thank them all for the work they have done.
Members will know from the discussion of these issues on Second Stage, the proposed use of the title "University" in the State by RCSI has arisen on several occasions over a number of years. From having visited the RCSI in Ireland on many occasions, my engagement with staff and students and my knowledge of its international activities, I am very conscious of its unique contribution to the higher education system, the Irish health system and, indeed, Irish society more generally. It is a statutory body and a statutory degree-awarding institution. It has established an outstanding reputation internationally and in Ireland, as mentioned by Senator McFadden, for the quality of the education and training it provides, as well as excellence in research and service to society. I share the sentiments expressed by the ten Senators and the speakers in the House today in regard to the high status and reputation of RCSI, and its performance in terms of certain key characteristics of a university, including, for example, the levels of degrees awarded and its research capability, external accreditation and internal governance.
In terms of the specific amendment proposed, I should state I share the objective the Senators are seeking to achieve. As was the case with the issue which arose previously in the context of the Technological Universities Bill 2015, a key issue is ensuring that we put in place a legally sound mechanism for responding to and resolving this issue. In summary, the advice of the Office of the Attorney General to date is that providing access to the title "University" in the manner proposed is not legally robust. There are already legislative frameworks in place for the recognition of certain higher education institutions as universities. If we are going to extend the categories of institution which can be recognised as a university, there must be a clear and objective basis for this in legislation, namely, to ensure the maintenance of proper standards, to ensure we treat everyone fairly and to safeguard against the risk of a legal challenge which places a burden on the taxpayer.
The Universities Act 1997 and the Technological Universities Act 2018 provide the current legislative frameworks. Suitable amendments would be needed to ensure that any new pathway for recognition as a university is legally sound and that all necessary principles and policies are set out in the legislation to guide the decision maker. As the RCSI is not a publicly-funded higher education institution in the sense of being dependent on public funding, it would not be appropriate for it to be subject to the detailed governance rules in place under the two aforementioned Acts. In this context, my Department has been working closely in consultation with the Office of the Attorney General to explore whether an alternative legislative approach can be found to enable university recognition other than as currently provided for in the 1997 and 2018 Acts. The Department has had significant and constructive engagement with the RCSI on this matter. I am confident it will be possible on Report Stage for me to come to this House to present an amendment that meets the relevant legal and policy objectives.
In summary, I intend if at all possible to bring in an amendment on Report Stage in this House with the objective of putting in place a process to address the issue of university status for RCSI. On Report Stage, I hope we will provide a mechanism whereby a higher education institution with statutory degree-awarding powers and an established reputation for excellence and achievement in higher education provision, research and service to society can apply for authorisation from the Minister of the day to describe itself as a university. The amendment I have in mind would require the institution to make an application to the Minister. It would provide for an independent evaluation process to inform the Minister in evaluating the application and, of course, for the grant or refusal of authorisation by the Minister. In these circumstances, I do not believe it is necessary for Senators to press the amendment. As I have said, I will in any event be proposing a detailed, comprehensive and equitable substitute amendment, which I expect to happen on Report Stage in this House.
I thank the Minister of State for her comments. I want to use the opportunity to briefly respond to some of the comments made by Senator Gavan, not that I am specifically directing them at him because I know it is his party's position. First, I would put it to him that RCSI already has university status outside the country so this amendment has no bearing on that. Second, I would echo Senator Nash's point that there is no one in this House who would not condemn outright the human rights abuses that take place, not just in Bahrain but around the world. I would make the following point: one has a far better chance of influencing things when one is in a position of educational influence in a country than by being outside of it.
I want to address the substantive issue.Senators across the board, bar the members of Sinn Féin, are very supportive of this Bill. They have, as Senator Nash has said, a demand that it be solved here. I think that is only right and proper and if Report Stage has to be delayed until such an amendment is ready, then so be it. On that basis, I will withdraw the amendment but reserve the right to resubmit it on Report Stage.