Minister Bruton’s Second Stage Speech on the Education (Admission to Schools) Bill 2016

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The basic aim of this government is to use our economic success to build a fair and compassionate society. Few areas are more important to this vision than education. Our ambition in the Action Plan for Education is to make Ireland the best education and training system within a decade.

The Education (Admission to Schools) Bill 2016 is a significant public service reform designed to make it easier for parents to more easily access local schools and to enrol their children in a school that meets their needs.

This Bill is part of a suite of measures that will respond to the expectations of citizens for a more progressive education service.

Other measures include:

• the Parents and Students Charter which will for the first time set out the principles to guide how schools engage with students and their parents
• Fitness to Teach - for the first time, any person, including a member of the public, an employer or a teacher will be able to make a complaint to the Teaching Council about a registered teacher. Complaints will be possible under a number of headings, including professional misconduct or poor professional performance

This bill will increase the transparency and fairness of school admissions. It makes clear that every school must be welcoming of every young person –regardless of their colour, their abilities or disabilities. It will help to end the soft barriers that some of our schools erect in the way of children with special needs.

Publication of this Bill reflects a commitment contained in the Programme for Government to publish new School Admissions legislation taking account of current draft proposals and addressing issues including publication of school enrolment policies, an end to waiting lists, introduction of annual enrolment structures, and transparency and fairness in admissions for pupils and their parents.

It is my firm view that all schools should be inclusive. It is with this spirit of inclusiveness that the Admission to Schools Bill is designed.

The Bill provides an over-arching framework for greater transparency and consistency in school enrolment generally and thereby gives greater confidence to parents that the admission criteria laid down by schools and the procedures used by them are legitimate, reasonable and fair.

I intend to provide a section by section explanation of the provisions of the Bill. But firstly, I want to highlight the main aims and provisions of this important legislation.

A key objective of the Bill and its associated regulations is to improve access to schools for all pupils.

In this regard, the Bill will strengthen our capacity to cater for a child who cannot get a school place. This is important and particularly so for children that are vulnerable or at risk. The Bill will allow the NCSE and the Child and Family Agency to designate a place for a child in a school.

It is important to be clear that the Bill does not enable the Child and Family Agency or the NCSE to increase a school’s capacity. A school must have places available for a designation to be made.

This Bill will enshrine in law a ban on schools charging parents to apply for a place in school.

The Bill, while including provision for single sex schools and denominational schools to reflect in their admission policy the exemptions applicable to such schools under equality legislation, makes clear that every school must be welcoming of every child – regardless of their colour, their abilities or disabilities, or indeed their sexual orientation or membership of the Traveller community.

The Bill also requires schools to publish an admission policy which will include details of the school's arrangements for students who do not want to attend religious instruction. This is an important measure which will help ensure transparency from the outset as to how a school will uphold the rights of parents in this regard.

I know that many parents are happy with the schools their children attend and that the vast majority of schools are inclusive and welcoming places. But there are cases where there is disappointment and dissatisfaction, with limited means of dealing with this.

It is with this in mind that the framework aims to strike an appropriate balance between school autonomy and the interests of parents in our education system.

This can be achieved through regulations that foster greater transparency and consistency in terms of how schools communicate and interact with parents. To that end the Bill sets out clearly matters relating to school admission that regulations may address.

The emphasis should be on instilling best practice in relation to what schools do and how they do it, in order to reduce difficulties or the need for grievance resolution subsequently.

Within an overall regulatory framework of clearly set out requirements, procedures and timelines, better transparency and effective compliance mechanisms, the number of cases where grievances might arise should diminish.

The Bill is the first step in putting this framework in place.

However, we must acknowledge that, in schools where there are more applicants than places available, a selection process may be necessary. This selection process and the admission policy on which it is based must be non-discriminatory and must be applied fairly in respect of all applicants.

In this regard, the Bill will prevent schools from prioritising applicants on the basis of waiting lists – a mechanism that often blocks people who move to a community from being able to access the schools in that community.

In relation to a school providing priority in admissions to children of past pupils, the approach taken in the draft regulations, which were published in September 2013, aimed to strike a balance by limiting the number of places that could be allocated to children of past pupils to a maximum of 25%.

The previous Oireachtas Committee’s report on the draft General Scheme considered that a school should not be permitted to give any priority to children of past pupils.

At present this Bill is silent in relation to a limitation on the power of a school to determine a priority for children of past pupils.

I have already had discussions with opposition parties and Oireachtas colleagues on this matter and I consider that in bringing the Bill through the Oireachtas, there will be further opportunities for members to raise and debate this matter, which I plan to deal with in primary legislation by way of a Committee Stage amendment.

My personal view is that the previous proposal, that this limitation be set at 25%, is broadly where I see consensus being possible. However, I intend to listen to all views on this matter.

I am committed to increasing choice and diversity in the Irish education system. The best and quickest way of providing diversity and choice for parents is by providing additional multidenominational schools for parents, and I have committed to trebling the rate of delivery of these schools to reach 400 multi denomination and non-denominational schools by 2030. The reality is that little progress has been delivered in this area under recent Governments. My intention is to step up activity in this area in order to deliver on these ambitious targets.

Before I discuss the Committee Stage amendments that I intend to bring to this Admissions Bill, I wish to clarify that, in accordance with the decision of the government, any amendments to section 7(3)(c) of the Equal Status Act, which currently provides that an oversubscribed denominational school may admit persons of a particular religious denomination in preference to others, will proceed separately to this Bill.

I recognise the need to deal with the situation whereby some religious schools, when they are oversubscribed, admit children of their own religion from some distance away ahead of children of other religions or no religion who live close by.

However, we have to protect minority religions, the tens of thousands of Irish people who subscribe to Judaism, Islam and various Protestant denominations among many other religions. Many of these people travel long distances to attend schools of their own denomination, and we have to make sure that the laws we introduce protect that right.

The Dáil has agreed, that the Oireachtas Education Committee will take time to scrutinise the proposed legislation, consider submissions and hold hearings involving legal experts and stakeholders in order to tease out the potential problems and propose solutions. It will give students, parents, teachers and other stakeholders an opportunity to come before the Dáil and have their say, before we progress this law.

Our parliamentary committees have previously noted the significant constitutional difficulties in this area. A previous report concluded that the provisions of the constitution “poses a particular difficulty when legislating in this policy area.” Teasing out the legal issues properly will ensure that any change in the law is not later struck down by the courts.

In relation to Committee Stage amendments, I can advise that the most significant amendment that I intend to bring involves amendments to Section 29 of the Education Act to make this appeals process fit for purpose.

The proposals for the Admissions Bill originally provided for an appeal against a decision to refuse enrolment to be excluded from the independent appeal process provided by section 29 of the Education Act.

In the course of drafting the Bill the Attorney General advised that an independent appeal should continue to be provided.

Concerns were also raised by the then Oireachtas Joint Committee about the absence of an appeal process independent of the school and to take account of these concerns and the advice of the Attorney General I intend to bring proposals to Government shortly involving amendments to Section 29 of the Education Act to be introduced at Committee Stage of this Bill.

I will also be bringing amendments to the Bill at Committee Stage to ensure that this Bill, when enacted, does not disrupt the smooth operation of the admission process to special classes or special schools.

I have already advised that I intend to bring a Committee Stage amendment which will deal, in primary legislation, with a limitation on the power of a school to determine a priority for children of past pupils where a school is oversubscribed.

The Bill has ten sections which I will now proceed to outline in more detail.

Section 1 of the Bill defines the “Act of 1998” as the Education Act 1998.

Section 2 inserts into the Education Act an interpretation for the term “admission policy” which is defined as having the meaning assigned to it by section 62 of the Bill.

Section 3 amends section 9 (Functions of a school) of the Education Act by providing for a school to conduct its activities in compliance with any regulations made from time to time by the Minister under the Act of 1998 and not just regulations under section 33 of the Act as is currently provided for.

Section 3 also amends section 9(m) of the Education Act to remove the reference to subsection 15(2)(d) of the Education Act when requiring a school to establish and maintain an admission policy which provides for maximum accessibility to the school.

Section 4 amends section 10 (Recognition of schools) of the Education Act by providing for a school patron to agree that the school shall operate in accordance with the Education Act and such regulations as may be made by the Minister from time to time under the Education Act and not just regulations under section 33 of the Act as is currently provided for.

Section 5 amends section 15 (Functions of a board) of the Education Act by providing that the current reference to a board publishing the policy of the school concerning admission to and participation in the school be amended to “subject to this Act, publish the admission policy of the school” and that the principle of inclusion be considered in addition to the principles already specified in the Act.

The amendment also provides for the removal of the requirement on a Board to publish the policy of the school concerning admission to and participation in the school by students with disabilities or who have other special educational needs as the schools admission policy should set out the arrangements for admission of all categories of students.

In addition, the requirement on a board to publish the policy of the school “relating to the expulsion and suspension of students” is being removed, as this policy is a separate policy to the admission policy of a school and the existing requirement to publish such a policy will be addressed by an amendment to section 23 of the Education (Welfare) Act, 2000 which is provided for by section 8 of this Bill.

The amended section 15(2)(d) will then read as follows:

Section 6 amends section 23 (The Principal) of the Education Act by including a requirement for the principal to be accountable to the board of management for the implementation of the admission policy of the school and by replacing the reference to “regulations made under section 33” with a reference to “regulations made under this Act”.

Section 7 provides for the insertion of Part X (Admission to Schools) in the Education Act. Part X contains subsections 60-69 and aims to set out the key provisions of the regulatory framework for school admissions in primary legislation.

Subsection 60 provides the definitions which apply to the new Part X of the Act of 1998.

Subsection 61, while including provision for single sex schools and denominational schools to reflect in their admission policy the exemptions applicable to such schools under equality legislation, requires the admission policy of a school to include a statement that the school shall not discriminate in its admission of a student to the school on the following grounds: gender, civil status, family status, sexual orientation, religion, disability, race, Traveller community ground or special educational needs of the student or of the applicant in respect of the student concerned.

Subsection 62 sets out the arrangements by which a board shall, following consultation, draft, obtain patron approval for and publish an admission policy.

It also sets out some mandatory requirements for a school’s admission policy, which include:

• setting out the characteristic spirit of the school
• including an admission statement
• providing details of the school’s arrangements for students who do not wish to attend religious instruction
• providing that the school shall enrol each student seeking admission other than: (a) where the number of students seeking admission is greater than the number of places being made available by the school, (b) where the parents of a student fail to confirm in writing that the code of behaviour of the school is acceptable to them and that they shall make all reasonable efforts to ensure compliance with such code by the student or, (c) in accordance with the existing exemptions in the Equal Status Act for schools of one gender and for schools where the objective is to provide education in an environment that promotes certain religious values
• setting out the selection criteria to be applied where the number of students seeking admission to a school is greater than the number of places being made available by the school and the manner and sequence in which selection criteria will be applied
• providing details of procedures for appealing a decision to refuse admission
• setting out the procedures for admission of students after the commencement of the school year and to classes or years other than the school’s intake group
• including a statement that no fees or contributions can be requested as part of the admissions process, except in accordance with subsection 63

Subsection 63 prohibits the charging of fees or seeking payment or contributions for an application for admission to a school or for the enrolment or continued enrolment of a student in a school. Exceptions are provided in the case of fees charged by schools known as fee charging schools, fees charged by boarding schools for the boarding element and fees charged by schools for post leaving certificate courses.

Subsection 64 clarifies the power of the Minister to make regulations, following consultation with the relevant education stakeholders, for the purpose of the preparation and publication by schools of admission policies and the admission of students to schools.

These regulations may include matters relating to the preparation, content, publication and review of school admission policies and procedures in relation to the admission process.

The regulations may provide selection criteria that schools shall be permitted to apply and/or selection criteria that schools shall be prohibited from applying in cases where the number of students seeking admission to the school is greater than the number of places available at the school.

Selection criteria that schools shall be prohibited from applying may include criteria based on:

• a student’s prior attendance at a specified category or categories of pre-school or pre-school service
• the payment of fees or contributions to the school
• the occupation or financial status of the parents of a student
• a student’s academic ability, skills or aptitude
• a requirement that a student, or his or her parents, attend an interview, open day or other meeting as a condition of admission
• the date on which an application for admission was received by the school

Subsection 65 provides for the Minister, where he/she considers that it is in the best interests of students in an area or in order to accommodate students in the case of a school closure, following consultation with the patron(s) and boards of the schools concerned, to direct two or more boards to co-operate with each other in relation to their admission processes and to set out procedures in relation to any such co-operation.

Subsection 66 provides for the National Council for Special Education (NCSE) to designate a school in the case of a child who has no school place for reasons related to their special educational needs and for the Child and Family Agency to designate a school in the case of a child, other than a child to whom an NCSE designation may apply, who has no school place.

Subsection 66 also provides for the Minister to establish an Appeals Committee to deal with appeals that might arise in relation to designations by either the NCSE or the Child and Family Agency or in relation to an appeal taken by a parent regarding a failure to designate and sets out the process for hearing and providing notification of the outcome of such appeals.

The Minister may, following consultation with the relevant bodies, make regulations to specify the time limits applicable to such appeals and to further set out the procedures to be followed by an appeals committee.

Subsection 67 enables a patron, following issuance of a notice and consideration of any representations received in relation to same, to issue a direction to a Board where he or she is of the opinion that (a) the Board has failed to prepare and publish an admission policy (b) the admission policy of the school does not comply with the Education Act or (c) students are not being admitted to the school in accordance with the Education Act or the admission policy of the school. If the Board fails to comply with the direction the Patron may, following issuance of a further notice and consideration of any representations received in relation to same, and subject to the consent of the Minister, appoint an independent person to comply with the direction.

Subsection 68 enables the Minister, following issuance of a notice and consideration of any representations received in relation to same, to nominate an authorised person to prepare a report where the Minister is of the opinion that: (a) the board has failed to prepare and publish an admission policy; (b) the admission policy of the school does not comply with the Education Act, or (c) students are not being admitted to the school in accordance with the Education Act or the admission policy of the school.

Upon consideration of the report, where the Minister is of the opinion that a direction should be issued, the Minister may issue a direction to a board which shall set out the remedial action to be taken by the board.

Subsection 69 enables the Minister to request a patron to direct a board to comply with a direction made by the Minister under subsection 68, where following issuance of a notice to the patron and the board and consideration of any representations received in relation to same, the Minister is of the opinion that the board has failed to comply with such a direction.

Where the Patron is of the opinion that the Board subsequently fails to comply with the direction, the Patron shall, following issuance of a further notice and consideration of any representations received in relation to same, and subject to the consent of the Minister, appoint an independent person to comply with the direction. The role of the independent person will be confined to the matters specified in the direction by the Minister under subsection 68.

Section 8 amends section 23 of the Education (Welfare) Act to require a board to publish the Code of behaviour.

Section 26 of the Education (Welfare) Act provides that the Child and Family Agency may take an appeal under section 29 of the Education Act against a decision of a school to permanently exclude a student from a school or to refuse enrolment of a student. To avoid a conflict of interest due to the new role of the Agency, as a designated authority under subsection 66, section 8 amends section 26 of the Education (Welfare) Act to provide that the Child and Family Agency may appoint a person independent of the Agency to undertake this role.

Section 9 provides for the repeal of a number of existing legislative provisions which will be addressed in the provisions of this Bill. The provisions being repealed are as follows: section 33(g) of the Education Act which provides for the Minister to make regulations for the admission of students to schools; section 10 of the Education for Persons with Special Educational Needs Act which has never been enacted and which provides for designation of a school by the NCSE and finally, section 19 of the Education (Welfare) Act which provides that the board of a school shall not refuse admission except where the refusal is in accordance with its admission policy.

Section 10 provides for the short title of the Act, for the collective citation of the Education Acts and for standard provisions relating to the commencement of this Act.

In conclusion, the changes now being brought forward will make a very significant contribution to ensuring that all our children have improved access to schools and have every opportunity to reach their full potential.

I look forward to the debate in the Houses on this matter and listening to your views. I now commend this Bill to the House.