Fergus Finlay: Boys deprived of education as law left to languish on shelf for 17 years

Then Caitríona Perry asked you about Ryan and Kyle Milne, two young Irish citizens who have been deprived of what you correctly described as their constitutional right to education. You reiterated an apology you’d already made to them in the Dáil and went on to talk about how frustrated you were with the State’s continuing failure to be “proactive”, as you put it, when it came to special needs education.

Look, Taoiseach, I don’t doubt your sincerity for a minute, nor your determination to make the system work better for young people. However, there’s one small problem and I think you know what it is.

Laws never acted upon

When you said, as you did, that you believed that Kyle and Ryan deserved to have their needs met “as a matter of right”, you forgot to mention that their rights have been written into Irish law for 17 years — but never acted on.

There’s a little bit of convoluted history around this. You have been there all the time, so I’m guessing you remember it well. However, maybe some of your younger colleagues could do with a reminder.

There was a famous case about a boy called Jamie Sinnott, who had autism. The High Court had decided that the State, through neglect, had deprived Jamie of education and it awarded extensive damages to him and his mother because of the loss of a profound constitutional right.

The State appealed that judgment and, in the fullness of time, the State succeeded in beating Jamie and his mother. That was because the Supreme Court sided with the State in deciding that Jamie no longer had any right to an education because he had reached the age of 18.

In fact in that judgment, the Supreme Court placed harsh limits around the constitutional right to an education. It said the right didn’t kick in until a child reached the age of three years old and it ended abruptly on the child’s 18th birthday.

That has been the constitutional position ever since — and the basis of all policy.

Dismay and anger

You were actually the education minister when that case started in the Supreme Court. However, it was another colleague of yours, Michael Woods, who had to deal with the dismay and anger the judgment caused and he promised massive reform.

In fact, in a famous pronouncement at the time, he said he had “virtually an open cheque book” to ensure the State made “full and appropriate provision” for both the education and care of people with disabilities.

The law that contained all those things was brought into the Dáil by your colleague at the time Noel Dempsey (you were health minister by then and he was in education).

The law was called the Education for Persons with Special Educational Needs Act 2004. It has been known ever since as the Epsen Act. When Mr Dempsey was introducing it to the Dáil, he said it had “been some time in the making and is the culmination of a carefully considered policy process”.

It was a fine piece of legislation — one to be proud of.

When a good piece of law is accompanied by “an open cheque book”, you can expect a lot of reform and change to happen.

That law conferred on Kyle and Ryan the right to be admitted to school. It gave them the right to ask for an education plan around their specific needs. 

It placed a responsibility on the State and the school to ensure that the necessary resources were applied to that plan in their school. It was all there in that carefully prepared and extensively debated piece of legislation. Except none of it ever happened. And why not?

It is all because of a tiny section right at the end of the act, section 53, called commencement. It says: “This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.”

That sounds like gobbledegook but it is standard in most pieces of legislation. It is there to enable systems to get ready for legal change. However, in this case it served a different purpose entirely.

It demonstrated that people with disabilities don’t really matter. It showed only too clearly that the system at every level didn’t mean a word when it talked about reform and full and appropriate provision.

Mr Dempsey never commenced most of the act — nor did Mary Hanafin, Batt O’Keeffe, or Mary Coughlan. Neither did Labour ministers Ruairi Quinn or Jan O’Sullivan, nor Richard Bruton, Joe McHugh or Norma Foley.

There have been eight education ministers since that act was passed and none of them commenced it. Not once in all that time did any official of the Department of Education prepare a bit of paper reminding their minister of their responsibility to commence legislation that was passed by the Oireachtas and signed into law by the President almost 17 years ago

That’s pretty unique in Irish law making. I’m pretty sure there is no other example where a section 53 act — debated six times in the Dáil and another six in the Seanad over the course of a year — has sat on a shelf without any of its most important provisions being commenced. (Yes, I know some of the structural bits were put in place, but the rights promised to be put into law have never happened.)

However, it gets worse Taoiseach. Last Wednesday, when you were dealing with this issue in the Dáil and the travesty of the treatment of Kyle and Ryan, you referred to the act. You said: “The Education for Persons with Special Educational Needs, Epsen, Act needs to be reviewed.”

Reviewed, Taoiseach? You must know, surely, that your minister, Josepha Madigan, announced just before Christmas that she was going to review the act. She said she’d be setting up an advisory group in January, together with a steering group. I presume she has done this — it’s May after all — but if so she has kept the identity of both bodies a closely guarded secret.

She has also announced that there will be buckets of consultation and loads of collaboration. “It’s envisaged that the full review will be completed by early 2023,” she said.

So, it’s going to take some anonymous group over a year to review the non-existent operation of a 17-year-old piece of legislation, none of whose central rights and responsibilities have ever been commenced. Really?

You know what needs to be done, Taoiseach. I’m sure you’re sincere about this. You can prove it by deciding, quite simply, that the act is commenced in full. No more delay, no more PR, no more waste of lives and potential. Do it now.

You know what needs to be done, Taoiseach... decide to commence the act in full... and do it now