Irish Legislation

Number 8 of 2021

EDUCATION (LEAVING CERTIFICATE 2021) (ACCREDITED GRADES) ACT 2021

CONTENTS

1. Definitions

2. System of accredited grades

3. Indemnity for certain persons

4. Prohibition on certain communications

5. Provision of false information

6. Functions conferred on Commission relating to system of accredited grades

7. Regulations in relation to system of accredited grades

8. Designation of persons as tutors

9. Issue of certificate of final results of Leaving Certificate Examination for the year 2020

10. Data protection

11. Laying of regulations and orders

12. Expenses

13. Short title and commencement

SCHEDULE

Languages specified as subjects for purposes of paragraph (c) of definiton of “tutor” in section 1

Acts Referred to

Education Act 1998 (No. 51)

Teaching Council Act 2001 (No. 8)

Number 8 of 2021

EDUCATION (LEAVING CERTIFICATE 2021) (ACCREDITED GRADES) ACT 2021

An Act to make provision, due to the exigencies of the public health emergency posed by the spread of the disease known as Covid-19, for a system of accredited grades for the purposes of the Leaving Certificate 2021; for that purpose to provide for the indemnification of certain persons in respect of the provision of estimated marks; to prohibit certain communications with teachers, tutors, principals and other persons who perform any function in relation to the provision of estimated marks; to provide for the withholding of accredited grades where false or misleading information is provided; to confer on the State Examinations Commission certain functions in relation to the system of accredited grades; to provide for the designation of certain persons as tutors; to provide for the issue of certificates in respect of the final results awarded for the Leaving Certificate Examination for the year 2020; and to provide for related matters.

[25th May, 2021]

Be it enacted by the Oireachtas as follows:

Definitions

1. In this Act—

“Act of 1998” means the Education Act 1998 ;

“accredited grade” has the meaning given to it by section 2 ;

“board of management”, in relation to a recognised school, means a board of management established under section 14 of the Act of 1998;

“candidate” has the same meaning as in Part VIII of the Act of 1998;

“centre for education” has the same meaning as in the Act of 1998;

“Commission” means the State Examinations Commission established under the State Examinations Commission (Establishment) Order 2003 ( S.I. No. 373 of 2003 );

“estimated mark” has the meaning given to it by section 2 ;

“Junior Certificate Examination” means the examination of that name referred to in Schedule 2 to the Act of 1998;

“Leaving Certificate 2021” means the award to be made to a candidate in respect of—

(a) either or both of the following:

(i) the Leaving Certificate Examination that is due to take place in 2021;

(ii) accredited grades,

or

(b) accredited grades, where the Leaving Certificate Examination that is due to take place in 2021 does not take place;

“Leaving Certificate Examination” means the examination of that name referred to in Schedule 2 to the Act of 1998;

“Minister” means the Minister for Education;

“patron” has the same meaning as in the Act of 1998;

“prescribed” means prescribed by regulations made by the Minister under section 7 ;

“principal” means—

(a) a Principal within the meaning of the Act of 1998, or

(b) a person (other than a Principal referred to in paragraph (a)) who has responsibility for the day to day management and direction of teachers or tutors, as the case may be;

“process of standardisation” has the meaning given to it by section 2 ;

“recognised school” has the same meaning as in the Act of 1998;

“registered teacher” has the same meaning as in the Teaching Council Act 2001 ;

“subject” means a subject comprised in the Leaving Certificate Examination (including the subjects specified in the Schedule );

“system of accredited grades” shall be construed in accordance with section 2 ;

“teacher” means a person who—

(a) is a registered teacher, or

(b) is employed in the place of a registered teacher in a recognised school pursuant to section 24 of the Act of 1998;

“tutor” means a person who is not a teacher but who—

(a) is teaching in a centre for education,

(b) is teaching in a place where the Leaving Certificate Examination is due to take place in 2021,

(c) is providing an estimated mark for a subject specified in the Schedule , or

(d) is designated as a tutor by the Minister by order made under section 8 .

System of accredited grades

2. (1) Without prejudice to section 50(2) of the Act of 1998 and the Leaving Certificate Examination that is due to take place in 2021, the Minister, having consulted with, and having regard to the advice of, the Commission, may determine that a system of accredited grades may be used for the purposes of the Leaving Certificate 2021.

(2) A determination under subsection (1) may provide that the system of accredited grades includes, but is not limited to, the following:

(a) a process of estimation by teachers and tutors of what a candidate is, or would be, expected to achieve, for a subject, in the Leaving Certificate Examination that is due to take place in 2021 (whether or not such examination takes place), by which process a mark, expressed as a percentage, is provided for such subject (in this Act referred to as an “estimated mark”);

(b) reliance on the exercise of professional judgement by teachers and tutors for the purposes of the process of estimation referred to in paragraph (a);

(c) the application of processes, with oversight by the principal, which shall seek to ensure that, within each individual recognised school, centre for education or other place where the Leaving Certificate Examination is due to take place in 2021, teachers or tutors, as the case may be, are applying appropriate and consistent standards when providing estimated marks for a particular subject;

(d) in accordance with such policy directions as the Minister may give from time to time, a process of adjustment, based on statistical analysis, to be applied to estimated marks (in this Act referred to as a “process of standardisation”) which shall—

(i) be carried out at national level, by or on behalf of the Commission,

(ii) take account of such data, including but not limited to data relating to the Junior Certificate Examinations and Leaving Certificate Examinations in preceding years, as the Commission considers necessary and appropriate, and

(iii) have as its objective that accredited grades awarded to candidates are of a standard of achievement that is consistent when compared as between all recognised schools, centres for education and other places where the Leaving Certificate Examination is due to take place in 2021 (taken as a whole);

(e) following the completion of the process of standardisation, the generation of the mark, expressed as a percentage, achieved by a candidate for a subject, which determines the award to be made to the candidate for such subject (in this Act referred to as an “accredited grade”);

(f) where a candidate has chosen, in respect of any subject, to receive an accredited grade and to participate in the Leaving Certificate Examination that is due to take place in 2021 and has sat the examination in that subject, the award to the candidate of the result achieved, whether the accredited grade or the result of that examination, whichever is more advantageous to that candidate;

(g) provision for the following appeals to the Commission:

(i) where no estimated mark is provided for a subject as referred to in subsection (3);

(ii) in respect of an accredited grade as referred to in subsection (4);

(iii) where the Commission decides to withhold all or any accredited grades under section 4 or 5 , as the case may be.

(3) A candidate may, in accordance with such procedures as may be determined by the Commission in the performance of its functions under section 6 , appeal to the Commission where no estimated mark is provided, in respect of such candidate, for a subject.

(4) (a) A candidate may seek a review in respect of an accredited grade by way of appeal to the Commission, in accordance with such procedures as may be determined by the Commission in the performance of its functions under section 6 .

(b) A review referred to in paragraph (a) shall be limited to establishing whether any error has occurred in respect of the transmission to, or receipt by, the Commission of the estimated mark for the subject concerned.

Indemnity for certain persons

3. (1) Without prejudice to any other enactment which provides for indemnification, a teacher, tutor, principal, board of management, education and training board, patron or any other person who performs a function in relation to the provision of estimated marks (in this section referred to as a “relevant person”) shall, in the manner and to the extent and subject to the terms and conditions that the Minister, with the consent of the Minister for Finance and the Minister for Public Expenditure and Reform, may from time to time determine, be indemnified by the State against all actions or claims, however they arise, in respect of the performance by such relevant person of such function, where the Minister is satisfied that the relevant person has performed the function in good faith.

(2) Without prejudice to the generality of subsection (1), terms and conditions referred to in that subsection may include, but are not limited to, the following:

(a) the exclusion of any unnecessary or unreasonable legal expenses incurred by the relevant person to be indemnified;

(b) the exclusion of any damage arising from such relevant person not acting bona fide in the performance of the relevant person’s functions or acting with gross negligence or gross neglect of that relevant person’s functions;

(c) the imposition of requirements as to the notification, including the timing of such notification, and to whom such notification is to be made, by such relevant person of any claim made against that person;

(d) the provision by such relevant person of all relevant documents in that person’s power, possession or procurement;

(e) a requirement that such relevant person shall cooperate with any reasonable request considered necessary for the purposes of the proper conduct of the proceedings on behalf of the State;

(f) that the Chief State Solicitor shall act on behalf of such relevant person or may nominate any other person to so act;

(g) the determination of the Chief State Solicitor regarding the conduct of the proceedings concerned.

Prohibition on certain communications

4. (1) A person (in this section referred to as the “first-mentioned person”) shall not communicate with a teacher, tutor or principal or any other person who performs a function in relation to the provision of any estimated mark (in this section referred to as a “relevant person”), either for the first-mentioned person’s benefit or for the benefit of another person, for the purpose of improperly influencing the consideration by a relevant person of any matter which falls to be considered or decided by such relevant person in the performance of such function.

(2) If a relevant person is of the opinion that a person has communicated with him or her in contravention of subsection (1), the relevant person shall not entertain the communication further and shall immediately inform the following, in writing, of the substance of the communication:

(a) where the relevant person is a teacher or tutor, the principal;

(b) where the relevant person is a principal or any other person (other than a teacher or tutor), the Commission.

(3) The principal or the Commission, as the case may be, shall acknowledge in writing the receipt of any information under subsection (2).

(4) The principal shall immediately notify the Commission in writing of any information received under subsection (2).

(5) (a) Where a communication is made in contravention of subsection (1), the Commission may, in accordance with such procedures as may be prescribed, carry out a review.

(b) The Commission may, following a review referred to in paragraph (a), withhold all or any of the accredited grades comprised in the Leaving Certificate 2021 in respect of any candidate by whom, or for whose benefit, the communication concerned was made.

(6) Where the Commission decides to withhold all or any of the accredited grades as provided for by subsection (5), the candidate may appeal against such decision in accordance with such procedures as may be prescribed.

(7) The power to withhold all or any accredited grades under this section is without prejudice to any other power, rights or remedies available to a person relating to the withholding of results for any reason relating to the Leaving Certificate Examination.

Provision of false information

5. (1) (a) Where, in relation to the provision of any estimated mark, a person gives false or misleading information, the Commission may, in accordance with such procedures as may be prescribed, carry out a review.

(b) The Commission may, following a review referred to in paragraph (a), withhold all or any of the accredited grades comprised in the Leaving Certificate 2021 in respect of any candidate by, or in respect of whom, false or misleading information was provided.

(2) Where the Commission decides to withhold all or any of the accredited grades as provided for by subsection (1), the candidate may appeal against such decision in accordance with such procedures as may be prescribed.

(3) The power to withhold all or any accredited grades under this section is without prejudice to any other power, rights or remedies available to a person relating to the withholding of results for any reason relating to the Leaving Certificate Examination.

Functions conferred on Commission relating to system of accredited grades

6. (1) Notwithstanding section 54(1) of the Act of 1998 and the State Examinations Commission (Establishment) Order 2003 ( S.I. No. 373 of 2003 ), the Commission shall, subject to subsection (5), have the following functions in relation to the system of accredited grades:

(a) to receive, in accordance with such procedures as it may determine, in respect of each candidate concerned, an estimated mark for each subject concerned;

(b) to apply a process of standardisation to the estimated marks so received;

(c) following the completion of the process of standardisation, to determine an accredited grade in respect of each subject for which an estimated mark has been received;

(d) to issue the results comprised in the Leaving Certificate 2021 to each candidate;

(e) where a candidate has chosen, in respect of any subject, to receive an accredited grade and to participate in the Leaving Certificate Examination that is due to take place in 2021 and has sat the examination in that subject, to award to the candidate the accredited grade or the result achieved in that examination, whichever is more advantageous to that candidate;

(f) to provide to each candidate, on such date or dates as the Commission shall determine, for each subject concerned—

(i) the estimated mark received by the Commission in respect of such candidate, and

(ii) the mark, expressed as a percentage, generated following the completion of the process of standardisation;

(g) to consider appeals referred to in section 2 (3), in accordance with such procedures as it may determine under paragraph (m);

(h) to consider appeals referred to in section 2 (4), in accordance with such procedures as it may determine under paragraph (n);

(i) to receive information in relation to communications as provided for by section 4 ;

(j) to withhold from a candidate, under section 4 or 5 , as the case may be, in accordance with such procedures as may be prescribed, all or any of the accredited grades comprised in the Leaving Certificate 2021;

(k) to implement a system of appeals against a determination to withhold all or any of the accredited grades as referred to in paragraph (j), in accordance with such procedures as may be prescribed;

(l) to appoint a panel of suitable persons to consider appeals referred to in paragraph (m)(viii) or (n)(vii) (in this section referred to as “appeals officers”), on such terms and conditions as the Commission may determine, which may include, but are not limited to, the period for which they may be appointed, the payment of fees and expenses (with the consent of the Minister and the Minster for Public Expenditure and Reform), resignation and removal for stated reasons;

(m) to determine the procedure for an appeal referred to in section 2 (3), which may include, but is not limited to, the following:

(i) the period within which an appeal shall be made;

(ii) the form and manner in which an appeal shall be made;

(iii) the information to be provided by a candidate for the purposes of the appeal, including the reasons for the appeal;

(iv) the form and manner in which the Commission shall carry out a review of the decision not to provide an estimated mark for a subject and the processes and procedures followed in making that decision;

(v) the period within which the Commission shall determine the review;

(vi) the form and manner in which, and the period within which, a candidate shall be notified of the determination referred to in subparagraph (v), including where the decision not to provide an estimated mark is upheld, the reasons for that determination;

(vii) the form and manner in which, and the period within which, a candidate may appeal against the determination of the Commission referred to in subparagraph (v);

(viii) the appointment of appeals officers;

(ix) the conduct of appeals;

(x) the provision to the appeals officers of such access to information, records and documentation held by the Commission as may reasonably be required by the appeals officers for the purposes of an appeal;

(xi) the form and manner in which, and the period within which, a candidate shall be notified of the determination of the appeals officers, including where the determination of the Commission is upheld, the reasons for that determination;

(n) to determine the procedure for an appeal referred to in section 2 (4), which may include, but is not limited to, the following:

(i) the period within which an appeal shall be made;

(ii) the form and manner in which an appeal shall be made;

(iii) the form and manner in which the Commission shall carry out a review referred to in section 2 (4);

(iv) the period within which the Commission shall determine the review;

(v) the form and manner in which, and the period within which, a candidate shall be notified of the determination referred to in subparagraph (iv);

(vi) the form and manner in which, and the period within which, a candidate may appeal against the determination of the Commission referred to in subparagraph (iv);

(vii) the appointment of an appeals officer;

(viii) the conduct of appeals;

(ix) the provision to the appeals officer of such access to information, records and documentation held by the Commission as may reasonably be required by the appeals officer for the purposes of an appeal;

(x) the form and manner in which, and the period within which, a candidate shall be notified of the determination of the appeals officer, including where the determination of the Commission is upheld, the reasons for that determination.

(2) The Commission may by notice, in writing, request from a teacher, tutor, principal or any other person who performs a function relating to the provision of estimated marks to provide the Commission, in such form and manner, and within such period, as may be provided for in such notice, such information, records and other documentation held by such teacher, tutor, principal or person, as the case may be, as the Commission may reasonably require for the purposes of an appeal referred to in section 2 (3) or (4), as the case may be.

(3) The Commission shall have all such powers as are necessary for, or are incidental to, the performance of the functions conferred on it by or under this Act.

(4) The performance by the Commission of functions conferred on it by or under this Act shall be subject to the determination of matters of policy by the Minster.

(5) The Minister may, following consultation with the Commission, by order, confer on the Commission such additional functions in relation to the system of accredited grades, as the Minister considers necessary and appropriate, having regard to the need to ensure that the system of accredited grades operates as intended by or under this Act for the purposes of the Leaving Certificate 2021.

(6) An order under subsection (5) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the order.

(7) The Commission shall submit to the Minister, in such form and manner and within such period as the Minister may direct, such information regarding the performance of the functions conferred on it by or under this Act as the Minister may from time to time require.

Regulations in relation to system of accredited grades

7. (1) The Minister may make regulations for the purposes of this Act, including regulations for prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed or for the purpose of enabling any provision of this Act to have full effect or for the purpose of the effective operation of the system of accredited grades.

(2) Without prejudice to the generality of subsection (1), regulations under this section may provide for the following:

(a) the procedure to be undertaken by the Commission where it receives information under section 4 (2) or (4) or where it considers that false or misleading information may have been given in the circumstances provided for in section 5 , as the case may be, which may include, but is not limited to, the following:

(i) the form and manner of the notification to be given—

(I) in the case of a matter arising under section 4 , to the person who provided the information under section 4 (2) and the candidate concerned, and

(II) in the case of a matter arising under section 5 , to the candidate concerned,

which notification shall include—

(A) information regarding the matter that has arisen under section 4 or 5 , as the case may be, and

(B) a statement that the Commission intends to carry out a review of the matter and that the candidate, and in the case of a matter arising under section 4, the person who provided the information under section 4 (2), may make representations to the Commission in the prescribed form and manner and within the prescribed period;

(ii) the form and manner in which, and the period within which, the review referred to in subparagraph (i) shall be conducted;

(iii) the period within which the Commission shall make a decision following the review referred to in subparagraph (i);

(b) the provision to the Commission of such information as the Commission may reasonably require for the purposes of the review referred to in paragraph (a) (i) from such persons in such form and manner, and within such period, as may be prescribed, including a request, in writing, for that information from those persons;

(c) the form and manner in which, and the period within which, the candidate and, in the case of a matter arising under section 4 , the person who provided the information under section 4 (2), shall be notified of the decision of the Commission referred to in paragraph (a)(iii), including, in the case of a decision to withhold all or any of the accredited grades comprised in the Leaving Certificate 2021, giving to the candidate the reasons for that decision;

(d) the appointment by the Commission of a panel of suitable persons to consider appeals referred to in paragraph (e) (in this section referred to as “appeals officers”), on such terms and conditions as the Commission may determine, which may include, but are not limited to, the period for which they may be appointed, the payment of fees and expenses (with the consent of the Minister and the Minster for Public Expenditure and Reform), resignation and removal for stated reasons;

(e) the procedure for an appeal by a candidate against a decision referred to in paragraph (c) which may include, but is not limited to, the following:

(i) the period within which an appeal shall be made;

(ii) the form and manner in which an appeal shall be made;

(iii) the information to be provided by the candidate for the purposes of the appeal, including the reasons for that appeal;

(iv) the appointment of an appeals officer;

(v) the conduct of the appeal;

(vi) the provision of such access to information, records and documentation held by the Commission as may reasonably be required for the purposes of an appeal;

(vii) the period within which the appeal shall be determined;

(viii) the form and manner in which, and the period within which, the candidate and, in the case of a matter arising under section 4 , the person who provided the information under section 4 (2), shall be notified of the determination of the appeal, including where the decision of the Commission to withhold all or any of the accredited grades is upheld, the reasons for that decision.

(3) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(4) The procedures prescribed under subsection (2) are without prejudice to any other power, rights or remedies available to a person relating to the withholding for any reason of results relating to the Leaving Certificate Examination.

Designation of persons as tutors

8. The Minister may, having regard to the need to ensure that this Act applies, as is necessary and appropriate, to persons who perform a function relating to the provision of any estimated mark, by order, following consultation with the Commission, designate such persons as the Minister considers necessary and appropriate to be tutors for the purposes of the application of this Act.

Issue of certificate of final results of Leaving Certificate Examination for the year 2020

9. The Commission shall, in respect of the final results of the Leaving Certificate Examination for the year 2020, subject to the determination of any appeal in relation to those results, issue a certificate to each candidate concerned—

(a) comprising, in respect of the subjects concerned, the results achieved by a candidate and issued by the Minister pursuant to a system of calculated grades operated by the Minister in respect of the Leaving Certificate Examination for that year or, as the case may be, any higher result achieved by a candidate where, in respect of any subject, such candidate sat the Leaving Certificate Examination that took place in that year, in that subject, or

(b) in the case of a candidate who did not receive results pursuant to the system of calculated grades referred to in paragraph (a) and who sat the Leaving Certificate Examination for that year, in any subject, comprising, in respect of that subject, the results achieved by such candidate.

Data protection

10. (1) Personal data of candidates collected for the purposes of the system of accredited grades pursuant to this Act and any regulations made thereunder may, in so far as is necessary, be processed by—

(a) the Minister and the Commission, for the purposes of the performance of their respective functions pursuant to this Act and any regulations made thereunder,

(b) an appeals officer appointed to consider an appeal referred to in section 2 (3) or (4), 4 (6) or 5 (2), as the case may be, for the purposes of the performance of his or her functions pursuant to this Act and any regulations made thereunder relating to the consideration of such appeal, subject to such other conditions (if any) as the Minister considers appropriate to impose on such processing, and

(c) a person with whom the Minister or the Commission, as the case may be, has entered into a contract for the provision of any services relating to the process of standardisation, including the design and application of that process and any necessary quality assurance related to such application, for the purposes of the provision of such service, subject to such other conditions (if any) as the Minister considers appropriate to impose on such processing.

(2) For the purposes of this section, the Minister and the Commission are designated as data controllers in relation to the personal data processed for the purposes referred to in subsection (1) and the Minister and the Commission, as the case may be, shall put in place appropriate data processing contracts, where necessary, with the persons referred to in paragraphs (b) and (c) of subsection (1).

(3) Personal data processed for the purposes referred to in subsection (1) shall be kept and used by the persons referred to in paragraphs (b) and (c) of subsection (1) for the respective purposes only referred to in those provisions and may be processed only for as long as the personal data are required for those purposes and shall be permanently deleted after they are no longer so required.

(4) (a) The Minister may, subject to the General Data Protection Regulation, and following consultation with the Commission, make regulations—

(i) in relation to the processing of personal data which is necessary for the purposes of this Act or any regulations made thereunder,

(ii) to designate such other person, as the Minister considers appropriate, as a data controller for the purposes of this Act or any regulations made thereunder, and such person may be designated in addition to, or in substitution for, the Minister or the Commission.

(b) Regulations made under paragraph (a) (i) shall specify—

(i) the personal data that may be processed,

(ii) the circumstances in which the personal data may be processed, including specifying the persons to whom the data may be disclosed, and

(iii) such other conditions (if any) as the Minister considers appropriate to impose on such processing.

(5) In this section—

“controller” means a controller within the meaning of the General Data Protection Regulation;

“General Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016¹ on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

“personal data” has the meaning it has in the General Data Protection Regulation;

“processing”, in relation to personal data, has the meaning it has in the General Data Protection Regulation.

Laying of regulations and orders

11. Every order (other than an order under section 13 (2)) or regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation is annulled, but without prejudice to the validity of anything previously done under it.

Expenses

12. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.

Short title and commencement

13. (1) This Act may be cited as the Education (Leaving Certificate 2021) (Accredited Grades) Act 2021.

(2) 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 provisions.

SCHEDULE

Languages specified as subjects for purposes of paragraph (c) of definiton of “tutor” in section 1

Section 1

The following languages are specified as subjects for the purposes of paragraph (c) of the definition of “tutor” in section 1 :

Bulgarian

Croatian

Czech

Danish

Dutch

Estonian

Finnish

Hungarian

Latvian

Lithuanian

Maltese

Modern Greek

Polish

Portuguese

Romanian

Slovakian

Slovenian

Swedish

¹ OJ No. L119, 4.5.2016, p.1