Teach, Don’t Preach: Secular Education is a Human Right

Atheist Ireland is looking for your feedback on this draft document, in which our Education Officer Jane Donnelly argues that secular education is a human right, and that the Irish Government denies that right to its citizens.

We will be sending the final version of this document later this month to the Irish Human Rights Commission, which is preparing recommendations for the Irish Government on the place of religion in education from a human rights perspective. The Commission has asked for the opinions of citizens and groups before 31 January 2011.

This is a lengthy document, but it is very important part of our campaign for a secular education system based on human rights law. Please let us know how you think it could be improved, and please also send a separate submission yourself to the Irish Human Rights Commission.

Contents

Introduction
1. Secular Education is a Human Right

Responses to issues raised by the IHRC
2. Structure and Patronage
3. Access to a School of One’s Choice
4. Information and Knowledge Conveyed

Additional issues raised by Atheist Ireland
5. Second Level Schools
6. Teacher Training
7. New VEC Community Schools
8. Child Sexual Abuse

Conclusion and Appendices
9. Conclusion
10. Appendices

1. Secular Education is a Human Right

1.1 Atheist Ireland believes that secular education is a human right, based on international human rights treaties to which Ireland is party. We also believe the following. Freedom of conscience, religion and belief are unlimited, and freedom to practice religion should be limited only by the need to respect the rights of others. Society should be based on democracy, human rights and the rule of law. Public policy should be formed by applying reason to evidence. The state should be strictly neutral in matters of religion, favoring none and discriminating against none. State education should be secular. Children should be taught about the diversity of religious beliefs in an objective manner, with no faith formation in school hours. Children should be educated in critical thinking and the distinction between faith and reason as a guide to knowledge.

1.2 Many people mistakenly believe, and mistakenly argue, that secular education is the opposite to religious education. It is not. Atheistic education is the opposite to religious education. Religious schools teach that particular religious supernatural claims are true, atheistic schools teach that all religious supernatural claims are false, and secular schools take no position on the question of the truth or falsity of religious supernatural claims, leaving these questions for parents and churches to deal with outside of school hours. To take a symbolic illustration of the difference, a religious school might have a crucifix on the classroom wall, an atheistic school might have a sign saying there is no god, and a secular school would have neither.

1.3 This distinction means that secular schools respect the human rights of freedom of conscience, religion and belief of all pupils and parents in the school, regardless of the many different beliefs about religion and the supernatural that they may hold. In fact, secular schools are the only way to enable any pupil to go to any school and have their rights respected.

1.4 In theory, it could be possible to respect everybody’s rights by having different schools for parents and pupils of every denomination of every religion, plus schools for parents and pupils of no religion, and to have enough of each of these schools built and operating every part of the country to make it possible to vindicate the rights in practice. However, in reality, this is financially and logistically impossible. In a pluralist society, the only way for a state education system to vindicate everybody’s rights to freedom of conscience, religion and belief is for a state education system to be run on a secular basis.

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2. Structure and Patronage

This section responds to the following questions asked by the Irish human Rights Commission: “The State remains formally neutral in matters between different religious denominations, most notably as set out in the Education Act 1998 which gives legislative status to school “patrons” (to whom Boards of Management are accountable for the upholding of the ethos or “characteristic spirit” of schools). Are the procedures in place sufficient to respect human rights? Is it possible for the State to meet its human rights obligations by formally providing funding on an equitable basis to denominational, multidenominational and non-denominational schools, or is more required, taking into account the number of denominational schools in the State today? Would providing effective access to either denominational or secular education to families based upon their preference satisfy all the human rights concerns set out in this paper? The Education Act 1998 sets out how schools operate an internal complaints system. Is this process adequate and effective, taking into account the time-sensitivity which may be involved in resolving complaints?”

2.1 The State remains formally neutral in matters between different religious denominations, most notably as set out in the Education Act 1998 which gives legislative status to school “patrons” (to whom Boards of Management are accountable for the upholding of the ethos or “characteristic spirit” of schools). Are the procedures in place sufficient to respect human rights?

2.1.1 Atheist Ireland believes that the procedures are not in place to protect human rights as the patronage system has failed to protect the human rights of non-religious parents and the human rights of their children. Under the patronage system, non-religious parents are obliged to send their children to schools where their basic human rights are not protected by the state. The Irish State absolves itself of its responsibility to protect the human rights of non-religious parents and children and delegates that responsibility to private bodies and institutions. Non-religious parents who seek secular education, based on human rights for their children, are dispersed throughout the country and therefore do not have the capacity to attract State funding under the patronage system.

2.1.2 In 2008 the UN Human Rights Committee (UNHRC) stated this about Ireland: “22 The Committee notes with concern that the vast majority of Ireland’s primary schools are privately run denominational schools that have adopted a religious integrated curriculum thus depriving many parents and children who so wish to have access to secular primary education. (arts. 2, 18, 24, 26). The State party should increase its efforts to ensure that non-denominational primary education is widely available in all regions of the State party, in view of the increasingly diverse and multi-ethnic composition of the population of the State party.”

The UNHRC stated this in their concluding observations under the International Covenant on Civil & Political Rights (CCPR.C.IRL.CO.3, para 22). The four Articles that the UNHRC cited are Article 2 (which concerns Freedom from Discrimination), Article 18 (Freedom of Conscience), Article 24 (Rights of the Child) and Article 26 (Equality before the law). These basic human rights are denied to non-religious parents and their children as the Irish State has failed to protect those rights. The State does not accept any responsibility for the protection of the human rights of all parents in the Education system under the various Conventions that Ireland has ratified.

2.1.3 The Irish State does not recognise that non-religious parents have a right to a secular education where their basic human rights are protected. Article 42.3 of the Irish Constitution sates that “The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State.” Despite Article 42.3 of the Irish Constitution, parents seeking secular human rights based education for their children are obliged to send their children to schools in violation of their conscience and lawful preference. It is simply not an option for the majority of these parents to educate their children at home and they are left with a choice between a religious education for their children or no education at all. It is clear from the Government submissions to the UN and Council of Europe over the years under the various Conventions that the Irish State inaccurately maintains that our Education System protects the fundamental human rights of all parents.

2.1.4 Article (1) of the European Convention on Human Rights Act 2003 obliges the State to secure for everyone within its jurisdiction the Rights and Freedoms defined in Section 1 of the Convention. The Irish State ignores this obligation as it has failed to protect non-religious parents from discrimination under Article 14 of the Convention. The Irish State has also failed to protect their rights under Article II of Protocol 1 (The right to Education), Articles 8 (The right to Private and Family life, Article 9 (Freedom of Conscience), Article 10 (Freedom of Expression), Article 13 (Right to an Effective Remedy) and Article 3 (Protection from inhuman and degrading treatment).

2.1.5 In December 2008 in the Supreme Court Case Louise O’Keeffe v Leo Hickey, The Minister for Education and Science, Ireland and the Attorney General, Mr. Justice Hardiman stated the following: “In my view the Constitution specifically envisages, not indeed a delegation but a ceding of the actual running of schools to the interests represented by the Patron and the Manager.”

The Irish State has put in place legislation that permits Patrons and Boards of Management who are private bodies to discriminate under Section 7 3 (c) of the Equal Status Act and Section 15 2 (b) of the Education Act in order to uphold their interests. These pieces of legislation deny non-religious parents access to a secular education, based on human rights for their children. Despite this legislation in their response to a UN Report in August 2009 the Irish Government still maintain that all Irish Schools have traditionally welcomed students from all backgrounds, (CCPR.C.IRL.CO.3.Add.1 para 39).

2.1.6 The European Court of Human Rights has stated that “The Convention is intended to guarantee not rights which are theoretical or illusory but rights which are practical and effective”, (Airey v Ireland 1979 – para 36 ECHR). Atheist Ireland does not believe that providing effective access to either denominational or secular education to families within the present patronage system will satisfy human rights concerns, as it will still mean that the Irish State will continue to absolve itself of the responsibility to educate and delegate that responsibility to private bodies and institutions. Non-religious parents cannot hold a Patron or Board of Management responsible for their failure to protect human rights, as these bodies did not ratify any Human Rights Conventions.

2.1.7 The recent comments of the UN under the ICCPR and case law at the ECHR such as Folgero v Norway 29.06.07 clearly show that the Irish Education System is failing to protect the fundamental human rights of non-religious parents under the various Conventions that Ireland has ratified.

2.2 Is it possible for the State to meet its human rights obligations by formally providing funding on an equitable basis to denominational, multidenominational and non-denominational schools, or is more required, taking into account the number of denominational schools in the State today? Would providing effective access to either denominational or secular education to families based upon their preference satisfy all the human rights concerns set out in this paper?

2.2.1 Given the statutory power of Patrons and Boards of Management within the present system there is no guarantee for non-religious parents and children that these bodies would interpret human rights in a manner compatible with the European Convention on Human Rights and all the various Conventions that Ireland has ratified. It is the duty of the State under the European Convention on Human Rights and the various UN Conventions that Ireland has ratified to protect human rights in the education system and to ensure that parents have an effective remedy to vindicate those rights. It is not permissible to delegate that responsibility to private bodies and institutions and permit them to deliver the curriculum in a manner that is not consistent with basic human rights when minorities have no option but to attend these schools.

2.2.2 The European Court of Human Rights has already found that a state cannot absolve itself of the responsibility to educate and cede that responsibility to private bodies and institutions but that is exactly what the Irish State does while at the same time claiming that this system guarantees the human rights of all parents.

In Costello Roberts v UK 1993, the European Court of Human Rights stated: “26. The Court has consistently held that the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that State of its obligation under Article 1 (art. 1) to secure those rights and freedoms in its domestic law to everyone within its jurisdiction (see, mutatis mutandis, the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 20, para. 49).

27. Secondly, in the United Kingdom, independent schools co-exist with a system of public education. The fundamental right of everyone to education is a right guaranteed equally to pupils in State and independent schools, no distinction being made between the two (see, mutatis mutandis, the above-mentioned Kjeldsen, Busk Madsen and Pedersen judgment, Series A no. 23, p. 24, para. 50).

Thirdly, the Court agrees with the applicant that the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals (see, mutatis mutandis, the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, pp. 14-15, paras. 28-30).”

2.3 The Education Act 1998 sets out how schools operate an internal complaints system. Is this process adequate and effective, taking into account the time-sensitivity which may be involved in resolving complaints?

2.3.1 There are no appropriate provisions in the Irish Education system to ensure that non-religious parents’ philosophical convictions are respected. The internal complaints system in place under the Education Act 1998 does not and cannot protect the human rights of non-religious parents. Nothing obliges Patrons and Boards of Management to guarantee the human rights of parents seeking a secular education based on human rights law, as the State does not recognise that a religious integrated curriculum violates the conscience of non-religious parents and children. This can be seen because it obliges schools under the Rules for national Schools to integrate religion into all subjects.

2.3.2 There are no statutory guidelines in place to oblige Patrons and Boards of Management to interpret human rights law in a manner compatible with the European Convention on Human Rights and most teachers receive their training in denominational institutions where there is no training in Human Rights. As there are no Statutory Guidelines, there are no time limits to deal with complaints. This complaints procedure under the Education Act subjects non-religious parents to a heavy burden and the necessity of disclosing details of their philosophical convictions in order to try to opt their children out of the elements of religious formation that are integrated into all subjects.

2.3.3 The European Court of Human Rights has stated in Kjeldsen, Busk Madsen and Pedersen V Denmark 1976 – (54) (Application no. 5095/71; 5920/72; 5926/72) that: “Certainly, abuses can occur as to the manner in which the provisions in force are applied by a given school or teacher and the competent authorities have a duty to take the utmost care to see to it that parents’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism.”

The Competent authorities in Ireland under the European Convention are the Minister and Department of Education who under the Education Act 1998 and the present patronage system absolve themselves of the responsibility to educate and cede control to private bodies and institutions.

2.3.4 There is a right to an effective remedy under Article 13 of the European Convention on Human Rights but as schools are not considered ‘organs of the state’ under the European Convention on Human Rights Act 2003, there is no means of holding the State responsible for failing to secure the rights guaranteed under the European Convention. Even if schools were ‘organs of the state’ within the meaning of the European Convention on Human Rights Act 2003, it is then expected that a parent should ask the courts to interpret statues in a Convention compliant manner and, if that was not possible, to make a declaration of incompatibility. A declaration of incompatibility is not obligatory on the State. There is no legal aid for these matters and the prohibitive costs of legal action against the state is a deterrent to parents. By the time any parent would get through the process their child would be grown up and consequently there is no effective remedy in Ireland to enable non-religious parents to secure their rights under the European Convention.

2.3.5 The UN Human Rights Committee has stated in its General Comment No. 31 [80] Nature of the General Legal Obligations Imposed on States Parties to the Covenant: 26/05/2004. (ICCPR) CCPR/C/21/Rev.1/Add.13. (para 8.) that the State has an obligation to protect individuals not just against violations of Covenant rights by its agents, but also against acts committed by private person or entities that would impair the enjoyment of Covenant rights in so far as they are amendable to application between private person or entities. (see Appendix A)

2.3.6 It is clear that the patronage system has failed to protect the fundamental human rights of the non-religious in the Irish Education system and the complaints procedure in place cannot and does not protect the human rights of parents within the present system. The Irish State must accept responsibility for the protection of the fundamental human rights of all parents and children in the education system.

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3. Access to a School of One’s Choice

This section responds to the following questions asked by the Irish human Rights Commission: “Both the Constitution, the ECHR and the ICCPR provide for respect for the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions, whereas the emphasis in the CRC is on the freedom of religion of the child, with parental direction consistent with the child’s evolving capacities, particularly in their teenage years. How are questions of access, distribution and State funding of schools addressed in the system for recognition of patronage? What procedures are in place to secure the rights explored in this paper?”

3.1 How are questions of access, distribution and State funding of schools addressed in the system for recognition of patronage?

3.1.1 Non-religious parents and their children do not enjoy the respect of the Irish State for their philosophical convictions. The Irish State does not recognise that non-religious parents have a right to a secular education for their children based on human rights law. The Irish State does not accept that religious schools breach the fundamental human rights of those parents who seek secular education for their children. As the State does not recognise the human rights of non-religious parents, the questions of access and distribution are of no consequence to them in the recognition of patronage.

3.1.2 The Patronage system in Ireland has guaranteed a religious education only for the religious majority in the country at the expense of the fundamental human rights of minorities and children. The European Convention on Human Rights does not oblige any State to fund religious schools let alone guarantee a religious education to every family in the country. It is the duty of the State to respect the religious and philosophical convictions of all parents in the education system. That is not the same thing as guaranteeing a religious education to every family in their particular religious denomination.

3.1.3 The European Court of Human Rights has stated in Kjeldsen, Busk Madsen and Pedersen V Denmark 1976 – (50) (Application no. 5095/71; 5920/72; 5926/72) that: “the ‘travaux prèparatoires’ of Article II of Protocol (1) aim in short at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the “democratic society” as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised (Appendix B).”

The State is obliged to respect the religious and philosophical convictions of all parents in the education system. Integrating religion into all subjects and then failing to guarantee the delivery of the curriculum in an objective, critical and pluralistic manner cannot be regarded as pluralism.

3.1.4 In addition to failing to guarantee delivery of the curriculum in an objective, critical and pluralistic manner the Irish State has put in place legislation, Section 7 – 3 (c) of the Equal Status Act 2000 which denies non-religious parents a guaranteed right of access without discrimination to 97% of the schools in the state. Schools are permitted to discriminate in the event of a shortage of places in order to uphold their religious ethos.

Article II of Protocol 1 of the European Convention obliges the state to guarantee a right of access to educational instructions existing at a given time. Yet the Irish State has taken positive steps to discriminate and deny the non-religious a right of access without discrimination to 97% of the schools in the state while at the same time claiming the Irish education system is compatible with human rights.

3.1.5 The European Court of Human Rights has stated: “(d)  Article 2 of Protocol No. 1 constitutes a whole that is dominated by its first sentence. By binding themselves not to “deny the right to education”, the Contracting States guarantee to anyone within their jurisdiction a right of access to educational institutions existing at a given time and the possibility of drawing, by official recognition of the studies which he has completed, profit from the education received (see Kjeldsen, Busk Madsen and Pedersen, cited above, pp. 25-26, § 52, and Belgian linguistic case (merits), judgment of 23 July 1968, Series A no. 6, pp. 31-32, § 4).”

3.1.6 The UN Committee on Economic, Social and Cultural Rights – 15th November 1999 has stated that access to education must be guaranteed in law and in fact without discrimination on any of the prohibited grounds. Religion is one of the prohibited grounds. Freedom from discrimination is part of the human right to education. The prohibition on discrimination is subject to neither progressive realisation nor the availability of resources. It is an absolute right. (United Nations General Comment on Article 13 para 31 of the ICESC, The right to education (Art.13): 08/12/99. E/C.12/1999/10) (APPENDIX C)

3.1.7 The Committee on the UN Convention on Economic, Social and Cultural Rights has raised concern with regard to Article 40.1 of the Irish Constitution and equality before the law with the principle of non-discrimination. “16. The Committee regrets that the State party has not yet undertaken any measures with regard to the Committee’s 1999 recommendation concerning the inconsistency of article 40.1 of the Constitution on equality before the law with the principle of non-discrimination as set out in articles 2 and 3 of the Covenant.”

Article 40.1 of the Irish Constitution does not guarantee the Non-religious equality before the law without discrimination in the Education system.

3.2 What procedures are in place to secure the rights explored in this paper?

3.2.1 There are no procedures in place to secure the rights explored in this paper. The UN has stated that the principle of equality sometimes requires State parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. The Irish State has done the opposite as they have put in place legislation that enables private bodies to discriminate and deny non-religious parents their human rights in the education system. (General Comment No. 18: Non-discrimination of 10/11/89 International Covenant on Civil & Political Rights States, para 10.)

3.2.3 Democracy does not mean that the views of the majority must always prevail but the Patronage system in Ireland has ensured that the Catholic majority has access to a religious education for their children at the expense of the human rights of minorities. The European Courts of Human Rights are clear on this.

They have stated that: “(f) Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position” (Valsamis v Greece, p. 2324, § 27).

3.2.4 The Irish State has failed in its laws and policies to protect the fundamental rights of non-religious parents in the education system as they have failed to take positive action to protect those rights. In fact they have put in place legislation that denies non-religious parents a right of access without discrimination to 97% of schools in the country. Non-religious parent do not enjoy the liberty to ensure that their children enjoy their basic fundamental human rights as they are coerced by force of circumstances to send their children to schools where their basic human rights are disregarded. Despite the European Convention on Human Rights 2003 and the various UN Convention that Ireland have ratified, the Irish State has failed to guarantee and protect these human rights. Despite the European Convention on Human Rights Act 2003, there are no effective procedures in place to secure the rights explored in this paper.

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4. Information and Knowledge Conveyed

This section responds to the following questions asked by the Irish human Rights Commission: “Should the State ensure that information and knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner in the classroom? If the State were to require that information about religion be imparted in an objective, critical and pluralistic manner, would this vindicate the right to freedom of thought, conscience and religion of communities and individuals who have a preference for denominational education for their children? Should the State focus on its duty to respect parents’ religious convictions. If so, what precisely does that duty entail for minority children in the existing system which has a high number of denominational schools: a) no change, b) provision of education in the religion of choice, c) an exemption from religious classes only or d) provision of an objective, critical and pluralistic education to students to extend to the general ethos of the school?”

4.1 Should the State ensure that information and knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner in the classroom?

4.1.1 The State should ensure that information and knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner in the classroom. The reason for this is to protect the fundamental human rights of all parents and to ensure pluralism. It would also protect the rights of children under Article 14 (1) of the Convention on the Rights of the Child.

4.2. If the State were to require that information about religion be imparted in an objective, critical and pluralistic manner, would this vindicate the right to freedom of thought, conscience and religion of communities and individuals who have a preference for denominational education for their children?

4.2.1 Ensuring that information and knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner would not deny the right to freedom of thought, conscience and religion of communities and individuals who have a preference for denominational education. The European Convention on Human Rights does not oblige any State to fund a religious education for children in the religious denomination of their parents and it would be quite impossible for any State to guarantee that right. The purpose of delivering the curriculum in an objective, critical and pluralistic manner is to protect the human rights of all parents and children and to ensure that pluralism is achieved.

4.2.2 The European Court of Human Rights in Grzelak V Poland (application no. 7710/02) – 15th June June 2010 has stated the following: “85.  Further, the Court reiterates that freedom of thought, conscience and religion, as enshrined in Article 9, is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260A, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999I).”

4.2.3 It cannot be said that delivering the curriculum in an objective, critical and pluralistic manner, which is a General Principle of the European Court of Human Rights, would deny the right to freedom of conscience as freedom of conscience is one of the foundations of a democratic society within the meaning of the Convention.

4.2.4 The UN has also raised concern that a religious integrated curriculum which fails to deliver the curriculum in a neutral and objective manner denies the right to freedom of conscience of those parents who seek a secular education for their children. The State should focus on its duty to not only respect parents’ religious convictions but also respect the philosophical convictions of non-religious parents and it should focus on protecting the rights of children. That cannot be done in denominational schools or any school that operates a religious integrated curriculum as it breaches the human rights of minorities.

4.2.5 Catholic Church teaching and human rights law are incompatible as it is Catholic Church teaching that religion must be integrated into all subjects even in state schools. It is also Catholic Church teaching that if religious education is limited to a presentation of the different religions, in a comparative and “neutral” way, it creates confusion or generates religious relativism or indifferentism. In 2009 the Vatican issued a Circular Letter to the Presidents of Bishops’ Conferences on Religious Education in Schools. The purpose of that letter was to recall some of the principles that are rooted in Catholic Church teaching. The Vatican stated: “It is clear that teaching the Catholic religion has its own specific nature vis-a-vis other school subjects” (Circular Letter from Congregation for Catholic Education, Vatican to the Presidents of Bishops’ Conferences on Religious Education in Schools 2009). See http://bit.ly/3QCnF

Because of this teaching, which is protected by legislation, Section 15(2) (b) of the Education Act 1998, non–religious parents cannot exempt their child from the elements of religion that is integrated into all the various subjects under the curriculum. Because of the integrated curriculum there are potential areas of all subjects that they could legitimately consider likely to give rise in their children to a conflict of allegiance between the school and their own values and therefore non-religious parents cannot guarantee that the education that their children receive is in conformity with their own convictions.

4.2.6 In Grzelak V Poland (application no. 7710/02) – 15th June 2010 the European Court of Human Rights has said that: “86. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom of thought, conscience and religion in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, § 33). The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005XI).”

4.2.7 Non-religious parents who seek secular education based on human rights law for their children need the protection of the State from a religious integrated curriculum in order to guarantee their human rights.

4.3 Should the State focus on its duty to respect parents’ religious convictions? If so, what precisely does that duty entail for minority children in the existing system which has a high number of denominational schools: a) no change, b) provision of education in the religion of choice, c) an exemption from religious classes only or d) provision of an objective, critical and pluralistic education to students to extend to the general ethos of the school?

4.3.1 The duty of the State is to ensure that all parents’ human rights are guaranteed and this cannot be achieved under the present patronage system. The State should comply with the UN recommendation in 2008 that: ”The State party should increase its efforts to ensure that non-denominational primary education is widely available in all regions of the State party, in view of the increasingly diverse and multi-ethnic composition of the population of the State party.” (CCPR.C.IRL.CO.3, para 22)

4.3.2 Providing an exemption from Religious Classes has failed to protect the human rights of minorities. The Catholic Church acknowledged that the right to opt out of religious instruction classes in the Irish Constitution is not recognised in practice. (Bishop Donal Murray, Bishop of Limerick and Chair of the Bishop’s Department of Catholic Education and Formation stated the following: (page 10).

“The increasing number of pupils whose parents do not wish them to receive religious instruction that is designed for Catholic children can make the logistics of this difficult, but since the right is recognised in the Constitution, one would hope that the Government might make possible the conditions to enable it to be recognised in practice. This might require additional space, additional supervision, or the employment of part‐time teachers to provide instruction in the faith or values system of the families concerned.” See http://bit.ly/hweMRn

4.3.3 Under the present system it is parents who are responsible for the supervision of their children while religion classes are taking place. This simply does not constitute an exemption under human rights law and it is discriminatory. What parent can take time to go to the school and remove their child from religion class during the school day? It is a burden that the religious majority simply do not have. The coercive effect of this practice is evident as parents are deterred from exercising the right to remove their child as the exemption could create difficulties for their child. Parents and children are isolated in situations such as this and feel that they do not belong to the school and the community it serves.

This Constitutional exemption is in practice a theoretical illusion and does not constitute opting out of religious instruction in practice. The discrimination that takes place denies the right to freedom of conscience of children under Article 14 (1) of the Convention on the Rights of the Child and it fails to guarantee that the education of the children of non-religious parents is in conformity with their parents’ philosophical conviction.

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5. Second Level Schools

5.1 The issue that the Commission has raised in its Discussion Paper with regard to primary level do not cease when children enter second level. In Ireland parents are obliged to send their children to school up to the age of sixteen. The majority of schools at second level are denominational. The remainder are usually referred to as multi-denominational but they can operate a specific religious integrated curriculum.

5.1.1 Despite this in 2007 the Government informed the Advisory Committee on the Framework Convention for the Protection of Nationals Minorities (Council of Europe) that: “Vocational Schools and Community Colleges provide education to approximately 30% of all second level students, and are administered by Vocational Education Committees (VEC), which are statutory bodies established under the Vocational Education Act, 1930, as amended. Consequently, schools administered by VECs are non-denominational.”

5.1.2 VEC Community schools and Community Colleges at second-level in Ireland are obliged to ensure that there is religious instruction available, Community Schools under the Deeds of Trust, Designated Community Colleges under the Model Agreement and Non-Designated Community Colleges under Circular Letter 73/74 issued by the Dept of Education in 1976. As at primary level, non-religious parents are responsible for the supervision of their children during religious instruction classes if they wish to opt out their child from this class.

5.2 Opting out of religious instruction

5.2.1 The Joint Managerial body/ Association of Management of Catholic Secondary Schools have issued Guidelines on the inclusion of students of other faiths in Catholic Secondary Schools. See http://bit.ly/ghEBy5. According to these Guidelines, schools should make it clear that responsibility for supervision of the student who opts out of religion classes lies with the parents. They go on to state that it may not be possible for the school to provide for such supervision within the Department of Education’s staff allocation to the school. As at primary level, parents are responsible for the supervision of their children if they opt out of religious instruction classes during the school day.

5.2.2 There is a Constitutional Right under Article 44.2.4 of the Constitution to opt out of Religious Instruction classes and under Article 42.1 the State acknowledges that the primary and natural educator of the child is the family. The Dept of Education has provided no further guidance other than Section 30 – 2 (e) of the Education Act 1998 which states: “Without prejudice to the generality of subsection (1), the Minister – shall not require any student to attend instruction in any subject which is contrary to the conscience of the parent of the student or in the case of a student who has reached the age of 18 years, the student.”

Legislation providing State aid for schools under Article 44.2.4 of the Irish Constitution is dependent on children opting out of religious instruction. It is clear that Section 30 – 2 (e) of the Education Act 1998 has failed to secure that right.

5.2.3 The Guidelines on the inclusion of students of other faiths in Catholic Secondary Schools seek to offer practical suggestions to Catholic school communities on how to welcome and facilitate all students, including those of different faiths, while remaining true to the characteristic spirit of their school and the Gospel values that motivate Catholic education. There are no practical suggestions on how to accommodate those parents who wish for a secular education based on human rights law for their children, as the Catholic Church does not approve of secular education:

“The suggestion that religious belief is not relevant to large areas of life is the essence of secularism. It may sound like a recipe for tolerance and harmony – let religion keep to its place and we will avoid a lot of divisive issues. The reality is that this amounts to a denial or at least a profound misrepresentation of God. A god who is irrelevant to some spheres or aspects of the creation is not God at all! “ This quote is from Catholic Primary Education in Contemporary Ireland, facing new horizons, address by Bishop Donal Murray, Bishops’ Dept of Catholic Education and Formation / Mary Immaculate College, University of Limerick 22nd May 2009

5.3 Religious education course 2000

5.3.1 In 2000 a Religious Education course was introduced as part of the curriculum which is supposed to be suitable for all religions and none. Atheist Ireland has complained to the Department of Education and the National Council for Curriculum and Assessment (NCCA) with regard to this course and its failure to comply with basic human rights principles. This course disrespects the philosophical convictions of non-religious parents and breaches their human rights. It cannot be claimed that the Religious Education course is suitable for all students, as in order to access the course the children of non-religious parents must endure the disrespect of the State for their parent’s philosophical convictions.

5.3.2 From the complaints that Atheist Ireland receives it is clear that some schools are forcing the children of Non-religious parents to take the course. The NCCA is an ‘organ of the state’ but it has failed in its functions to respect the philosophical convictions of non-religious parents. It is also in breach of its own Guidelines on Intercultural Education in Post-Primary Schools as these Guidelines state: “At its core, intercultural education….(is) education which promotes equality and human rights, challenges unfair discrimination and promotes the values upon which equality is built.” See http://bit.ly/fYiWkZ

5.3.3 There is a positive obligation on the State under Article 2 of Protocol 1 of the European Convention on Human Rights which gives parents the right to demand from the State respect for their philosophical convictions and respect for the dignity of all human beings in the teaching about religions and beliefs under the curriculum. There is also an obligation on the state to avoid a situation where pupils face a conflict between the course and the philosophical convictions of their parents.

5.3.4 The European Court of Human Rights has stated: “Nonetheless, where the Contracting States include the study of religion in the subjects on school curricula, and irrespective of the arrangements for exemption, pupils’ parents may legitimately expect that the subject will be taught in such a way as to meet the criteria of objectivity and pluralism, and with respect for their religious or philosophical convictions”. (para 68, Hasan and Eylem Zengin v Turkey 9th October 2007 European Court of Human Rights).

5.3.5 One of the stated aims of the Religious Education course at second level is “To appreciate the richness of religious traditions and to acknowledge the non-religious interpretation of life”. Acknowledging the non-religious interpretation of life does not constitute RESPECT for the philosophical convictions of non-religious parents under Article 2 of Protocol 1 (the right to education) of the European Convention on Human Rights.

5.3.6 The European Court of Human Rights has stated: “The verb “respect” means more than “acknowledge” or “take into account”. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State. The term “conviction”, taken on its own, is not synonymous with the words “opinions” and “ideas”. It denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Valsamis, pp. 2323-24, & 25 and 27, and Campbell and Cosans, pp. 16-17, & 36-37).”(para 84-c – General Principles Folgero v Norway ECHR 29th June 2007).

5.3.7 The non-religious interpretation of life is merely acknowledged in passing in a section of the course alongside materialism and fundamentalism called ‘Challenges to faith’. This course accepts as a truth the existence of a God and it is not neutral and objective. This course does not confine itself to the general history and ethics of religion. This subject gives priority to Christians and in particular Catholics over other religions and philosophies of life. It identifies with and supports students from a Christian and Catholic background.

5.3.8 As at primary level the Minister for Education has a largely supervisory role in relation to schools, and takes no direct role in relation to how each school is managed and in particular it is left to each school which particular ethos or character it wishes to adopt and how this is reflected in the way the school is run.

5.3.9 In their reply to Atheist Ireland’s complaint about the Religious Education Course under the curriculum as an ‘organ of the state’ the NCCA said: “However, I should re-state the position that, even if Atheist Ireland thinks that it should be, the NCCA is not responsible for how schools organise and plan for their own curriculum and the range of subjects they offer. This principle applies not just in Religious Education, but across the full curriculum. These decisions remain a matter for the Board of Management of each school.”

5.3.10 One of the decisions that remain a matter for the Board of Management of each school is whether or not to combine the Religious Education course under the curriculum with the Guidelines for the Faith Formation and Development of Catholic Students issued by The Irish Catholic Bishops’ Conference. These Guidelines states: “The syllabus, intended for certification and assessment, drawn up by the National Council for Curriculum and Assessment, allows flexibility in regard to the actual presentation of its content according to particular Christian denominations and faith traditions.”

The Guidelines on the inclusion of other faiths in Catholic Secondary Schools state that: “However, denominational schools, with a particular characteristic spirit or ethos, should be and are entitled to teach the syllabus through the lens of their own religious tradition.”

5.3.11 In practical terms, this would mean that in the section on Communities of Faith, for example, Catholic schools will invite their students to study their parish and Catholic community. This is not to say, however, that students from different faith traditions cannot be encouraged to study their own community and relate the exam questions to their own community of faith. There is no guidance on how the non-religious would fit into this section as they are not a faith community.

5.3.12 The Religious Education course under the curriculum has consequences in relation to the decision of the European Court of Human Rights in Grzelak v Poland, 15th June 2010 (application No 7710/02). The court has found that there will be an interference with the negative aspect of the right to freedom of conscience when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.

5.3.13 In 2009 the Vatican issued a Circular Letter from the Congregation for Catholic Education to the Presidents of Bishops’ Conferences on Religious Education in schools which clearly states that: “Religious education in schools fits into the evangelising mission of the Church.”

However the Guidelines issued by the JMB/AMCSS on the inclusion of other faiths in Catholic secondary schools state that if parents raise concern about the Christian content of the curriculum, they should be encouraged to see it as a civic education for their son or daughter to understand more about the history and heritage of Ireland, “there would never be any effort to ‘convert’ their son or daughter to Catholicism”.

Atheist Ireland cannot understand how on the one hand religious education fits into the evangelising mission of the Catholic Church and on the other hand, it is not an effort to convert their children to Catholicism when that education is not delivered in an objective, critical and pluralistic manner and does not respect the philosophical convictions of Non-religious parents.

5.3.14 The European Court of Human Rights has stated in Lautsi v Italy 2009: “The duty of neutrality and impartiality of the state is incompatible with any judgement on its part of the legitimacy of religious beliefs or ways of expressing them. In the context of education, neutrality should ensure pluralism (Folgerø, supra, § 84).”

5.3.15 The OSCE office for Democratic Institutions and Human Rights have issued Guidelines that provide an overview of the Human Rights framework and legal issues to consider when developing curricula about religions in order to ensure that the freedom of thought, conscience and religion of all those touched by the process are respected. See http://bit.ly/ebLQne

5.4 The Toledo Principles

5.4.1 The Toledo Guiding Principles state the following (page 76): “Teaching about religions and beliefs is most effective when combined with efforts to instill respect for the rights of others, even when there is disagreement about religions or beliefs. The right to freedom of religion or belief is a universal right and carries with it an obligation to respect the rights of others, including respect for the dignity of all human beings.”

“An individual’s personal religious (or non-religious) beliefs do not provide sufficient reason to exclude that person from teaching about religions and beliefs. The most important considerations in this regard relate to professional expertise, as well as to basic attitudes towards commitment to human rights in general and freedom of religion or belief in particular.”

5.4.2 The Parliamentary Assembly of the Council of Europe in their Recommendation 1720 – 2005 have stated that the aim of this type of education should be to make pupils discover the religions practised in their own and neighbouring countries, to make them perceive that everyone has the same right to believe that their religion is the “true faith” and that other people are not different human beings through having a different religion or not having a religion at all. They have also stated “by teaching children the history and philosophy of the main religions with restraint and objectivity and with respect for the values of the European Convention on Human Rights, it will effectively combat fanaticism”. Obviously the Council of Europe and the OSCE do not see Religious Education which is based on human rights principles as fitting into the evangelising mission of the Catholic Church.

5.4.3 Out of the 56 participating States in the OSCE the Vatican is the only one that has rejected the Toledo Guiding Principles. . Two United Nations experts and one from the Council of Europe contributed to this project. http://www.neurope.eu/articles/95548.php

5.4.4 The Vatican (Holy See) did not ratify the European Convention on Human Rights. The forty-seven countries that have ratified the European Convention on Human Rights are also members of the OSCE and none of them has rejected the Toledo Guiding Principles. The Irish State has not rejected the Toledo Guiding Principles which are based on Human Rights and the case law at the European Court of Human Rights. Despite all this, it is clear that the non-religious do not enjoy their basic fundamental human rights at second level.

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6. Teacher Training

6.1 There are seven teacher-training colleges in Ireland and all of them are Christian. In these colleges all students have no choice but to learn and take exams in Christian doctrine in order to take up a position as a teacher. As 97% of the schools in the Country are denominational, the non-religious simply have no choice but to attend one of the colleges if they wish to become a teacher. These colleges are funded by the State and are not classed as private. The reality for the non-religious is that they must pretend to be Christian and Catholic in order to become a teacher.

6.2 Section 37 of the Employment Equality Act, provides for an exemption from equality for religious, educational or medical institutions under the control of a religious body. The exemption permits a religious body to discriminate on grounds of religion regarding its employees and prospective employees. This legislation permits religious bodies to take any action which is “reasonably necessary” to prevent an employee from undermining its ethos.

6.3 This part of the Act is wide-ranging and not limited to discrimination on the grounds of religion. This part of the Act can be applied to a teacher who does not conduct his/her private life in accordance with the teaching of a particular religion or as the Catholic Church put it: “6. Catholic schools are characterised by the institutional link they keep with the Church hierarchy, which guarantees that the instruction and education be grounded in the principles of the Catholic faith and imparted by teachers of right doctrine and probity of life  (cf. c. 803 CIC; cc. 632 e 639 CCEO).” (Circular letter from the Vatican 2009)

What exactly does probity in life mean to the patron body of over 90% of schools in the State? This section of the Employment Equality Legislation cannot be in conformity with Article 8 (the Right to private and family life) of the European Convention on Human Rights.

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7. New VEC Community Schools

7.1 In a Press Release on 13th December 2007, the then Minister for Education Mary Hanafin announced a new State Model of school called the Community National Schools. The Minister stated that these schools would be responding to diverse needs of a changing society. The new State model of Community National school, under the patronage of County Dublin Vocational Education Committee (VEC), will be open to children of all religions and none. They will be interdenominational in character, aiming to provide for religious education and faith formation during the school day for each of the main faith groups represented. A general ethics programme will also be available for children whose parents opt for that and the schools will operate through an ethos of inclusiveness and respect for all beliefs, both religious and non-religious. The schools will operate under the management of an independent Board of Management. The VEC will be represented on the Board of Management, as Patron, and will provide practical management supports to the school.

7.2 In 2009 the Government in their reply to the Concluding Observations of the UN under the International Covenant on Civil & Political Rights the Government stated that these New VEC Community schools will be interdenominational in nature (CCPR.C.IRL.CO.3.Add.1 para 50)

Interdenominational schools are known internationally as Christian Schools and are therefore religious schools. We cannot understand how more religious schools will cater for the wishes of non-religious parents seeking a secular education for their children based on human rights law.

7.3 It was reported in the Irish Independent on Thursday November 13th 2008 that a statement from the Catholic Bishops said that Mr O’Keeffe, the then Minister for Education, had reaffirmed the policy on religious education in these New VEC Community schools as announced by the previous Minister for Education Mary Hanafin on December 13, 2007. “This announcement stated that the new schools would be “aiming to provide for religious education and faith formation during the school day for each of the main faith groups represented”. “Minister O’Keeffe gave an assurance that the commitment to provide religious instruction and faith formation during the school day on a denominational basis for the pupils whose parents request it stands.”

7.4 “On a denominational basis” for the Catholic Church means integrating religion into all subjects and not delivering the curriculum in an objective, critical and pluralistic manner. The Vatican stated in a Circular letter in 2009 the following: “12. The marginalization of religious education in schools is equivalent to assuming – at least in practice – an ideological position that can lead pupils into error or do them a disservice. Moreover, if religious education is limited to a presentation of the different religions, in a comparative and “neutral” way, it creates confusion or generates religious relativism or indifferentism. In this respect, Pope John Paul II explained: “The question of Catholic education includes […] religious education in the more general milieu of school, whether it be Catholic or State-run. The families of believers have the right to such education; they must have the guarantee that the State school – precisely because it is open to all – not only will not put their children’s faith in peril, but will rather complete their integral formation with appropriate religious education. This principle must be included within the concept of religious freedom and of the truly democratic State, which as such – that is, in obedience to its deepest and truest nature – puts itself at the service of the citizens, of all citizens, in respect for their rights and their religious convictions” (Speech to the Cardinals and collaborators of the Roman Curia, 28 June 1984, unofficial translation).”

7.5 In his opening remarks to the Joint Oireachtas Committee on Education on 14th February 2008, Mr. Kevin McCarthy, Director, Department of Education & Science stated that the Minister had publically announced her intention to devise a new model of primary school patronage which has the capacity to cater for the wishes of parents for denominational, multi-denominational and non-denominational education within the framework of a single patron model and a single board of management structure. See http://bit.ly/icYqVO

7.6 The question that remains to be answered by the Minister for Education and Skills is how she proposes to guarantee a secular human rights based education for parents and children who so wish in these VEC Primary Community Schools when the previous Minister Batt O’Keeffe has given an assurance to the Catholic Church to provide religious instruction and faith formation on a denominational basis for the pupils whose parents request it?

7.7 In their concluding observation in 2008 the UN Human Rights Committee raised concern that the integrated curriculum (ethos) denied parents and children who so wish access to secular primary education. They raised concern Under Article 2 (Freedom from Discrimination), Article 18 (Freedom of Conscience), Article 24 (The rights of the child) and Article 26 ( Equality before the law). They recommended that the State should increase its efforts to ensure that non-denominational primary education is widely available in all regions of the State party, in view of the increasingly diverse and multi-ethnic composition of the population of the State party.

7.8 As it stands now there is nothing in place that will guarantee secular human rights based education for those parents and children who so wish in these New VEC Community Schools as the State has given a commitment to the Catholic Church that denominational education will be available. There is nothing in the proposed Education Amendment Bill that would explain how the Minister proposes to get over this dilemma. The only conclusion here is that the welcome on offer in these New VEC Community Schools is not based on the principles of Human Rights and is based on what the Catholic Church and the State consider constitutes a welcome for those parents that seek secular education based on human rights for their children.

7.9 In December 2008 in the Supreme Court Case, Louise O’Keeffe v Leo Hickey, The Minister for Education and Science, Ireland and the Attorney General, Mr. Justice Hardiman stated the following: “In my view the Constitution specifically envisages, not indeed a delegation but a ceding of the actual running of schools to the interests represented by the Patron and the Manager.”

The interests of the VEC’s do not mention Human Rights and in the case of Co Dublin VEC they only aspire to develop an ethos characterised by equality, respect, justice and fair play for all. See http://bit.ly/fovCwO

7.10 Rule 68 of the Rules for National Schools is still in place and there is no intention of removing it so these schools will be obliged to integrate religion into all subjects. There are no new Statutory Guidelines planned with regard to opting out of Religious Instruction class despite the fact the even the Catholic Church acknowledge that this Constitutional Right is not guaranteed in practice in the existing schools in the State.

7.11 In addition we are concerned about any multi-belief programme or ethics programme that is put in place in the New VEC Schools as it will not be based on the Toledo Guiding Principles on teaching about religions and beliefs in schools as the Holy See has rejected these principles. Teachers are trained in Christian teacher training colleges and reports in the media and in particular an RTE Prime Time programme on the subject have highlighted these issues. Not one person in the RTE programme on the subject guaranteed that the multi-belief course would be drawn up and delivered according to the General Principles of the European Convention on Human Rights and the UN Convention on the Rights of the Child.

7.12 It is Catholic Church teaching that any Religious Education course must be subject to the authority of the Church. “The Catholic religious instruction and education which are imparted in any schools whatsoever are subject to the authority of the Church […]. It is for the conference of bishops to issue general norms about this field of action and for the diocesan bishop to regulate and watch over it” (c. 804 §1 CIC; cf. also, c. 636 CCEO). “(Circular letter from the Vatican 2009)

“The nature and role of religious education in schools has become the object of debate. In some cases, it is now the object of new civil regulations, which tend to replace religious education with teaching about the religious phenomenon in a multi-denominational sense, or about religious ethics and culture – even in a way that contrasts with the choices and educational aims that parents and the Church intend for the formation of young people.” (Circular letter from the Vatican 2009)

7.13 It is not clear what exactly this will mean for the multi-belief course in the New VEC Primary Schools. If the multi- belief course if subject to the approval of the Catholic Church then according to their teaching it cannot be delivered in an objective, critical and pluralistic manner.

7.14 Instead of opting into a human rights based education that is objective, critical and pluralistic the intention with these new schools is to have religious education and faith formation during the school day when 97% of the schools in the state operate in this manner and are not in compliance with human rights. The intention is to segregate children according to their religious denomination in an atmosphere where the teachers are trained in Christian colleges and human rights are of no consequence.

7.15 As long as the State fail to accept that non- religious parents and children have a right to a secular education based on human rights and are prepared to guarantee and protect that right then nothing will change on the ground. The policy of plurality of patronage as far as possible will never achieve basic fundamental human rights.

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8. Child Sexual Abuse

8.1 The Irish State is responsible for the protection of children from abuse in day schools under Article 3 of the European Convention on Human Rights. There is a positive obligation under Article 3 of The European Convention on Human Rights that goes beyond imposing criminal sanctions for ill-treatment and requires States to take reasonable steps to prevent ill treatment of which the authorities had or ought to have knowledge.

8.2 The judgement in Costello Roberts v UK 1993 clearly shows that the State is responsible for the protection of children in all schools whether they are private or not and cannot absolve themselves of that responsibility. The European Court has stated that: “children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity. “(A.v United Kingdom 1998) See http://bit.ly/hR8LyC

8.3 There is not and has never been effective deterrence against serious breaches of personal integrity in the education system in Ireland because the State has not taken reasonable steps to effectively manage the State’s responsibilities under the European Convention that might have prevented or at least minimised the risk of damage suffered by children. The Guidelines that are now in place in day schools for the protection of children are not statutory and no Patron Body or Board of Management can be removed for failure to implement those guidelines.

8.4 The Irish State delegates their responsibilities under Article 3 of the European Convention to Patron Bodies and Boards of Management who are not obliged to interpret these responsibilities in a Convention compliant manner and in fact failed to act effectively to limit the access to children by individuals against whom a credible complaint of child sex abuse was made. Given the history of the Catholic Church and child abuse and the failure of the State to protect children this cannot be regarded as ‘reasonable steps’ by the State to prevent ill treatment under Article 3 of the European Convention.

8.5 No Patron Body or Board of Management can be taken to the European Court of Human Rights for failure to protect the human rights of children under Article 3 of the Convention, as they have not ratified this Convention. It is clear from the Louise O’Keeffe case in the Supreme Court that there is no right to an effective remedy under Article 13 of the European Convention as the school that Louise attended was not considered an ‘organ of the state’ as the State had ceded control to in this particular case the Catholic Church. The State had ceded control to the interests of the Patron Body and those interests were not the protection of children from inhuman and degrading treatment. There is simply no right to an effective remedy under Article 13 of the European Convention. It is impossible to hold the State responsible for their failure to interpret the rights guaranteed under the Irish Constitution in a Convention compliant manner.

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9. Conclusion

9.1 In the Discussion Paper at paras 53 and 54 the Commission ‘suggest’ that Ireland may be in breach of its International Obligations. Atheist Ireland believes that there is no doubt that Ireland is in breach of its International Obligations. There is doubt either that parents and children who seek secular education based on human rights law are second-class citizens in Ireland.

9.2 Section 15 – 2 (e) of the Education Act 1998 obliges Boards of Management to have regard to the principles and requirements of a democratic society and have respect and promote respect for the diversity of values, beliefs, traditions, languages and ways of life in society. In Ireland the principles and requirement of a democratic society and a Republic do not stretch to respecting the philosophical convictions of non-religious parents and children in a manner compatible with the various Conventions that Ireland has ratified. Neither do these principles stretch as far as taking reasonable steps to protect children from inhuman or degrading treatment in line with the standards under Article 3 of the European Convention.

9.3 It is not within Ireland’s margin of appreciation to cede control of these matters to the interests of Patron Bodies and Boards of Management and to absolve themselves of any responsibility for the basic fundamental human rights of parents and children. The right to respect is an absolute right and not to be balanced against the rights of others or one which could be gradually achieved.

9.4 Legislation and Government policy interpret the Constitution in a manner compliant with Catholic Church teaching on education and not in a manner that is compatible with human rights. The State maintains that this interpretation is compliant with their human rights obligations but there simply is no evidence to support this assertion anymore as the case law, General Principles and Comments of the UN and Council of European show that this position has no basis in reality.

9.5 We are asking the Commission to make recommendations to Government under Section 8 (d) of the Human Rights Commission Act that will protect the human rights of parents and their children in the following areas:

1. Secular Education as a Human Right
2. Structure and Patronage
3. Access to a School of One’s Choice
4. Information and Knowledge Conveyed
5. Second Level Schools
6. Teacher Training
7. New VEC Community Schools
8. Child Sexual Abuse

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10. Appendices

Appendix 1

The UN Human Rights Committee General Comment No. 31 [80] Nature of the General Legal Obligations Imposed on States Parties to the Covenant: 26/05/2004. (ICCPR) CCPR/C/21/Rev.1/Add.13. (General Comments)

8. The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities. For example, the privacy-related guarantees of article 17 must be protected by law. It is also implicit in article 7 that States Parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power. In fields affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from discrimination within the meaning of article 26.]

Appendix 2

The European Court of Human Rights in Kjeldsen, Busk Madsen and Pedersen V Denmark 1976 – (50) (Application no. 5095/71; 5920/72; 5926/72)

“The ‘travaux préparatoires’, which are without doubt of particular consequence in the case of a clause that gave rise to such lengthy and impassioned discussions, confirm the interpretation appearing from a first reading of Article 2 (P1-2). Whilst they indisputably demonstrate, as the Government recalled, the importance attached by many members of the Consultative Assembly and a number of governments to freedom of teaching, that is to say, freedom to establish private schools, the “travaux préparatoires” do not for all that reveal the intention to go no further than a guarantee of that freedom. Unlike some earlier versions, the text finally adopted does not expressly enounce that freedom; and numerous interventions and proposals, cited by the delegates of the Commission, show that sight was not lost of the need to ensure, in State teaching, respect for parents’ religious and philosophical convictions.

The second sentence of Article 2 (P1-2) aims in short at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the “democratic society” as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised.”

Appendix 3

The United National in their General Comment on Article 13 of the ICESC, The right to education (Art.13): 08/12/99. E/C.12/1999/10

Non-discrimination and equal treatment – 31. The prohibition against discrimination enshrined in article 2 (2) of the Covenant is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.

In their General Comment No. 18: Non-discrimination of 10/11/89 the UN Human Rights Committee under Article 2 of the International Covenant on Civil & Political Rights States.

“10. The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.

11. Both article 2, paragraph 1, and article 26 enumerate grounds of discrimination such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Committee has observed that in a number of constitutions and laws not all the grounds on which discrimination is prohibited, as cited in article 2, paragraph 1, are enumerated. The Committee would therefore like to receive information from States parties as to the significance of such omissions.”

12. While article 2 limits the scope of the rights to be protected against discrimination to those 
provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.”

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