Are the Schools Equality PACT reforms, to protect human rights, unconstitutional?

This document should be read alongside the Schools Equality PACT, which asks the Irish Parliament to urgently pass a comprehensive Schools Equality Bill to reform the current State-funded religious discrimination. The PACT (Patronage, Access, Curriculum, Teaching) describes the changes that are collectively needed.

The Irish Government claims that removing this religious discrimination would be unconstitutional, because the State has an obligation to buttress religion, based on an unpublished legal opinion and personal opinions. But there are other opinions about this from reputable bodies, and one exemption in particular has never been tested in the courts.

Atheist Ireland has been campaigning patiently for years on the need for these reforms, including meeting the Taoiseach, Minister for Education, Oireachtas Education Committee, senior civil servants in the Departments of Education and Justice, all political parties and independent TDS, and international human rights regulatory bodies.

We have been gradually peeling away the political justifications for this religious discrimination. This is the first time that the Government is retreating behind claims of unconstitutionality. Ireland has never told the United Nations or Council of Europe that protecting the human rights of atheists and minority faiths in our schools would be unconstitutional.

In the interests of democracy, the Government should publish its legal opinion and other relevant opinions. Then the Oireachtas can fulfil its duty to balance the relevant rights in an informed way, all stakeholders can know the basis upon which the Oireachtas is making its decisions, and all citizens can participate fully in the democratic process.

If the Courts do find that the Constitution obliges (as opposed to permits) the State to support this discrimination, then we urgently need a Schools Equality Referendum. But until then, we urgently need a Schools Equality Bill that respects equally the human rights of all children, parents and teachers. The Government should facilitate that Bill, not obstruct it.

Contents of this Document

1. Overview of the Need for Open Debate

1.1 Two current Bills will reinforce religious discrimination
1.2 Separate Duties of Government, Oireachtas and Courts
1.3 Oireachtas Education Committee on Admission to Schools Bill
1.4 Supreme Court on Section 37 of Employment Equality Act

2. Bodies Who Do Not Share the Government’s Certainty

2.1 European Court of Human Rights in Louise O’Keeffe Judgment
2.2 Constitutional Review Group Report 1995 on Access to Schools
2.3 Oireachtas Education Committee on Admission to Schools Bill
2.4 Statutory bodies reporting to Oireachtas Education Committee
2.5 Irish Human Rights Commission Report on Religion and Education
2.6 Forum on Patronage and Pluralism on Duty of Education Department
2.7 Forum on Patronage and Pluralism on Integrated Curriculum
2.8 Professor Gerry Whyte on Court Reasoning open to Question
2.9 Eoin Daly and Tom Hickey on the ‘Right to Discriminate’
2.10 Alison Mawhinney on failure to protect human rights

3. Longer Extracts

3.1 Longer Extract from Constitutional Review Group Report 1995
3.2 Longer Extract from IHREC Submission to Forum on Patronage
3.3 Longer Extract from Daly and Hickey on the ‘Right to Discriminate’
3.4 Longer Extract from Supreme Court on Section 37

4. Conclusion

1. Overview of the Need for Open Debate

1.1 Two current Bills will reinforce religious discrimination

There are two Bills currently going through the Oireachtas that will reinforce religious discrimination in Irish schools against atheist and minority faith children, parents and teachers.

• The Admission to Schools Bill will outlaw some types of discrimination, but it will reinforce discrimination against atheist and minority faith families, based on Section 7.3(c) of the Equal Status Act, calling it ‘lawful oversubscription criteria.’
• The Bill to amend Section 37 of the Employment Equality Act will protect Catholic LGBT teachers from discrimination, but it will reinforce religious discrimination against atheist and minority faith teachers.

These two Bills directly affect three areas of the Schools Equality PACT – The Admission to Schools Bill affects Patronage and Access, and the Section 37 Bill affects Patronage and Teaching. They also indirectly affect the fourth area, Curriculum. This reinforces the need to address Schools Equality reform in a holistic way, not by separate standalone changes.

1.2 Separate Duties of Government, Oireachtas and Courts

The Government is closing down debate in the Oireachtas on protecting atheist and minority faith teachers, by simply declaring that removing these discriminations would be unconstitutional, because the State has an obligation to buttress religion.

But the Supreme Court has said it is the duty of the Oireachtas — not the Government, or civil servants — to balance competing constitutional rights in legislation. And the Oireachtas cannot fulfil its duty if the Government closes down the debate, without publishing the legal opinion it is relying on to close it down.

It is then the duty of the courts — not the Government, or civil servants — to determine whether or not the balance is unconstitutional. But the courts will not get an opportunity to determine this if the Government prevents the Oireachtas from doing its duty in the first place.

This is particularly important on this issue, because eight different United Nations and Council of Europe bodies have told Ireland that this religious discrimination is breaching the human rights of atheist and minority faith children, families and teachers.The State has never informed the United Nations or Council of Europe that a Constitutional Referendum is needed to remove religious discrimination and protect the human rights of all parents and their children.

The Government may of course be correct in its opinion, and if this is the case then we will urgently need a Schools Equality Referendum. However, the Government should acknowledge that there are enough conflicting opinions for this to be considered a live issue, to be debated in the Oireachtas and tested by the Courts, rather than to be considered a settled issue that the Oireachtas has to abide by.

1.3 Oireachtas Education Committee on Admission to Schools Bill

The Oireachtas Education Committee issued a Report on the proposed Education Admissions to Schools Bill.

• The Committee did not invite in the Department of Justice to explain why removing Section 7 – 3 (c) of the Equal Status Act would be unconstitutional.
• The Department of Education & Skills appeared before the Committe and did not state that it would be unconstitutional to delete Section 7 – 3 (c) of the Equal Status Act. The Committee members did not ask the Dept of Education any questions in relation to the unconstitutionality of removing Section 7 – 3 (c) of the Equal Status Act.
• Neither did the Committee ask any of the statutory bodies that appeared before them why they made Recommendations to amend/remove Section 37 or Section 7-3 (c) of the Equal Status Act.

Claiming that it is unconstitutional to delete Section 7-3(c) of the Equal Status Act or Section 37 of the Employment legislation is new.

• Deaglan O Briain at the Department of Justice has informed Atheist Ireland that it would be unconstitutional because the State is required to buttress religion.
• The Minister for Education Jan O’Sullivan has also claimed publicly that it would be unconstitutional, as has Equality Minister at the Department of Justice Aodhan O’Riordain, and Chair of the Oireachtas Committee on Education Joanna Tuffy.
• They are using those opinions to simply say that the Oireachtas cannot legislate to remove this discrimination.

None of these people have published legal opinions to support this closing down of democratic debate. With regard to Section 7-3(c), which has never been tested in the Courts, none of them raised the issue where it should have been raised, at the Oireachtas Education Committee.

1.4 Supreme Court on Section 37 of Employment Equality Act

The Supreme Court in 1996 tested the constitutionality of what is now Section 37, and it found that it was not unconstitutional. However, different versions of this law could also be consistent with the constitution. Indeed, the fact that the Government is proposing changes in Section 37 to protect Catholic LGBT teachers shows that even the Government does not believe that it is obliged to maintain the discriminations allowed in the current Section 37. (See also longer extract at section 3.4 of this document)

‘It will be clear from the foregoing summary of the relevant constitutional provisions that the enactment by the Oireachtas of legislation, such as that now under consideration, intended to promote equality between employed persons necessitates the balancing by the legislature of different constitutional values, specifically, the guarantee of equality and the protection of the citizen’s right to work and earn a livelihood and of his or her property rights. That difficult exercise is peculiarly within the province of the Oireachtas.

‘…in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.’

‘The Constitution does not vest in the Court any advisory function to the Oireachtas or to the Houses of the Oireachtas in regard to proposed legislation other than the specific net duty of deciding on a question referred to it under Article 26. It is for this reason that for it ‘to impress any part of a referred bill with a stamp of constitutionality’ would be for it to act without constitutional authority and in disregard of the constitutional doctrine of the separation of powers.’

‘In proscribing disabilities and discriminations at the hands of the State on the ground of religious profession, belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to a sapping and debilitation of the freedom and independence given by the Constitution to the doctrinal and organisational requirements and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them.’

‘It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar—but only insofar—as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.’

‘The use of the words ‘reasonable’ and ‘reasonably necessary’ implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis…. It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the court and the court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.’

‘Again, and for the reasons already discussed in relation to s. 37, sub-s. 1, it appears to the Court that s. 12 represents a reasonable balancing between the principle of equality before the law on the one hand and the principle of the free profession and practice of religion on the other hand. For these reasons the Court rejects the challenge to the Bill based on the religion ground.’

2. Bodies Who Do Not Share the Government’s Certainty

Here are some extracts from relevant bodies who do not share the Government’s certainty that removing these discriminations would be unconstitutional.

2.1 European Court of Human Rights in Louise O’Keefe Judgment
2.2 Constitutional Review Group Report 1995 on Access to Schools
2.3 Oireachtas Education Committee on Admission to Schools Bill
2.4 Statutory bodies reporting to Oireachtas Education Committee
2.5 Irish Human Rights Commission Report on Religion and Education
2.6 Forum on Patronage and Pluralism on Duty of Education Department
2.7 Forum on Patronage and Pluralism on Integrated Curriculum
2.8 Professor Gerry Whyte on Court Reasoning open to Question
2.9 Eoin Daly and Tom Hickey on the ‘Right to Discriminate’
2.10 Alison Mawhinney on failure to protect human rights

2.1 European Court of Human Rights in Louise O’Keeffe Judgment

The European Court of Human Rights stated in the Louise O’Keeffe case that Article 42 was permissive, and that the State should have chosen to provide education itself. It also said that the State was responsible despite the fact that they outsourced their obligation to non-state entities. The State cannot absolve itself from protecting the rights of all parents and children in the education system and delegate that to private patron bodies. The State is responsible and has a positive obligation under the European Convention to protect the rights of all parents and their children in the education system.

‘124. Education was a national obligation (McEneaney andCrowley, cited above), as it was in any advanced democracy. Article 42 of the Constitution was permissive so that the State could have and should have chosen to provide education itself. Even if the State outsourced that obligation to non-State entities, the National School model could and should have accommodated greater child protection regulations. One way or the other, a State could not avoid its Convention protective obligations by delegating primary education to a private entity (Costello-Roberts v. the United Kingdom). Finally, the State could not absolve itself by saying that the applicant had other educational options which, in any event, she had not.”

151. Finally, the Government appeared to suggest that the State was released from its Convention obligations since the applicant chose to go to Dunderrow National School. However, the Court considers that the applicant had no “realistic and acceptable alternative” other than attendance, along with the vast majority of children of primary school-going age, at her local National School (Campbell and Cosans v. the United Kingdom, 25 February 1982, § 8, Series A no. 48). Primary education was obligatory (sections 4 and 17 of the School Attendance Act 1926), few parents had the resources to use the two other schooling options (home schooling or travelling to attend the rare fee-paying primary schools) whereas National Schools were free and the National School network was extensive. There were four National Schools in the applicant’s parish and no information was submitted as to the distance to the nearest fee-paying school. In any event, the State cannot be released from its positive obligation to protect simply because a child selects one of the State-approved education options, whether a National School, a fee-paying school or, indeed, home schooling (Costello-Roberts, cited above, § 27).”

158. This model of primary education appears to have been unique in Europe. The Supreme Court recognised this, describing the system as one which was entirely sui generis, a product of Ireland’s unique historical experience.’

2.2 Constitutional Review Group Report 1995 on Access to Schools

The Constitutional Review Group Report 1995 concluded the following on access to schools. (See also longer extract at section 3.1 of this document)

‘i) Article 44.2.4 may be thought to represent something of an exception to the general rule contained in Article 44.2.3 that the State shall not endow any religion. Accordingly, if a school under the control of a religious denomination accepts State funding, it must be prepared to accept that this aid is not given unconditionally. Requirements that the school must be prepared in principle to accept pupils from denominations other than its own and to have separate secular and religious instruction are not unreasonable or unfair.

ii) if Article 44.2.4 did not provide these safeguards, the State might well be in breach of its international obligations, inasmuch as it might mean that a significant number of children of minority religions (or those with no religion) might be coerced by force of circumstances to attend a school which did not cater for their particular religious views or their conscientious objections. If this were to occur, it would also mean that the State would be in breach of its obligations under Article 42.3.1.’

2.3 Oireachtas Education Committee on Admission to Schools Bill

The Oireachtas Education Committee, after examining the current Admission to Schools Bill, concluded:

‘Concerns were raised by stakeholders in respect of Head 3 (iii)(II), which reaffirms the religious ethos exemption provided for in Section 7(3)(c) of the Equal Status Act, 2000. Some stakeholders claimed that this provision may be in breach of provisions of Bunreacht na hÉireann, and Ireland‘s obligations under the European Convention on Human Rights and the United Nations Convention on the Rights of the Child. On the other hand, others claim that Bunreacht na hÉireann, in effect, protects the position of denomination-based education.

Section 7(3)(c) has not been challenged in the Courts. There is a potential tension between Articles 42 (Education) and 44 (Religion) of Bunreacht na hÉireann, and this poses a particular difficulty when legislating in this policy area.

Multiple patronage and ethos as a basis for policy can lead to segregation and inequality in the education system. The objectives of admission policy should be equality and integration.’

2.4 Statutory bodies reporting to Oireachtas Education Committee

Three statutory bodies made Submissions to the Oireachtas Education Committee — The Equality Authority, the Irish Human Rights and Equality Commission, and the Ombudsman for Children — as did the Department of Education. None of these bodies suggested that deleting Section 7.3(c) of the Equal Status Act would be unconstitutional.

The Equality Authority raised the issue of the EU Race Directive in Relation to Section 7.3(c):

‘4. The Race Directive also has relevance. The Directive applies “to all persons, as regards both the public and private sectors, including public bodies, in relation to […] education”. The scope of the Directive is therefore wider than the scope of Section 7 of the Equal Status Acts, which applies to educational establishments. Discrimination on the ground of religion may constitute indirect race discrimination. It is important to note that the Race Directive does not provide for any exemptions relating to religion. The operation of the exemption in the Equal Status Acts on the religion ground concerning the admission of a student to a school must not be done in a way that conflicts with the Race Directive.’

The Irish Human Rights and Equality Commission stated that: (See also longer extract at Section 3.2 of this document)

‘Article 2 of Protocol 1 of the ECHR provides that the State shall not deny any person the right to education. The State thus has a duty to ensure that admissions policies are free from overly restrictive criteria that would exclude a child from an educational opportunity in practice. The universality of the right to education is also reflected in the Constitution and other international instruments such as the ICESCR and the CRC.’

The Ombudsman for Children stated that:

‘In simple terms it is our view that any policy or legislative outcomes regarding discussion on enrolment should seek to:
• address the issues of fairness and equality;
• be clearly communicated to those involved; and
• be guided by consideration of the best interest of the child.’

2.5 Irish Human Rights Commission Report on Religion and Education

The Irish Human Rights Commission in their Report – Religion and Education: A Human Rights Perspective, wrote:

‘Nonetheless, Barrington J’s observations in relation to a child being influenced by the religious ethos of the school raises a numbers of questions in the context of this consultation. The use of the phrase “to some degree” might suggest that a school may in fact have some obligation to avoid undue religious influence on a child not of the same religious persuasion of the school, but this is not absolute. In addition the Court refers to a child who “chooses” to attend the school, and therefore the question arises as to whether this view might have been different if considered in the context of a child with no choice but to attend a denominational school where there is no other option reasonably available where they reside. The case did not explicitly consider the exercise of choice by parents who do not wish to have denominational education for their children, or would seek education in a denomination not available to them, which presumably must equally protected by Article 42.’

‘Any improper encroachment on the right to freedom of thought, conscience and religion of teachers shoud be avoided. In this regard it should be ensured that the education of teachers does not include compulsory content that conflicts with the rights of such teachers. While it may be permissible for a school to specifiy certain qualifications on the part of a teacher (such as a qualification in relation to the teaching of curriculum religion) to uphold the religious ethos of the school, this should be the case only where there is a diversity of provision in schools, such that teachers are not limited to seeking employment in one form of denominational school. In order to ensure further diversity in school education, there will be a requirement for qualified teachers in those schools.’

2.6 Forum on Patronage and Pluralism on Duty of Education Department

The Forum on Patronage and Pluralism did not state that we would need a Constitutional Amendment to Remove Section 7.3(c) of the Equal Status Act. The Forum stated the following:

‘As indicated earlier, the Advisory Group considers that enrolment policy in a Stand Alone school should not discriminate on religion/belief, socio economic, language, cultural, special needs or other grounds. The Advisory Group endorses the Minister’s view that equitable enrolment policies are essential for achieving fairness and diversity. Particularly in some Stand Alone schools, the group noted that the derogation in the Equal Status Act, 2000, Section 7.3(c) may impede the Department of Education and Skills duty to provide for education for all children. In the light of experience, further consideration might need to be given to the amendment of this derogation.’

2.7 Forum on Patronage and Pluralism on Integrated Curriculum

The Forum on Patronage and Pluralism concluded that the denominational character of the schools system does not accord with Article 42.2.4 of the Constitution.

‘Noting the impact of the rule changes of 1965, the formal recognition by the State of the denominational character of the primary school system and the impact of the integrated curriculum of 1971, the Review Group pointed to the difficulties created for Article 44.2.4 regarding the right of each child to attend a state-supported school without receiving religious instructions in that school.

The Review Group concluded:
In summary, therefore, the present reality of the denominational character of the school system does not accord with Article 42.2.4. The situation is clearly unsatisfactory. Either Article 44.2.4 should be changed or the school system must change to accommodate the requirements of Article 44.2.4′

2.8 Professor Gerry Whyte on Court Reasoning open to Question

Professor Gerry Whyte concluded in his submission to the Irish Human Rights Commission:

‘As mentioned at the outset, constitutional policy on education straddles an ideological fault-line within the Irish Constitution. As the power of the Catholic Church waned in recent times, this inherent tension has become more apparent in demands for change in the manner in which first and second level education is provided in this country.

To date, the relatively limited jurisprudence on the constitutional guarantee of freedom of religion has identified the protection of religious interests as a priority objective, before which the principles of non-endowment of religion by the State and non-discrimination on ground of religious profession, belief or status by the State must give way.

However the reasoning of the Supreme Court in one of these cases, the Campaign to Separate Church and Ireland case, is open to question and it remains to be seen whether, in the future, the courts will strike the same balance as it has to date between the religious and liberal elements of the constitutional policy on education.’

2.9 Dr. Eoin Daly and Tom Hickey on the ‘Right to Discriminate’

Eoin Daly and Tom Hickey wrote an analysis in 2011 titled ‘Religious freedom and the ‘right to discriminate’ in the school admissions context: a neo-republican critique’. (See also longer extract at section 12)

‘In law and discourse, it has typically been assumed that the religious freedom of state-funded religious schools must trump any competing right to non-discrimination on grounds of belief. For example, the Irish Constitution has been interpreted as requiring the broad exemption of denominational schools from the statutory prohibition on religious discrimination in school admissions. This stance is mirrored in the UK Equality Act 2010. Thus, religious discrimination in the public education context has been rationalised with reference to a ‘liberty-equality dichotomy’, which prioritises the integrity of faith schools’ ‘ethos’, as an imperative of religious freedom.

We argue that this familiar conceptual dichotomy generates a novel set of absurdities in this peculiar context.We suggest that the construction of religious freedom and non-discrimination as separate and antagonistic values rests on a conceptually flawed definition of religious freedom itself, which overlooks the necessary dependence of religious freedom on non-discrimination. Furthermore, it overstates the necessity, to religious freedom, of religious schools’ ‘right to discriminate’.We argue for an alternative ordering of the values of religious freedom and non-discrimination – which we locate within the neo-republican theory of freedom as non-domination.”

‘In fact, the necessity of the non-discrimination guarantee to religious freedom in this context is illustrated most acutely by the use of requirements of proof of religion as criteria for admission to state-funded schools, with many schools requiring the production of a baptismal certificate as a condition for admission. Citizens being required to prove religious affiliation to gain access to state funded schools illustrate the deep paradox of the claim that religious freedom requires broad legislative permission for discriminatory enrolment. This potentially burdens the choice to change religious belief or affiliation, to abandon or repudiate a certain religious affiliation, or to dissent within a religion.

The exercise of such choices may risk the loss either of school access per se or of school choice. It may require the feigning of a religious belief which applicants no longer hold. Discrimination in school admissions thus represents interference in religious freedom, defined uncontroversially as the freedom to choose and pursue a religious or moral worldview without ‘penalties or disabilities [attaching] to any religious affiliation or lack thereof.’ While a surfeit of commentary has addressed the implications on the autonomy of religious bodies of over-expansive non-discrimination law, there has been little consideration of how religious discrimination might interfere with the religious freedom of those against whom it is directed.’

2.10 Dr Alison Mawhinney on failure to protect human rights

Alison Mawhinney wrote the following ina research paper titled: ‘Freedom of religion in the Irish primary school system: a failure to protect human rights?’

‘Certain provisions of Art 44 attempt to protect the rights of minorities in education. They prohibit discrimination on denominational grounds in the provision of state assistance for schools, protect children who wish to opt out of religious instruction and proscribe discrimination on the ground of religious profession, belief or status.

Several tensions exist within and between Arts 42 and 44 with respect to the rights of individuals and schools in a system of education dominated by religious schools. On the one hand, Art 42 reflects Roman Catholic social teaching by protecting the principle of parental supremacy in respect of the education of children, including the right to choose denominational education. Furthermore, denominational schools are given constitutional support through Art 44.2.450 and religious denominations are guaranteed the right to manage their own affairs, including the way in which they choose to run their schools under Art 44.2.5.51.

However, on the other hand, certain constitutional guarantees found in both Arts 42 and 44 seem to provide a child with the right to attend a school which is in receipt of public funds without having to attend religious instruction and protects the right of parents not to send their child to a school in violation of their conscience. Moreover, as the Constitution Review Group notes, the growth of state funding for religious institutions, such as hospitals and schools, raises significant questions to do with the non-discrimination provision found in Art 44.2.3.53.‘

3. Longer Extracts

3.1 Longer Extract from Constitutional Review Group Report 1995

The members of the Constitutional Review Group were:

• Dr T K Whitaker, chairman
• David Byrne SC
• Dr Alpha Connelly
• Mary Finlay SC
• Dermot Gleeson SC
• 
James Hamilton BL
• Mahon Hayes
• Gerard Hogan FTCD, BL
• Professor Áine Hyland
• 
Dr Finola Kennedy
• Professor Michael Laver FTCD
• 
Dr Kathleen Lynch
• Diarmaid McGuinness BL
• Dr Dermot Nally
• Dr Blathna Ruane BL

The Constitutional Review Group Report 1995 concluded the following on access to schools. They raised the conflict in the Constitution. (See also shorter extract at section 2.2 of this document).

‘…nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school’

As already noted, this proviso is capable of giving rise to a number of difficulties stemming mainly from the fact that it was designed for a system of education which was supposed to be non-denominational, but with provision for separate religious instruction. As the Review Group has already noted, the reality is otherwise. The educational system is de facto denominational in character.

There appears to be something of an internal tension between the provisions of the Constitution dealing with denominational education. Article 42.3.1° envisages that parents can elect to choose denominational education: the opening words of Article 44.2.4° sanction (under certain conditions) State funding for denominational education. Yet it seems implicit in Article 44.2.4° that a school in receipt of public moneys cannot insist on a policy such as admitting only co-religionists as pupils, and the practice of an integrated curriculum would appear to be at variance with this guarantee.

But if a school cannot at least insist on giving preference to children of a particular religious persuasion, the ‘religious ethos’ of the school might be undermined. However, if the school gives preference to children of a particular religion, this might be seen as a form of indirect discrimination by the State because the school is publicly funded, especially if this meant that a child was thereby deprived of the opportunity of attending the nearest and most convenient school or even (to take a more extreme case) if he or she were denied any effective opportunity of attending school. These and similar problems have been avoided to date largely by ad hoc and pragmatic responses to particular situations. But with an increasingly diverse and rights-conscious society, these problems cannot be ignored.

Many of these difficulties are attributable to the fact that, unlike other countries, there is not a parallel system of non-denominational schools organised by the State which would cater for the interests of minorities in the examples already described. If such a system were in place, one major objection to any amendment of Article 44.2.4° would be removed and the way would be clear for State funding of denominational education per se (that is, integrated curriculum, preference for the admission of co-religionists etc). It would, however, be unrealistic to expect the State to provide such a system and, indeed, it could be wasteful of scarce resources were this to be done.

The present situation, therefore, presents a potential conflict of rights to which there is no satisfactory answer. The conflict lies between the right of the child (exercised through its parents) not to be coerced to attend religious instruction at a publicly funded school and the right of denominational schools in receipt of such public funding to provide for the fullness of denominational education through the medium of an integrated curriculum and other measures designed to preserve the religious ethos of a particular school.

The provisions of Article 42.3.1° must also be borne in mind: The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

The Review Group does not favour the amendment of this part of Article 44.2.4° for the following reasons:

‘i) Article 44.2.4 may be thought to represent something of an exception to the general rule contained in Article 44.2.3 that the State shall not endow any religion. Accordingly, if a school under the control of a religious denomination accepts State funding, it must be prepared to accept that this aid is not given unconditionally. Requirements that the school must be prepared in principle to accept pupils from denominations other than its own and to have separate secular and religious instruction are not unreasonable or unfair.

ii) if Article 44.2.4 did not provide these safeguards, the State might well be in breach of its international obligations, inasmuch as it might mean that a significant number of children of minority religions (or those with no religion) might be coerced by force of circumstances to attend a school which did not cater for their particular religious views or their conscientious objections. If this were to occur, it would also mean that the State would be in breach of its obligations under Article 42.3.1.’

iii) this aspect of Article 44.2.4° reflects an earlier commitment given on behalf of the State contained in the Treaty of 1921 and Article 8 of the 1922 Constitution which was designed to safeguard the rights of religious minorities. Any amendment at this stage would be a retrograde step − especially in the context of Northern Ireland − and would send the wrong signal concerning pluralism in this State.

Recommendation: No change is proposed.

3.2 Longer Extract from IHREC Submission to Oireachtas Education Committee

The Irish Human Rights and Equality Commission stated that: (See also shorter extract at Section 2.4 of this document)

‘A35. When schools and boards of management draw up admission policies they are exercising a legislative function that has been conferred on them by the State pursuant to sections 9 and 15 of the Education Act 1998. As the State has “assumed responsibility ” for the overall regulation of such policies, it cannot divest itself from responsibility in relation to any possible human rights violations simply because it has delegated its responsibilities to private entities. An overly permissive approach by the State to the issue of admission policies risks running contrary to the judgment of the ECtHR in Costello Roberts v United Kingdom.

Article 2 of Protocol 1 of the ECHR provides that the State shall not deny any person the right to education. The State thus has a duty to ensure that admissions policies are free from overly restrictive criteria that would exclude a child from an educational opportunity in practice. The universality of the right to education is also reflected in the Constitution and other international instruments such as the ICESCR and the CRC.

37. Article 14 of the ECHR prohibits discrimination on the grounds of, race, colour, language, religion, political or other opinion, national or social origin, and association with a national minority. In DH v The Czech Republic the ECtHR reiterated that racial discrimination cannot be objectively justified. The Committee on Economic, Social and Cultural Rights has urged States to repeal legislation which discriminates against individuals and groups and to take measures to address de facto educational discrimination. The Committee on the Rights of the Child observes that the discrimination and prejudice in allowing a child access to education is capable of undermining or even destroying the capacity of the child to benefit from educational opportunities. Therefore it is vitally important that the State effectively addresses direct or indirect discrimination in admission policies.

’41. The Education Act 1998 and section 7 of the Equal Status Acts 2000 -2008 supports the right of denominational schools to give priority to children of a particular faith. In a context where the vast majority of schools in the State have a Roman Catholic ethos and parents have limited choice when seeking to enrol their children, this inevitably disadvantages those of a minority or non-faith background. In this context there is a real risk that admission policies which require parents to disclose their religious or philosophical convictions may variously constitute a breach of Articles 8, 9, Article 2 of Protocol 1 and/or Article 14 of the ECHR.’

3.3 Longer Extract from Daly and Hickey on the ‘Right to Discriminate’

Eoin Daly and Tom Hickey wrote an analysis in 2011 titled ‘Religious freedom and the ‘right to discriminate’ in the school admissions context: a neo-republican critique’. (See also shorter extract at section 2.9 of this document)

‘In law and discourse, it has typically been assumed that the religious freedom of state-funded religious schools must trump any competing right to non-discrimination on grounds of belief. For example, the Irish Constitution has been interpreted as requiring the broad exemption of denominational schools from the statutory prohibition on religious discrimination in school admissions. This stance is mirrored in the UK Equality Act 2010. Thus, religious discrimination in the public education context has been rationalised with reference to a ‘liberty-equality dichotomy’, which prioritises the integrity of faith schools’ ‘ethos’, as an imperative of religious freedom.

We argue that this familiar conceptual dichotomy generates a novel set of absurdities in this peculiar context.We suggest that the construction of religious freedom and non-discrimination as separate and antagonistic values rests on a conceptually flawed definition of religious freedom itself, which overlooks the necessary dependence of religious freedom on non-discrimination. Furthermore, it overstates the necessity, to religious freedom, of religious schools’ ‘right to discriminate’.We argue for an alternative ordering of the values of religious freedom and non-discrimination – which we locate within the neo-republican theory of freedom as non-domination.”

‘In fact, the necessity of the non-discrimination guarantee to religious freedom in this context is illustrated most acutely by the use of requirements of proof of religion as criteria for admission to state-funded schools, with many schools requiring the production of a baptismal certificate as a condition for admission. Citizens being required to prove religious affiliation to gain access to state funded schools illustrate the deep paradox of the claim that religious freedom requires broad legislative permission for discriminatory enrolment. This potentially burdens the choice to change religious belief or affiliation, to abandon or repudiate a certain religious affiliation, or to dissent within a religion.

The exercise of such choices may risk the loss either of school access per se or of school choice. It may require the feigning of a religious belief which applicants no longer hold. Discrimination in school admissions thus represents interference in religious freedom, defined uncontroversially as the freedom to choose and pursue a religious or moral worldview without ‘penalties or disabilities [attaching] to any religious affiliation or lack thereof.’ While a surfeit of commentary has addressed the implications on the autonomy of religious bodies of over-expansive non-discrimination law, there has been little consideration of how religious discrimination might interfere with the religious freedom of those against whom it is directed.’

‘We have argued that the withdrawal of the public benefits of school access or school choice, on the basis of citizens’ religious choices – or the invidious threat or spectre of their withdrawal on this basis – represents an invasion of religious freedom. The competing interest safeguarded and prioritised by the equality legislation in Ireland, as well as the UK, is the claim of differently situated citizens to have their children educated, by the state, in an environment fully attuned to their religious preferences.

This is assumed to necessitate the integrity of the ethos of state-funded denominational schools against the threat posed by the potentially corrupting presence of non-coreligionists. However, even if the safeguarding of this specific interest were an imperative of religious freedom, it may be viewed as of a qualitatively lesser magnitude than the non-discrimination interest over which it has been accorded priority. How could it coherently be held that the conscientious religious choices of a certain category of parents could permissibly result in their exclusion from public benefits made available to others, while the conscientious choices of a differently situated category precluded any compromise to the positive accommodation of those choices within the institution through which the same benefit is provided?

Moreover, the particular ethos of a state-funded denominational school could never, in any case, be fully attuned to the preferences and beliefs of all the parents of the relevant denominational affiliation. Given both the inevitable diversity in the beliefs and preferences of such parents, even when of the same denomination, and the incorporation of other, competing priorities in the ‘ethos’ of the school, the idea of a constitutional ‘right’, for each parent of that denominational affiliation, to have the school ethos fully attuned to their conscientious choices, without compromise, appears quite meaningless, even absurd. How could it coherently be claimed that while the Constitution assumes that the religious freedom of some can be adequately upheld within schools committed to imparting beliefs other than their own, the religious freedom of other citizens somehow required not only the availability of schools reflecting their beliefs, but committed to these to the extent of excluding noncoreligionists?

Just as it is hardly necessary to parents’ religious freedom that they should enjoy publicly funded schools specifically attuned to their beliefs, it is certainly not necessary that they should enjoy this benefit to the extent that it necessitates the exclusion of non-coreligionist children from such schools. The constitutional ‘priority of liberty’ doctrine becomes absurd where it admits too broad and inchoate a range of interests under the heading of religious freedom. It is impossible, given the inevitable diversity of beliefs and doctrines, that any state could provide the panoply of institutions, in all areas, necessary to give the full measure of positive recognition and assistance to the full range of parents’ conscientious choices. The possibility of availing of a school specifically attuned to a particular religious doctrine represents a guarantee of religious liberty only for those who, for conjectural demographic and social reasons, enjoy access to a school whose ethos happens to be appropriate to their beliefs. We suggest that as a more minimal and fundamental claim, religious freedom requires freedom from religious discrimination in access to publicly funded education.

Specifically, while religious discrimination in enrolment was argued to represent ‘arbitrary’ interference and therefore contravene freedom as non-domination, the ‘interference’ in religious schools’ enrolment policies cannot be similarly seen as ‘arbitrary’ in the same sense, and as leading to the invigilation or intimidation, and therefore the domination, of individuals’ religious choices. In neo-republican terms, it may be seen as a form of non-arbitrary ‘interference’, exercised in accordance with law rather than the arbitrium of individual agents, that is necessary to prevent the exercise of arbitrary interference by the agents, so constrained, against others.’

3.4 Longer Extract from Supreme Court on Section 37

The Supreme Court in 1996 tested the constitutionality of what is now Section 37, and it found that it was not unconstitutional. However, different versions of this law could also be consistent with the constitution. Indeed, the fact that the Government is proposing changes in Section 37 to protect Catholic LGBT teachers shows that even the Government does not believe that it is obliged to maintain the discriminations allowed in the current Section 37. (See also shorter extract at section 1.4 of this document)

Balancing of Constitutional Rights

It will be clear from the foregoing summary of the relevant constitutional provisions that the enactment by the Oireachtas of legislation, such as that now under consideration, intended to promote equality between employed persons necessitates the balancing by the legislature of different constitutional values, specifically, the guarantee of equality and the protection of the citizen’s right to work and earn a livelihood and of his or her property rights. That difficult exercise is peculiarly within the province of the Oireachtas, but as was made clear by the judgment of this Court in  Tuohy v. Courtney  [1994] 3 I.R. 1 at p. 47:—

“…in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.”

It is in accordance with these principles that the Court approaches the ultimate task of deciding upon the question of whether any of the impugned provisions is repugnant to the Constitution.

Presumption of Constitutionality

The Court in its consideration of this Bill on this reference applies the presumption of constitutionality and if and where relevant to the provisions of the Bill the principles by way of presumption of constitutionality laid down by it in  East Donegal Co-operative Livestock Mart Ltd. v. Attorney General  [1970] I.R. 317 which are summarised in the decision of this court in The Adoption (No. 2) Bill, 1987  [1989] I.R. 656 as follows at p. 661:

“(1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice, and
(2) That as between two or more reasonable constructions of the terms of the Bill the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions.”

Not a stamp of constitutionality

It was stated in the decision of this Court in  In re The Housing (Private Rented Dwellings) Bill, 1981  [1983] I.R. at p. 186 as follows: ‘It is to be noted that the Court’s function under Article 26 is to ascertain and declare repugnancy (if such there be) to the Constitution in the referred bill or in the specified provision or provisions thereof. It is not the function of the Court to impress any part of a referred bill with a stamp of constitutionality. If the Court finds that any provision of the referred bill or of the referred provisions is repugnant, then the whole bill fails, for the President is then debarred from signing it—thus preventing it from becoming an Act. There thus may be areas of a referred bill or of referred provisions of a bill which may be left untouched by the Court’s decision.’

The Court accepts this as a correct summary of the legal consequence of the relevant constitutional provisions. The Constitution does not vest in the Court any advisory function to the Oireachtas or to the Houses of the Oireachtas in regard to proposed legislation other than the specific net duty of deciding on a question referred to it under Article 26. It is for this reason that for it ‘to impress any part of a referred bill with a stamp of constitutionality’ would be for it to act without constitutional authority and in disregard of the constitutional doctrine of the separation of powers.”

Limits of permissible discrimination

In  McGrath v. Maynooth College  [1979] I.L.R.M. 166, Henchy J. expressed similar views at p. 187 where he stated: ‘The constitutional provision invoked here [Article 44.2.3] must be construed in the terms of its purpose. In proscribing disabilities and discriminations at the hands of the State on the ground of religious profession, belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to a sapping and debilitation of the freedom and independence given by the Constitution to the doctrinal and organisational requirements and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.’

It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar—but only insofar—as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.

Proportionality — the test is to be an objective one

The attack has been directed more against sub-s. 1 which entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee “where it is reasonable to do so in order to maintain the religious ethos of the institution” or to take action “which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution”. The use of the words “reasonable” and “reasonably necessary” implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis.

Counsel assigned by the Court point to the use of the word “ethos” in sub-s. 1 and submit that the religious institution or denomination will state in each case what its “ethos” is and that the test will in fact become subjective. It is true that “ethos” is a vague term and is nowhere defined in the Bill. Chambers English Dictionary gives, inter alia, the following meaning to the word “the distinctive habitual character and disposition of an individual group”. It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the court and the court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.

Conclusion

Again, and for the reasons already discussed in relation to s. 37, sub-s. 1, it appears to the Court that s. 12 represents a reasonable balancing between the principle of equality before the law on the one hand and the principle of the free profession and practice of religion on the other hand. For these reasons the Court rejects the challenge to the Bill based on the religion ground.

4. Conclusion

Our conclusion is the same as our introduction.

This document should be read alongside the Schools Equality PACT, which asks the Irish Parliament to urgently pass a comprehensive Schools Equality Bill to reform the current State-funded religious discrimination. The PACT (Patronage, Access, Curriculum, Teaching) describes the changes that are all needed together.

The Irish Government claims that removing this religious discrimination would be unconstitutional, because the State has an obligation to buttress religion, based on an unpublished legal opinion and personal opinions. But there are other opinions about this from reputable bodies, and one exemption in particular has never been tested in the courts.

Atheist Ireland has been campaigning patiently for years on the need for these reforms, including meeting the Taoiseach, Minister for Education, Oireachtas Education Committee, senior civil servants in the Departments of Education and Justice, all political parties and independent TDS, and international human rights regulatory bodies.

We have been gradually peeling away the political justifications for this religious discrimination. This is the first time that the Government is retreating behind claims of unconstitutionality. Ireland has never told the United Nations or Council of Europe that protecting the human rights of atheists and minority faiths in our schools would be unconstitutional.

In the interests of democracy, the Government should publish its legal opinion and other relevant opinions. Then the Oireachtas can fulfil its duty to balance the relevant rights in an informed way, all stakeholders can know the basis upon which the Oireachtas is making its decisions, and all citizens can participate fully in the democratic process.

If the Courts do find that the Constitution obliges (as opposed to permits) the State to support this discrimination, then we urgently need a Schools Equality Referendum. But until then, we urgently need a Schools Equality Bill that respects equally the human rights of all children, parents and teachers. The Government should facilitate that Bill, not obstruct it.