One of the Recommendations of the Irish Human Rights Commission in their report last year is that the state should define legally the terms non-denominational, denominational, multi-denominational and interdenominational.

Uimhir:199
Ceist Pharlaiminte
Chun an Aire Oideachais agus Eolaíoctha
To the Minister for Education and Science

To ask the Minister for Education and Skills the reason Ireland mislead the UN
Human Rights Committee by rejecting the request to eliminate religious
education on the grounds that there are a growing number of non-denominational
schools, when in fact there are no non-denominational schools registered with
the Department..
- Clare Daly.

* For WRITTEN answer on Tuesday, 27th March, 2012.
Reference Number: 16523/12
Freagra
Minister Ruairí Quinn

I wish to assure the Deputy that Ireland did not mislead the UN Human Rights
Committee in any way in relation to this matter.

The UNHRC request in question related to the elimination of religious
discrimination in access to education. Ireland did not accept this. There is a
growing non-denominational school sector in Ireland, particularly at primary
level. These schools cater for all pupils and there is no denominational
involvement in their governance. The existing system of school admissions is
currently under review, and issues of access are being considered as part of
that review process. Religious groups are free to establish their own schools
to cater for members of their particular faith. This religious freedom is a
core element in our system at primary and secondary level.

I would like to clarify for the Deputy that there is a distinction between the
classification of schools by the Department on the basis of the ethos of the
schools as against that of the governance structures of the schools.

Uimhir:209

Ceist Pharlaiminte

Chun an Aire Oideachais agus Eolaíoctha

To the Minister for Education and Science

To ask the Minister for Education and Skills if he will inquire with the HigherEducation and Training Awards Council if, and if so, the reason, it approved the religion module in the higher diploma in arts in primary education in a college (details supplied) which contained statements that have caused extreme offence in the atheist community; and if he will make a statement on the matter.

- Clare Daly.

Hibernia College

* For WRITTEN answer on Tuesday, 13th March, 2012.

Reference Number: 14128/12

Freagra

Minister Ruairí Quinn

I am aware of the issue that the Deputy has raised. The content of course curricula in higher education institutes is a matter for the providers themselves. I understand that the college in question has met with representatives of Atheist Ireland in recent days to discuss the issues raised by the Deputy.

HETAC validates programmes of education and training leading to its awards. As part of the validation process, a panel examines and satisfies itself of the programme content. Programmes are subject to on-going quality assurance reviews.

In relation to the primary school curriculum, while religion is recognised as a curricular area, the content of the religious curriculum is a matter for the patron of each school. As the Deputy is aware, the vast majority of primary schools in Ireland have religious patronage, and this is reflected in the course content and teaching practice placements provided in programmes of primary initial teacher education.  The aim of these programmes is to provide the school system with an adequate number of teachers who have the necessary qualifications, skills and knowledge to teach the prescribed curriculum in all settings.

All teacher education programmes in Ireland that lead to registration must have current professional accreditation, which is the statutory responsibility of the Teaching Council. Professional accreditation is a judgement as to whether a programme prepares one for entry into the profession. In accordance with Section 38 of the Teaching Council Act 2001, the Council is empowered to review and professionally accredit programmes of initial teacher education and procedures are in place for this purpose. Accordingly, I have brought the matter to the attention of the Council for its consideration and I understandthat it is making contact with the college concerned.

“The second sentence of Article 2 (P1-2) implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.

Such an interpretation is consistent at one and the same time with the first sentence of Article 2 of the Protocol (P1-2), with Articles 8 to 10 (art. 8, art. 9, art. 10) of the Convention and with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society.”

http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/cases/regionalcases/europeancourtofhumanrights/nr/548

http://www.unhchr.ch/tbs/doc.nsf/0/6187ce3dc0091758c1256f7000526973?Opendocument

Obligations of the State under the UN Covenant on Civil and Political Rights.

The obligations of the Covenant in general and Article 2 in particular are binding on every State Party as a whole.  Non-discrimination under Article 2 of the Covenant together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights.  Article 26 of the Covenant 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.

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. 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. 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.

• Ensure that all rights protected by the Covenant are given full effect in domestic law.
• Ensure an effective right in practice and in law to all the rights guaranteed under the Covenant.

• Irish Constitution: Remove the requirement for the President, judges and Council of State to swear a religious oath in the presence of Almighty God (Arts 12, 31, 34), and for the President and judges to ask God to direct and sustain them (12, 34), and replace these with a single neutral declaration that does not reveal any information about the person’s religious beliefs.
• Irish Constitution: Remove the references to all authority coming from the Holy Trinity and our obligations to our divine Lord Jesus Christ (preamble); powers of government deriving under God from the people (6); the homage of public worship being due to Almighty God and the state holding his name in reverence (44); and the glory of God (closing line).
• Irish Constitution: Amend Article 40.6.1 to remove the offence of blasphemy.
• Irish Constitution: Amend Article 44, on Religion, to explicitly give equal protection to religious and nonreligious philosophical believers. Examine and amend other Articles that are unduly influenced by the teachings of the Roman Catholic Church.
• Irish Constitution: Amend Article 40.1 on equality before the law with the principle of non-discrimination as set out in articles 2 and 3 of the Covenant.
• Amend Section 15 of the Education Act 1998 to ensure that the curriculum in all schools is delivered in an objective and neutral manner. Ensure that the rights of those parents seeking secular education for their children are recognised therein.
• Remove Section 7 3 (c) of the Equal Status Act 2000 to ensure that children have a guaranteed access to educational establishments without discrimination of any kind.
• Remove Section 12.4 and 37.1 of the Equality Acts which permit schools and hospitals to discriminate on the grounds of religion.
• Ensure that all children have equal access to a basic moral, intellectual and social education in schools (Article 42.3.2) and not one just permeated by religious values.
• Remove Section 36 and 37 of the Defamation Act 2009 (blasphemy offence).
• Remove Section 3.1(c) and 3.4 of the Charities Act 2009, which privileges the advancement of religion over non-religious life stances.
• Enact legislation to bring the rights under Article 40.3.3 of the Constitution in line with the rights guaranteed under the Covenant.

Press Release 13th December 2007 – Department Education and Skills.

“The Minister for Education and Science, Mary Hanafin T.D, today announced that a new State model of community national school, under the patronage of County Dublin Vocational Education Committee (VEC), is to be piloted in two locations from September 2008 It is intended that the new schools will be opened in the Phoenix Park and in Phibblestown, Dublin 15. A further school, Scoil Choilm in Diswellstown, Dublin 15, which opened under the temporary patronage of the Catholic Church in September 2007, is to transition to the new community national school model after a two year period.

Announcing details of the two new schools, Minister Hanafin said “the new schools will be open to children of all religions and none. They will be inter-denominational 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 Minister said the new model has been developed following a period of consultation with all of the main education partners and church groups. As in the primary school system generally, 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.  Arrangements will also be in place to enable the VEC to meet its general financial accountability responsibilities.

Minister Hanafin indicated that she will now be bringing proposals to Government to provide necessary amending legislation to underpin the VEC role in the primary sector. The Minister will act as interim patron in advance of the legislation being enacted. She said that arrangements will be put in place to monitor the operation of the pilot and that the experience drawn will be applied to any future roll-out.

“I am delighted that the consultations on this new model of school patronage have indicated widespread positive support for it in principle. In introducing it in two new locations from next September, with a third location to come on stream after a two year period, we will be able to test a range of practical implementation challenges and draw good lessons for its long-term success.

The changing shape of Irish society places new demands on the education system in responding to the needs of emerging communities. The role of the traditional churches in managing and providing schools is enormously valued and appreciated as is the growing role of other patronage bodies. In many of our new communities, however, there is a need for an additional choice that can accommodate the diverse preferences of parents for varying forms of religious education and faith formation during the school day, in a single school environment that includes and respects children of all religions and none. This new model of community national school provides that option and can be a rich tradition to the range of primary school provision already offered by the existing patronage bodies” the Minister concluded”

They emphasised their wish to be able to assure Catholic parents of pupils in Community National Schools that their children would follow the same religious education programme as in a Catholic school.

Reaffirmed

This is the response from Atheist Ireland to the interim report of the Forum on Patronage and Pluralism, submitted on 1 December 2011. The Forum is to send its final report to the Minister for Education by the end of December.

Contents

1. Overview
2. The right to an effective remedy
3. The religious integrated curriculum 4. Religious Education (ERB)
5. Opting out
6. The right to private and family life 7. Access to schools
8. Conclusion

1. Overview

1.1 We have four overriding recommendations for the final report.

1.2 * To comply with your terms of reference, your advice must be stronger and must be enforceable. You are mandated to advise on how best to “ensure” that certain outcomes can happen, not simply on how best to make those outcomes more likely.i

1.3 * The final report must include effective remedies that enable parents and students to vindicate in practice and law their right to ensure that the education of their children is in conformity with their convictions, as enshrined in Human Rights treaties and based on rulings of the European Court of Human Rights.

1.4 * Whatever their model of patronage, the State must ensure that all schools convey all parts of the curriculum in an “objective, critical and pluralistic manner”, as recommended by the Irish Human Rights Commission, as enshrined in the Toledo Guiding Principles, and as ruled on by the ECHR.

1.5 * Ensuring “a sufficiently diverse number and range of primary schools catering for all religions and none” must in practice ensure that secular non-denominational schools are widely available in all regions of the State, as noted by the United Nations Human Rights Committee.

1.6 We also make other specific recommendations throughout this response, including on ERB, opting out, the right to private and family life and access to schools.

1.7 The interim report fails to vindicate the human right of parents who want their children educated in conformity with secular convictions.

1.8 The European Convention obliges the State to respect the right of parents to ensure that the education and teaching of their children is “in conformity with their own religious and philosophical convictions” (Article 2 of Protocol 1).ii The ECHR has stated that the secular viewpoint is worthy of respect in a democratic society, and must be regarded as a “philosophical conviction” within the meaning of the Convention. iii

1.9 The European Court of Human Rights has said this obligation on the State:

(a) presupposes that the parents’ choice between public and private education be respected, and also that teaching be neutral. iv

(b) is binding upon the State in the exercise of “each and every” function that it undertakes in the sphere of education and teaching. The State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals.v The State must provide itself with the means of efficiently establishing and punishing violations. vi

1.10 The Forum does not seem to appreciate the obligation to respect secularism as a legitimate philosophical conviction.

1.11 The opening presentation explicitly disrespected a core secular belief, in a way that we suspect you would not even consider disrespecting any religious beliefs, by describing the suggested removal of crucifixes in classrooms as “sensationalist nonsense”.vii

1.12 The right to a classroom free of religious symbols is central to mainstream secularism, and is not an extremist position. The European Court of Human Rights upheld this right in Italy as protecting freedom of conscience. This was overturned on appeal, citing the otherwise secular nature of Italian state schools. viii The situation is different in Ireland, where we do not have secular state schools to counterbalance the influence of symbols.

1.13 We ask you to reconsider this issue, resisting any preconceptions that it is “sensationalist nonsense”. Please clarify that you have fully considered it as a legitimate proposal, and explain in this context the reasoning behind whatever you advise about it.

1.14 The interim report’s domestic appeals mechanism will not enforce the substance of Convention rights.

1.15 It has not yet been determined whether schools governed by the Education Act 1998 are “organs of the state”ix for the purposes of the European Convention on Human Rights Act 2004. If they are not, then the interim report’s domestic appeals mechanism will not enforce the substance of Convention rights. This also raises issues with regard to Article 42.3.1 of the Irish Constitution and the compatibility of the education system with Ireland’s human rights obligations. x There is no legal aid for these matters and the prohibitive costs of legal action against the state are a deterrent to parents.

1.16 Any appeals mechanism must guarantee that the investigation and remedy is in accordance with the European Convention in practice and in law. xi The European Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (Article 6, 13 EC). xii

2. The right to an effective remedy

2.1 The interim report considers that an expanded Role for the office of the Ombudsman for children could provide an appropriate appeal mechanism.

2.2 The European Court has said of Article 13 of the Convention (the right to an effective remedy) “Nevertheless, the remedy required by Article 13 must be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities of the respondent state”.xiii

2.3 If schools are not “organs of the state” within the meaning of the European Convention on Human Rights Act 2004, then the Ombudsman for Children cannot examine complaints in a Convention compliant manner nor give a remedy in practice as well as in law. This means that the State is ‘providing for’ the education of children in schools where parents cannot vindicate their rights under the European Convention and the various UN Conventions.

2.4 The section in the interim report on Complaints and Appeals does not refer to religious education but religious instruction. Nor does it refer to Section 7.3 (c) of the Equal Status.

Act 200. In effect this means that the Forum has left out of the Complaints and Appeals section the very issues that the UN is raising with the state and the rights guaranteed under the European Convention.

2.5 See also the section on positive obligations and the horizontal effect of the Convention in the handbook number 7 of the Council of Europe Human Rights Handbooks.xiv

3. The religious integrated curriculum

3.1 The interim report on Rules and Curriculum states: “Curriculum (1999) – school – to be flexible in making alternative arrangements for those who do not wish to avail of the particular religious education if offers”.

3.2 In 2008 the UN Human Rights Committee stated that it “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.” xv

3.3 The Irish Human Rights Commission has recommended that “Section 15 of the Education Act be amended to provide for modifications to the integrated curriculum to ensure that the rights of minority faith or non faith children are also recognised therein. In this regard, the State must take sufficient care that information and knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner.” xvi

3.4 If the Forum is serious about upholding the human rights of all parents, it must include this recommendation from the Irish Human Rights Commission. Otherwise the State is failing in its positive obligation to take sufficient care that the curriculum is conveyed in an objective critical and pluralistic manner. That is the limit that must not be exceeded. The right to respect is an absolute right and not to be balanced against the rights of others or one that can be gradually achieved.xvii

3.5 The final report should also include the Human Rights Commission’s Recommendation to define in primary legislation the terms such as “denominational”, “multi-denominational”, “inter denominational, “non-denominational or “other” school.xviii

3.6 Simply removing Rule 68 will not guarantee the human rights of those parents seeking secular education. Last June Bishop Leo O’Reilly informed the Forum that you cannot really separate Religious Education from Faith Formation the way that some people seem to believe.xix A Religious integrated curriculum presupposes that children could learn about Christianity and the Catholic faith in detail and not objectively without being subjected mentally to what constitutes or might constitute unwanted influence or indoctrination.

3.7 Suggesting that schools take a flexible approach to opting out of a religious integrated curriculum is meaningless. If a school is not legally obliged to supervise children outside the Religious instruction class and religious ceremonies then they are hardly likely to make flexible arrangements for those who wish to opt out of religious education that is integrated into the curriculum. The Forum does not even suggest legal change to ensure that parents are aware of what exactly is being taught to their children through the religious integrated curriculum and consequently parents cannot ensure that the teaching of their children is in conformity with their convictions.

4. Religious education (ERB)

4.1 We welcome that consideration be given to learning about World Religion, Ethics and Morals (ERB) and that this should be part of the curriculum (Section VII Issues: Religious Education).

4.2 Teaching about Religions and Beliefs is supported by the Toledo Guiding principles but the interim report does not explicitly advise that any new course will be delivered in accordance with those principles. The Toledo Guiding Principles are based on human rights law. On page 68 (State neutrality and opt out rights – State Competences on Education vis-a-vis the Rights of Parents) it clearly says that the state must take sufficient care that the information and knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. xx

4.3 You advise that the Catholic Bishops consider that the revised Alive O Programme devote two or three classes a week to Religious Education (ERB) material and the remainder of the classes to Faith Formation, as “this could enhance provision of RE for All Primary School Pupils”. This means the Catholic Church will have control over the content and teaching of ERB for all students. It is also against Catholic Church rules for any teacher that is not trained by them to teach Religious Education (ERB) never mind Religious Instruction. This suggestion is not in accordance with the Toledo Guiding Principles as it breaches the human rights of minorities. xxi

5. Opting out

5.1 The wording suggested for the amendment of Section 15 of the Education Act 1998 under the Section on Statutory Provision will not change anything on the ground. The Constitutional right to opt out in Irish schools has not been interpreted to mean the physical removal of students from religious instruction classes, prayers, preparation for Holy Communion/Confirmation, Religious ceremonies (Mass etc). Rule 69 – 2 (a) of the Rules for National Schools says that no pupil should receive or be present at any religious instruction of which his parents disapprove.xxii

5.2 Despite this Rule parents are still responsible for the supervision of their children if they wish to remove their children from religious instruction classes, prayers, preparation for Holy Communion/Conformation or ceremonies (Mass etc).xxiii The Supreme Court recognises that Characteristic Spirit (ethos) influences children.xxiv The Education Act 1998 does not oblige schools to inform parents of the details of their ethos and consequently children that are opted out attend prayers and Religious services without their parents knowledge.

5.3 The interim findings from the Forum do not even suggest that schools should be legally obliged to inform parents the details of their Characteristic Spirit (ethos). The burden placed on parents by the failure to legally oblige schools to supervise children or to provide an alternative subject has rendered the right to opt out inoperable in practice. Parents are deterred from even exercising the right to opt out because of the burden it will create for them.

5.4 Legal change is required to vindicate the rights of those parents that have the right to remove their child from religious instruction, prayers and religious ceremonies etc. Any legislation must show clearly what body is responsible for the supervision of children who are removed from religious instruction or ceremony.

6. The right to private and family life

6.1 There is nothing is the interim report that recognises the human right to private and family life.

6.2 Article 8 of the European Convention guarantees the Right to respect for private and family life. Any interference with the Right to Private and Family life must be in accordance with the law and necessary in a democratic society. There is a positive obligation on the State to protect this right and any legislation must be in accordance with Section 2 of this Article.

6.3 There is no legitimate reason under Article 8.2 of the European Convention for seeking private information from parents in relation to access to education. Rule 69 (1) of the Rules for National Schools states that: “The Religious denomination of each pupil must be entered in the school register and roll-book.xxv This information should be ascertained from the parent (the father if possible) or the guardian of the pupil, where necessary.”

6.3 In their Submission to the Department of Education on school enrolments the Irish Human Rights Commission states: “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.”

6.4 The interim report does not reflect the Recommendations of the Irish Human Rights Commission which states that: “There should be an appropriate amendment to the Employment Equality Acts to ensure respect for the private life of teachers where their private life does not improperly encroach on the rights and freedom of others.”

6.5 Respect for private and family life is a human right. Discrimination against teachers in this manner undermines the dignity of the human person. It is against the conscience of non-religious parents to send their children to schools that discriminate against teachers in this manner.

7. Access to schools

7.1 Under Statutory provisions, the interim report refers to “Amendment of the Equal Status Act (2000) (2), (c) to be considered, particularly in the Context of Stand Alone Schools, to facilitate the DES in “Providing for” the Education of all children in the Area.”

7.2 Did you mean to refer to Section 7 (3) (c), which allows denominational schools to discriminate on religious grounds if they have a shortage of places? Whatever section you meant, there is no reason to make this particular to stand alone schools.

7.3 Discrimination in access to schools is against human rights law and in particular Article 14 and Article 2 of Protocol 1 of the ECHR. The state is failing in its obligation to respect the philosophical convictions of those parents seeking secular education for their children if they ‘provide for’ their education in schools that discriminate in access to education. xxvi

7.4 In their Submission to the Department of Education on school enrolments the Irish Human Rights Commission states: “The IHRC recommends that pending further diversity in school provision the Government amend section 7 of the Equal Status Acts 2000-2008 which allows primary and second-level schools which have a particular denominational ethos to give preference in admission to students of a particular religious denomination over others and to refuse admission to such students where this is essential to uphold the ethos of the school.” xxvii

8. Conclusion

8.1 There is a positive obligation on the state to respect the religious and philosophical convictions of parents. This binds them “in the exercise” of all the “functions” which they assume in relation to education and teaching. The state cannot absolve itself from responsibility for human rights violations by delegating its responsibilities to private bodies and institutions. There is no justification for denying parents their human rights including access to an effective remedy in practice and in law. It is not within the margin of appreciation of the state to disregard these rights. The European Court of Human Rights has said that: “Reference to a tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols”.xxviii If parents do not have access to an effective remedy in practice and in law then human rights are meaningless on the ground in Ireland. The interim findings from the Forum will not guarantee parents that seek secular education for their children their human rights.

Notes

i The terms of reference of the Forum are to advise the Minister on:
1. how it can best be ensured that the education system can provide a sufficiently diverse number and range of primary schools catering for all religions and none;
2. the practicalities of how transfer/divesting of patronage should operate for individual primary schools in communities where it is appropriate and necessary;
3. how such transfer/divesting can be advanced to ensure that demands for diversity of patronage (including from an Irish language perspective) can be identified and met on a widespread basis nationally.
In undertaking this work the Forum will, in particular, have regard for the following:
• the expressed willingness of the Roman Catholic Church to consider divesting patronage of primary schools
• the current financial constraints within which the State is operating, the need for continued restraint into the future and the requirement in this context to make maximum use of existing school infrastructure in catering for future demands
ii Kjeldsen, Busk Madsen and Pedersen V Denmark 7th December 1976 (App No. 5095/71, 5926/7. Extract “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.”
iii Lautsi v Italy (App No. 30814/06) 18th March 2011 – Extract “58. Secondly, the Court emphasises that the supporters of secularism are able to lay claim to views attaining the “level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48). More precisely, their views must be regarded as “philosophical convictions”, within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of “respect ‘in a democratic society’”, are not incompatible with human dignity and do not conflict with the fundamental right of the child to education. “
iv Kjeldsen, Busk Madsen and Pedersen v. Denmark http://www.echr.coe.int/NR/rdonlyres/1B521F61-A636-43F5-AD56-5F26D46A4F55/0/DG2ENHRHAND072007.pdf page 56
v Costello-Roberts v United Kingdom – (app. No. 13134/87 1993 para. 27
vi http://www.echr.coe.int/NR/rdonlyres/1B521F61-A636-43F5-AD56-5F26D46A4F55/0/DG2ENHRHAND072007.pdf page 59
vii From Professor Coolahan’s opening presentation: “Somebody said on a radio programme this morning that they were going to have a debate about taking crucifixes out of the classrooms in Irish schools. That’s the sensationalist nonsense that media can engage in. That’s completely off the wall, but can upset people. We’ve no one talking about that. We’re talking about incorporating respect for various belief systems by the artifacts and symbols which are on school walls.”
viii Lautsi and other v Italy (App No. 30814/06) 18th March 2011. Extract “78. The Court considers that, when read as it should be in the light of Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of that provision guarantees schoolchildren the right to education in a form which respects their right to believe or not to believe. It therefore understands why pupils who are in favour of secularism may see in the presence of crucifixes in the classrooms of the State school they attend an infringement of the rights they derive from those provisions.“
ix http://www.irishstatutebook.ie/2003/en/act/pub/0020/sec0003.html “ “organ of the state” includes a tribunal or any other body which is established by law or through which any of the legislative, executive or judicial powers of the state are exercised.”
x A,B and C v Ireland (app No 25579/05) 16th Dec 2010. Extract : 150. “ The rights guaranteed by the 2003 Act would not prevail over the provisions of the Constitution (paragraphs 92-94 above). In any event, a declaration of incompatibility would place no legal obligation on the State to amend domestic law and, since it would not be binding on the parties to the relevant proceedings, it could not form the basis of an obligatory award of monetary compensation. In such circumstances, and given the relatively small number of declarations to date (paragraph 139 above) only one of which has recently become final, a request for such a declaration and for an ex gratia award of damages would not have provided an effective remedy to the first and second applicants (Hobbs v. the United Kingdom (dec.), no. 63684/00, 18 June 2002; and Burden v. the United Kingdom [GC], cited above, §§ 40-44).”
xi http://www.echr.coe.int/NR/rdonlyres/1B521F61-A636-43F5-AD56-5F26D46A4F55/0/ DG2ENHRHAND072007.pdf page 15. Extract: “As the law stands at present, then, it may be said that the establishment and development of the horizontal effect of the Convention by the European Court is, in its entirety, a consequence of the theory of positive obligations. The state becomes responsible for violations committed between individuals because there has been a failure in the legal order, amounting sometimes to an absence of legal intervention pure and simple, sometimes to inadequate intervention, and sometimes to a lack of measures designed to change a legal situation contrary to the Convention. But while the positive obligations do cover the entire field of the theory of the Convention’s horizontal effect, they are not confined to it. The state also has the obligation to protect in the context of its own relations with persons under its jurisdiction. In other words, it is bound by a kind of “duty of schizophrenia” – the duty to take measures necessary to prevent or punish infringements committed by its own agents, representatives or emanations.”
xii Airey v Ireland (App No. 6289/73) 9th October 1979 para 24.
xiii recalled in Kaya v Turkey (App 158/1996/777/978 19th February 1998 para 106.
xiv http://www.echr.coe.int/NR/rdonlyres/1B521F61-A636-43F5-AD56-5F26D46A4F55/0/ DG2ENHRHAND072007.pdf page 15
xv International Covenant on Civil and Political Rights CCPR/C/IRL/CO/3:22. Article 2 is the Right to be free from Discrimination; Article 18 is the Right to Freedom of Conscience, Article 24 the Rights of the Child and Article 26 the Right to Equality before the law.
xvi Religion & Education : A Human Rights Perspective May 2011 – p. 104 xvii Cambell & Cosans V UK (App 7511/76; 7743/76 25th Feb 1982 – para 37 xviii Religion & Education: A Human Rights Perspective May 2011 – p. 104 xix http://media.heanet.ie/page/945a5fbb23e1461ebc8efa87272fd930
xx http://www.osce.org/odihr/29154 – page 68, 69 Extract “The state may satisfy this duty of neutrality either by designing a curriculum that is itself sufficiently impartial and balanced, or, in those instances in which the state provides instruction in a particular religion or belief by granting rights to opt out on the ground of conscientious objection. This right must be realizable in practice, and not a mere theoretical possibility. Moreover, the requisite neutrality would be compromised if pupils were subjected to any disadvantage, discrimination or stigma on account of the exercise of this right to be exempted from such classes, or elements of classes.”
xxi Manoussakis v. Greece (ECHR, app 18748/91 1996) para 49-38. Toledo Guiding Principles p 68 – “Furthermore, while it is important to ensure that representatives of religious communities are allowed to give input and advice, this should not be taken to the extreme of giving them too much decision –making power at the cost of abdicating state responsibility. The European Court of Human Rights has made it clear that excessive involvement of religious authorities from one community in decisions that affect the rights of those belonging to another community may itself amount to a violation of the right to freedom of religion or belief.”
xxii http://www.education.ie/servlet/blobservlet/rules_for_national_schools_7_13.pdf
xxiii Case of A, B and C V Ireland (app No. 25579/05) 16th Dec 2010 – Extract 249. “ once that decision is taken the legal framework devised for this purpose should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” (S.H. and Others v. Austria, no. 57813/00, § 74, 1 April 2010).”
xxiv Barrington J. Campaign to Separate Church and State v Minister for Education 1998 (3 IR 321) Extract “A child who attends a school run by a religious denomination different from his own may have a constitutional right not to attend religious instruction at that school but the Constitution cannot protect him from being influenced, to some degree, by the religious ‘ethos’ of the school. A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion who wishes to attend that school.”
xxv http://www.education.ie/servlet/blobservlet/rules_for_national_schools_7_13.pdf
xxvi Kjeldsen, Busk Madsen and Pedersen v Denmark 1976 para 52.
xxvii http://www.ihrc.ie/legislationandpolicy/policysubs.html (5)
xxviii Lautsi v Italy (App No. 30814/06) 18th March 2011 – para 68.

SUBMISSION TO THE GOVERNMENT REPORT UNDER THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

November 2011

Committee on Economic, Social and Cultural Rights. Ireland’s 3rd periodic report under ICESCR.

Article 2.2   – Article 4  –  Article 5  –  Article 13

1.  Introduction.

2. Access to schools without discrimination.

3. The Integrated Curriculum.

4. The operation of the opt out clause.

5. The Rights of the Child

6. Teacher Training.

7.  Religious Education Course – Second Level.

8. The Toledo Guiding Principles.

9.  New VEC Community Schools.

10.  Conclusion

1.  Introduction

1.1 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 individual human rights of all parents and children when this is simply not the case. 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 as they have ceded control to the interests of Patron bodies and Boards of Management. The aim of the majority of Irish schools is to inculcate religious views.

1.2 In Ireland the majority of schools are state funded private religious schools. Under the Irish Constitution the state ‘provides for’ education as opposed to ‘provide education’. There is no parallel system of non-denominational state schools. The Irish State does not guarantee the right to education without religious discrimination. The right of the individual to be free from religious discrimination is guaranteed under Article 2.2 of the Covenant. It is a right that those parents that seek secular education for their children simply do not have. The UN Committee on Economic, Social and Cultural Rights has already raised concern with regard to Article 40.1 of the Irish Constitution on Equality before the law with the principle of non- discrimination i.

1.3 Irish schools are not considered ‘organs of the state’ within the meaning of the European Convention on Human Rights Act 2003. Therefore the Irish courts are not obliged to interpret rights in a manner consistent with the European Convention or any judgement at the European Court of Human Rights ii. As the various UN treaties are not incorporated into our domestic legal framework it is therefore impossible to access the right to an effective remedy.

2. Access to schools without discrimination

2.1 In order for private state funded religious schools to protect their ethos the Irish State has put in place Section 7- 3 – (c) of the Equal Status Act 2000 iii . This means that schools can give priority to co-religionists. Religious schools now operate two admissions policies, one for co-religionists and a second one for minorities who have no choice but to seek access to religious schools.  Section 7 – 3 (c) of the Equal Status Act 2000 denies the non-religious and religious minorities a guaranteed right of access without discrimination to the majority of schools in the state. It is simply not an option for parents who suffer discrimination to educate their children at home. They are left with a choice between a religious education for their children or no education at all. In areas where there is a shortage of places, Section 7 – 3 (c) of the Equal Status causes children to be refused access to schools and coerces parents into getting their children Baptised into the Catholic religion in order to gain access to the local schooli v.

2.2 The United Nations in their General Comment on education has stated the following v :- “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.”

2.3 The following is a link to Atheist Ireland’s Submission to the Discussion Paper on a Regulatory Framework for School Enrolment which explores these issues in detail. http://www.teachdontpreach.ie/2011/10/atheist-ireland-submission-to-department-of- education-on-school-enrolment/

3. The Integrated Curriculum.

3.1 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. The State therefore does not oblige by law schools to deliver the curriculum in a neutral and objective manner.

3.2 Section 15 – 2 (b) of the Education Act 1998vi obliges schools to uphold the religious ethos of the patron. Religious schools integrate religion into all subjects and into the general milieu of the school (prayers, religious services etc). There is sacramental preparation during the school day for Catholic religious ceremoniesvii. The practice of the integrated curriculum cannot protect the right to freedom of conscience of religious minorities and non-religious parents who do not wish their children to be exposed to doctrinal religious formation that is integrated into the very fabric of the school. In Ireland schools do not need to be under a religious patron to operate a religious integrated curriculum. At second level so called multi- denominational schools that are not under religious patronage operate a specific religious integrated curriculum.

3.3 The United Nations Human Rights Committee has in its concluding observations under the International Covenant on Civil and Political Rights in 2008 raised concern about the integrated curriculum. CCPR/C/IRL/CO/3:-

“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.”

3.4 For analyses on these issues see Atheist Ireland’s Submission to the Forum on Patronage and Pluralism. http://www.teachdontpreach.ie/2011/07/submission-from-atheist-ireland-to- the-forum-on-patronage-and-pluralism/#more-335

4. The operation of the opt out clause

4.1 The State does not provide funding for the supervision of children who have a Constitution Right to opt out of formal religious instruction classes. Parents are responsible for the supervision of their children if they seek to opt them out of religion classes. Parents will not readily seek to opt their children out of religion because of the burden it will create for them and they do not want their children to feel left out and isolated.

4.2 Under the Education Act 1998 schools are not obliged to inform parents of where exactly they are integrating religion into the other subjects under the curriculum and the general milieu of the school. Parents are not aware of exactly where their children are receiving religious education that is not in conformity with their convictions. In the majority of schools in Ireland the curriculum is not delivered in a neutral and objective manner. It is therefore impossible for parents to ensure that the education of their children is in conformity with their convictions.

4.3 In some schools minorities are required to wear a religious symbol to access the only school in a particular area. The religious symbol is part of the school uniform and therefore compulsory in order to gain access the school. The Irish state does not get involved in this area and leaves it up to each school how they implement their ethos. For some minorities gaining access to education means wearing the religious symbol of the religious majority in a particular area.

5. The Rights of the Child

5.1 In 2006 the UN Committee on the rights of the child encouraged the State to:-

“61. The Committee encourages the State party to take fully into consideration the recommendations made by the Committee on the Elimination of Racial Discrimination (CERD/C/IRL/CO/2, para. 18) which encourages the promotion of the establishment of non- denominational or multi-denominational schools and to amend the existing legislative framework to eliminate discrimination in school admissionsviii.”

5.2 The Irish State did not amend the existing legislative framework and discrimination in school admission policies still exists. On the ground that is discrimination against five year old children who are refused access to schools because their parents cannot produce a Catholic Baptismal Certificate for them. Article 2 of the Convention on the Rights of the Child forbids discrimination against children irrespective of the child’s or his or her parent’s or legal guardian’s religion. Article 2.2 obliges the state to take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the beliefs of the child’s parents, legal guardians or family members.

5.3 Article 14 of the Convention on the Rights of the Child obliges the State to guarantee the right to freedom of thought, conscience and religion. In their Report and Recommendations the Irish Human Rights Commission at para 270 states that:-

“This right to freedom of thought, conscience, and religion should be read with Article 3 (the best interests of the child) and Article 12 (“the views of the child (to be) given due weight in accordance with the age and maturity of the child” and the right of the child to be heard). Thus the child’s views and voice should be head in addition to their parents for most post- primary students and arguably for some older primary schools parents.”

5.4 Section 30 – 2 (e) of the Education Act 1998 does 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. In Ireland children can only opt out when they have turned eighteen. Atheist Ireland gets complaints from children who are being forced into religious instruction and religious ceremonies. If they refuse they are punished by detention. Schools do not inform children that they can opt out when they turn eighteen and the State does not legally obliged them to do so.

6. Teacher Training.

6.1 Parents who seek secular education for their children have no option but to send their children to schools that have a legal right to discriminate against teachers and not only on religious grounds. This discrimination undermines the dignity of the human person and consequently children are educated in an environment that is in direct conflict with the philosophical convictions of their parents.

6.2 There are five 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. The majority of the schools in the country are religious schools. Minorities simply have no choice but to attend one of the colleges if they wish to become a teacher. Section 37 of the Employment Equality Actix, 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. 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.

7.  Religious Education Course – Second Level

7.1 In 2000 a religious education course was introduced at second level 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 parents’ philosophical convictions.

7.2 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.” http://www.ncca.ie/uploadedfiles/publications/Interc%20Guide_Eng.pdf

7.3 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.

7.4 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.”

7.5 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.”

7.6 Presenting the content of the RE Course to minorities according to particular Christian denominations is not an education which promotes equality and human rights, challenges unfair discrimination and promotes the values upon which equality is built. One very basic human rights principle is that the curriculum must be delivered in an objective and neutral manner. The NCCA knew that they had no control over how this RE course would be delivered in the majority of schools in the country but despite this still went ahead with the course.

7.7 On the ground this means that the RE Course under the curriculum is not delivered in a neutral and objective manner in the majority of schools in the country. It is therefore not suitable for the children of non-religious parents and religious minorities. It has turned out to be a course under the curriculum for the Catholic majority. It has also meant that some schools are forcing minorities to take the course and claiming that it is suitable and in conformity with human rights principles. Minorities are not informed that this course is delivered through the eyes of the Catholic Church and there is nothing in the Education Act 1998 that obliges any school to do so.

7.8 VEC Community Schools and Designated Community Colleges at second level also operate a religious integrated curriculum and consequently the Religious Education Course in these schools is delivered through the eyes of the Catholic Church. It is not clear at this stage whether non-designated Community Colleges deliver the State Religious Education in this manner. There is no regulation and the state simply absolves itself of any responsibility in these matters.

7.9 In 2009 the Vatican issued a Circular Letter from the Congregation for CatholicEducation 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.x”

7.10 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”.

7.11 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. In addition the course is not in compliance with the Toledo Guiding Principles as the Holy See has rejected these human rights based principles.

8. The Toledo Guiding Principles

8.1 Atheist Ireland supports the Toledo Guiding Principles on teaching about Religions and beliefs in schools.

http://www.osce.org/odihr/29154

8.2 The OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) have issued guidelines called the Toledo Guiding Principles 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.

8.3 Out of the 56 participating States in the OSCE the Holy See 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 projectxi. The reason the Holy See has given for rejecting these human rights principles is that the Principles contain “a reductive view of religion and a conception of the secular nature of States and their neutrality that obfuscates the positive role of religion, its specific nature and contribution to society.”

8.4 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. (para 12 – Circular Letter from Congregation for Catholic Education 2009xii)

9.  New VEC Community Schools

9.1 The Irish State in their Report to the United Nations CERD Committee in 2010 stated that “Two Community National Schools opened in 2008 both in Dublin. The new schools are interdenominational and fully inclusive”. Despite the objections of Atheist Ireland and the Humanist Assoc of Ireland the State again informed the UN on 22nd February last that this type of school was suitable for parents seeking non-denominational education. (Summary record of the 2063rd CERD meeting held at the Palais Wilson, Geneva, on Tuesday, 22 February 2011)

9.2 In 2009 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.

9.3 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.”  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.

9.4 The State has not made clear how they proposes to guarantee  human rights based education for parents and children who so wish in these VEC Primary Community Schools when they have 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. The Education Act 1998 does not oblige schools to inform parents where exactly they are integrating religion into the curriculum. The State does not fund the supervision of children who are opted out of religion.

9.5 As it stands now there is nothing in place that will guarantee human rights based education for non-religious parents and children in these new VEC Community Schools. There is nothing in the proposed Education (Amendment) Bill that would explain how the State 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 simply a theoretically illusion with no practical application given to these rights.

9.6 Rule 68 of the Rules for National Schools is still in place which obliges Boards ofManagement to integrate religion into all subjects and there is no intention of removing it. There are no new Statutory Guidelines planned with regard to opting out of Religion. In addition it is not clear legally whether any parent can hold the State responsible for their failure to protect their human rights under the European Convention.

9.7 We are also 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. Despite all the assurances about pluralism and diversity non-religious parents will still be in the same position and especially when all teachers are trained in denominational colleges. Nothing in the ethos of these schools guarantees the delivery of the curriculum in a neutral and objective manner. Teachers are not trained in how to deliver the curriculum in a neutral and objective manner.

9.8 In their Submission to the Forum on Patronage and Pluralism County Dublin VEC stated the following:-

“Important festivals are honoured and marked in the schools. Christmas and Eid are two of the bigger celebrations – reflecting the composition of the school populations. Parents of faiths to whom these occasions may not be important are encouraged to come to the schools and join in the celebrations out of a spirit of friendship and respect for the parents and children of other faiths.xiii”

9.9 In 2008 the UN Human Rights Committee raised concern about the human rights of parents seeking secular education for their children. The rights they referred to were freedom from discrimination, freedom of conscience, the rights of the child and the right to equality before the law. The Dept of Education as patron of these schools and the VEC respond by encouraging minorities to attend religious celebrations in order to show friendship and respect others in these New VEC Community Schools.

9.10 Non-religious parents and Religious minorities have the human right to opt out of any religious celebration or service as this is the practice of a specific religion. These New VEC Community schools provide no information on this right or how parents can effectively opt out of these ceremonies. They also provide no information on the supervision of children who are opted out of attending religious classes, celebrations or ceremonies. It is therefore not clear what happens to children who are opted out of religion.

9.11 These VEC Community schools are teaching the children of minorities that attending religious celebrations is respecting others and showing friendship. This is simply coercion which is forbidden under Article 18 of the ICCPR. It is hardly surprising that this is part of the ethos of these New VEC Community Schools as in their Submission to the Irish Human Rights Commission’s discussion on Religion and Education : A Human Rights perspective they state-:

“The template seems to place undue emphasis on the rights of those who want to opt out of denominational education.  It is noted that the Constitution underpins freedom of religion not freedom from religion.  Therefore in any consideration of rights, due attention must be made to both perspectivesxiv.”

9.12 So despite the concerns of the United Nations and the Irish Human Rights Commission the New VEC Community Schools believe there is undue emphasis on the rights of those who want to opt out of denominational education. The reason that the Irish Human Rights Commission put emphasis on the rights of those who want to opt out of denominational education is that the UN and Council of Europe had already raised these issues with the state.

9.13 The UN is not encouraging the state to open up non-denominational schools for nothing. Minorities are discriminated against in schools that operate a religious integrated curriculum and their children are isolated. Despite this these New VEC Schools are segregating children on the basis of their parents’ religious or non-religious beliefs. Nothing has changed on the ground except that these schools are now attempting to make minorities feel guilty about accessing their human right to opt their children out of religion by implying that they will show friendship and respect if they attend religious celebrations. Does this mean that minorities are unfriendly and disrespect others if they opt out of religious celebrations? It is really difficult to understand how the state and the VEC believe that this behaviour shows respect to those parents that seek secular education for their children and religious minorities. Parents are deterred from exercising their right to opt out of religious ceremonies when they are told that it shows friendship and respect if they and their children attend. The potential for conflict also deters parents from exercising their right to opt out of religious ceremonies and classes.

9.14 County Dublin VEC simply do not understand the negative aspect of the human right to Freedom of religion and belief and it seems that neither does the Dept of Education as they are patron of these schools.

9.15 The UN Human Rights Committee in their General Comment on Article 18 of the ICCPR states that:-

“2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.

3. Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19.1. In accordance with articles 18.2 and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief.”

9.16 The above is backed up by the European Court of Human Rights which stated in (Para87 –page 22, Grzelak V Poland – 15th June 2010.)

“87.  The Court reiterates that freedom to manifest one’s religious beliefs comprises also a negative aspect, namely the right of individuals not to be required to reveal their faith or religious beliefs and not to be compelled to assume a stance from which it may be inferred whether or not they have such beliefs (see, Alexandridis v. Greece, no. 19516/06, § 38, ECHR 2008…, and, mutatis mutandis, Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 76

in fine, ECHR 2007XI). The Court has accepted, as noted above, that Article 9 is also a precious asset for non-believers like the third applicant in the present case. It necessarily follows that there will be an interference with the negative aspect of this provision 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.”

9.17 In Leirvag v Norway 23/11/2004. CCPR/C/82/D/1155/2003, the UN Human RightsCommittee stated the following:-

14.2 The main issue before the Committee is whether the compulsory instruction of the CKREE subject in Norwegian schools, with only limited possibility of exemption, violates the authors’ right to freedom of thought, conscience and religion under article 18 and more specifically the right of parents to secure the religious and moral education of their children in conformity with their own convictions, pursuant to article 18, paragraph 4. The scope of article 18 covers not only protection of traditional religions, but also philosophies of life, such as those held by the authors. Instruction in religion and ethics may in the Committee’s view be in compliance with article 18, if carried out under the terms expressed in the Committee’s General Comment No. 22 on article 18:

“[A]rticle 18.4 permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way”, and “public education that includes instruction in a particular religion or belief is inconsistent with article 18, paragraph 4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians.” The Committee also recalls its Views in Hartikainen et al. v. Finland, where it concluded that instruction in a religious context should respect the convictions of parents and guardians who do not believe in any religion. It is within this legal context that the Committee will examine the claim.”

“14.6 The Committee considers, however, that even in the abstract, the present system of partial exemption imposes a considerable burden on persons in the position of the authors, insofar as it requires them to acquaint themselves with those aspects of the subject which are clearly of a religious nature, as well as with other aspects, with a view to determining which of the other aspects they may feel a need to seek – and justify – exemption from. Nor would it be implausible to expect that such persons would be deterred from exercising that right, insofar as a regime of partial exemption could create problems for children which are different from those that may be present in a total exemption scheme. Indeed as the experience of the authors demonstrates, the system of exemptions does not currently protect the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions. In this respect, the Committee notes that the CKREE subject combines education on religious knowledge with practising a particular religious belief, e.g. learning by heart of prayers, singing religious hymns or attendance at religious services (para 9.18). While it is true that in these cases parents may claim exemption from these activities by ticking a box on a form, the CKREE scheme does not ensure that education of religious knowledge and religious practice are separated in a way that makes the exemption scheme practicable.”

9.18 In Folgero v Norway the European Court stated the following (page 42 29/06/07) :-

“100. In light of the above, the Court finds that the system of partial exemption was capable of subjecting the parents concerned to a heavy burden with a risk of undue exposure of their private life and that the potential for conflict was likely to deter them from making such requests. In certain instances, notably with regard to activities of a religious character, the scope of a partial exemption might even be substantially reduced by differentiated teaching. This could hardly be considered consonant with the parents’ right to respect for their convictions for the purposes of Article 2 of Protocol No. 1, as interpreted in the light of Articles 8 and 9 of the Convention. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see Öcalan v. Turkey [GC], no. 46221/99, § 135, ECHR 2005).”

10.  Conclusion

10.1 It seems clear that nothing will change on the ground until the state understands fully the negative aspect of the right to freedom of religion and belief and take positive steps to ensure that it is guaranteed in the Irish Education system. Under Article 13 of the ICESCR parents have a right to ensure the religious and moral education of their children in conformity with their own convictions and that includes non-religious parents.

10.2 In the Lautsi V Italy case (March 2011), the European Court of Human Rights emphasised that the supporters of secularism are able to lay claim to views attaining the level of cogency, seriousness, cohesion and importance. These are convictions that are worthy of respect in a democratic society. They are views that must be regarded as “philosophical convictions” within the meaning of the second sentence of Article 2 of Protocol No 1 (the right to education). These convictions are not incompatible with human dignity and do not conflict with the fundamental rights of the child to educationxv. This right to respect under Article II of Protocol 1 is an absolute right and not one that can be balanced against the rights of othersxvi.

10.3 It is difficult to understand how the state can claim it respects the secularist viewpoint when it provides for the education of their children in schools that can legally discriminate on religious grounds. When the Irish state refers to pluralism in education it means pluralism in a religious sense.

10.4 It claims that these New VEC Community schools are inclusive when they encourage minorities to see attending religious celebrations as being friendly and showing respect to religious parents and their children.

10.5 In a recent speech at the United Nations Human Rights Council under the UniversalPeriodic Review the Minister for Equality Alan Shatter stated that:-

“Teaching the basic principle of non-discrimination and the fundamental rights and freedoms shows that every human being has these rights and freedoms. This may lead to a better understanding of the dignity and respect of every human being and may also contribute to a successful integration of migrants in their host countries.”

10.6 How does providing for the education of minorities in schools where discrimination is an acceptable part of the school ethos show that every human being has these rights and freedoms?

10.7 In 2006 the UN raised concerns regarding Article 40.1 of the Constitution on equality before the law with the principle of non-discriminationxvii. This was ignored by the State. In 2008 the UN has raised the issue of discrimination in our education system. It has now raised these issues four times and the Council of Europe once. Despite this every day the children of minorities leave their Human Rights at the school gate. No attention has been paid to the UN Committee on the Elimination of all forms of Racial Discrimination and the UN Committee on the Rights of the Child. Despite this the Minister for Justice had no issue with informing the UN that:-

“We pay close attention to the deliberations and observations of the United Nations Treaty Monitoring Bodies.”

10.8 The Constitutional Review Group Report in 1995 stated that:-

“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”

10.9 Prof Gerry Whyte in a paper delivered to the Irish Human Rights Commission Conference on Religion and education stated that:- “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.xviii”

10.10 It is clear from this that in Ireland parents seeking secular human rights based education for their children are second class citizens. Their philosophical conviction that discrimination in education is morally wrong and undermines the dignity of the human person is ignored. It seems that in Ireland it is in the interest of the common good to disrespect parents seeking secular education for their children in order that other parents may access a religious education for their children. The Irish Constitution and human rights law are incompatible in this regard.

10.11 The Irish state must recognise that those parents seeking secular education for their children are denied basic human rights in the Irish Education system and the fact that the Constitution has failed to protect these rights in schools. The Report from the Irish Human Rights Commission says that “Ultimately the State bears responsibility to provide for the education of children, and therefore also bears an obligation to respect the human rights of those receiving such education and those of their parents, be they of religious or non- religious beliefsxix.

i  http://www.teachdontpreach.ie/2011/09/united-nations-and-council-of-europe-concluding-observations-on- ireland/

ii Mawhinney, Freedom of Religion in the Irish Primary school system: A failure to protect Human Rights? P.398

“In the absence of constitutional and education legislative provisions guaranteeing freedom of thought, conscience and religion in the context of the integrated curriculum, it might be presumed that the recent European Convention on Human Rights Act 2003 (ECHRA) could be employed to offer protection for such a Convention right.77 However, constitutional jurisprudence and recent disputes involving matters of ethos in schools suggest that this protection may not be forthcoming. First, the provisions of the Act are subject to the overriding authority of the Constitution, which remains the supreme law of the country. To date, denominational school bodies have been excluded from certain rights obligations found in the Constitution when the courts have considered it ‘necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion’.78 For instance, in McGrath and O’Ruairc v Trustees of Maynooth College,79 it was held that the prohibition of discrimination under Art 44.2.3 of the Constitution was confined to the state and not extended to institutions receiving public funding. The autonomy of religious bodies is additionally safeguarded by Art 44.2.5 of the Constitution, which protects the right of denominations to control their own affairs, including the running of educational establishments and the enforcement of its own regulations.

80 A second reason to doubt the capacity of the ECHRA to protect the rights of minority-belief individuals in denominational schools lies in the applicability provision of the Act. The Act is applicable only to those bodies defined as ‘organs of the state’.

81 As yet, the courts have not been asked to consider this definition. For present purposes, the question arises as to whether privately owned and managed, state funded, denominational schools would be classified as ‘organs of the state’. In its initial report to the Economic, Social and Cultural Committee in 1997, the government stated that ‘Overall responsibility for education in Ireland lies with the Minister for Education who is a member of the Irish Government and responsible to the National Parliament’.”

iii  http://www.irishstatutebook.ie/2000/en/act/pub/0008/index.html

iv CERD/C/IRL/CO/3-4 10th March 2011 para 26.

v  http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G99/462/16/PDF/G9946216.pdf?OpenElement

vi  http://www.irishstatutebook.ie/1998/en/act/pub/0051/index.html

vii Mawhinney, Freedom of Religion in the Irish Primary school system: A failure to protect Human Rights? P.391, The Integrated Curriculum.

“Schools also reported that the ethos of the school was promoted through religious symbols on walls, altars in classrooms, grace before meals, prayers at the start and end of the day, visits to churches, visits from clergy and the staging of Nativity plays and carol singing at Christmas time. The majority of school policy documents, submitted with completed questionnaires, were explicit in stating the extent of the permeation of the school ethos in school life: a ‘Christian Spirit will inform all the activities of the school’; a ‘Christian environment is offered’ by the school; and, in explaining the extent of school links with local parishes, ‘this, for example, is shown by the fact that the pupils attend services in the local church and the Rector visits the school on a regular basis in his role as Chaplain’. These reports are in keeping with statements by religious authorities which have been consistent in explicitly asserting the importance of the school ethos to the life of their schools. For example, in February 2005, the Roman Catholic Archbishop of Dublin re-emphasised the need for a Catholic school to ‘have a defined ethos which should be verifiable in all its aspects’.

57 He noted that ‘a Catholic ethos must be the integrating factor for all aspects of the life of the Catholic school’ and that a Catholic school must ‘place at the centre of its mission the passing on of the message of Jesus Christ, his truth and his love, from generation to generation, as a factor of liberation, integration and hope in the young person’s life’. The parents interviewed confirmed that an integrated curriculum is practised throughout the school day:

‘It actually turned out in reality that religion is not a subject that they do for a half-hour. It’s constantly brought up again and again like prayers here and there, colouring in pictures, say of the nativity.’‘It was 24 /7!’”

viii  http://www.unhchr.ch/tbs/doc.nsf/

898586b1dc7b4043c1256a450044f331/8d69692f4788b109c125725d002ff0c6/$FILE/G0645074.pdf

ix  http://www.irishstatutebook.ie/1998/en/act/pub/0021/index.html

x  http://www.vatican.va/roman_curia/congregations/ccatheduc/documents/

rc_con_ccatheduc_doc_20090505_circ-insegn-relig_en.html

xi  http://www.osce.org/pc/28557

xii  http://www.vatican.va/roman_curia/congregations/ccatheduc/documents/

rc_con_ccatheduc_doc_20090505_circ-insegn-relig_en.html

xiii  http://www.education.ie/servlet/blobservlet/

fpp_sub_community_national_schools_exemplar_best_practice.pdf

xiv  http://www.ihrc.ie/download/pdf/reledsub54.pdf

xv  http://www.echr.coe.int/echr/resources/hudoc/lautsi_and_others_v italy.pdf para 58

xvi  http://www.ihrc.ie/download/pdf/religionandeducationpdf.pdf page 82

xvii  http://www.teachdontpreach.ie/2011/09/united-nations-and-council-of-europe-concluding-observations-on- ireland/

xviii  http://www.ihrc.ie/publications/list/professor-gerry-whyte-paper-on-religion-and-educat/

xix Irish Human Rights Commission – Report and Recommendations – Page 10 – para 12.