How Ireland must comply with its civil rights obligations under the International Covenant on Civil and Political Rights
Ireland’s Civil Rights Obligations on Religion in Education and Schools under International Law
Atheist Ireland has made the following civil rights written submission to the Seanad Public Consultation Committee on Ireland’s obligations under the International Covenant on Civil and Political Rights.
The key priorities and challenges facing Ireland in complying with civil rights and the ICCPR are to comply with Articles 2 (nondiscrimination and right to an effective remedy) and 26 (equality before the law). Please remember that Article 26 covers all laws in Ireland, and it guarantees to all persons equal and effective legal protection against any religious discrimination.
This raises fundamental issues about how the Irish State fails to protect civil rights of atheists and secularists (as well as religious minorities) with regard to the various religious exemptions in Irish laws. Please also remember that it is persons, not groups, that are guaranteed these civil rights.
Specific relevant rights are guaranteed under Article 18 (freedom of thought, conscience and religion), 19 (freedom of expression) and 6, 7 and 17 (life, treatment and privacy). Protecting these rights requires changes to the Irish Constitution and laws, including equality laws, the education system, religious oaths, the blasphemy law, the Civil Registration Act, and abortion law.
- Give full effect to the civil rights and human rights under the Covenant in domestic law.
- Amend Article 44 of the Constitution, on Religion, to explicitly give equal protection without discrimination to religious and non-religious philosophical believers.
- Amend Article 40.1 on equality before the law with the principle of non-discrimination.
- Remove Section 7.3(c) of the Equal Status Act 2000 to ensure that children have a guaranteed access to schools without discrimination of any kind.
- Remove Section 12.4 and 37.1 of the Equality Acts which permit schools and hospitals and training bodies to discriminate on the grounds of religion.
- Ensure that all children have equal access to a basic moral, intellectual and social education in schools (Art 42.3.2 Irish Constitution) and not one just permeated by religious values.
- Amend Section 15 of the Education Act 1998 to ensure that the curriculum in all schools is delivered in an objective, critical and pluralistic manner.
- Amend Section 15 of the Education Act 1998 to ensure that all schools write down their Characteristic Spirit.
- Enact legislation to ensure that a common ethics course is an integral part of all B.Ed and Graduate Diploma programmes in the colleges for student teachers based on human rights and equality and also in accordance with the Toledo Guiding Principles.
- Reform the governance of State-funded teacher training colleges to remove the authority of religious bodies.
- Replace the requirement that the President, judges and Council of State members (including Taoiseach and Tanaiste) must swear a religious oath in the presence of Almighty God (Arts 12, 31, 34), and that the President and judges ask God to direct and sustain them (12, 34), with a single neutral declaration that reveals no details about personal religious beliefs.
- Remove the Constitutional 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).
- Amend Article 40.6.1 of the Constitution to remove the offence of blasphemy.
- Remove Section 36 and 37 of the Defamation Act 2009 (blasphemy offence).
- Amend the Civil Registration Act to treat religious and nonreligious bodies equally.
- Remove Article 40.3.3 of the Constitution to enable the Oireachtas to pass abortion laws consistent with our obligations under the ICCPR.
3. About Atheist Ireland
Atheist Ireland is an Irish advocacy group. We promote atheism and reason over superstition and supernaturalism, and we promote an ethical, secular society where the State does not support or finance or give special treatment to any religion. Since being formed in late 2008, we have campaigned for a secular Irish Constitution, parliament, laws, government, education and healthcare systems. We have made submissions to the the Irish Government and political parties, the UN Human Rights Council under the periodic review and the International Covenant on Civil and Political Rights, and the Council of Europe under the Framework Convention for the Protection of National Minorities. We have addressed Irish parliamentary committees, the Irish Constitutional Convention, the OSCE and the Presidents of the European Union, Parliament and Council. We are members of Atheist Alliance International, and we hosted the World Atheist Convention in Dublin in 2011. You can read details of our policies on our website at http://atheist.ie.
4. Supporting information on recommendations 1-3 (nondiscrimination, right to effective remedy, equality before the law)
4.1 In ratifying the ICCPR, Ireland has accepted that the rights guaranteed under this treaty are also contained in the Irish Constitution. Ireland has failed to take positive measures to secure the human rights of atheists and secularists under the ICCPR despite having ratified the treaty and agreeing to guarantee these rights to all within its territory. This Submission outlines the failure of the State to protect the Constitutional and Human Rights of atheists and secularists in many areas of Irish life.
4.2 Article 40.1 of the Irish Constitution states: “All citizens shall, as human person, be held equal before the law. This shall not be held to mean that the State shall not in its enactment have due regard to differences of capacity, physical and moral, and of social function.”
4.3 General Comment No. 22 on Article 18 of the ICCPR states: “2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief…” 1 This is also reflected in Article 9 of the European Convention. The European Court has made clear that secularism is a philosophical conviction worthy of respect in a democratic society.2
4.4 General Comment No. 18 on Article 2 and 26 of the ICCPR states: “1. Non-discrimination, 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…” 3
4.5 In Ireland, equality before the law and equal protection of the law without religious discrimination are not guaranteed, as the Constitution does not fully protect atheists and secularists from such discrimination. It gives priority to religious over philosophical beliefs. It permits religious discrimination, to uphold freedom of religion and ensure pluralism. This undermines the human rights of atheists and secularists and actually undermines pluralism. The State is not taking a neutral stance.
4.6 These human rights in Ireland are a theoretical illusion and not realisable in practice, as the State is not committed to taking positive measures to ensure they are enjoyed by all. There is no effective remedy to vindicate the rights guaranteed under any human rights treaty Ireland has ratified. That became clear in the Louise O’Keeffe and ABC Cases, as Ireland was found to have breached Article 13 of the European Convention (right to an effective remedy). Also, schools in Ireland are exempted from the European Convention on Human Rights Act because they are not ‘organs of the State’.
4.7 The Irish Human Rights Commission has highlighted this lack of effective remedy of Covenant rights in their Submission on the list of issues to the UN Human Rights Committee:“5. The IHRC wishes to highlight that despite the Committee’s 2008 Concluding Observations, no clear steps have been taken to give effect to the ICCPR in domestic legislation or to provide an effective remedy to any person whose rights have been violated under the Covenant.”
4.8 In their recent List of Questions to the State under the ICCPR the UNHRC asked: “1. Given that the Covenant is not directly applicable in the State party, please provide information on measures taken to ensure that all of the Covenant provisions are fully given effect in its domestic legal order.”
4.9 Ireland does not fulfil its legal obligation under the ICCPR to protect and ensure an effective remedy to vindicate the rights guaranteed under the Covenant. General Comment No. 31  Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26/05/2004) states: “The positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities”.
4.10 The Irish Human Rights Commission in their Report to the UN under the UPR, recommended a Constitutional Referendum on Article 40.1 to proscribe discrimination. They also made the following comments in their Submission on the List of Issues under the ICCPR.“17. The IHRC has also called on the State to expand the definition of equality in Irish law. In particular, the IHRC considers that Article 40.1 of the Constitution should be amended to guarantee equality to all and to proscribe discrimination (direct or indirect) in any area of law on non-exhaustive grounds…” 4
4.11 The United Nations Committee on Economic, Social and Cultural Rights in their concluding observations in 2002 stated the following on Article 40.1: “16. The Committee regrets that the State party has not yet undertaken any measures with regard to the Committee’s 1999 recommendation concerning the inconsistency of article 40.1 of the Constitution on equality before the law with the principle of non-discrimination as set out in articles 2 and 3 of the Covenant.”
4.12 The Constitutional Review Group Report 1995 also recommended Constitutional change in Article 40.1 to bring Ireland in line with international human rights instruments.5 Despite these observations and recommendations, there has been no change and no commitment to a Constitutional Referendum on Article 40.1 and consequently Ireland is in breach of its obligations under the ICCPR.
4.13 Article 44.2.3 of the Irish Constitution obliges the State not to discriminate on the grounds of religious profession, belief, or status. This Article does not include philosophical convictions such as secularism. The ICCPR also protects beliefs such as secularism and atheism and does not give priority to religious beliefs.
4.14 Prof Gerry Whyte has stated that: “The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.” 6
5. Supporting information on recommendations 4-10 (the education system)
5.1 Another key priority and challenge for the State in complying with the ICCPR is to guarantee the rights of secular parents and their children in the education system. In 2008 the UNHRC raised concern regarding the right to freedom of conscience of secular parents and their children in the Irish education system. They stated: “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.”
5.2 The UN Human Rights Committee in their List of Issues on Ireland fourth periodic report asked: “26.Please provide information on steps being taken to ensure that the right of children of minority religions or non-faith are also recognized in the Education Act 1998, and the number of non-denominational primary schools that have been established during the reporting period. Please also clarify whether there is an accessible and independent complaint handling mechanism to resolve disputes between parents and schools. “
5.3 Since the comments of the UN in 2008, nothing has changed on the ground for secular parents and their children in the Irish education system. Despite the fact that the UN specifically referred to secular parents and the religious integrated curriculum, the State has not changed one single piece of legislation, produced any statutory guidelines to protect the rights of secular parents and their children, or committed to a Referendum on Article 40.1, despite having ratified the ICCPR.
5.4 The State in their Reply to the List of Issues from the UN stated: “Following on from the Report of the Advisory Group on Patronage and Pluralism in the Primary Sector, a public consultation on inclusivity in primary schools was held in 2013. It is intended that a White Paper will be drafted by the Department of Education and Skills to set out Government policy in this regard.”
5.5 The Leaflet for Parents from the Dept of Education, regarding the consultation on inclusiveness in schools, omitted the main human rights issue that the UN Human Rights Committee has raised concern about in 2008. The Forum on Patronage and the IHRC both recommended removing the religious integrated curriculum, yet the Department still omitted it from the Leaflet. Atheist Ireland wrote to the Minister asking why he omitted the main human rights issue that the UN had raised.7 To date we have not had a reply and it seems clear from the Reply to the List of Issues from the UN that the Irish State does not intend to protect the rights of secular parents and their children.
5.6 The main human rights issue regarding the religious integrated curriculum in Irish schools is that it is not neutral and objective and parents cannot opt their children out of it. Schools are not obliged to even write down where they are integrating religion into the State curriculum, so secular parents cannot ensure that the teaching of their children is in conformity with their philosophical convictions.
5.7 The Council for Education of the Catholic Church’s Episcopal Conference, in its preliminary response to the report from the Forum on Patronage, stated: “The religious education programme in primary schools has been developed over many years as part of this integrated curriculum. The aim is not that all elements of the curriculum must be used for religious purposes, but that the various strands of the curriculum can inform and support each other in promoting the moral, spiritual, social, and personal development of students in the context of the characteristic spirit of the school. (see Ed Act 9(d)).”
5.8 While this denies that all elements of the curriculum must be used for religious purposes, the rest of the sentence contradicts that denial. If the strands are supporting each other ‘in the context of of the characteristic spirit’, and the characteristic spirit is religious, then the curriculum is in fact used for religious purposes. Also, it is not neutral and objective, which is the key human rights standard. The Catholic Church’s policy is that “religious education in schools fits into the evangelising mission of the Church” and cannot be taught “in a comparative or neutral way” as that “creates confusion or generates religious relativism or indifferentism.” 8
5.9 The Education Act 1998/Equal Status Act 2000 has failed to protect to rights of children and their parents from religious discrimination because the State gives priority to religious beliefs and provides religious exemptions in order to uphold the Constitutional and human rights of religious parents over the rights of secular parents and their children.
5.10 Article 18 of the ICCPR is clear on the right of parents to ensure that the teaching of their children is in conformity with their convictions. General Comment No. 22 on Article 18 states: “6. The Committee is of the view that article 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…” 9
5.11 UNHRC Leirvag V Norway Communication No 1155/2003 states 14.2 “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…” 10
5.12 Opting out of religion in state funded National schools is one of the Constitutional conditions that must be met under Article 44.2.4 of the Constitution. In most cases the Irish State ‘provides for’ (Article 42.3.4) the education of minorities in publicly funded National schools with a religious ethos. It is impossible to opt out of religion. The Education Act 1998 does not oblige schools to write down their ethos/characteristic spirit and so secular parents are not aware of what their children are being taught and cannot ensure that the teaching is in conformity with their convictions.
5.13 Unless the State is claiming that Article 42.1 obliges it to only respect the inalienable right and duty of religious parents, then it is also obliged to respect the inalienable right and duty of secular parents. The State cannot do this when they ‘provide for’ the education of their children in schools where they cannot opt out of the religious integrated curriculum.
5.14 The State claims that this discrimination is in the common good, is necessary and proportionate in order to uphold religious freedom and secure pluralism. But how does discriminating against minorities by denying them the right to freedom of conscience uphold pluralism and promote freedom of religion? Secular parents, both religious and non-religious, object on conscientious grounds to religious discrimination as we believe that it undermines the dignity of the human person.
5.15 Article 44.2.1 guarantees freedom of conscience. Article 42.3.1 states: “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”.
5.16 Article 42.3.2 obliges the State to ensure that all children receive a certain minimum education, moral, intellectual and social. This does not oblige the State to ensure that all children receive a moral education based on religious convictions. The children of secular parents receive no basic moral education, as the State ignores this obligation by ‘providing for’ the education of children in schools with a religious ethos, where religious and moral education are integrated.
5.17 Despite Article 42.1, Article 44.2.4, Article 44.2.1, Article 42.3.2 and Article 42.3.1 of the Irish Constitution and the fact that the State has ratified the ICCPR and the European Convention, secular parents and their children are denied basic rights such as freedom from discrimination, freedom of conscience, the rights of the child and equality before the law. All of this happens despite the Constitutional guarantee on the rights of parents in the education system.
5.18 In their Reply to the List of Issues from the UN under the ICCPR the Government stated that: 3. In September 2013, the Minister for Education and Skills published a Draft General Scheme for an Education (Admission to Schools) Bill 2013, as well as Draft Regulations on the Content of Admission Policies and Draft Regulations on Admission Processes, for discussion ahead of enacting legislation. The aim is to improve the admissions process and to ensure that the way schools decide on applications is structured, fair and transparent. 4. From the perspective of the parent, the framework makes clear that, inter alia, the enrolment policy will include a statement setting out the position of the school in relation to its arrangements for upholding the constitutional right of students not to attend religious instruction.”
5.19 This Bill does nothing to protect our human rights or guarantee our rights under the ICCPR. It does not deal with the religious integrated curriculum, and only refers specifically to religious instruction. Atheist Ireland in our Submission on the School Admissions Bill wrote the following in relation to Religious instruction and Religious Education. 11 “The issue in this section is what is defined as religious instruction. Traditionally religious instruction has been defined as the specific religious instruction class. The religion that is integrated into the curriculum has not been defined as religious instruction but as religious education. Schools are not obliged to inform parents where they are integrating religion into subjects in the State curriculum as it has not been defined as religious instruction. In the Supreme Court case Campaign to Separate Church and State, Barrington J stated: “The Constitution therefore distinguishes between religious ‘education’ and religious ‘instruction’ – the former being the much wider term. 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.”
5.20 Given the State Reply to the List of Issues from the UN, it seems clear that the State is again going to ignore the human rights guaranteed under the ICCPR and argue that the Constitution protects secular parents and their children when it is clear that despite all the guarantees we still do not enjoy basic rights. They are refusing to deal with the religious integrated curriculum, by saying that it is religious education and not religious instruction, which is not the relevant point.
5.21 The State Reply to the UN regarding the Complaints mechanism is meaningless as it gives no practical application to the rights guaranteed under the ICCPR:“Complaint handling mechanism 1. The Department’s existing procedure for parents who have a complaint against a school is published on its website. The Department has begun work on the development of a Parents’ Charter and this will continue in 2014.” The Louise O’Keeffe case showed that the State takes no responsibility for protecting human rights in the education system, but delegates that duty delegates it to private bodies. How can the Department’s existing procedure for addressing complaints work if the State takes no responsibility and there is no effective remedy to vindicate the human rights of secular parents?
6. Supporting information on recommendations 11-12 (religious references)
Under the Irish Constitution the President, judges and members of the Council of state are required to swear a religious oath. This is contrary to Article 18, Article 2 and Article 26. There is no option of taking a declaration. These religious oaths in the Irish Constitution are incompatible with the obligations of the State under the Covenant. In their List of Questions the UN Human Rights Committee has asked: “25. Taking note of the information provided in paragraph 611 of the State party report, please provide updated information to amend the constitutional provision requiring a religious oath from judges to allow for a choice of a non-religious declaration, as recommended by the Committee in its previous concluding observations (CCPR/C/IRL/CO/3, para.21).”
7. Supporting information on recommendations 13-14 (blasphemy law)
In their List of Issues on the fourth periodic report the UNHRC asked: “27. Please provide updated information concerning the measures taken or envisaged to remove the offence of blasphemy from article 40.6.1(i) of the Constitution as well as section 36 of the Defamation Act 2009.” Part V of the Defamation Act 2009 establishes a criminal offence which includes a prohibition of publishing or uttering blasphemous matter. Ireland introduced this law despite having informed the Venice Commission in 2007 that in general the legislation already in place provided adequately for these matters. Despite this Ireland introduced a Blasphemy law in a country where the non-religious do not enjoy the right to equality before the law without discrimination or the right to an effective remedy.
8. Supporting information on recommendation 15 (Civil Registration Act)
The Civil Registration Act 2012 is the latest piece of direct religious discrimination against atheists and secularists in Ireland. It breaches Article 26 of the ICCPR. A body can only be a secular body for the purposes of the Act if it has not fewer than 50 members; its principal objects are secular, ethical and humanist; it is a body that, on the date of its making of an application under section 54 or 57, has been in existence for 5 years; maintains a register of its members; and does not promote a political cause. None of the above applies to religious bodies. Religious bodies are not obliged to be ethical, they can promote a political cause, have less than 50 members, do not need to maintain a register of members and do not need to be in existence for five years. The government just accepts that religions are ethical, but humanist groups have to prove that they are ethical, and atheist groups are not even given that option. We have tried unsuccessfully to find out why the State is discriminating in this manner and breaching Article 26. To see our efforts to date please see footnotes. 12 13
9. Supporting information on recommendation 16 (Article 40.3.3)
In 2008 the UN under the ICCPR raised this issue which the State ignored. They asked the State to bring its laws on abortion into line with the Covenant. The Protection of Life During Pregnancy Act 2013 does not bring Ireland’s abortion laws into line with the Covenant as Article 40.3.3. of the Irish Constitution is incompatible with Ireland’s human rights obligations under the Covenant.
- “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.”
- “1. Non-discrimination, 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. Thus, article 2, paragraph 1, of the International Covenant on Civil and Political Rights obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 not only entitles all persons to equality before the law as well as equal protection of the law but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 12. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right.”
- “17. The IHRC has also called on the State to expand the definition of equality in Irish law. In particular, the IHRC considers that Article 40.1 of the Constitution should be amended to guarantee equality to all and to proscribe discrimination (direct or indirect) in any area of law on non-exhaustive grounds. To the IHRC’s knowledge there has been no discussion by State authorities of the need for the equality guarantee under Article 40.1 of the Constitution to provide (or be interpreted to provide) equivalent protection to the right guaranteed under Article 26 of the Covenant. As noted, nor has the matter of the current interpretation of the equality guarantee under Article 40.1 of the Constitution been referred to in the Terms of Reference of the Constitutional Convention.”
- “A list of rights to be considered for express inclusion in the Constitution would include, in addition, to the un-enumerated rights already listed, the following which are contained in the international human rights instruments… A general right to non-discrimination on such grounds as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Articles 2 and 3 CCPR, Article 14 ECHR)… The General Right to non-discrimination should be contained in a revised Article 40.1.”
- “6. The Committee is of the view that article 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. The liberty of parents or legal guardians to ensure that their children receive a religious and moral education in conformity with their own convictions, set forth in article 18.4, is related to the guarantees of the freedom to teach a religion or belief stated in article 18.1. The Committee notes that public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.”
- 14.2 “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.”