Atheist Ireland asks Council of Europe to protect human rights in Irish schools with O’Keeffe ruling

Atheist Ireland has made a report to the Council of Europe about the Louise O’Keeffe judgement last year in the European Court of Human Rights.

Atheist Ireland has made a report to the Council of Europe about the Louise O’Keeffe judgement last year in the European Court of Human Rights, a ruling that has implications for all of the human rights that are breached by religiously-run national schools in Ireland. We are asking the Council of Europe to not close its examination of this judgement until an effective remedy is in place in theory and in practice to vindicate our human rights.

During the case, the Irish State was arguing that it was not responsible for protecting Louise O’Keeffe’s human rights while she was in school, because the State did not run the school directly. The European Court told the State that it was responsible, regardless of whether it runs the schools directly. The then Tanaiste Eamon Gilmore told the Dail that “The implications are profound for the patronage system of schools and for the relationship between the State and patrons of schools.”

The judgment is currently being considered by the Council of Europe’s Department for the Execution of Judgments, and Atheist Ireland’s report has now been included in the case-file and forwarded to the Permanent Representation of Ireland to the Council of Europe.

Here is the detail of our report.

Contents

Part One – Analysis of the Current Situation in Ireland

1. Overview
2. Atheist Ireland
3. The O’Keeffe Case
4. Profound Implications of the O’Keeffe case
5. Organs of the State
6. Research by Dr. Alison Mawhinney
7. Is a court case needed?
8. Irish Human Rights Commission
9. Is a referendum needed?
10. Article 2 of Protocol 1
11. Section 15 (1) (b) of the Education Act
12. Forum on Patronage Progress Report
13. Ministerial Foreword of this report

Part Two – Recommendations of International Regulatory Bodies

14. UN Committee on ESC Rights 2015
15. UN Human Rights Committee 2014
16. European Commission Against Racism and Intolerance 2013
17. UN Committee on the Elimination of Racial Discrimination 2011
18. UN Human Rights Committee 2008
19. COE Protection of National Minorities 2006
20. UN Committee on the Rights of the Child 2006
21. UN Committee on Elimination of Racial Discrimination 2005

Part One – Analysis of the Current Situation in Ireland

1. Overview

The Irish State does not maintain a sufficient level of control over publicly funded National Schools to ensure that Convention rights are protected and upheld.

The right to an effective remedy is a theoretical illusion and not operable in practice. The likelihood of subsequent cases arising under the Convention is enormous, given that the Action Plan submitted by the State does not provide a mechanism to obtain redress at national level.

This case has the potential to ensure that children and their parents in Ireland enjoy their Convention rights in the Irish education system. Irish children and their parents are entitled to a remedy establishing any liability of the State for their failure to protect Convention rights.

The human rights guaranteed under the European Convention are not worth the paper they are written on if we do not have an effective remedy to vindicate them and to hold the state responsible for their failure to protect them.

The right to education is guaranteed under Article 2 of Protocol 1. The state is obliged to ensure that the rights guaranteed under Article 3, Article 8, Article 9, Article 10 and Article 14 are protected while children access a vital service such as education. It took Louise O’Keeffe fifteen years to finalise this case and the Irish State fought her all the way.

The Action Plan submitted by the Irish State will not ensure that this judgement is fulfilled. We hope that this submission helps you appreciate the obstacles that the Irish State has put in place to ensure that they take no responsibility for the protection of our Convention rights.

In a democratic republic that has ratified the European Convention, the Minister for Education merely encourages schools to consider human rights, while leaving them with the legal capacity to implement these rights according to their own interpretation and in their own context. Families are still dependent on the benevolence of publicly funded private bodies who are not bound by the Convention and whose priority is to protect their own ethos over the human rights of parents and children.

We ask that you do not close the examination of this judgement until an effective remedy is in place in theory and in practice to vindicate our human rights.

2. 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 Irish Government, political parties, the Constitutional Convention, the Irish Human Rights Commission, the UN Human Rights Council under the periodic review, the UN CERD Committee, the UN Human Rights Committee, the UN Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Council of Europe under the Framework Convention for the Protection of National Minorities and the European Commission against Racism and Intolerance.

We have addressed Irish parliamentary committees, the Irish Constitutional Convention, the UN Human Rights Committee under the ICCPR, the UN Committee on Economic, Social and Cultural Rights, 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.

The education policy of Atheist Ireland is to seek secular education based on human rights law. Atheist Ireland assists parents and their children who are struggling for their human rights in the education system. We run a website called Teach, Don’t Preach that informs and educates parents and children about human rights and education http://www.teachdontpreach.ie/ as well as our main website. We also help parents who have disputes with schools over denial of access on religious grounds, opting out of religion, religious integrated curriculum and various other areas where parents feel their human rights are being denied.

We help atheist and secular parents and also religious minorities who have the same problems as us and who are also discriminated against on the grounds of religion. We also assist Catholic parents who wish to opt their children out of some of the religious teaching in our schools. We are in a unique position to brief the Committee of Ministers on the failure of the Irish State to take responsibility for the protection of Convention rights in the education system as we deal with practical issues on the ground.

With this submission we hope to inform the Committee about the practical issues faced by parents and their children on the ground because of the failure of the Irish state to take responsibility for the protection of Convention rights, and to provide children and their parents with an effective remedy in practice and in law. The Action Plan submitted by the Irish State will not enable children and their parents to establish any liability against the state for their failure to protect Convention rights in the education system.

3. The O’Keeffe Case

The European court in the O’Keeffe case stated that:

“40.  As to the claim about the responsibility of the State in the provision of primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility, Hardiman J stated:

“I have already analysed the terms of Article 42 from which it will be seen that the Minister, in the case of this national school, was simply providing assistance and subvention to private and corporate (i.e. Roman Catholic) endeavour, leaving the running of the school to the private or corporate entities. The Minister is thereby, as Judge Kenny pointed out in Crowley v. Ireland [1980] I.R. 102], deprived of the control of education by the interposing of the Patron and the Manager between him and the children. These persons, and particularly the latter, are in much closer and more frequent contact with the school than the Minister or the Department.

I do not read the provisions of Article 42.4 as requiring more than that the Minister shall “endeavour to supplement and give reasonable aid to private and corporate educational initiative”, to “provide for free primary education”. … In my view the Constitution specifically envisages, not indeed a delegation but a ceding of the actual running of schools to the interests represented by the Patron and the Manager.”

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

“179.  Since the Court considers that the applicant was entitled to a remedy establishing any liability of the State, the proposed civil remedies against other individuals and non-State actors must be regarded as ineffective in the present case, regardless of their chances of success (the Patron and Manager) and regardless of the recoverability of the damages awarded (civil action against LH). Equally the conviction of LH also relied upon by the Government, while central to the procedural guarantees of Article 3, was not an effective remedy for the applicant within the meaning of Article 13 of the Convention.”

4. Profound Implications of the O’Keeffe case

The judgement in the Louise O’Keeffe case has the potential to lead to widespread change in the Irish Education system. The case has wider implications for the protection of Convention rights in the Irish Education system in relation to Article 2 of Protocol 1, Article 3, Article 8, Article 9, Article 10 and Article 14.

This change could for the first time in our history ensure that the State protects and guarantees Convention rights in the education system in practice and in law, instead of ceding control to private bodies.

The then Tanaiste, Eamon Gilmore recognised this when he stated in the Dail that:

“As the Deputy knows, the Supreme Court handed down a judgment on this case, I think, in 2009, certainly some time before we came into office. That was the legal position at the time. The Deputy raised the issue about the State accepting liability for current and future cases in terms of what happens in our schools. There are very significant implications in the judgment of the European Court of Human Rights. We have had a system in this country of schools operating under a system of patronage. My understanding of the Supreme Court judgment in 2009 was that it accepted that system of patronage and, therefore, ultimate liability did not rest with the State.

The judgment of the European Court of Human Rights has very serious implications for the relationship between the State and the patronage of our schools. As the Deputy knows, the Minister for Education and Skills has already undertaken a process of considering the whole issue of patronage of our schools. That issue will now be given an added significance by the judgment in this case. That is one of the issues.

The Deputy raised the situation in terms of current and future responsibility by the State. That is among the issues that Government will have to consider arising from this judgment. The implications of it are profound for the patronage system of schools and for the relationship between the State and patrons of schools.”

Despite the above recognition that the judgement in the O’Keeffe case will have profound implications, the Action Plan submitted by the Irish State on the Louise O’Keeffe case will not guarantee Convention rights in the Irish Education System.

To do so would, as the Tanaiste pointed out, have implications between the state and patrons of schools which would involve state liability. The State in their Action plan have provided no plan to amend the legislation that enables it to absolve itself of the responsibility to protect Convention rights in the education system and cede control to private bodies.

The Irish State has an opportunity here to put matters right through our legal system but the Action Plan submitted on the O’Keeffe case fails to do this and consequently there is still no effective remedy available to vindicate Convention rights (Article 2 of Protocol 1) in the education system.

5. Organs of the State

It is not clear whether or not the European Convention on Human Rights Act 2003 applies to publicly funded National schools in Ireland as it only applies to ‘organs of the state’.

The European Convention on Human Rights Act 2003 states that:

“organ of the State” includes a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised;

Schools in Ireland are publicly funded but essentially private schools. In practice parents and their children are left dealing with the Boards of Management of schools who are legally obliged (Section 15 Education Act 1998) to uphold the ethos of the Patron, who have exemptions from our equality laws. As it stands now human rights are a theoretical illusion for many Irish parents and their children as there is no practical application given to them on the ground.

These Patron bodies (almost all religious) are not legally obliged to interpret human rights in a convention compliant manner, and all schools must uphold and be accountable to the Patron for upholding the ethos of the school. These Patron bodies are excessively involved in decisions that affect the human rights of children and their parents.

The State has given these Patron bodies decision making power at the cost of abdicating state responsibility over the human rights of children and their parents in the education system. The purpose of almost all of the Patron bodies in Ireland is to evangelise and promote particular religious values, and not protect and promote the rights guaranteed under the European Convention.

From our experience on the ground any complaints that parents make to the Department of Education & Skills is redirected back to the school. The Dept of Education & Skills never takes any responsibility for the failure of schools to vindicate the human rights of parents and their children in the education system.

6. Research by Dr. Alison Mawhinney

This issue was highlighted in Dr. Alison Mawhinney’s published research: Freedom of religion in the Irish primary school system: a failure to protect human rights?

“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. 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’. For instance, in McGrath and O’Ruairc v Trustees of Maynooth College, 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.

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’. 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’.”

Not only are schools in Ireland excluded from rights obligations found in the Convention, but they are also excluded from rights obligations in the Irish Constitution.

7. Is a court case needed?

Recently Atheist Ireland raised this issue with an Adviser to the Minister for Education. We asked whether it was established that schools in Ireland would be considered as ‘organs of the state’ under the European Convention on Human Rights Act 2003. We were informed that nobody knew whether or not schools were ‘organs of the state’ and that someone needed to take a case through the courts before this could be determined. We asked would it be possible to ask the Attorney General and we were informed that her advice is never published so there would be no point in doing so.

This obviously means that in order to engage the responsibility of the state for Convention rights parents and their children are expected to take a case all the way to the Supreme Court and to first establish whether or not schools were ‘organs of the state’ within the meaning of the European Convention on Human Rights Act 2003. In all probability the Court could say the exactly same thing that they said to Louise O’Keeffe:

“I have already analysed the terms of Article 42 from which it will be seen that the Minister, in the case of this national school, was simply providing assistance and subvention to private and corporate (i.e. Roman Catholic) endeavour, leaving the running of the school to the private or corporate entities. The Minister is thereby, as Judge Kenny pointed out in Crowley v. Ireland [1980] I.R. 102], deprived of the control of education by the interposing of the Patron and the Manager between him and the children. These persons, and particularly the latter, are in much closer and more frequent contact with the school than the Minister or the Department.

They could also suggest, as they did in the O’Keeffe case, that the complainant should have sued the Patron.

Even if schools were ‘organs of the state’, in order to seek an effective remedy under the Act, it is expected that a complainant should ask the courts to interpret statutes in a Convention compliant manner and, if that was not possible, to make a declaration of incompatibility. A declaration of incompatibility is not obligatory on the State. There is no legal aid for these matters and the prohibitive cost of legal action against the state is a major deterrent never mind the fact that it does not even offer a reasonable chance of success.

8. Irish Human Rights Commission

In their Submission to the Department of Education and Skills on a regulatory framework for school enrolment October 2011 the Irish Human Rights Commission said the following in relation to ‘organs of the state’:

“It is certainly arguable, although not as yet determined, that schools governed by the Education Act 1998 are “organs of the State” for the purpose of the ECHRA insofar as they may be considered to be a body through which the “legislative, and executive” powers of the State are exercised. If schools are an organ of the State then they have a direct and enforceable statutory duty under section 3(1) ECHRA, and an individual parent might conceivably be able to bring proceedings against a school whose admission policy was not in compliance with the rights protected under the ECHR.

“14.In any event, as outlined above, school admission policies are the subject of legislative regulation, pursuant to sections 9 and 15 of the Education Act 1998, which brings the formulation and application of such policies within the control of the State. This is distinct from those aspects of the internal administration of schools where State control is specifically excluded. Therefore, insofar as the State has sought to legislate for and regulate school admission policies, the State is obliged to keep within the boundaries of its obligations both under the Constitution and the ECHR.”

9. Is a referendum needed?

Section 7 – 3 (c) of the Equal Status Act permits schools with a religious purpose (the vast majority) to give preference to co-religionists and to refuse access if they believe that a five year old child will undermine their ethos.

As the vast majority of Schools are established to promote Catholic religious values, a Baptismal Certificate is requirement when registering for a family’s local (and often only) publicly funded school. Our Children are referred to as “category two children”.

This Government has no intention of removing the ability of publicly funded National schools to discrimination on religious grounds.

On June 12th 2015 it was reported in the Irish Examiner that the Minister for Education & Skills stated that:

“A referendum would be needed to end the ability of Church-owned schools to give enrolment priority to children of their own faith, Education Minister Jan O’Sullivan has said.”

On June 17th 2015, speaking in the Oireachtas on a different but related Bill, that would remove religious discrimination against atheists in employment of teachers, and which faced the same constitutional problem, the Minister for Education and Skills said:

“Although there were some suggestions that we should amend the Constitution, we are working within the Constitution as it is written.”

If Ireland needs a referendum to remove religious discrimination in access to and employment in schools, this can only mean that the State cannot provide an effective remedy to vindicate the rights guaranteed under Article 2 of Protocol 1 and Article 14 of the European Convention.

It also means that the Irish Constitution is incompatible with the European Convention and the various UN Treaties that Ireland has ratified. By no stretch of the imagination can anyone even consider that, refusing children access to their only local publicly funded National school because their parents cannot produce a baptismal certificate is protecting Convention rights.

10. Article 2 of Protocol 1

We are aware of the General Principles relating to education under Article 2 of Protocol 1 of the European Convention. In particular the Folgero V Norway case at the European Court is significant in this regard.

Schools can legally seek baptismal certificates so that they can identify and give preference to the children of Catholic parents. Obliging parents to produce a baptismal certificate to gain access to their local publicly funded schools is a breach of the European Convention. Schools with a Protestant ethos do the same but ask for a letter from the local clergy to say that they are involved in the church.

In the Louise O’Keeffe case the European Court stated that:

“177.  The Court recalls, as it did at paragraph 115 above, that in a case such as the present, Article 13 requires a mechanism to be available for establishing any liability of State officials or bodies for acts or omissions in breach of the Convention and that compensation for the non-pecuniary damage flowing therefrom should also be part of the range of available remedies (Z and Others v. the United Kingdom, cited above, § 109).

The Court also recalls the relevant case-law and principles set out at paragraphs 107-108 of the McFarlane v. Ireland judgment ([GC], no. 31333/06, 10 September 2010). In particular, the Court’s role is to determine whether, in the light of the parties’ submissions, the proposed procedures constituted effective remedies which were available to the applicant in theory and in practice, that is to say, were accessible, capable of providing redress and offered reasonable prospects of success. The importance of allowing remedies to develop in a common law system with a written Constitution is also underlined (see, particular, D v. Ireland, no. 26499/02, (dec.), § 85, 27 June 2006).”

We know and appreciate our rights under the European Convention but it is clear that we have no possibility of holding the state responsible for their protection. The State claim that they are responsible for human rights in the education system while at the same to ceding control to Patron bodies.

The Dept of Education & Skills informs us all that there are human rights considerations in the education system, but they won’t legally oblige schools to comply with them and they won’t take any responsibility to protect them.

The words pluralism, diversity, inclusion, respect for parents convictions and human rights are buzz words that are used constantly when discussing our education system. The problem with this is that these words are defined according to the ethos of a particular patron body and not in a Convention compliant manner.

11. Section 15 (1) (b) of the Education Act

Section 15 (1) (b) of the Education Act 1998 obliges school boards to manage the school on behalf of the patron and Section 15 (2) (b) states that:-

A board shall perform the functions conferred on it and on a school by this Act and in carrying out its functions the board shall –

Uphold, and be accountable to the patron for so upholding, the characteristic spirit of the school as determined by the cultural, educational , moral, religious, social, linguistic and spiritual values and traditions which inform and are characteristic of the objectives and conduct of the school, and at all times act in accordance with any Act of the Oireachtas or instrument made thereunder, deed, charter, articles of management or other such instrument relating to the establishment or operation of the school.

(c) consult with and keep the patron informed of decisions and proposals of the board,

The result of the failure of the state to take responsibility for education is that Convention rights can mean what a particular private Patron body say they mean. None of these Patron bodies have ratified the European Convention and can in ‘accordance with law’ implement their own ethos and claim that this complies with human rights.

Schools can legally discriminate on religious grounds, as they are private bodies that have exemptions in our equality laws. Parents and their children are expected to hold schools responsible for discrimination and a breach of human rights, when these same schools have exemptions under the Equal Status Act and they can implement human rights according to their own ethos.

12. Forum on Patronage Progress Report

In June 2014 after the judgement in the O’Keeffe case the Dept of Education & Skills published a Document entitled: Forum on Patronage and Pluralism in the Primary Sector – Progress to Date and Future Directions.

This process was referred to by the then Tanaiste Eamon Gimore in the Dail on the 30th of January 2013 when referring to the judgement in the Louise O’Keeffe case:

“As the Deputy knows, the Minister for Education and Skills has already undertaken a process of considering the whole issue of patronage of our schools. That issue will now be given an added significance by the judgment in this case. That is one of the issues.”

But no significance has been given to the judgement in the O’Keeffe case. The Document refers to the Recommendations from various UN and Council of Europe Committees as “criticisms”. It does not refer to the O’Keeffe judgement at the European Court but does claim that the state is responsible for the protection of minorities in the education system.

The Document is not prescriptive and it again recognises that each school has its own ethos. It is clear from this Document that the Irish State will continue to cede control for the protection and implementing Convention rights to schools, to implement them in accordance with their own ethos and in their own particular context.

That context means that parents and their children are confined to engaging the responsibility of the patron to uphold human rights and not the responsibility of the state. There will be no change on the ground for parents and their children after the O’Keeffe judgement and the Action Plan submitted by the Irish state to the Committee reflects this.

13. Ministerial Foreword of this report

The Ministerial Foreword of this report says:

“Ireland has a proud record of promoting and respecting human rights. They are enshrined in our Constitution and in various acts of the Oireachtas. They are also set out in conventions and treaties of international bodies such as the United Nations where we continue to play an active part in support of these rights.

It is important to ensure that our own structures and institutions are dedicated to upholding the highest standards of respect for human rights. This applies to schools as well as to other institutions.

In this context, while we rightly emphasise the importance of education outcomes, we must also be conscious of our responsibility to ensure that the primary school system respects the rights of all pupils, regardless of their background, beliefs or nationality.”

“Respecting and upholding the rights of all minorities in schools is an important responsibility of the state”

“The paper does not set out to be prescriptive and recognises that each school has its own ethos and operates in a particular context. Therefore, it encourages schools to consider their own practices critically and to consult meaningfully with their own communities and stakeholders in formulating policies and developing practice in this area. It also envisages that such policies and practices would evolve and develop as the school and the environment in which it operates continue to change and develop.”

The then Minister for Education Ruairi Quinn used the words, “encourages schools” to consider developing practice in the area of human rights. This contrasts with the recommendation of the Forum on Patronage, which said that:

“In order to clarify the constitutional and legal rights of children and parents and to reflect changes to the Rules for National Schools, the Advisory Group recommends that the Minister for Education and Skills should make schools aware of the human rights requirements of national and international law.”

So, instead of making schools aware of human rights requirements, the Minister merely encouraged schools to consider their own approaches in a non-prescriptive manner.

This is what parents and children are left with, after the O’Keeffe judgement and the various Recommendations from the UN and COE. In a democratic republic that has ratified the European Convention, the Minister for Education merely encourages schools to consider human rights, while leaving them with the legal capacity to implement these rights according to their own interpretation and in their own context. Families are still dependent on the benevolence of private bodies who are not bound by the Convention and whose priority is to protect their own ethos over the human rights of parents and children.

It is no wonder that the Document published by the Minister is not prescriptive as it would be impossible to justify that Section 7 – 3 (c) of the Equal Status Act protects the Convention rights of children and their parents. It would also be impossible to justify the continuation of the religious integrated curriculum.

These issues have all been raised by various UN Committees and the Council of Europe (see Part Two of this submission). The Irish Human Rights Commission in their Report Religion and Education; A Human Rights Perspective has also recommended changes in legislation to ensure that our domestic legislation complies with Ireland’s human rights obligations. Those recommendations have been ignored.

Part Two – Recommendations of International Regulatory Bodies

14. UN Committee on ESC Rights 2015

On 19th of June 2015 the UN Committee on Economic, Social and Cultural Rights stated the following in the Concluding Observations – E/C.12/IRL/CO/3

“Non-discrimination
1. While noting the existence of a number of laws, including the Equality Status Act 2000, to provide equality provisions in the State party, the Committee is concerned that those laws do not provide a full range of grounds of discrimination prohibited by the Covenant (art. 2.2).
The Committee recommends that the State party adopt comprehensive anti-discrimination legislation that includes all the grounds for discrimination set out in article 2, paragraph 2, of the Covenant. The Committee refers in this regard to its General Comment no. 20 (2009) on non-discrimination and economic, social and cultural rights.”

Right to education

30. The Committee is concerned at the discrimination faced by children with disabilities, migrant children, children belonging to a religious minority, Traveller and Roma children, including:
(a) Legal provisions, such as Section 7 of the Equal Status Acts 2000, which allow schools to give preference to admission of students based on religion;
(b) Discriminatory criteria against children with special educational needs contained in many admissions policies and the lack of a regulatory framework; and
(c) Adverse effects of the austerity measures on the education sector, including the reduced number of teachers, rationalization of teacher/student support services, abolition of grants to schools, increase in transport charges and reduced allowance for clothing and footwear, which further restrict disadvantaged children from attending schools (arts. 13 and14).

The Committee recommends that the State party:
(a) Take all necessary measures to bring all relevant laws, including the Equal Status Acts 2001 and the Education (Admission to Schools) Bill 2015 in line with the international human rights standards and to increase the number of non-denominational schools at the primary and post-primary education levels;
(b) Review admissions policies of all schools with a view to removing all discriminatory criteria for enrolment and establish a regulatory mechanism to monitor school policies, including admissions policies; and
(c) Revoke the austerity measures which affect disproportionately disadvantaged children.

15. UN Human Rights Committee 2014

In August 2014 the UN Human Rights Committee under the International Covenant on Civil & Political Rights made the following Recommendation. CCPR/C/IRL/CO/4

Freedom of religion

The Committee is concerned at the slow pace of progress in amending the provisions of the Constitution that oblige individuals wishing to take up senior public office positions, such as President, members of the Council of State and members of the judiciary, to take religious oaths. It is also concerned about the slow progress in increasing access to secular education through the establishment of non-denominational schools, divestment of the patronage of schools and the phasing out of integrated religious curricula in schools accommodating minority faith or non-faith children. It expresses further concern that under section 37 (1) of the Employment Equality Acts, religious-owned institutions, including in the fields of education and health, can discriminate against employees or prospective employees to protect the religious ethos of the institution (arts. 2, 18, 25 and 27).

The State party should take concrete steps to amend articles 12, 31 and 34 of the Constitution that require religious oaths to take up senior public office positions, taking into account the Committee’s general comment No. 22 (1993) on freedom of thought, conscience and religion, concerning the right not to be compelled to reveal one’s thoughts or adherence to a religion or belief in public. It should also introduce legislation to prohibit discrimination in access to schools on the grounds of religion, belief or other status, and ensure that there are diverse school types and curriculum options available throughout the State party to meet the needs of minority faith or non-faith children. It should further amend s ection 37 (1) of the Employment Equality Act in a way that bars all forms of discrimination in employment in the fields of education and health.

16. European Commission Against Racism and Intolerance 2013

In 2013 the European Commission Against Racism and Intolerance Recommended that:

101. In its third report ECRI urged the Irish authorities to promote the establishment of multidenominational or non-denominational schools and adopt the necessary
legislation to that end. The authorities should also ensure that the current opt-out system in denominational schools is implemented in a manner which does not make pupils feel singled out.

17. UN Committee on the Elimination of Racial Discrimination 2011

In 2011 under article 9 of the convention, the Concluding Observations of the Committee on the Elimination of Racial Discrimination – Ireland in 2011 adopted the following.

26. The Committee recalls its previous concluding observations (CERD/C/IRL/CO/2) and notes with concern that the education system in the State party is still largely denominational and is mainly dominated by the Catholic Church. The Committee further notes that non-denominational or multi-denominational schools represent only a small percentage of the total and, regrets that, according to reports, there are not enough alternative schools, and students of the Catholic faith are favoured for enrolment into Catholic schools against students of other faiths in case of shortage of places. The Committee further expresses its regret that the provisions of the Equal Status Act give the power to schools to refuse to admit students to denominational schools on grounds of religion if it is deemed necessary to protect the ethos of the school (articles 2, 5(d)(vii) and 5(e)(v))

Recognising the ‘intersectionality’ between racial and religious discrimination, the Committee reiterates its previous concluding observations (CERD/C/IRL/CO/2) and recommends that the State party accelerates its efforts to establish alternative non-denominational or multi-denominational schools and to amend the existing legislation that inhibits students from enrolling into a school because of their faith or belief. The Committee further recommends to the State party to encourage diversity and tolerance of other faiths and beliefs in the education system by monitoring incidents of discrimination on the basis of belief.

18. UN Human Rights Committee 2008

In 2008 the UN Human Rights Committee under the International Covenant on Civil & Political Rights made the following Recommendation.

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.
(Article 2 Freedom from Discrimination, Article 18 Freedom of Conscience, Article 24 The Right of the Child, Article 26 Equality before the Law.)

19. COE Protection of National Minorities 2006

The Council of Europe Framework Convention on the Protection of National Minorities Second Opinion on Ireland, adopted on 6 October 2006, ACFC/OP/II(2006)007

Denominational schools – Present situation

98. The Advisory Committee has received detailed information from non-governmental sources on the way in which the limited number of non-denominational or multi-denominational schools in Ireland – where an overwhelming majority of schools are run by Catholic bodies – can complicate efforts to find a school that would adequately take into account the cultural or religious background of non-Catholic minority children. The Advisory Committee welcomes the fact that the Irish authorities are paying increasing attention to the issue and that there is a commitment to step up support for expanding the network of non-denominational or multi-denominational schools. This has already resulted in the establishment of a number of new multi-denominational primary schools in recent years, although progress in this respect still appears to lag behind growing demand.

99. The Advisory Committee stresses that, in addition to widening the non-denominational and multi-denominational school network, there is a legal obligation to ensure that, in denominational schools, there is a possibility to opt out of religious instruction. It is important that this possibility is offered and organised in a manner that does not unduly single out the pupils concerned. The Advisory Committee further recalls that the above issues are likely to only increase in importance as the religious and cultural diversity of the country expands further.

Recommendations
100. The Advisory Committee urges the authorities to pursue their commitment to widen schooling options, including in terms of non-denominational and multi-denominational schools, in a manner that ensures that the school system reflects the growing cultural and religious diversity of the country.

20. UN Committee on the Rights of the Child 2006

The Committee on the Rights of the Child said in September 2006 – CRC/C/IRL/CO/2

60.The Committee reiterates the concern raised by the Committee on the Elimination of Racial Discrimination in its concluding observations on the initial and second periodic reports of the State party (CERD/C/IRL/CO/2) that non-denominational or multidenominational schools represent less than 1 % of the total number of primary education facilities.

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 multidenominational schools and to amend the existing legislative framework to eliminate discrimination in school admissions.

21. UN Committee on Elimination of Racial Discrimination 2005

In 2005 under the UN International Convention on the Elimination of all Forms of Racial Discrimination – CERD/C/IRL/CO/2 – the Committee made these Concluding Observations.

“18. The Committee, noting that almost all primary schools are run by Catholic groups and that non-denominational or multi-denominational schools represent less than 1% of the total number of primary educational facilities, is concerned that existing laws and practice would favour Catholic pupils in the admission to Catholic schools in case of shortage of places, particularly in the light of the limited alternatives available. (article 5(d)(vii) and 5(e)(v))

The Committee, recognising the “intersectionality” of racial and religiousdiscrimination, encourages the State party to promote the establishment of nondenominational or multi-denominational schools and to amend the existing legislative framework so that no discrimination may take place as far as the admission of pupils (of all religions) in schools is concerned.”

Atheist Ireland
Atheist Ireland