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Editorial
Misuse of public funds regarding religious instruction
 We hope you had an enjoyable celebration yesterday of the turn of the season, as humans have done from time immemorial. The Christian church later voted to hijack the day to mark the imagined birth of the creator of the universe as a human baby, and today it is mostly a secular celebration of family and friends.
Atheist Ireland sent a major report this week to the Comptroller and Auditor General and the Oireachtas Public Accounts Committee. We are arguing that the Department of Education and the NCCA are misusing public funds by ignoring constitutional conditions about the right to not attend religious education in schools.
Under Article 44.2.4 of the Constitution, it is a condition of State funding for schools that any child can attend that school without attending Religious Instruction at that school. This right is supported by other Constitutional Articles, laws, and policy which we outline in our report. The funding of schools is conditional on this right being vindicated, yet the State is currently providing funding while ignoring this Constitutional condition. This is a misuse of public funds.
Part 1 of our report outlines the Constitutional rights of atheist, humanist, and secular families, and how the State is ignoring its funding duties in relation to the conditions attached to State funding of schools. This includes duties in the Constitution, the law, and policy.
Part 2 of our report shows how the Department of Education and the NCCA are rendering these Constitutional rights and funding duties theoretical or illusory. They are not being transparent in how they are doing this, which includes trying to redefine the terms ‘Religious Instruction’ and ‘Religious Education’ with no legal basis for doing so, using redefinitions that are not consistent with how the Supreme Court and the High Court have interpreted the Constitutional meanings of these terms.
As always, if you would like to help us to continue this work, please join Atheist Ireland as a member. We are a voluntary body with no paid staff, and we depend on our members to continue our work. You can join here.
– Secular Sunday Editorial Team
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Atheist Ireland News
Misuse of public funds regarding religious instruction in schools Part 1 of 3
 Atheist Ireland has sent a major report to the Comptroller and Auditor General and the Oireachtas Public Accounts Committee. We are arguing that the Department of Education and the NCCA are misusing public funds by ignoring constitutional conditions about the right to not attend religious education in schools.
This is the first of three articles that include the content of this report. Here are links to all three articles:
Executive summary
Under Article 44.2.4 of the Constitution, it is a condition of State funding for schools that any child can attend that school without attending Religious Instruction at that school.
“Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.”
This right is supported by other Constitutional Articles, laws, and policy which we outline in this complaint. The funding of schools is conditional on this right being vindicated, yet the State is currently providing funding while ignoring this Constitutional condition. This is a misuse of public funds.
Every word in the Constitution has meaning. For example, under Article 42.4, the State provides ‘for’ education. The word ‘for’ has had an enormous impact on our education system. Similarly, article 44.2.4 refers specifically to the right to attend a school receiving public money ‘without attending’ Religious Instruction. Not attending is a stronger right than not participating.
‘Religious Instruction’ is the only type of teaching that the Constitution explicitly links with school funding. This means the funding duties explicitly associated with it are stronger than the funding duties implicitly associated with other teaching. Also, because ‘not attending’ is explicitly linked with funding, it encompasses the right to be supervised or taught another subject while ‘not attending’ Religious Instruction.
Parents have a legitimate expectation that the State will fulfil its Constitutional duty to protect their Constitutional rights, and to fund the protection of these rights, and to not fund the erosion of these rights. The Department of Education is aware that many schools refuse to vindicate this right, yet the Department still gives them funding.
Schools argue that they do not have the resources to vindicate this right as those resources have not been allocated by the Department of Education. But by accepting any State funding, schools are obliged to allocate existing funds to vindicating this right, in accordance with the Constitutional condition under which the State funding was given.
If the schools do not have the resources, it is because they have misallocated funds that they were obliged to allocate as a Constitutional condition of accepting State funding, and the State is failing in its Constitutional duty to ensure that schools meet this condition. This is not a matter of the State interfering in the right of schools to manage their own affairs (Article 44.2.5), because vindicating the right to not attend is a Constitutional condition of State funding.
The Minister currently argues that it is up to schools how they implement this right and duty, but there is a difference between how they implement a right and duty and whether they implement a right and duty. The Minister is aware that schools are not implementing the right and duty, and is doing nothing about this while continuing to provide these schools with State funding.
Part 1 of this complaint outlines the Constitutional rights of atheist, humanist, and secular families, and how the State is ignoring its funding duties in relation to the conditions attached to State funding of schools. This includes duties in the Constitution, the law, and policy.
Part 2 of this complaint shows how the Department of Education and the NCCA are rendering these Constitutional rights and funding duties theoretical or illusory. They are not being transparent in how they are doing this, which includes trying to redefine the terms ‘Religious Instruction’ and ‘Religious Education’ with no legal basis for doing so, using redefinitions that are not consistent with how the Supreme Court and the High Court have interpreted the Constitutional meanings of these terms.
Contents
1. The State has Funding Duties regarding not attending Religious Instruction
1.1 Atheists and secularists have equal rights in the education system
1.1.1 The equal Constitutional rights of atheists and secularists
1.1.2 The practical application of these Constitutional rights
1.2 The State has funding duties in the Constitution
1.2.1 Article 44 of the Constitution
1.2.2 Other relevant Articles in the Constitution
1.2.3 Legal Opinions from James Kane and Conor O’Mahony
1.2.4 Statement by Micheál Martin as Minister for Education
1.3 The State has funding duties in the law
1.3.1 Education Act 1998
1.3.2 Education (Admission to Schools) Act 2018
1.3.3 Intermediate Education (Ireland) Act 1878
1.4 The State has funding duties in policy
2. The State is Misusing Public Funds and not being Transparent or Accountable
2.1 Overview
2.2 The Department is trying to redefine key Constitutional terms
2.3 What the Courts have said
2.3.1 Religious Education, Formation, and Instruction
2.3.2 Other relevant Court findings
2.4 Legal Opinions from James Kane and Conor O’Mahony
2.5 Documents obtained from NCCA under Freedom of Information
2.5.1 Letter from Department to NCCA 10 March 1994
2.5.2 NCCA Course Committee for Religious Education
2.5.3 NCCA Strategy for implementation of Religious Education
2.5.4 NCCA Briefing concerns in relation to Episcopal Conference
2.5.5 Meeting between NCCA and Department of Education
2.6 The aims and delivery of Syllabus Religious Education
2.7 The State-funded PDST and Catholic Diocesan Advisors
See Also
This is the first of three articles that include the content of this report. Here are links to all three articles:
Read online…
Misuse of public funds regarding religious instruction in schools Part 2 of 3
 1. The State has Funding Duties regarding not attending Religious Instruction
1.1 Atheists and secularists have equal rights in the education system
1.1.1 The equal Constitutional rights of atheists and secularists
The purpose of Article 44.2.4 with regard to not attending Religious Instruction is to ensure that the State, in its decisions on funding of schools, safeguards the rights of religious and nonreligious minorities in the schools that it funds.
The Constitution Review Group stated in 1995 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°.”
(emphasis ours)
Article 44.2.1 of the Constitution protects the right to freedom of conscience. This right is not just confined to a religious conscience. Atheists, humanists, and secular parents have exactly the same Constitutional rights with regard to our philosophical convictions as religious parents have with regard to their religious beliefs.
Both Article 44.2.1 and Article 44.2.4 are subsections of Article 44.2, and neither should be read in isolation from the other.
In the High Court in 2011, in the case of AB v Children’s Hospital Temple Street & CD & EF, Justice Hogan stated that:
“35. There is thus no doubt at all but that parents have the constitutional right to raise their children by reference to their own religious and philosophical views.”
“27. Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees
freedom of conscience and the free practice of religion. Taken together, these constitutional
provisions ensure that, subject to limited exceptions, all citizens have complete freedom of
philosophical and religious thought, along with the freedom to speak their mind and to say
what they please in all such matters….”
(emphasis ours)
Under Article 44.2.3, the Supreme Court found that the State cannot discriminate between religions and those that have no religion. In the case of Mulloy v Minister for Education 1975, Justice Walsh stated that:
“The reference to religious status, in both the Irish text and the English text of the Constitution, relates clearly to the position or rank of a person in terms of religion in relation to others either of the same religion or of another religion or to those of no religion at all.”
(emphasis ours)
Because of irreconcilable differences between theists and atheists, we do not agree that the State should help us with the ‘Religious Education’ of our children. In fact that would be against our conscience, particularly as the State is developing morals through ‘Religious Education’. It would also undermine the authority of atheist, humanist, and secular families under Article 41.1 and 42.
1.1.2 The practical application of these Constitutional rights
These Constitutional rights correspond with a Constitutional duty on the State to vindicate them in practice in its decisions on school funding. In reality, there is no practical application given to the right to ‘not attend’ Religious Instruction, and the State’s funding duties associated with that right.
Section 6 of the Education Act 1998 states that:
“6. Every person concerned in the implementation of this Act shall have regard to the following objects in pursuance of which the Oireachtas has enacted this Act:
(a) to give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs, as they relate to education;
(l) to enhance the accountability of the education system;
(m) to enhance transparency in the making of decisions in the education system both locally and nationally.”
In the High Court in 1996, in the case Campaign to Separate Church and State v the Minister for Education, Justice Costello stated that parents have more rights under the Irish Constitution in relation to their religious and philosophical convictions than they have under human rights law (page 37-38 High Court judgment.)
The European Court has repeatedly highlighted, including in Airey v Ireland 1979-80, that:
“The Convention is intended to guarantee not rights which are theoretical or illusory but rights which are practical and effective.”
The Minister currently argues that it is up to schools how they implement the right, but there is a difference between how they implement a right and whether they implement a right. The Minister is aware that schools are not implementing the right, and is doing nothing about this while continuing to provide these schools with State funding.
1.2 The State has funding duties in the Constitution
1.2.1 Article 44 of the Constitution
Article 44.2.4 states that:
44.2.4 “Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.”
Note that the Irish language version of the Constitution, which takes legal precedence, uses the phrase ‘teagasc creidimh’, which mean ‘religious teaching’. This is significant because the State is now trying to redefine ‘Religious Instruction/teagasc creidimh’ to limit it to instruction according to the rites of a single religion.
Note also that the Constitution does not state ‘while opting out of’ or ‘while not participating in’. It unambiguously states ‘without attending’. This is significant because the State is allowing schools to keep such children in the classroom during Religious Instruction, which is not what the Constitution says and is against the wishes of parents. Read more…
Misuse of public funds regarding religious instruction in schools Part 3 of 3
 2. The State is Misusing Public Funds and not being Transparent or Accountable
2.1 Overview
The Minister is obliged to leave reasonable instruction time for subjects relating to or arising from the characteristic spirit (ethos) of the school. In denominational schools these subjects are indisputably ‘Religious Instruction’ where the Constitutional right to not attend applies.
In 2000 the Department and the NCCA introduced Syllabus ‘Religious Education’ into the curriculum at second level. In addition the Department and the NCCA have also introduced into Community National Schools at Primary level a course called ‘Goodness Me Goodness You’ (GMGY) which includes elements of religious and moral education.
A significant amount of public funding was used to develop both these courses, and continues to be used each year.
The State has recently started to argue that these courses do not fall into the category of ‘Religious Instruction’ and therefore argues that the Constitutional right to not attend ‘does not arise’. However:
- To make this case, the State relies on new definitions that have no legal basis, and that are not consistent with the rulings of the Supreme Court and the High Court. Also, the specific arguments that the State uses to justify this have shifted over time, including within Circular Letters and answers to Oireachtas questions, so they are not based on a consistent foundation.
- Atheist, humanist, and secular parents object on the grounds of conscience to the content of these courses, and we have the same Constitutional rights of conscience as religious people.
- At primary level, the GMGY course is the patron’s programme. At second level, Syllabus ‘Religious Education’ is in practice integrated with the patron’s programme. It is not taught separately, as that would mean two separate Religion classes would be happening during the school day.
The State has introduced syllabus ‘Religious Education’ courses that teach morals through religion and not objectively and claim that they are not ‘Religious Instruction’ but ‘Religious Education’ or in the case of the GMGY course ‘Ethical Education’.
In 2019 Minister for Education Richard Bruton said that Syllabus ‘Religious Education’ is just like any other subject such as history or geography. However, unlike history or geography, the Department of Education and the NCCA developed the Syllabus ‘Religious Education’ course with the intention that the Catholic Church would use it to support their ‘faith formation’ or ‘catechetical’ requirements.
Also, in order to introduce syllabus ‘Religious Education’ and assessment at Junior and Leaving Certificate level the Department of Education needed to amend the Intermediate Education Act as that Act did not permit the holding of exams in Religious Instruction (see Section 1.3.3 of this document above).
The result of the above on the ground is that Catholic faith formation is integrated into Syllabus ‘Religious Education’ while the Department of Education, the NCCA, the Catholic Church and Education and Training Board schools claim that it is not ‘Religious Instruction’ but ‘Religious Education’ and the right to not attend ‘does not arise’. This is a significant claim to make and, as this document shows, it is not supported by the evidence.
2.2 The Department is trying to redefine key Constitutional terms
In 2000 the Department and the NCCA introduced Syllabus ‘Religious Education’ into the curriculum at second level. In addition the Department and the NCCA have also introduced into Community National Schools at Primary level called the Goodness Me Goodness You course.
In recent years the Department of Education has been trying to redefine the phrases ‘Religious Instruction’ and ‘Religious Education’. They then claim that Syllabus ‘Religious Education’ does not fall under the category of ‘Religious Instruction’ for the purposes of Article 44.2.4 of the Constitution, which includes funding duties.
But the redefinitions they are using have no basis in law, do not take due regard to the Constitutional rights of parents, and are inconsistent with the findings of the Supreme Court. Atheist Ireland obtained a legal opinion from James Kane, barrister-At-Law, about Article 44.2.4. This opinion states that:
“50 Moreover, the name assigned to a particular course will not be determinative of the question whether the subject is religious instruction or religious education. Were it otherwise, it would be permissible to simply teach religious instruction without offering an opt out by simply calling the subject “religious education.” This would clearly frustrate the right to not attend religious instruction.
51. In a similar manner, the question whether a course is religious instruction or education, does not turn on the question who is providing the course. If a course constitutes religious instruction, which is a question going to the substance of the course, the right to opt out will be engaged.”
“The other significant clarification is that classes following the NCCA Religious Education syllabuses cannot have any element of religious instruction or worship, which also means that opt out does not arise.”
This press release claims that Syllabus ‘Religious Education’ is educational. It also claims that ‘Religious Instruction’ refers to classes in accordance with the rites and practices of a particular religious denomination. But the Department has also said (in Circular 0013/2018 page 4) that the NCCA-developed syllabus for ‘Religious Education’ serves to meet the Religious Instruction requirements of the Catholic Church.Those statements are contradictory.
As recently 26 November 2021 the Department stated in an email to Atheist Ireland that:
“At the outset, it is important to distinguish between Religious Education as an educational activity that deepens young people’s understanding of religions, whatever their background or beliefs, and Religious Instruction, understood as initiating or nurturing young people into a particular religious way of life (sometimes also referred to as faith formation or catechesis). It is not the aim of Religious Education to facilitate Religious Instruction or a type of learning that has as its aim nurturing into a particular religious tradition or set of beliefs.”
Note the use of the passive phrases “understood as…” and “sometimes also referred to as…” which do not attribute any source or justification to the definitions that follow.
This email from the Department to Atheist Ireland also stated:
“Currently at Primary level, Religious Education is one of 12 subjects in the 1999 Primary School Curriculum. It holds a unique position in that the responsibility for providing a programme of Religious Education rests with the patron bodies of individual schools and not the State. There are a number of patrons’ programmes within the primary school system reflecting the diversity of patronage. Some of these are denominational or religious in nature, emphasising the place of children’s faith, spiritual and moral development in their lives. Other patrons’ programmes are ethical in nature and emphasise fostering children’s understanding of ethics and values.”
This adds another level of confusion, and lack of transparency and accountability, to the Department’s definitions of ‘Religious Education’ and ‘Religious Instruction’. The Department is saying here that at primary level ‘Religious Education’ is delivered through patrons’ programmes that are “denominational or religious in nature, emphasising the place of children’s faith, spiritual and moral development in their lives.”
This contradicts the same email’s “at the outset” paragraph, which states that ‘Religious Education’ is not denominational or religious in nature, but is “an educational activity that deepens young people’s understanding of religions, whatever their background or beliefs.” Read more…
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Thank you for your continued support
Atheist Ireland Committee
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