How the Department of Education went beyond its powers by judging on parents’ constitutional rights

In February 2018 the School Governance Section of the Dept of Education issued Circular Letter 0013/2018. Circular Letters are ‘policy’; the purpose of the policy was to oblige ETBs to offer students, who are not taking religion, another subject. At the time we were told by the Department that the purpose of the Circular Letter was to change the culture of the ETBs in relation to religion.

In October 2018 the School Governance Section of the Dept of Education issued another Circular Letter 0062/2018, clarifying the previous one issued in February.

They removed the obligation on ETBs to offer students another subject, if they exercised their Constitution & legal right to not attend religious instruction. They did this because of pressure from the Catholic Bishops, the NCCA, the ETBI and the curriculum section of the Department of Education etc.

Of course, the Department of Education did not say that they caved in to the Catholic Bishops etc. They gave other reasons. However, it is the reasons for the clarification of the ‘policy’ that are the issue, because the only power that the Department of Education has is to administer a principle. They went beyond their powers. What they did was an attack on the rights of non religious parents.

Principle of Constitutional and legal issue

The principle at issue here is Article 44.2.4 of the Constitution and Section 30 of the Education Act 1998. Section 30 of the Education Act 1998 reflects Art 44.2.4 of the Constitution, it says that students have a right to not attend anything that is against the conscience of their parents. It does not say that the Department of Education can decide for parents what is or is not suitable religious education for their children. It defeats the purpose of this Section of the Act to claim otherwise.

This is what the Department of Education (Governance Section) stated in Circular Letter 0013/2018:-

“Religious instruction and worship in certain second level schools in the context of Article 44.2.4 of the Constitution of Ireland and Section 30 of the Education Act 1998”

One of the key constitutional and legal principles in Article 44.2.4 and Section 30 of the Education Act 1998 is that the right to not attend religious instruction is based on the conscience of parents. The right is written into the text and structure of the Constitution and reflected in Section 30 of the Education Act 1998.

We know this because:

• When Section 30 was being debated in the Dail in 1999, the then Minister for Education, Micheal Martin said that the purpose of Section 30-2(e) of the Education Act 1998 is to reflect Article 44.2.4 of the Constitution. He stated that this is supported by Article 42 and also other statutory provision namely S.7 Intermediate Education (Ireland) Act 1878.
• Justice Barrington in the Supreme Court in the Campaign case in 1998 said that Article 42 of the Constitution must be read in the context of Article 44.2.4. Under Article 42 parents have inalienable rights in relation to the religious education of their children.
• Justice O’Donnell in the Burke case said that; “It is, in any event, part of the right and duty of parents to provide (and therefore the right of their children to receive) education under Article 42.1, which right the State has guaranteed to respect. The Irish text of Article 42.1 provides an
  important flavour in this regard:- “… ráthaíonn [An Stát] gan cur isteach ar cheart doshannta ná ar dhualgas doshannta tuistí chun oideachas … a chur ar fáil dá gclainn” which conveys the sense that the State cannot interfere with (cur isteach ar) the right of parents subject to the Constitution to provide education under Article 42.1, a right which Article 42.2 contemplates may take place at home.”

The Department of Education simply cannot decide for parents that curriculum Religious Education is suitable for their children and withdrawal does not arise, but that is exactly what they have said in Circular 0062/2018.

Reasons for the clarification in Circular Letter 0062/2018

The main reason given for the change of heart (or clarification as it is called in Circular 0062/2018) was that the Department found that curriculum religious education was suitable for all religions and none, and they defined religious instruction as ‘Instruction in accordance with the rites and practices of a particular religious denomination’.

If Justice O’Donnell sees that under Article 42.1 the state cannot interfere in the rights of parents why does the Department of Education think it can decide by policy what is suitable religious education for our children?

Circular Letter 0062/2018 states that:-

“This clear separation of religious instruction from the NCCA Religious Education syllabus has the effect of ensuring that withdrawal does not arise for students studying the NCCA Religious Education syllabus where the school provides the subject as part of its normal range of subjects.”

“The NCCA‐developed Religious Education Junior and Senior Cycle syllabuses, and the Religious Education specification for Junior Cycle, to be introduced in 2019, are intended for students of all faith backgrounds and none. The content prescribed in the syllabuses is intended to ensure that students are exposed to a broad range of religious traditions and to the non‐religious interpretation of life. They do not provide religious instruction in any particular religious or faith tradition”

Attack on Parental rights

You can see from the above that this new clarification policy from the Department of Education has moved the goalposts in relation to Article 44.2.4 and Section 30 of the Education Act. It has gone beyond what the Supreme Court said and what the Oireachtas said was the purpose of Section 30.

The Department of Education have no power to redefine Constitutional and legal rights. They went beyond their powers because they just caved in to the Catholic Bishops etc and needed an excuse.

The rights of non religious parents didn’t matter because we don’t matter to these people. Once they can continue to shovel religion at our children through the curriculum then that is all that matters to them.

They have absolutely no respect for our parental rights even though we are now the second largest belief group in society after Catholics.

They are aware, as one Judge recently stated, that one would need to be a multi millionaire to take a case to the High court. Successive governments have just caved into pressure from various bodies within the education system and especially when it comes to the rights of non religious families. Parents have no got the funds to challenge the Department of Education in the courts.

Atheist Ireland will continue to try to persuade politicians that non religious families have exactly the same Constitutional and legal rights as religious families in the education system and that they have a duty to protect our rights.