Oireachtas and Minister abdicate their duty to vindicate right to not attend religious instruction

It is the duty of the Minister for Education, Norma Foley under Section 30-2(e) of the Education Act 1998 to ensure that students do not attend any subject that is against the conscience of their parents.

The Minister for Education, Norma Foley delegates her duty in relation to students not attending religious instruction to schools. The only excuse she gives for this behaviour is that “a one size fits all solution does not suit all parents”. There are no regulations or statutory guidelines in place.

The Oireachtas delegated this duty to the Minister for Education because of Article 44.2.4 of the Constitution. This states that:-

“Legislation providing state aid to 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.

The Constitutional responsibility and duty for the right to not attend religious instruction in school lies with the Oireachtas as only the Oireachtas can make legislation (Article 15 Irish Constitution).

Because of Article 15 of the Constitution neither the Oireachtas nor the Minister has any authority to delegate this duty to schools. Despite this successive ministers have done this. Schools simply ignore the right and interpret it as ‘opt out’ or ‘not participate’ and leave students sitting in the religion class. The Constitution clearly says ‘not attend’.

The Department of Education has also decided for parents that curriculum religion is suitable for their children and the need to not attend does not arise. The Department has no authority to decide this for parents and Section 30.2(e) of the Education Act 1998 does not give them this authority.

In 2013 the Supreme Court found that:-

“As Hanna J. observed in the Pigs Marketing Board case and as the Gavan Duffy, O’Donoghue, and Lynch exchange in 1937 illustrates, if in truth any piece of regulation amounted to truly delegated legislation, it would offend Article 15, since it is plain from the very language thereof, and indeed the constitutional structure, that the function of legislation is one that cannot be delegated by the Oireachtas to any other body. Indeed the case law since that time can be understood as an attempt to seek to delineate the boundary between permissible subordinate regulation, and the abdication, whether by delegation or otherwise, of the lawmaking authority conferred on the Oireachtas by the People, through the constitution.“ (McGowan and Ors v Labour Court – Supreme Court 2013)

There is no meaningful parliamentary scrutiny in the Education Act 1998 of the right to not attend any subject that is against the conscience of parents.  The Oireachtas has just delegated it to the Minister for Education and the Minister delegated it to schools. The Department of Education has also created ‘policy’ with regard to the right that goes beyond Section 30-2(e) of the Education Act 1998 and Article 44.2.4 of the Constitution.

Section 30.2(e) of the Education Act 1998 is in a Section of the Act that deals with the curriculum, not funding. Section 12 of the Education Act 1998 sanctions the funding of schools; this does not refer to the constitutional condition in Article 44.2.4 for the funding. This Section of the Act does not reflect that not attending religious instruction is a condition of state aid to schools under Article 44.2.4 of the Constitution.

The Inspectorate of schools under Section 13 of the Act are not obligated to ensure that students do not attend any subject that is against the conscience of their parents. Obviously the Oireachtas thought there was no need to legally ensure that the condition in relation to state aid was observed.

In a recent case at the Supreme Court, Justice Hogan laid out a test in relation to Article 15 of the Constitution (Conway and an Bord Pleanala and the Minister for Housing, Local Government and Heritage Ireland 23^rd July 2024).

27. Bederev stressed that the legislation in question should be considered as a whole. And in Náisiúnta Leictreach, MacMenamin J. gave a helpful exposition of the contemporary thinking in respect of the requirements of Article 15.2.1⁰ ([2022] 3 IR 515 at 544 – 545):

“First, an assessment of the Act in order to determine whether or not it contains sufficient principles and policies, should be based on a reasonable, but not far – reaching, examination of the provisions.

Second, the purpose of various principles and policies and criteria is to ask whether the legislation sets boundaries, in the sense of defining Rules of conduct, or guidelines.

Third, does the legislation have defined subject matter, and contain basic conditions of fact and law?

Fourth, is the legislative purpose of the provisions discernible by identification of objectives or outcomes, as well as principles?

Fifth, is the power delegated sufficiently delimited?

Sixth, does the exercise of the subordinate power contain sufficient safeguards?

Seventh, the primary question, is there an abdication by the Oireachtas of its constitutional role?These are the key questions.

But legislation may nonetheless contain broad definitions, provided they are sufficiently definite and precise to permit a court to determine  compliance  with Article 15.2.1.

The Oireachtas does not vest a decision–making body with a decision–making power which involves choices. These may be broad, or more narrow, dependent upon the legislation. A court will ensure that a subordinate body is not vested with an absolute and untrammelled discretion. A court may also have to assess the extent to which a policy is discernible within viable legislative choices.”

 

The Constitutional right of students under Article 44.2.4 and the legal right in Section 30.2(e) of the Education Act 1998 is delegated to the Minister for Education with no oversight by the Oireachtas. The Minister simply delegates this Constitutional and legal right to schools. There are no safeguards and state aid is given to schools while the Constitutional condition for this aid is ignored by the Oireachtas and the Minister.

How can this be in accordance with Article 15 of the Constitution?