Department and schools defy the law using Circular Letters with no statutory force

The Department of Education, and school patron bodies, are defying the Constitutional right to not attend religious instruction in publicly funded schools, as well as laws that protect that Constitutional right. In doing this, they use Circular Letters that have no statutory power and that unlawfully redefine Constitutional and statutory rights.

The Constitutional right to not attend religious instruction (Article 44.2.4) is reflected in Section 30.2(e) of the Education Act 1998 and Section 7 of the Intermediate Education (Ireland) Act 1878.

Patron bodies, schools and teachers cannot rely on Circular Letters issued by the Department of Education to interpret the Constitutional and legal rights of parents and their children, especially when those Circular Letters go beyond the ‘administration’ of a right.

The Department of Education has no legal power in relation to Article 44.2.4 of the Constitution, as this article begins with the word ‘legislation’. Only the Oireachtas can put in place legislation (see Article 15 Irish Constitution).

The Department of Education has failed to ‘administer’ the legal right of students to not be present at religious instruction. They leave it up to each individual school to decide on if or how they will implement a Constitutional and Legal right. It simply can’t go on.

Circular Letters have no statutory power

Circular Letters issued by the Department of Education have no statutory power. They are simply ‘administration’ by the Department of Education.

We are aware of four Circular Letters that have been issued over the years in relation to religion in schools. The High Court has stated that these Circulars are not illegal, but they have no statutory force, and their compliance relies on the undeclared understanding that the Department will otherwise withhold financial assistance. They are:

• Circrcular-1979
• Circular 73 of 74
• Circular 0013-2018 Religious instruction and worship in certain ETB and …-1 and
• Circular Letter 0062 2018

All these Circulars have been used to undermine our Constitutional and legal rights. They are all still in place and have not been withdrawn.

Circular Letters and the courts

Justice Costello stated in the High Court in O’Callaghan v Meath Vocational Education Committee in 1990 that:

“It is a remarkable feature of the Irish system of education that its administration by the Department of Education is largely uncontrolled by statute or statutory instruments and that many hundreds, perhaps thousands, of rules and regulations, memoranda, circulars and decisions are issued and made by the Department and the Minister (dealing sometimes with the most important aspects of educational policy) not under any statutory power but merely as administrative measures.

These measures are not, of course, illegal. But they have no statutory force, and the sanction which ensures compliance with them is not a legal one but the undeclared understanding that the Department will withhold financial assistance in the event of non-compliance.”

The above case was in 1990 before the Education Act 1998 was enacted. However, in 1990 Section 7 of the Intermediate Education (Ireland) Act 1886 was in place and still is. This means that there already was legislation in place in relation to not attending religious instruction in second level schools when the Department of Education issued Circular 73/74 and Circular 7/79. These Circulars introduced religious instruction and worship into what was then VEC non-denominational schools second level schools.

These Circulars went beyond administering Section 7 of the intermediate Education (Ireland) Act 1878. The Circular Letters amended the opt-in to religious instruction, to make it become an opt-out system. These Circulars also used the word ‘withdraw’, instead of the right to not be in attendance at religious instruction and worship.

The ‘administration’ of the Department of Education came up again in the Supreme Court case Burke v Minister for Education 2023. In administrating the scheme for the Leaving Certificate during Covid. The Department had gone beyond its powers in ‘administering’ the scheme.

Justice Charleton in the Burke case in 2023 quoted the following:

“administration assumes that there is already in existence a principle and that all the administrator has to do is to establish the facts and circumstances and then to apply the principle. It is of the essence of good administration that the principle must be fairly clear and precise so that, in any given situation, the result should be the same, whether it is administrator A or administrator B who has taken the decision.

For, in its purest form, administration requires only a knowledge of the pre-existing principle and an appreciation of the facts to which it is being applied; it is an intellectual process involving little discretion.

By contrast, policy-making is largely discretionary; the policy-maker must decide, as between two alternatives, the one which he or she considers best in the interest of the community …[taking into] account all of the relevant factors and which factors are relevant is, to a considerable extent, left to him or her.”

The outcome of this is that the Department of Education has no power to interpret Constitutional rights or amend legislation by introducing Circular Letters that undermine the integrity of the legislation. Unfortunately the Department has done just that. It has gone beyond its authority and ignored the legislation that is in place.

Section 7 of the Intermediate Education (Ireland) Act:-

“7. The Board shall not make any payment to the managers of any school unless it be shown to the satisfaction of the Board that no pupil attending such school is permitted to remain in attendance during the time of any religious instruction which the parents or guardians of such pupil shall not have sanctioned, and that the time for giving such religious instruction is so fixed that no pupil not remaining in attendance is excluded directly or indirectly from the advantages of the secular education given in the school.”

Section 30.2(e) Education Act 1998: –

“The Minister –
Shall not require any student to attend instruction in any subject which is contrary to the conscience of the parent of the student or in the case of a student who has reached the age of 18 years, the student.”

Circular Letters 73/74, 7/79 0013/2018 and 0062/2018 cannot override the statutory power already in place. The Department issued Circular Letters that undermine our legal and Constitutional rights.

Introduction of exams in Religion into the curriculum

In order to introduce curriculm Religious Education into second level schools the Oireachtas amended Section 5 of the Intermediate Education (Ireland) Act 1878. Section 5 forbade exams in religious instruction. Section 35 of the Education Act 1998 states that:-

(1) Section 5 of the Intermediate Education (Ireland) Act, 1878 , is hereby amended in subsection (4) by the deletion of “; provided that no examination shall be held in any subject of religious instruction, nor any payment made in respect thereof”.

Circular letters 0013 and 0062 issued by the Department of Education in 2018 declare that curriculum Religious Education is not Religious Instruction. They also claim that curriculum Religious Education is suitable for all students and the need to withdraw does not arise.

That doesn’t make any sense when there was a need to amend Section 5 of the Intermediate Education (Ireland) Act 1878 that refers to Religious Instruction, in order to introduce exams in Religious Education into the curriculum.

The Department’s own legal advice states that in order to introduce exams in Religious Education into the curriculum Section 5 of the Intermediate Education (Ireland) Act 1878 needed to be amended (we got this document under FOI; see below).

If curriculum Religious Education was not Religious Instruction then there would have been no need to amend Section 5 of the Intermediate Education (Ireland) Act 1878.

Content of Circular Letters on Religion in schools

Circular Letter 73/74 states that:-

“(a) In exercising its general control over the curriculum and conduct of the school, the Board shall ensure that there is religious worship and religious instruction for the pupils in the school except for such pupils whose parents make a request in writing to the Principal that these pupils should be withdrawn from religious worship or religious instruction or both religious worship and religious instruction.”

Section 7 of the intermediate Education (Ireland) Act 1878 was just ignored by Circular 74 of 75 and Circular 79, children were just enrolled into religion classes on an opt-out basis instead of an opt-in basis. They were also left sitting in the religion class when Section 7 of the Act states that they should not be in attendance at religious instruction and if they are in attendance there should be no payment to the school out of public funds.

The above wording of Circular 73/74 is also the wording used in the Deeds of Trust for Community Schools and the Model Agreement for Community Colleges.

In recent years the ETBs and the Catholic Church have used Circular Letters 0013 and 0062/2018 to coerce and sometimes force students to take religion for the Junior and Leaving Certificate. These Circular Letters have no statutory power and actually breach the Constitutional, legal and human rights of families.

These Circular Letters declare that curriculum religious education is suitable for all students and therefore the need to not attend does not arise. They also see religious instruction as insruction according to the rites of a particular religion. The Constitution doesn’t say this and neither has any court. Given Article 15 of the Constitution, the Department has no authority to define Constitutional rights and especially when the Oireachtas has put in place legislation to reflect Article 44.2.4 of the Constituiton (Section 30.2.(e) Education Act 1998).

Conclusion

The statutory force in relation to not attending religion in schools is in Section 30.2(e) of the Education Act 1998 and Section 7 of the Intermediate Education (Ireland) Act 1878. Religion is on an opt-in basis not an opt-out basis, and students have a right to not attend instruction that is against the conscience of their parents. This is also a condition of state aid to schools.

Contrary to these laws, students are just enrolled by schools into religion classes against the conscience of their parents. Religion is treated by schools on an opt-out basis, if even that, instead of an opt-in basis. This is contrary to Section 7 of the Intermediate Education (Ireland) Act 1878 and also Section 30.2(e) of the Education Act.

The legislation in place is ignored and Circular letters with no statutory force are used to undermine it the rights of families in relation to the religious education of their children in publicly funded schools.

It can’t go on.