How Irish law effectively prohibits non-denominational secular schools

Michael Nugent

I've posted this as a new thread, so that we can discuss it independently of the discussion about how Educate Together have responded to the recent UN Report.

This is an analysis by Atheist Ireland of how Irish law effectively prohibits non-denominational secular schools based on human rights, despite the Irish Government telling the UN Human Rights Committee last month that there are no obstacles to establishing such schools in Ireland.

The Government did outline two requirements to the UN, that the Government seemingly doesn't consider to be obstacles. These are that there must be sufficient parental demand in an area for such a school, and that the requirements of being a Patron body must be met.

In reality, there are four obstacles to establishing non-denominational secular schools based on human rights in Ireland.

The first obstacle is the parental demand requirement, which breaches human rights law, because the right to a neutral education cannot be denied by local majority votes. The parental demand argument would mean that you could have your human rights vindicated if you live in one part of the country, but not if you live in another part, based on the preferences of your neighbours.

The second obstacle is that the requirements of being a Patron are such that it would be impossible in practice to provide secular non-denominational education consistently with them. Recognised schools are obliged to to promote the spiritual development of students, and to abide by Rule 68 of the Rules for National Schools, which includes that a religious spirit should inform and vivify the whole work of the school.

The third obstacle is that the very nature of our education system involves the State ceding the running of schools to private bodies. This means that, even if the parental demand and Patron requirements were changed, there would be no guarantee that secular education would actually be provided, or that if it was provided that it would continue to be provided.

The fourth obstacle is that, even if such schools were provided by a Patron body, the Patron body would still be a private body and not an organ of the State. That means that there would be no effective remedy to vindicate the human rights of parents who are denied secular education for their children based on human rights law.

The State has made no proposals to remove any of these obstacles, and consequently the response of the government delegation to the UN Human Rights Committee was simply not true. In effect, the State’s argument is that you can set up a secular non-denominational school, if you meet requirements that you cannot actually meet.

The biggest obstacle is, of course, that this government, like previous governments, is simply not prepared to do anything to guarantee the human rights of minorities in the education system. Human Rights are the minimum standard required for the protection of the individual citizen and here in this Republic our standards are so low that we don’t guarantee these rights.

Obstacle 1 - Parental demand

During the questioning of the Irish delegation at the UN Human Rights Committee in Geneva the Irish Government acknowledged that there are no secular or non-denominational schools in Ireland. The UN asked Ireland the following questions:

https://www.youtube.com/watch?v=-Q4UjpG9mow

“The number of non-denominational schools in Ireland is still minuscule, and it is our understanding that most of the new schools that have been opened have been multi-denominational and not non-denominational.
It is also our understanding that there are no current plans to create non-denominational schools by way of transfer of control in those areas where it has been deemed, following the recommendations of the Forum on Patronage and Pluralism in the Primary sector, that there is no sufficient demand for such education.
Could you please explain to the Committee how the notion of insufficient demand would not justify the establishment of non-denominational primary schools?
And what would be the fate of parents and children in those areas, in the no-demand areas, what would be their fate in terms of access to non-denominational education?”

The UN Committee’s reference to insufficient demand is based on another issue raised during the session. The UN Human Rights Committee asked Ireland why it was in breach of the human right of pregnant women to an abortion in wider circumstances than allowed by Irish law. The Irish State replied that Irish abortion law reflects the will of the Irish people, as allowed under Article 25 of the International Covenant on Civil and Political Rights.

The UN Human Rights Committee said that that was a completely unacceptable reason for denying human rights, and that the very core of human rights law is a safeguard against the tyranny of the majority. After a break in the session, the Irish Justice Minister Frances FitzGerald formally withdrew the remark and accepted that “the majority will does not and can not derogate from human rights obligations.”

Here is video of that exchange during the UN session in Geneva:

https://www.youtube.com/watch?v=dMz-Y-JFKMw

The State is obliged to provide secular education for parents who want secular education for their children. The parental demand argument is a local manifestation of the majority vote argument that Ireland made on abortion law.

The parental demand argument would mean that you could have your human rights vindicated if you live in one part of the country, but not if you live in another part, based on the preferences of your neighbours.

Obstacle 2 - The requirements of being a Patron

In practice, no Patron body dedicated to the delivered of secular education through non-Denominational schools could fulfil the requirements set by the state for the recognition of schools.

Recognised schools are obliged by the Education Act 1998 to operate in accordance with legislation, policy and curriculum as determined by the Minister for Education and Skills (Section 9 - (b) Ed. Act 1998). The legislation, policy and curriculum oblige schools to promote the spiritual development of students (Section 9 - (d) Ed. Act 1998), while having regard to the Characteristic spirit (ethos) of the school.

At present there are no Patron bodies that refuse on the grounds of principle to uphold the Primary School curriculum. Schools are not legally obliged to write down their ethos (characteristic spirit) or explain in writing where exactly they are integrating it into the various subjects under the curriculum and the daily life of the school.

One of the key areas of the Primary School Curriculum is to promote the spiritual dimension of life. The concept of spirituality is not defined in the Education Act 1998 and in the Primary School Curriculum it is assumed that it based on a transcendent element within human experience. Spirituality is linked to religious education and developing spiritual and moral values and a knowledge of god.

The Primary School Curriculum states that:

“The spiritual dimension of life expresses itself in a search for truth and in the quest for a transcendent element within human experience. The importance that the curriculum attributes to the child’s spiritual development is expressed through the breadth of learning experiences the curriculum offers, through the inclusion of religious education as one of the areas of the curriculum, and through the child’s engagement with the aesthetic and affective domains of learning.”
(Introduction Primary School Curriculum, page 27)

“The spiritual dimension is a fundamental aspect of individual experience, and its religious and cultural expression is an inextricable part of Irish culture and history. Religious education specifically enables the child to develop spiritual and moral values and to come to a knowledge of God.”
(Primary School Curriculum Page 58)

In addition to the above Rule 68 of the Rules for National Schools reads:

“Of all parts of a school curriculum, Religious Instruction is by far the most important, as its subject matter, God’s honour and service, includes the proper use of all man’s faculties, and affords the most powerful inducements to their proper use. Religious Instruction is, therefore, a fundamental part of the school course, and a religious spirit should inform and vivify the whole work of the school.”

It is worth noting that the Articles in the Irish Constitution that refer to education do not mention the word spiritual. It is the right of parents under Article 42 to provide a religious education for their children and it is the duty of the State under Article 42.3.2 to ensure that children receive a basic moral education. It is not the duty of the State under the Constitution to ensure that all children receive a religious education and come to a knowledge of god.

Ireland ratified the International Covenant on Civil and Political Rights in 1989, but the human right to a neutral education in schools was given no consideration in the Education Act 1998 and the Primary School Curriculum 1999. This is because of the systemic discrimination that is inherent in the decision making processes of education policy in this Republic.

As it stands now there are no Patron Bodies that guarantee the human right to a neutral education in their schools. Of course even if there was, there is still no legal means of vindicating that right in practice and in law as the State cedes control to the education system to private Patron bodies.

Despite their Constitutional and human rights obligations regarding the rights of parents, the Irish State introduced the word ‘spiritual’ into the Education Act 1998 without actually defining it. It is obvious from the wording of the Primary School Curriculum that the Constitutional and Human Rights of secular parents and their children were completely ignored and effectively undermined.

Community National Schools

In April 2012, Atheist Ireland wrote to the Minister for Education and Skills about material released to RTE under the Freedom of Information Act. It was in relation to religious education in Community National Schools, which are supposed to be for all religions and none.

Document 105 released to RTE outlined how parents in a VEC community school were told that:

“It is true that all morality is based on love – of God and ones neighbour. This will be a central theme in the Religious Education programme. However, moral values are taught within a religious context; we cannot divorce them from that setting.”

In June 2012, the Department of Education replied, suggesting that these comments “are probably best considered in light of the Primary School curriculum” and referred us to pages 27 and 58 of the Primary Schools Curriculum.

You can read the details here.

To date absolutely nothing has changed on the ground and the Dept of Education and Skills still claim that the Religious education programme in Community National Schools is suitable for all religions and none. Community National Schools are recognised schools and they, like all recognised schools in Ireland are obliged to follow the Primary School Curriculum.

At present all recognised schools in Ireland are obliged to support and follow the Primary School Curriculum in relation to the spiritual, moral and religious development of students. They also claim they are inclusive and protect the Constitutional and human rights of all. The question of how a Patron body dedicated to providing secular education based on human rights in a non-Denominational school could fulfil these requirements remains to be answered.

Recent Report from the Department of Education

The recent Report from the Department of Education and Skills on Progress to date and Future Directions of the Forum on Patronage and Pluralism states that:

“It is essential for the education system to adapt and evolve to reflect the changes in the society it serves and to uphold the rights of all pupils. There has been a growth in the provision of multi-denominational primary schools, including both Educate Together schools and Community National Schools. Between the academic years 2007/08 and 2013/14, of the 61 new primary schools which were established, 44 were multi-denominational.

Ireland has a good record in the arena of promoting and respecting human rights. It is important that we continue to live up to the high standards set in international conventions. Ireland will continue to be the subject of international criticism if it does not move to address the concerns raised by the Monitoring Committees of the international human rights treaties to which it is a party. Ireland is also obliged to protect the constitutional rights of all its citizens and to ensure that public policy evolves and develops to promote the protection of these rights.”

This Report was issued on the 1st of July before the State appeared before the UN Human Rights Committee. The Department of Education and Skills is aware of exactly what it needs to do in order to ensure that the human rights of minorities are protected in the Irish Education System.

Obstacle 3 - Patrons are private bodies

Another significant question that the UN asked Ireland was:

“And going forward, how is the State Party planning to deal with the possibility and the demand for non-denominational education in the future? Is it considering a move away from the integrated curriculum provided by Rule 68 of the Rules for National Schools? Is it considering a significant rise in the number of schools transferred to public hands?”

The Irish delegation responded to the above question with:

“With regard to Mr Shany’s comments about non-denominational education, as noted in the Forum report, there is no obstacle to the establishment of secular or non-denominational schools if sought by a sufficiently large number of parents, and if the requirements for Patronage are fulfilled.”

The Irish delegation did not explain to the UN that it cedes control of the education system to the interests represented by the Patron bodies, and that the divestment process is about transferring schools from one private Patron body to another private Patron body, and not about transferring schools into public hands.

This means that, even if you personally like the ethos of a school that you happen to be able to get your child into, that doesn’t protect other families throughout the State from having their right to a secular education vindicated.

Obstacle 4 - The right to an effective remedy

The Irish State also failed to deal with the question of the right to an effective remedy under Article 2.3 of the Covenant.

In the Louise O’Keeffe case at the Supreme Court, Justice Hardiman stated that: “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.” In the Louise O’Keeffe case at the European Court of Human Rights the Irish State was found to be in breach of Article 13 (the right to an effective remedy).

To date nothing has changed on the ground and it is still legally impossible for a parent to engage the responsibility of the state for the violation of their rights under the European Convention or the International Convention on Civil and Political Rights. The recent Plan of Action submitted by the state to the Council of Europe in relation to the Louise O’Keeffe case gives no indication of how parents can in the future engage the responsibility of the state to vindicate their rights under the European Convention.

The following is the UN Human Rights Committee in Geneva asking the Irish delegation questions on mandating the Irish Human Rights Commission to monitor ICCPR Rights.

https://www.youtube.com/watch?v=2v5_bmU5x7I

The reason that this is relevant to secular education is that access to an effective remedy is a human right under Article 2.3 of the Covenant and the Irish state cannot guarantee that right as it cedes control of the education system to private Patron bodies who interpret human rights according to their own ethos (characteristic spirit).

We live in a Republic where religious discrimination in access to education is referred to by this government as ‘over-subscription criteria’, and where all schools under various Patron bodies claim to be inclusive and adhere to human rights.

The State and existing Patron bodies in Ireland refuse to take on board the fact that there are many parents in Ireland who want access to an effective remedy to vindicate their human rights under the European Convention and the International Covenant on Civil and Political Rights. Such parents have objections on clearly philosophical grounds to sending their children to schools where there is no effective remedy to vindicate their rights under the various human rights treaties that Ireland has ratified.

Summary

The biggest obstacle is that this government, like previous governments, is simply not prepared to do anything to guarantee the human rights of minorities in the education system. Human Rights are the minimum standard required for the protection of the individual citizen and here in this Republic our standards are so low that we don’t guarantee these rights.

Irish law effectively prohibits non-denominational secular schools based on human rights, despite the Irish Government telling the UN Human Rights Committee last month that there are no obstacles to establishing such schools in Ireland.

SpaceTime

You'd really have to wonder who is running this country sometimes : the people? or the Church?

Having this kind of thing in a public school curriculum just underlines how nothing's actually changed, we're still all very much getting a dose of Mother Superior Knows best:

The Primary School Curriculum states that:
“The spiritual dimension of life expresses itself in a search for truth and in the quest for a transcendent element within human experience. The importance that the curriculum attributes to the child’s spiritual development is expressed through the breadth of learning experiences the curriculum offers, through the inclusion of religious education as one of the areas of the curriculum, and through the child’s engagement with the aesthetic and affective domains of learning.”
(Introduction Primary School Curriculum, page 27)

“The spiritual dimension is a fundamental aspect of individual experience, and its religious and cultural expression is an inextricable part of Irish culture and history. Religious education specifically enables the child to develop spiritual and moral values and to come to a knowledge of God.”
(Primary School Curriculum Page 58)
In addition to the above Rule 68 of the Rules for National Schools reads:
“Of all parts of a school curriculum, Religious Instruction is by far the most important, as its subject matter, God’s honour and service, includes the proper use of all man’s faculties, and affords the most powerful inducements to their proper use. Religious Instruction is, therefore, a fundamental part of the school course, and a religious spirit should inform and vivify the whole work of the school.”

Not only that, but the references to God mean that one can assume that it excludes all non-judeochristian religions or at least didn't even think about them when it was formulating its multi-cultural ethos which was suitable for the only two possible groups they could think of in 1998 : Catholics or Protestants. Anyone outside of that clearly isn't being considered part of Irish culture.

That document's an insult to the very concept of being Irish and is an utter disgrace!

This bit in particular basically reads as : Irish culture = Catholic [possibly Christian] and anyone else can feck off.

“The spiritual dimension is a fundamental aspect of individual experience, and its religious and cultural expression is an inextricable part of Irish culture and history. Religious education specifically enables the child to develop spiritual and moral values and to come to a knowledge of God.”

I'm very surprised this is constitutional and it most definitely clashes with the Equal Status Act, although as it's another piece of legislation it probably isn't possible to have one override the other.

Yet more conclusive proof we live in a bloody monastery posing as a 21st century European country.

recedite

That's an excellent piece by the OP. The case for a change, as presented here, is compelling.

MrPudding

Has the idea that the patrons being a private body, and not an organ of the state, and therefore not subject to human right legislation, actually been tested in court? The reason I ask is the courts in the uk and, more importantly, Europe, have tended to use an extremely broad definition of 'organ of the state'. Private bodies, where they are carrying on business talked to the state are frequently held to be organs of the state and therefore subject to legislation in the same way a 'genuine' organ of the state would be.

I agree with most of what is said here, an I think the point are all pretty good, but I don't think this particular point would be much of an issue.

Chris

SpaceTime

They could be seen as outsourced state services. The vast majority of their funding comes from the state.

For public accounts purposes it's increasingly common to treat any agency or organisation with more than a certain % public funding as part of the state accounts. This gives you whole government accounts in a similar way to the way you could see subsidiary companies in an annual report in the commercial sector.

The O'Keeffe v Ireland case taken in the European courts would possibly be a model for this schools situation too. The state dodged responsibility in the Irish Courts but not the ECHR.

You can't just outsource services, basically legally compel people to use them and then deny any role in controlling or monitoring how they're run.

The Department of Education effectively acts as a licencing and oversight body too. So, it would be hard to see how it's not responsible.

They're also governed by various pieces of primary legislation such as the a education act and were given exemptions from the Equal Status Act which enforces equality on all other public bodies and private sector employers and anyone providing any product or service to the public.

So the state seems to be 100% responsible. It created and manages the system!