Article 44.2.4°

Article 44.2.4° deals with two distinct provisions. The first is that legislation providing for State aid for schools shall not discriminate between schools under the 'management of different religious denominations'. The principle of non-descrimination between religions is, of course, already dealt with in Article 44.2, but this subsection applies this principle in an editorial context. Article 44.2.4° also provides constitutional authority for the State funding of denominational education (provided the criteria specified in the subsection are complied with, as otherwise it might be contended that such funding would amount to an endowment of religion, contrary to Article 44.2). In effect, therefore, the State is permitted to engage in the practice of what might be termed the concurrent endowment of the schools of all religious denominations, provided that:

a) this is achieved by legislation

b) there is no discrimination between religious denominations

c) any school receiving public moneys respects the right of each child to attend without receiving religious instruction at that school.

The only legislation authorising State funding of denominational education would appear to be via the annual Appropriation Acts. However, the drafters of Article 44.2.4° probably envisaged that the legislation in question would be specific in character and establish a permanent statutory scheme whereby such aid might be disbursed. The present system of disbursing aid where, although the individual education votes are sanctioned by the Appropriation Acts, the application of these moneys to individual schools is governed by a series of non-statutory rules and circulars is unsatisfactory. It probably conforms to the letter (but not the spirit) of Article 44.2.4°. The Review Group understands that it is likely to change with the forthcoming Education Bill.

The second provision is that a child has the right to attend a school which is in receipt of public money without attending religious instruction at that school. As the Review Group has already noted, this provision has its origins in the Stanley letter of 1831 which provided the administrative foundation for the National School system. The British Government had originally intended to establish a one school system for the children of different religious beliefs and, accordingly, the various pre- 1922 Home Rule Bills and the Government of Ireland Act 1920 had sought to protect the rights of religious minorities by providing for a clause of this kind. Despite the fact that this clause was also contained in the Treaty, Article 8 of the 1922 Constitution and the present Article 44.2.4°, by 'the mid-twentieth century, the system of National Education in the Republic of Ireland was one which was de jure undenominational, but de facto denominational in 97 per cent of cases': see Appendix 24, Hyland - 'The multi-denominational experience'.

The efficacy of this constitutional guarantee was further undermined in 1971 with the introduction of an integrated curriculum, albeit unintentionally and for what were deemed to be excellent educational reasons. Curricular integration meant that the constitutional requirement of separate religious and secular instruction was no longer strictly observed. It may be noted that this change was in contrast to the pre- 1922 Rules for National Schools which had sought to emphasise the non-denominational character of grant-aided national schools. Thus, Rule 13 of the 1890 Rules had provided:

No emblems or symbols of a denominational nature shall be exhibited in the school-room during the hours of united instruction.

Section III of the Rules prescribed elaborate arrangements whereby secular and religious instruction were to be kept strictly separate with a view to preserving the entitlements of parents to exercise their right of withdrawing their children from religious instruction. For example, Rule 18 stipulated that the teacher was required, immediately before the start of religious instruction, 'to announce distinctly to the pupils' that the hour for religious instruction had arrived, and that the teacher 'must put up, and keep up, during the period allotted for such religious instruction, and within view of all pupils, a notification thereof containing the words "Religious Instruction" printed in large characters, on the form supplied by the Commissioners'.

Such solicitude for the right of religious minorities was not confined to the pre-1922 Rules. The Rules for National Schools 1926 had required that teachers exercise due regard for the right of children of minority religions when dealing with matters of religious sensitivity. This requirement was omitted from the Rules for National Schools 1965.

In Professor Hyland's words:

Taken together, the Rules [for National Schools 1965] and the provisions of the 1971 curriculum created a new situation. The State now formally recognised the denominational character of the national school system ... It had removed the requirement for teachers to be sensitive to the religious beliefs of 'those of different religious persuasions'. According to the curriculum guidelines, all schools were expected to offer an integrated curriculum where religious and secular instruction would be integrated. While the rule under which parents were allowed to opt their children out of religious instruction still remained, the rule became effectively inoperable since religious and secular instruction would now be integrated.

With the increasing diversity of religious beliefs and secular views in the State, Article 44.2.4° clearly has the potential in the context of an integrated curriculum to give rise to difficulties. The Review Group draws attention to the kind of problems which may well yet arise (if, indeed, they have not already done so): suppose that there is one small national school (and therefore in receipt of public funds) which is run by a Catholic religious order and where the population heretofore consisted exclusively of Catholic pupils. Members of the Islamic community move into the area and have no realistic alternative but to send their children to the local national school. The parents of these children not only insist on withdrawing their children from formal religious instruction but also object to the Roman Catholic ethos which permeates instruction in other subjects in the school and is also reflected in, for example, religious pictures and school holidays for religious feast days. Must a school which is in receipt of public moneys accede to these objections, or may it give preference to the wishes of the majority of parents who wish the school to retain its Catholic ethos? These issues give rise to further difficulties. For example, may a school in receipt of public moneys retain its religious ethos by the appointment of co-religionists only as teachers or by giving preference to children of co-religionists in enrolment? Indeed, there may well be instances of where such preferential treatment may be necessary in order to ensure that the school will retain its original religious ethos by ensuring, for example, that the majority of children present at the school are from that particular religious background. Or would these practices go beyond what is permitted by 44.2.4° and amount to a form of discrimination by the State on grounds of religion, contrary to Article 44.2.3°? While it might be argued that, where such discrimination occurs, it is done by the schools concerned (which are private bodies), the fact remains that it is the State which funds virtually all of their activities.

In summary, therefore, the present reality of the denominational character of the school system does not accord with Article 44.2.4°. The situation is clearly unsatisfactory. Either Article 44.2.4° should be changed or the school system must change to accommodate the requirements of Article 44.2.4°.

See Issue 11 below.

Issue 11 - whether Article 44.2.4° requires amendment

'legislation providing State aid for schools...'

As already noted, Article 44.2.4° appears to envisage that any State funding of denominational education must be sanctioned by Act of the Oireachtas. Article 44.2.4° cannot mean that the State may elect to fund schools on an administrative basis, still less that, if it does so, it would not be bound by the injunction not to discriminate between the schools under the control of religious bodies, because such an interpretation would strip this subsection of all purpose and effect. The Review Group is, of course, aware that the annual Appropriation Acts are the only such legislation which has been enacted to date providing for State aid to schools.

Recommendation

No change is proposed.

'...shall not discriminate between schools under the management of different religious denominations...'

This part of Article 44.2.4° is also satisfactory by providing for a guarantee of equality in relation to the funding of denominational schools. It is important to stress that the object of this part of Article 44.2.4° is to ensure that there is no discrimination on religious grounds. The Review Group considers that this is a special subsection of the Constitution dealing with a particular issue and there is no need to extrapolate this principle any further.

Indeed, if non-denominational schools were brought within the rubric of this subsection, it might work to their disadvantage. At this stage of the development of the school infrastructure the vast majority of the schools under the management of religious denominations have already been built and the existing parish structure means that their running costs tends to be lower. On the other hand, the construction of new schools is nowadays very expensive (and the majority of non-denominational schools have only been built in the last decade or so) and as non-denominational schools tend not to benefit from the established structures enjoyed by their denominational counterparts, experience has shown that extra State funding may be necessary. In addition, if the principle of Article 44.2.4° was extended further it might have the effect of preventing the differing treatment of schools on grounds other than religious grounds (by, for example, precluding additional financial support for schools in disadvantaged areas or for Gaelscoileanna).

Recommendation

No change is proposed.

'...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'

As already noted, this proviso is capable of giving rise to a number of difficulties stemming mainly from the fact that it was designed for a system of education which was supposed to be non-denominational, but with provision for separate religious instruction. As the Review Group has already noted, the reality is otherwise. The educational system is de facto denominational in character.

There appears to be something of an internal tension between the provisions of the Constitution dealing with denominational education. Article 42.3.1° envisages that parents can elect to choose denominational education: the opening words of Article 44.2.4° sanction (under certain conditions) State funding for denominational education. Yet it seems implicit in Article 44.2.4° that a school in receipt of public moneys cannot insist on a policy such as admitting only co-religionists as pupils, and the practice of an integrated curriculum would appear to be at variance with this guarantee. But if a school cannot at least insist on giving preference to children of a particular religious persuasion, the 'religious ethos' of the school might be undermined. However, if the school gives preference to children of a particular religion, this might be seen as a form of indirect discrimination by the State because the school because the State is publicly funded, especially if this meant that a child was thereby deprived of the opportunity of attending the nearest and most convenient school or even (to take a more extreme case) if he or she were denied any effective opportunity of attending school.

These and similar problems have been avoided to date largely by ad hoc and pragmatic responses to particular situations. But with an increasingly diverse and rights-conscious society, these problems cannot be ignored. Many of these difficulties are attributable to the fact that, unlike other countries, there is not a parallel system of non-denominational schools organised by the State which would cater for the interests of minorities in the examples already described. If such a system were in place, one major objection to any amendment of Article 44.2.4° would be removed and the way would be clear for State funding of denominational education per se (that is, integrated curriculum, preference for the admission of co-religionists, etc). It would, however, be unrealistic to expect the State to provide such a system and, indeed, it could be wasteful of scarce resources were this to be done.

The present situation, therefore, presents a potential conflict of rights to which there is no satisfactory answer. The conflict lies between the rights of the child (exercised through its parents) not to be coerced to attend religious instruction at a publicly funded school and the right of denominational schools in receipt of such public funding to provide the fullness of denominational education through the medium of an integrated curriculum and other measures designed to preserve the religious ethos of a particular school. The provisions of Article 42.3.1° must also be borne in mind:

The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

The Review Group does not favour amendment of this part of Article 44.2.4° for the following reasons:

i) Article 44.2.4° may be thought to represent something of an exception to the general rule contained in Article 44.2.3° that the State shall not endow any religion. Accordingly, if a school under the control of a religious denomination accepts State funding, it must be prepared to accept that this aid is not given unconditionally. Requirements that the school must be prepared in principle to accept pupils from denominations other than its own and to have separate secular and religious instruction are not unreasonable or unfair.

ii) 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 not 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°

iii) this aspect of Article 44.2.4° reflects an earlier commitment given on behalf of the State contained in the Treaty of 1921 and Article 8 of the 1922 Constitution which was designed to safeguard the rights of religious minorities. Any amendment at this stage would be a retrograde step - especially in the context of Northern Ireland - and would send the wrong signal concerning pluralism in this State.

Recommendation

No change is proposed.