Brief by Atheist Ireland for Minister and TDs about Education (Amendment) Bill 2010

This brief by Atheist Ireland details our concerns about the arrangements for the governance of new Vocational Education Committee primary schools, as proposed in Section 5 of the Education (Amendment) Bill 2010. The brief was prepared by our Education Officer Jane Donnelly and our Lobbying Officer Conor McGrath.

Introduction

1. The Education (Amendment) Bill 2010 was published on 24 September 2010, and is scheduled to receive its Second Reading debate in the Dáil on 13 and 14 October. It provides for the Vocational Education Committees (VECs) to establish, maintain and become patron of primary schools.

2. Section 5 of the Bill sets out the governance arrangements for any such schools. According to Section 5(4), the board of management in these schools “shall not be a sub-committee of a vocational education committee within the meaning of section 31 of the Vocational Education (Amendment) Act 2001.” A VEC board of management is defined by Section 5(5) of the Bill as meaning “a board of management established under section 14 of the [Education] Act of 1998.”

‘Organ of the State’

3. As an organisation campaigning for a secular education system, Atheist Ireland is concerned that these provisions will prevent parents from being assured of a secular education based on human rights law in these new VEC schools. Nor could parents take an action against the State for failure to protect their human rights in the schools.

4. Section 3(1) of the 2003 European Convention on Human Rights Act states that: “Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.” The phrase ‘organ of the State’ is defined in Section 1(1) of the 2003 Act thus: “‘organ of the State’ includes a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised”.

5. Unless the proposed VEC schools are designated and recognized as ‘organs of the State’ within the meaning of the 2003 Act, then parents have no protection should those schools operate an ‘integrated curriculum’ whereby the ethos of the school is based upon religious teaching. The Explanatory Memorandum which accompanies the Education (Amendment) Bill 2010 states that under Section 5 of the Bill, VEC schools would be subject to the same governance arrangements which apply generally in the primary school sector. That means in practice that the VEC schools would not be regarded as ‘organs of the State’ and their boards of management can choose the integrated curriculum and religious ethos.

Religious Ethos

6. In a recent academic article, Dr Alison Mawhinney of Queen’s University Belfast points out that although the 1996 Constitutional Review Group report concluded that state funding of schools was at odds with the principle of an integrated curriculum infused by a religious ethos, the 1998 Education Act enshrined the legislative basis by which boards of management can determine the ethos of their school. She goes on to note that since the 1998 Education Act did not give the State any power over the religious ethos of schools, it may be presumed (although this has not yet been tested in the courts) that schools are not regarded as ‘organs of the State’ under the meaning of the 2003 European Convention on Human Rights Act (‘Freedom of Religion in the Irish Primary School System: A Failure to Protect Human Rights?, Legal Studies, 27(3), September 2007, pp. 379-403).

7. Thus, the current position is that any board of management can decide what ethos should prevail in their school – and those standards need not be based upon the intent of the European Convention on Human Rights. The ambiguities and complexities of the Irish Constitution result in parents enjoying no guaranteed protection from a religious ethos in their child’s school. As the Education (Amendment) Bill 2010 is presently drafted, the State will have no power in relation to ethos in the new VEC schools. Unless the boards of management of these schools are deemed to be ‘organs of the State’, then no parent will be able to take a case against the State for their failure to protect their human rights in these new schools.

Irish Human Rights Commission

8. In a September 2009 submission to the UN Human Rights Committee, the Irish Human Rights Commission (IHRC) welcomed this new model of VEC patronage of primary schools, but argued that parents need a greater choice in schools given recent changes in our society generally. In particular, the IHRC called on the government to ensure that alternatives to the integrated curriculum based on religious ethos were available to parents: “The IHRC urges the government to encourage the application of human rights principles in the development of the statements of ethos of new VEC primary schools, … to create learning environments that truly facilitate human rights being taught in and through education.”

9. Note that the Commission deliberately uses the word ‘encourage’ in the above quote. This reflects the reality that if the new VEC patronage model is subject to the same governance as existing primary schools, then the government has no power under the 1998 Education Act to oblige VEC schools to base their ethos on human rights principles rather than on a religious ethos.

Conclusion

10. Atheist Ireland believes that Section 5 of the Education (Amendment) Bill 2010 should be amended, such that the board of management of any new VEC primary school would be treated as an ‘organ of the State’ as that is meant in the European Convention on Human Rights Act 2003. Should the Bill be amended in that way, a board of management which chose to operate the integrated curriculum based upon a religious ethos could then face challenge by parents.