IHRC Discussion Paper Part 9 – Analysis of Human Rights Standards

This is an extract from a discussion paper written by the Irish Human Rights Commission about religious education and human rights. Atheist Ireland is preparing a response to this discussion paper, and we welcome your feedback on it.

Human Rights Standards

47. The Right to Education (Article 42, the Constitution, Article 2 of Protocol 1, ECHR, the Right to Freedom of Thought, Conscience and Religion (Article 44, The Constitution, Article 9, ECHR, Article 18, ICCPR, Article 14, CRC), the Right to Freedom from Discrimination (Article 5, CERD, Article 14, ECHR).

Analysis

48. Ireland effectively has a system of almost entirely denominational primary education. For much of the history of the state this has been a largely unchallenged reality. In this regard almost all national schools in Ireland have a Roman Catholic or Church of Ireland ethos, with just over 2% of schools being inter-denominational or multi- denominational and none that are non-denominational. National schools are largely self governing, subject to compliance with the Education Act 1998, which reinforces the right of individual schools to have their own characteristic spirit and objectives, including a denominational ethos. The Rules for National Schools and the Primary School Curriculum encourage integration of the curriculum and gives sanction for religion to “vivify” the whole day of the school.

49. A very practical issue relates to access to non-denominational schools particularly in rural areas where a child cannot access a non-denominational school but must attend a religious ethos school. For example, what steps must be taken to secure appropriate education where parents wish for no religious instruction for their children in school?

50. While provision is made for the right of parents to withdraw their children from any instruction which conflicts with their own convictions, including religious convictions, it does not appear, in light of the suggestion that religion may informally permeate the school day in denominational schools (to a greater or lesser extent), that this right to withdraw pupils from specific classes will necessarily insulate such pupils from receiving religious education informally during the rest of the school day.

51. The Constitutional protection under Article 42 was not robustly applied in the Campaign to Separate Church and State case. However Hogan and Whyte criticise the approach taken in that case and suggest that Article 42 should be read as a restraint on State action rather than an authorisation for positive action in relation to providing for the religious and moral education of children.

Based on this criticism of Barrington J’s judgment, it is arguable that the statutory protection provided under the Education Act 1998 may not go far enough to vindicate the constitutional rights of parents who do not wish their children to be educated in a religious ethos.

52. The ECtHR has been very clear in stating that the State is the primary duty holder in relation to the right to education and in so far as the State takes on an educational function (in Ireland in the form of funding and setting the curriculum and general educational policy) then it must do so in a manner that ensures that information and knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner.

The State is expressly forbidden from pursuing an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions.

53. The existing Supreme Court interpretation of Article 42 of the Constitution, the National School Rules, and the integration of the curriculum endorsed by the Primary School Curriculum suggest that Ireland may not be in compliance with the requirements of the Article 1 of Protocol 2 of the ECHR.

54. For similar reasons the State may not be in compliance with its obligations under the ICCPR, the CRC and ICERD, in so far as the statutory option of withdrawing children from religious instruction classes may not be an adequate alternative to parents where

a) this is not an actual or reasonable option in a given school and there is no alternative school in a given catchment area or
b) while a child may be excused from a religious class, religious instruction will still occur in the school contrary to the right to freedom of thought, conscience and religion of the child/ family.