Atheist Ireland tells NCCA that Education Act must be amended for objective sex education

The NCCA is reviewing the state courses on relationship and sex education in schools. It has already issued a Draft Report.

Unfortunately, this Draft Report does not follow through on its commitment to human rights standards in the delivery of RSE in Irish schools, and it does not recommend amending the Education Act to ensure that religious ethos does not prevent the RSE curriculum from being delivered objectively.

Atheist Ireland has met with the NCCA about this, after which we sent the follow-up letter that is reproduced here. The NCCA has committed to taking our points into account when finalising its report to be sent to the Minister.

Follow up Response from Atheist Ireland to the NCCA

Our two most important concerns about the draft Report remain:

• The final Report should follow through on the opening commitment, in the draft Approach section, to act consistently with Ireland’s human rights commitments, and should act on the NCCA’s Public Sector Duty to protect human rights and eliminate discrimination.
• The final Report should recommend amending the Education Act to ensure that religious ethos cannot interfere with the objective delivery of the curriculum, as the NCCA has already recommended in your 2017 Report on Education about Religions Beliefs and Ethics.

In that context, this follow-up letter addresses:

1. Ireland’s Human Rights Commitments and the NCCA’s Public Sector Duty
2. The Need to Amend the Education Act Regarding Ethos
3. Responding to the Arguments for Not Amending the Education Act

1. Ireland’s Human Rights Commitments and the NCCA’s Public Sector Duty

With regard to Ireland’s human rights commitments, the draft Report already cites several United Nations sources for the State’s obligations to vindicate the right of all students to objective sex education. Also, as the European Court said in Airey v Ireland:

“The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.”

Another important source is Article 11.2 of the European Social Charter, which the Department of Education cited in Circular Letter 0037/2010 with regard to the right of Irish students to objective sex education.

You asked if we were suggesting that these human rights commitments should override the feedback from your public consultations. The answer is yes, if that feedback breaches Ireland’s human rights commitments.

This was made clear by Cornelis Flinterman of the United Nations Human Rights Committee in 2014, when he told the Irish State delegation that:

“There is no disagreement that a full and free discussion is crucial in any society, and that it is the cornerstone of any democratic and free society… Yet the outcome of such a discussion, even if it is full and free and informed, the outcome of such a discussion in the form of a parliamentary majority decision can never be used as an argument to legitimise the violation of substantive rights under the Covenant.”

The NCCA has a Public Sector Duty under the IHREC Act to to eliminate discrimination and protect human rights. In order to fulfil this duty, its recommendations to the Minister must be capable of protecting and vindicating the human right to access objective sex education, as reflected in the State’s human rights commitments that are cited in the draft Report.

Also, under Section 41(3)(d) of the Education Act, the NCCA shall have regard to the practicalities of implementation of any advice which it proposes to give to the Minister. The relevant practicality of implementation here is that objective sex education (which is the policy of the Minister and the Department) cannot be practically implemented without amending the Education Act.

If the NCCA does not recommend this, it will have failed in its Public Sector Duty to protect human rights and eliminate discrimination.

As it stands now, a parent has no grounds to challenge a school under the Equal Status Act, if the RSE course is delivered through the religious ethos of the school. The school has the defence that Section 15(2)(b) of the Education Act obliges the Board of Management to uphold the characteristic spirit/ethos of the Patron which would mean that the student was not legally discriminated against on the ground of religion.

This means that there is no effective remedy to vindicate the rights of parents and their children to access objective sex education. However, if the Education Act is amended to ensure that that the content and delivery of the curriculum are objective, critical, and pluralistic, this would both enable parents and children who want objective sex education to obtain it, and prevent parents and children who do not want objective sex education from preventing it from happening.

Typically in European court cases, it is nonreligious parents and religious minority parents who object to religious education, and religious parents who object to sex education. In relation to religious education, parents have typically won their cases. In the case of sex education, parents have lost cases or had them found inadmissible because the State curriculums were objective or neutral. See for example:

• Kjeldsen, Busk Madsen and Pedersen v Denmark
• A.R. and L.R. v Switzerland
• Dojan and others v Germany

Amending the Education Act, to ensure that religious ethos cannot interfere with the objective delivery of sex education, would also protect teachers from being told that they are contractually obliged to deliver RSE through the religious ethos of the school because of Section 37 of the Employment Equality Act.

2. The Need to Amend the Education Act Regarding Ethos

The draft Report states that:

“The review concludes that at this point school ethos cannot be separated out from other factors that influence the teaching of RSE.”

This conclusion is, of course, true, and the reason that it is true is that the Education Act provides that a school has the right to protect its ethos, and that this will be reflected in the delivery of the RSE curriculum, despite it breaching the rights of students and parents. Indeed the NCCA itself has already identified this problem, and has identified the legal changes that are needed to address it, which include amending Sections 9(d), 15(2)(b) and 30(2)(b) of the Education Act, in its report on ERB and Ethics in 2017.

Amending the Education Act is the only way that the State’s commitment to provide objective sex education can be met in a practical and effective way (which is the test under Ireland’s human rights commitments), and the NCCA has a Public Sector Duty to recommend this.

This change has already been recommended by the Oireachtas Joint Committee on Education and skills in 2018. It is a key part of the Objective Sex Education Bill that the Dail passed in 2017, which is now awaiting a Money Message before moving to the Committee Stage.

Furthermore, this issue is more central to the reason for the RSE Review than is indicated by the low priority given to it in the draft Report.

In April 2018, when then Minister Richard Bruton launched the Review, he stated:

“The RSE curriculum fulfils an important function. Every student has a right to access information about sexual health, relationships and sexuality, and this must be delivered in a factual manner in every school. This review will help to inform decisions regarding the content of the curriculum and how it is delivered.”

Also in April 2018, the Department of Education and Skills, in its submission to the Oireachtas Joint Committee on Education and Skills, made explicit the strength of the link between the Review and the ethos or characteristic spirit of the school:

“Every student in school has a right to access information about sexual health, relationships and sexuality, and this must be delivered in a factual manner, regardless of the ethos or characteristic spirit of the school. For this reason the Minister for Education and Skills recently announced a major review by the NCCA of the Relationships and Sexuality Education programme in schools. The review will cover both the content of the RSE curriculum and support materials, as well as the delivery of the curriculum to students.”

In May 2018, when the Department addressed the Joint Committee, the following exchange occurred between TDs and Suzanne Dillon, assistant chief inspector.

Deputy Thomas Byrne: “I want to be clear, because I believe there were several questions on this. Is the witness saying that, under the Education Act, the ethos should not affect the teaching?”

Department of Education: “It should not affect the content of what is taught, but it may affect the resources that are used and the approach that is taken.”

Deputy Thomas Byrne: “It is not allowed to affect the content.”

Department of Education: “It is not.”

Deputy Thomas Byrne: “Is that not a Jesuitical distinction?”

Department of Education: “The Deputy is correct. What is taught and how it is taught should run side by side. The reality, however, is that the 1998 legislation provides that a school has the right to protect its ethos.”

Deputy Thomas Byrne: “Would that right be upheld in a science class if a school decided to teach creationism or decided to use a resource that espoused creationism instead of evolution in a science textbook? That issue is being debated in the North of Ireland and in the United States.”

Department of Education: “I cannot answer that question.”

Deputy Thomas Byrne: “I accept that it probably has never arisen.”

Department of Education: “I could not answer that question.”

Deputy Thomas Byrne: “It seems to me that if it is allowed to happen in RSE, it would be allowed in science.”

Department of Education: “I cannot answer that question.”

Deputy Catherine Martin: “The witness stated that the ethos may have an impact on how students hear what is being presented. Surely what students hear being presented is that which is said. The ethos, therefore, would have a major impact on what is being presented.”

Department of Education: “It may well be. That is one of the reasons the review is charged with looking at the implementation of the curriculum.”

3. Responses to the Arguments for Not Amending the Education Act

Towards the end of the meeting, we asked you what were the strongest arguments that you had heard for not amending the Education Act. We acknowledge that you were not endorsing these arguments, just citing them. We acknowledge and hope that the final Report may include elements that are not in the draft Report. We respond here to those arguments.

3.1 That changing the law will not resolve the problem

This is of course correct. No one action on its own will resolve the problem. But failing to amend the Education Act will ensure that the problem will not be resolved.

3.2 That legislators are not keen on legislating on this issue

This does not seem to be the case. The Oireachtas Joint Education Committee has specifically recommended legislating. The Dail passed the Objective Sex Education Bill in 2017, which is now awaiting a Money Message before moving to the Committee Stage. But even if the legislators were not keen on legislating, it is still part of the NCCA’s Public Sector Duty to tell them that it is required in order to protect human rights and eliminate discrimination.

3.3 That the law should not determine what is in the curriculum

We agree with this. We are not asking for this. We are asking for legislation that prevents the ethos of a school from influencing the objective delivery of whatever is in the curriculum.

3.4 That the NCCA is typically not involved in commenting on legislation

Commenting on the impact of relevant legislation is part of the NCCA’s Public Sector Duty to protect human rights and to eliminate discrimination. Also, under Section 41(3)(d) of the Education Act, the NCCA shall have regard to the practicalities of implementation of any advice which it proposes to give to the Minister.

Also, in this particular case, examining how to deliver objective sex education without it being influenced by the religious ethos the school is a key element of the reason that the Minister and the Department have given for the Review taking place. In any case, the NCCA has already, in its Report on ERB and Ethics in 2017, explicitly highlighted the need to amend the Education Act, for the very same reason that it needs to be amended in this instance. Specifically, the NCCA’s ERB and Ethics Report stated:

“The consultation brought to light many issues and systemic features that, while external to the development of curriculum and beyond the remit of the NCCA, have a significant impact on curriculum implementation in primary schools.

The legislation underpinning our education system is one such feature. The Education Act (1998), while recognising the rights of the patron body, has the unintended effect of limiting what is achievable through a state curriculum in Education about Religions and Beliefs and Ethics.

This challenge arises not from the patron bodies which have a legislative right to teach the primary curriculum in accordance with the ethos of their schools, but rather by the structure of the primary school system which is predominantly faith-based.

The provision of Sections 9(d), 15(2)(b) and 30(2)(b), among others, are potential barriers to the type of ‘objective, critical and pluralist’ approaches advocated in the proposals for a curriculum in ERB and Ethics.”

You will notice here that the NCCA referred to the phrase ‘objective, critical and pluralist’ when describing the approach that it was advocating for the ERB and Ethics curriculum. This is the phrase that we recommended that you use with regard to the RSE curriculum. It is a general principle of the European Court under Article 2 of Protocol 1 (the Right to Education).

The NCCA has already accepted this as an appropriate recommendation to make on a similar issue. Why would you retreat from making a similar recommendation in this Report? If anything, you should make the same recommendation in an even stronger manner, given that the lack of legislative change that you recommended in 2017 has contributed to your overall ERB and Ethics recommendations not being implemented.

3.5 That the NCCA cannot recommend a particular piece of legislation

The NCCA does not have to recommend a particular piece of legislation. It can simply recommend, as it did in 2017 on ERB and Ethics, the parts of the Education Act that need to be amended in order for the Department to be able to provide the objective sex education that is already the policy of the Minister and the Department.

3.6 That legislating is a stick not a carrot, and may not work

The issue here is the State’s duty to protect and vindicate human rights. Students and parents have a right to a legislative framework that enables them to vindicate their rights in practice and to have an effective remedy if their rights are not respected.

Also, it is a much safer prediction to say that the carrot will not work, because the evidence is that it has not worked since Circular Letter 0037/2010, or with regard to the sidelining without legislation of the ERB and Ethics Report, or the ETB Circular Letters about opting out.

3.7 That we are not like other countries where legislation is part of the framework

Indeed, and that is precisely our argument. Because of the uniqueness of the Irish education system, and the undue influence that it gives to the ethos of private patron bodies, the legislation must become part of the framework, in order to protect human rights and eliminate discrimination.

The NCCA has already explicitly recognised this in its recommendations on ERB and Ethics. It should explicitly recognise it again in the final version of this Report.

3.8 That some Principals say it is useful to have a grey area

This argument is essentially that some Principals say that they are already quietly providing the type of objective sex education that Atheist Ireland and others are advocating, and if a light is shone on them they may be told to stop doing it.

There are several problems with this argument.

• It reflects the nod-and-wink culture that has caused and perpetuated so many problems in Irish public life.
• It is happening at the cost of other students and parents in other schools not having their human rights respected.
• Principals in other schools who want to undermine objective sex education can also take advantage of such grey areas.
• Even in the schools where this is happening, it is dependent on the same Principals remaining in that school.

Ultimately, the NCCA should base its recommendations on human rights and integrity, and seek to provide the same rights equally to every student in every school, regardless of the ethos of the school or the personalities of the personnel.