Misuse of public funds regarding religious instruction in schools Part 2 of 3

Atheist Ireland has sent a major report to the Comptroller and Auditor General and the Oireachtas Public Accounts Committee. We are arguing that the Department of Education and the NCCA are misusing public funds by ignoring constitutional conditions about the right to not attend religious education in schools.

This is the second of three articles that include the content of this report. Here are links to all three articles:

• Executive Summary and Contents
• 1. The State has Funding Duties regarding not attending Religious Instruction
• 2. The State is Misusing Public Funds and not being Transparent or Accountable

1. The State has Funding Duties regarding not attending Religious Instruction

1.1 Atheists and secularists have equal rights in the education system

1.1.1 The equal Constitutional rights of atheists and secularists

The purpose of Article 44.2.4 with regard to not attending Religious Instruction is to ensure that the State, in its decisions on funding of schools, safeguards the rights of religious and nonreligious minorities in the schools that it funds.

The Constitution Review Group stated in 1995 that:

“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 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°.”
(emphasis ours)

Article 44.2.1 of the Constitution protects the right to freedom of conscience. This right is not just confined to a religious conscience. Atheists, humanists, and secular parents have exactly the same Constitutional rights with regard to our philosophical convictions as religious parents have with regard to their religious beliefs.

Both Article 44.2.1 and Article 44.2.4 are subsections of Article 44.2, and neither should be read in isolation from the other.

In the High Court in 2011, in the case of AB v Children’s Hospital Temple Street & CD & EF, Justice Hogan stated that:

“35. There is thus no doubt at all but that parents have the constitutional right to raise their children by reference to their own religious and philosophical views.”

“27. Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees 
freedom of conscience and the free practice of religion. Taken together, these constitutional 
provisions ensure that, subject to limited exceptions, all citizens have complete freedom of 
philosophical and religious thought, along with the freedom to speak their mind and to say 
what they please in all such matters….”
(emphasis ours)

Under Article 44.2.3, the Supreme Court found that the State cannot discriminate between religions and those that have no religion. In the case of Mulloy v Minister for Education 1975, Justice Walsh stated that:

“The reference to religious status, in both the Irish text and the English text of the Constitution, relates clearly to the position or rank of a person in terms of religion in relation to others either of the same religion or of another religion or to those of no religion at all.”
(emphasis ours)

Because of irreconcilable differences between theists and atheists, we do not agree that the State should help us with the ‘Religious Education’ of our children. In fact that would be against our conscience, particularly as the State is developing morals through ‘Religious Education’. It would also undermine the authority of atheist, humanist, and secular families under Article 41.1 and 42.

1.1.2 The practical application of these Constitutional rights

These Constitutional rights correspond with a Constitutional duty on the State to vindicate them in practice in its decisions on school funding. In reality, there is no practical application given to the right to ‘not attend’ Religious Instruction, and the State’s funding duties associated with that right.

Section 6 of the Education Act 1998 states that:

“6. Every person concerned in the implementation of this Act shall have regard to the following objects in pursuance of which the Oireachtas has enacted this Act:
(a) to give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs, as they relate to education;
(l) to enhance the accountability of the education system;
(m) to enhance transparency in the making of decisions in the education system both locally and nationally.”

In the High Court in 1996, in the case Campaign to Separate Church and State v the Minister for Education, Justice Costello stated that parents have more rights under the Irish Constitution in relation to their religious and philosophical convictions than they have under human rights law (page 37-38 High Court judgment.)

The European Court has repeatedly highlighted, including in Airey v Ireland 1979-80, that:

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

The Minister currently argues that it is up to schools how they implement the right, but there is a difference between how they implement a right and whether they implement a right. The Minister is aware that schools are not implementing the right, and is doing nothing about this while continuing to provide these schools with State funding.

1.2 The State has funding duties in the Constitution

1.2.1 Article 44 of the Constitution

Article 44.2.4 states that:

44.2.4 “Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, 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.”

Note that the Irish language version of the Constitution, which takes legal precedence, uses the phrase ‘teagasc creidimh’, which mean ‘religious teaching’. This is significant because the State is now trying to redefine ‘Religious Instruction/teagasc creidimh’ to limit it to instruction according to the rites of a single religion.

Note also that the Constitution does not state ‘while opting out of’ or ‘while not participating in’. It unambiguously states ‘without attending’. This is significant because the State is allowing schools to keep such children in the classroom during Religious Instruction, which is not what the Constitution says and is against the wishes of parents.

Article 44 (Religion) also encompasses:

44.2.1 Freedom of conscience and the free profession and practice of religion
44.2.2 The State guarantees not to endow any religion
44.2.3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

1.2.2 Other relevant Articles in the Constitution

The Supreme Court has said that Article 42.1 and 42.2 (parents’ rights regarding the education of their children) must be read in the context of Article 44.2.4 (page 25-26 Campaign to Separate Church and State v Minister for Education 1998, Justice Barrington).

The Court of Appeal in 2019 has stated in the recent Burke case that:

“191. This Court considers that the case law demonstrates that the relationship between parents, the State and the child as envisaged by Articles 40, 41 and 42, is a trifecta not just of the participants but of the rules under which constitutional engagement on education must take place; namely rights, duties and powers.”

Article 40 (Equality) encompasses:

40.1 All citizens shall, as human persons, be held equal before the law
40.3.1 The State guarantees to respect and defend and vindicate the personal rights of the citizen.

Article 41 (The Family) encompasses:

41.1.1 The family as the natural primary and fundamental unit of society and a moral institution possessing inalienable and imprescriptible rights
41.1.2 The State guarantees to protect the Family in its constitution and authority.

Article 42 (Education) encompasses:

42.1 The inalienable rights and duties of parents with regard to their children’s education, including religious and moral education
42.2 The right of parents to provide this education, including religious and moral education, in private schools or schools recognised or established by the State
42.3.2 The State’s duty to ensure children receive a certain minimum moral education, but not religious education
42.4 The State’s duty to have due regard to the rights of parents, especially in the matter of religious and moral formation, while providing for education.

1.2.3 Legal Opinions from Conor O’Mahony and James Kane

Conor O’Mahony, Professor of Constitutional Law and Child Law, has said about the right to not attend Religious Instruction that:

“As noted above, Article 44.2.4 appears stronger than the ECHR in giving a seemingly absolute right to opt-out of religious instruction, regardless of the character of that instruction. Moreover, it specifically uses the phrase “without attending religious instruction”. The use of the word “attending” (as opposed to “participating in”, or something similar) could reasonably form the basis of an argument that anything short of leaving the room fails to vindicate the right to opt-out.”

“The integrated curriculum does not operate in secondary schools in the same way, and while over 95% of primary schools are denominational, this can only be said of about 50% of secondary schools. Castletroy College initially sought to resist the request to opt-out on the basis that the subject being provided was multi-denominational rather than doctrinal instruction.

Nonetheless, the view taken by the Supreme Court in the passage quoted above suggests that this distinction is irrelevant. The right to opt-out applies to the formal timetabled period of “religious instruction”, and would seem to capture whatever form that instruction might take. Thus, while the distinction between “religious instruction” and the overall school ethos or “religious education” is often pointed to as undermining the right to opt-out in a primary school context, it might ironically serve to strengthen it in a secondary school setting.”

Atheist Ireland obtained a legal opinion in 2020 from James Kane Barrister-at-Law on this issue. This concludes that Article 44.2.4 encompasses:

• the right to physically leave the classroom during religious instruction, while
• at a minimum remaining supervised (otherwise funding would not be an issue), or
• at a maximum being taught another subject.

As between these possibilities, there is a decent legal argument that schools should not give more teaching time to some students over others on the basis that the latter is exercising the constitutional right to not attend religious instruction, as to do so is to discriminate against the student on religious grounds.

Here are relevant extracts from the legal opinion that expand on this:

First, the right to not attend religious instruction in State funded schools subsists and must be protected whether or not public funding to any particular school might be said to be generous. Where a child is attending a school which is in receipt of some State funding, the child is entitled to not attend religious instruction regardless of the level of that funding. This right must be respected by the State and individual schools. Secondly, there is an express and separate obligation on the State to ensure that the issue of funding alone does not prejudicially affect the right. (para 4).

Schools are obliged to use their existing State funding to facilitate that right without demanding extra State funding (paras 88-89). To come to any other conclusion would render the enjoyment of the right contingent on the level of funding. This would fly in the face of the plain text of Article 44.2.4 (para 89). Provided the school is a public school receiving some State funding, the right must be respected, whether or not the funding is adequate (para 90).

What precisely does the right protect and require? The first possibility is that a student has a right to simply leave the school or sit at the back of the class room during religious instruction. But that would never cause any additional funding requirements for schools, and the issue of funding would therefore never effect the right. Thus, this interpretation of the Constitution seems invalid (para 94-98).

From a constitutional perspective, it seems to me that the right encompasses, at the very least, the right to leave the classroom during religious instruction while remaining supervised or to be taught another subject. As between these two possibilities, there is a decent argument that schools should not give more teaching time to some students over others on the basis that the latter has opted out as to do so is to discriminate against the student on religious grounds (para 100).

1.2.4 Statement by Micheál Martin as Minister for Education

Micheál Martin as Minister for Education was asked in the Dáil in 1999 about the position of a child in a post-primary school who does not wish to participate in religious knowledge classes, or a pupil in a second level school where the school authorities require all pupils to either study one or a variety of religions. Minister Martin responded:

“The constitutional and legal rights of students to attend schools without attending classes in religious instruction is beyond doubt. Article 44.2.4 of the Constitution provides, among other provisions, that legislation providing for State aid for schools shall not affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. This provision is supported by other constitutional provisions, notably Article 42 relating to the primary role of parents as the educators of their children and their rights in respect of any violation of their conscience.”

This is a reflection of Justice Barrington in the Supreme Court in 1998 stating that:

“Article 42 of the Constitution acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of the parents of provide for the religious and moral, intellectual, physical and social education of their children. Article 42 S.2 prescribes that the parents shall be free to provide “this education” (i.e religious moral intellectual physical and social education) in their homes or in private schools or “in schools recognised or established by the State”. In other words the Constitution contemplates children receiving religious education in schools recognised or established by the State but in accordance with the wishes of the parents. (page 25) It is in this context that one must read Article 44 S.2s.s.4…”

The Department has since started using a completely different set of definitions relating to these issues. It now claims that ‘Religious Instruction’ under Article 44.2.4 is understood as instruction in accordance with the rites of a single religion, schools integrate Catholic faith formation into Syllabus ‘Religious Education’, and the Department claims that the course is suitable for all and the need to opt our does not arise.

The Department has not at any stage referred to the source of these changes, and typically refers to them in the passive tense using phrases like “is understood as”.

1.3 The State has funding duties in the law

1.3.1 Education Act 1998

Section 30(2)(e) and 15(2)(e) of the Education Act 1998 support the Constitutional funding conditions for schools under Article 44.2.4 (not attending religious instruction), 44.2.1 (freedom of conscience) and and 42.1 (rights of parents). It states:

“30(2) The Minister (e) shall not require any student to attend instruction in any subject which is contrary to the conscience of the parent of the student or in the case of a student who has reached the age of 18 years, the student.”

“15(2) A School Board shall (e) have regard to the principles and requirements of a democratic society and have respect and promote respect for the diversity of values, beliefs, traditions, languages and ways of life in society.”

Section 30(2)(d) is also relevant to this. It states:

“30(2) The Minister (d) shall ensure that the amount of instruction time to be allotted to subjects on the curriculum as determined by the Minister in each school day shall be such as to allow for such reasonable instruction time, as the board with the consent of the patron determines, for subjects relating to or arising from the characteristic spirit of the school.”

1.3.2 Education (Admission to Schools) Act 2018

Section 62(7)(n) of the Education (Admission to Schools) Act 2018 obliges schools to provide in their admission policies details of the school’s arrangements in respect of any student who will not be attending religious instruction. It states:

“62(7) An admission policy shall (n) provide details of the school’s arrangements in respect of any student, where the parent of that student, or in the case of a student who has reached the age of 18 years, the student, has requested that the student attend the school without attending religious instruction at the school (which arrangements shall not result in a reduction in the school day in respect of the student concerned).”

The purpose of this requirement is to provide transparency from the outset, so that parents know these details before they choose a school for their children that will respect their Constitutional right to not attend Religious Instruction. Minister for Education Richard Bruton told the Dail:

“The Education (Admission to Schools) Bill includes a specific requirement that school enrolment policies must include details of the school’s arrangements for any students who do not wish to attend religious instruction. This is an important measure which will help ensure transparency from the outset as to how a school will uphold the rights of parents in this regard.”

Atheist Ireland compiled a report last year that shows that schools are defying this section of this new law. We examined a sample 100 admission policies and found that:

• Most denominational schools try to evade the requirement by stating that parents must seek a meeting with the Principal to discuss the arrangements.
• Most ETB schools try to evade the requirement by making a spurious distinction with no legal basis between religious instruction and religious education.
• Most schools do not address the right to not attend the class, i.e. the right to not physically leave the classroom and be supervised or get another subject.
• Some schools unlawfully ask parents to give reasons for wanting their children to not attend religion classes of any description thus breaching the right to privacy.
• These evasions are coordinated, based on common templates from either the Catholic Church, the Edmund Rice Schools Trust, or the Education and Training Boards.

We sent this report to the Minister over a year ago yet these practices continue.

1.3.3 Intermediate Education (Ireland) Act 1878

The Intermediate Education Act 1878 includes duties of an Education Board. These duties were transferred to the Minister for Education under the Ministers and Secretaries Act 1924.

Under this Act, the Minister for Education cannot fund schools that do not observe strict legal conditions as to the right to not attend religious instruction, and the onus is on the Minister to be satisfied that the legal conditions are met before funding a school.

(a) Funding of schools is dependent on ‘Religious Instruction’ conditions

The Intermediate Education Act restates the Constitutional ban on payment to schools unless the conditions as to religious instruction are observed.

“7. No payment unless conditions as to religious instruction be observed

The Board shall not make any payment to the managers of any school unless it be shown to the satisfaction of the Board that no pupil attending such school is permitted to remain in attendance during the time of any religious instruction which the parents or guardians of such pupil shall not have sanctioned, and that the time for giving such religious instruction is so fixed that no pupil not remaining in attendance is excluded directly or indirectly from the advantages of the secular education given in the school.”

These conditions for funding schools are much stronger than merely a right to not attend. The onus is on a State-funded school to ensure that parents sanction their child attending religious instruction, not on the parents to ask they not attend. In practice, most schools automatically enrol all children in Religious Instruction, and leave it up to parents to raise the issue. Also, the school cannot exclude such children, directly or indirectly, from the advantages of the secular education given in the school. And the onus is on the Board (now the Minister) to be satisfied that this is happening.

Micheál Martin as Minister for Education said in the Dáil that Sections 30(2)(e) and 15(2)(e) of the Education Act 1998 give a modern restatement and support to Section 7 of the Intermediate Education Act.

(b) Syllabus ‘Religious Education’ is ‘Religious Instruction’

The Intermediate Education Act used to ban the holding and funding of exams in ‘Religious Instruction.’

“5(4) Generally by applying the funds placed at the disposal of the Board for the purposes of this Act as hereby directed: Provided, that no examination shall be held in any subject of religious instruction, nor any payment made in respect thereof.”

This was a problem for the framers of the Education Act 1998, who wanted to be able to hold and fund exams in religion at Junior and Leaving Certificate levels. Their legal advice was that the Intermediate Education Act was still in force. So the Education Act 1998 amended it as follows:

“35(1) Section 5 of the Intermediate Education (Ireland) Act, 1878, is hereby amended in subsection (4) by the deletion of “; provided that no examination shall be held in any subject of religious instruction, nor any payment made in respect thereof”.”

The explanatory memorandum for the Education Act 1998 explained why this was done:

“The Act is the basis for the conduct of the Junior and Leaving Certificate examinations and the amendment will permit the introduction of religion as an examination subject.”

It follows from this that the funding of Syllabus ‘Religious Education’ as an exam subject comes under the category of ‘Religious Instruction’. Otherwise it would not have been necessary to amend the ban in the Intermediate Education Act regarding ‘Religious Instruction’ in order to hold and fund examinations in Syllabus ‘Religious Education’.

1.4 The State has funding duties in policy

Rule 69-2(a) of the 1965 Rules for National Schools states that:

“No student shall receive or be present at any religious instruction which his parents disapprove.”

See Also

This is the second of three articles that include the content of this report. Here are links to all three articles:

• Executive Summary and Contents
• 1. The State has Funding Duties regarding not attending Religious Instruction
• 2. The State is Misusing Public Funds and not being Transparent or Accountable