The Oireachtas, not the Government, must regulate the Constitutional right to not attend religious instruction

The oireachtas, not the Government or the Department of Education or schools, is responsible for regulating the Constitutional right to not attend religious instruction in schools. That is why statutory guidelines are needed, passed by the Oireachtas, not just Government policies, or circular letters from the Department, or abdication of responsibility to individual schools. We asked the UN Committee on the Rights of the Child to tell the Irish State to do this, and they included it in their concluding observations earlier this month.

In an Article in the Irish Times on Tuesday 14th February, Fintan O’Toole referred to Article 15.2.1 of the Constitution in relation to the nursing home controversy. The issue around Article 15.2.1 and the nursing homes involves the separation of powers under the Constitution.

In 1976 the Department of Health had told Regional Health Boards to charge residents in nursing homes that had medical cards, with fees. This was despite the fact the Health Act 1970 stated that they should not be charged.

Under the Constitution, the Department of Health had not got any power to do this. If they wanted to charge medical card holders nursing homes fees, they needed to amend the Health Act 1970. They should have gone back to the Oireachtas to do this, not just ignore the Act.

This is the exact same Constitutional principle that we are using to try to get the Oireachtas to take responsibility for their duty under Article 44.2.4 to ensure that state aid does not affect prejudicially the right of any student to attend a school receiving public money without attending religious instruction.

Article 15.2.1 states that:

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

The very same principle in relation to the separation of powers applies in relation to Article 44.2.4 of the Irish Constitution.

Article 44.2.4 states that:

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.”

Under Article 15.2.1 of the Constitution only the Oireachtas can make legislation. Not only that, but Article 44.2.4 puts a duty on the Oireachtas to ensure that any state aid given to schools does not ‘affect prejudicially’ the right to any child to attend a school in receipt of public funds and not attend religious instruction.

As every family from a minority background knows, our children are not supervised outside the religious instruction class but left sitting in the religious instruction class. That is not the same thing as ‘not attending’.

If parents complain to the Department of Education, they are told that it is up to each school to decide how they implement the Constitutional right to not attend religious instruction. If we ask the school to supervise our children outside the religious instruction class, we are informed that the Department of Education does not give them enough funding to do this.

Atheist Ireland has asked the Oireachtas Public Accounts Committee to examine this issue. At one stage they suggested to us that not attending religious instruction was a ‘policy’ of the Department of Education and that they haven’t the power to examine any ‘policies’.

Article 44.2.4 actually starts with the words “Legislation providing state aid…” which puts it firmly under the remit of the Oireachtas, not the executive, not the Department of Education, and certainly not individual schools or Patron bodies. It is not a ‘policy’ of the Department of Education but a Constitutional right. The duty on the Oireachtas is written into the constitutional text.

The reason why schools  ignore our Constitutional right under Article 44.2.4 is because the Oireachtas has failed to take responsibility and uphold the Constitution. The Oireachtas simply ignores the democratic principles enshrined in the Constitution.

The Supreme Court is quite clear in relation to the separation of powers. Neither the executive nor the Department of Education can make policy that affects the Constitutional right to not attend religious instruction.

This means that any guidelines that the Department of Education puts in place, or any Circular Letters in relation to religious instruction, have no legal power because of the allocation of functions between the branches of government under the Constitution.

What is needed is statutory guidelines that are passed by the Oireachtas. We asked the UN Committee on the Rights of the Child to tell the Irish State to do this, and they included it in their concluding observations earlier this month.

Supreme Court – Burke V Minister for Education 2021

42. This focus of the Constitution is also, if anything, more apparent from the underlying nature of the rights protected and guaranteed by the Constitution, and the structure of the State and society created by it. The focus of the Constitution on the possibility of infringement of the rights by legislation enacted by the Oireachtas is precisely because under the Constitution, the executive does not itself make law, and lacks, therefore, the wide-ranging power of interfering with and affecting the lives and rights of citizens, which the legislature undoubtedly possesses. This distinction is blurred in a separation of powers in which the Government sits in and effectively controls the legislature, but is important in the present context.

43. Whatever the position in other constitutional arrangements, the executive under the Irish Constitution is not generally empowered to directly affect the rights of citizens. The executive cannot order the arrest or detention of any individual: that requires legislative authority, under Article 40.4.1°. The executive cannot normally of its own power authorise the entry into the dwelling of the citizen, or indeed any other private property: that again requires legislative authorisation. The executive cannot restrain the exercise of convictions or opinions or restrain the right of citizens to assemble peaceably and without arms or form associations and unions. If the Government were to promulgate rules providing for the detention of individuals, it would not matter how carefully constructed the rules were, what safeguards were established, and how proportionate it was to a legitimate State interest: it would be considered to be an unconstitutional interference with a constitutional right, not because of the nature of the interference, but rather because of the allocation of functions between the branches of government under the Constitution. The executive lacks power to directly exercise that degree of compulsion over citizens.”