Follow the money: No accountability for Constitutional condition for aid to schools

Article 44.2.4 of the Constitution singles out religious instruction over the teaching of other school subjects, and makes it the responsibility of the Oireachtas, not the Executive. Article 44.2.4 makes vindicating the right to not attend religious instruction a condition of state aid to schools.

When providing state aid to schools, the Oireachtas has failed to put in place any oversight of the right to not attend religious instruction. The Education Act 1998 treats religious instruction just like instruction in other subjects when it is clearly not.

The Education Act 1998 makes the Minister for Education responsible for ensuring the right to not attend instruction in any subject which is contrary to the conscience of the parent of the student.

In practice, this includes religious instruction within these subjects, but it does not recognise that the Constitution treats religious instruction differently from the teaching of other subjects.

This means that, in practice, the Minister for Education has the authority to decide on making specific funding available to facilitate students to not attend instruction in subjects contrary to their parents’ conscience, as is required by the law.

But there is no funding earmarked to give practical application to the more specific right to not attend religious instruction, as is required by the Constitution as it is a condition of state aid to schools. At present giving practical application to that right is supposed to come out of the general funding to schools. Schools claim that the funding is not sufficient to supervise students outside religious instruction or offer them another subject.

Successive Ministers for Education have said that how any school ensures the right of a student not to attend religous instruction is a matter for the school concerned.

However, according to the Constitution, vindicating the right to not attend religious instruction is the responsibility of the Oireachtas, not of the Executive or the Minister or schools, because it is a Constitutional condition and any legislation that provides state aid to schools must reflect this.

Article 44.2.4 of the 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.

Only the Oireachtas can make legislation, and Article 44.2.4 starts with the word ‘legislation’. Therefore the Constitution singles out religious instruction over other subjects, and makes not attending it a condition of state aid and the responsibility of the Oireachtas, not the Executive or the Minister or schools.

Article 15.2.1 of the Constitution 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.

It is not a matter of the Executive or the Minister or schools deciding that, when they have enough funds, they will give practical application to the right to not attend religious instruction, as that would be contrary to Article 44.2.4. State aid for schools is conditional on students not attending religious instruction because it is part of the text of the Constitution and must be part of any legislation authorising state aid to schools.

The Constitution envisages not attending religious instruction as having an impact on state aid to schools, as why else would it be in an Article about legislation providing state aid to schools? Opting out or withdrawing from religious instruction while sitting in the religious instruction class has no impact on state financial aid to schools.

Leaving children sitting in the religious instruction class because there is not enough funding to supervise them outside the class or offer them another subject, is unconstitutional because state aid for schools is conditional on students not attending religious instruction. Legislation providing state aid to schools does affect prejudicially the right of students to attend the school and not attend religious instruction. The Department of Education and the Executive have no legal authority to redefine Constitutional rights.

Article 44.2.4 is reflected in Section 30.2.(e) of the Education Act 1998.

Section 30.2.(e) of the Education Act 1998 states that:-

The Minister,
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.

Section 30.2(e) of the Education Act 1998 fails to make not attending religious instruction a condition of state aid to schools. Section 30.2(e) is in the curriculum Section of the Act and has no impact on state aid.

Section 12 of the Education Act 1998 covers the annual funding to schools, and not attending religious instruction is not listed as a criteria for the funding of schools, despite the fact that under Article 44.2.4 legislation providing state aid to schools cannot affect prejudicially the right of any child to attend the school and not attend religious instruction.

Other school subjects and the Constitution

The Constitutional obligation on the state to respect the right of parents in relation to the education of their children comes under Article 42.1 of the Constitution.  Article 42 does not state that students have a right to not attend instruction in any subject that is against the conscience of their parents and that this is a condition of state aid to schools. Notwithstanding this, Section 30.2.(e) of the Education Act 1998 gives students the right to not attend instruction in any subject that is against the conscience of their parents and that would include e.g any instruction in Relationship and Sexuality education.

However, not attending instruction in sex education is not a Constitutional condition of state aid to schools, and therefore is subject to the Executive and the Minister deciding when they have enough funds to give practical application to the right to not attend sex education or indeed instruction in any other subject.

There is a significant Constitutional difference between religious instruction and instruction in various other subjects, and that difference is ignored. It means that the Executive and the Minister has the authority to decide whether they will earmark funding specifically for not attending e.g sex education or indeed any other subject under the curriculum that parents object to, because they are not a Constitutional condition of state aid to schools.

Conclusion

The Oireachtas has failed in its duty to make not attending religious instruction a condition of state aid to schools. One of the problems is that they don’t even see it as their Constitutional duty. We have complained to the Comptroller and Auditor General, the Public Accounts Committee, the Oireachtas Education Committee and the Minister for Finance.

None of them want to deal with the fact that not attending religious instruction is a Constitutional condition of state aid to schools under Article 44.2.4 and to investigate why the Oireachtas has failed to ensure that any legislation authorising state aid to schools is conditional on children not attending religious instruction. The Oireachtas has no oversight of a Constitutional condition for state aid, the responsibility for the implementation of the right to not attend religious instruction under Article 44.2.4 has been delegated to schools that are receipt of the state aid.

We do not see how Article 44.2.4 could possibly be interpreted as the Oireachtas putting in place legislation that provides state aid to schools, while failing to make not attending religious instruction a condition of that aid, having no oversight to one of the  Constitutional conditions for that aid, and leaving it up to schools to implement according to their own particular circumstances. Unfortunately, this is what is happening on the ground.

This is what the Secretary General of the Department of Education said to Atheist Ireland in 2023.

“Typically the manner in which any school ensures the the right of a student not to attend religous instruction is a matter for the school concerned.”

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

Legislation providing state aid for schools does affect prejudicially the right of students to attend a school and not attend religious instruction because the Oireachtas has failed in its Constitutional duty when providing state aid to schools.