Oireachtas must oversee Constitutional condition for state aid to schools re religious instruction

Atheist Ireland has made the following submission to the newly established Oireachtas Committee on Public Accounts.

Oversight of the Constitutional Condition for State Aid to Schools

1. Summary
2. The Constitutional Condition for State Aid
3. Legislative Responsibility under Article 15
4. Absence of Statutory Guidelines or Oversight
5. Relevant Legislation
6. Consequences of Inaction
7. Recommendations for the Committee
8. Conclusion

1. Summary

This submission outlines how the Oireachtas, through its funding of schools, fails to oversee or enforce the constitutional condition attached to that funding as set out in Article 44.2.4 of the Constitution. It argues that public money is being disbursed without ensuring compliance with a constitutional right, thereby undermining legislative authority under Article 15 and potentially violating principles set out by the Supreme Court.

2. The Constitutional Condition for State Aid

Article 44.2.4 of the Constitution states:

“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.”

The Irish version of 44.2.4 takes legal precedence:

Reachtaíocht lena gcuirtear cúnamh stáit ar fáil do scoileanna ní cead idirdhealú a
dhéanamh intiidir scoileanna atá faoi bhainistí aicmí creidimh seachas a chéile ná í do
dhéanamh dochair do cheart aon linbh chun scoil a gheibheann airgead poiblí a fhreastal
gan teagasc creidimh sa scoil sin a fhreastal

The following translation is from ‘Bunreacht na hÉireann: a study of the Irish text’, written
by Micheál Ó Cearúil and published in 1999 by All Party Oireachtas Committee on the
Constitution.

Article 44.2.4 (right to not attend religious instruction when funding schools)

• ‘Legislation .. shall not discriminate’ is expressed as ‘ní cead’, or ‘it is not permitted to’.
• ‘To affect prejudicially’ is expressed as ‘dhéanamh dochair do’, or ‘do harm to’.
• ‘Attend’ is expressed as ‘A fhreastal’. Ó Dónaill cites ‘an scoil a fhreastal, to attend school’ and ‘freastal ar léachtaí, to attend lectures’ as examples of ‘freastail’, ‘attend’, in the sense of ‘be present at’.
• ‘Religious Instruction’ is expressed as ‘Teagasc creidimh’. ‘Teagasc’ is translated as ‘teaching, instruction’ by Ó Dónaill, who cites ‘teagasc ábhair, teaching of a subject’.

This right is not merely aspirational — it is a constitutional condition for receiving State aid. The wording, unique in the Constitution, begins with “Legislation providing State aid…”, making it clear that the Oireachtas has exclusive responsibility for ensuring this condition is fulfilled.

3. Legislative Responsibility under Article 15

Article 15.2.1° of the Constitution states:

“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 Supreme Court has repeatedly affirmed that the Oireachtas cannot delegate its duty to any other body. In McGowan & Ors v Labour Court (2013), the Court stated:

“As Hanna J. observed in the Pigs Marketing Board case and as the Gavan Duffy, O’Donoghue, and Lynch exchange in 1937 illustrates, if in truth any piece of regulation amounted to truly delegated legislation, it would offend Article 15, since it is plain from the very language thereof, and indeed the constitutional structure, that the function of legislation is one that cannot be delegated by the Oireachtas to any other body. Indeed the case law since that time can be understood as an attempt to seek to delineate the boundary between permissible subordinate regulation, and the abdication, whether by delegation or otherwise, of the lawmaking authority conferred on the Oireachtas by the People, through the Constitution”

The Supreme Court has also stated that:

“It is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution” (Crotty v An Taoiseach 1986).

In 2024, Hogan J. (Supreme Court) laid out a test for assessing whether legislation improperly abdicates Oireachtas authority. Among the key questions:

“27. Bederev stressed that the legislation in question should be considered as a whole. And in Náisiúnta Leictreach, MacMenamin J. gave a helpful exposition of the contemporary thinking in respect of the requirements of Article 15.2.1⁰ ([2022] 3 IR 515 at 544 – 545):

• “First, an assessment of the Act in order to determine whether or not it contains sufficient principles and policies, should be based on a reasonable, but not far-reaching, examination of the provisions.
• Second, the purpose of various principles and policies and criteria is to ask whether the legislation sets boundaries, in the sense of defining Rules of conduct, or guidelines.
• Third, does the legislation have defined subject matter, and contain basic conditions of fact and law?
• Fourth, is the legislative purpose of the provisions discernible by identification of objectives or outcomes, as well as principles?
• Fifth, is the power delegated sufficiently delimited?
• Sixth, does the exercise of the subordinate power contain sufficient safeguards?
• Seventh, the primary question, is there an abdication by the Oireachtas of its constitutional role?

These are the key questions.

But legislation may nonetheless contain broad definitions, provided they are sufficiently
definite and precise to permit a court to determine compliance with Article 15.2.1.
The Oireachtas does not vest a decision–making body with a decision–making power which involves choices. These may be broad, or more narrow, dependent upon the legislation. A court will ensure that a subordinate body is not vested with an absolute and untrammeled discretion. A court may also have to assess the extent to which a policy is discernible within viable legislative choices.”

This test is directly relevant to the current funding of schools without legislative oversight of the Article 44.2.4 condition.

4. Absence of Statutory Guidelines or Oversight

The Department of Education leaves it to individual schools to interpret and implement the constitutional right not to attend religious instruction according to their own circumstances. There are:

• No statutory guidelines defining how this right is to be implemented or protected;
• No criteria tied to funding that ensure compliance with this right;
• No mechanism for Oireachtas oversight of how schools interpret this condition.

As a result, schools receiving public money set their own rules according to their own circumstances, which may or may not align with the Constitution. This represents a delegation of constitutional responsibility to the recipients of the aid — contrary to Article 15.

5. Relevant Legislation

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

“Without prejudice to the generality of subsection (1), 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.”

However:

• It appears in the curriculum section, not the funding section, and
• It refers only to Ministerial requirements, not to the conditions of State aid.

Section 12(1) of the Education Act 1998 outlines criteria for funding schools:

“The Minister, with the concurrence of the Minister for Finance, shall determine and publish in each school year criteria by which any class or classes of recognised schools or centres for education are to be funded in the following school year from monies provided by the Oireachtas and such criteria shall allow for the payment of additional monies to recognised schools having regard to the level of educational disadvantage of students in the schools.”

There is no reference to compliance with the Article 44.2.4 constitutional condition as part of the funding criteria.

Still in place is Section 7 of the Intermediate Education (Ireland) Act 1878. It was never repealed:

“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.”

6. Consequences of Inaction

• State aid is being given unconditionally, without ensuring protection of a constitutional right.
• Legislative responsibility has been abdicated to the Department and to individual schools.
• The Oireachtas has no mechanism to review how these funds are being used in relation to the constitutional condition.
• This undermines the value for money and constitutional compliance of public expenditure.

7. Recommendations for the Committee

1. Review public funding criteria for schools to ensure they comply with Article 44.2.4.

2. Require the Department of Education to develop statutory guidelines that define how the right not to attend religious instruction is to be implemented.

3. Ensure funding decisions are conditional on compliance with these guidelines.

4. Establish a review mechanism by which the Oireachtas can monitor and enforce adherence to the constitutional condition for state aid.

8. Summary

This submission is not about questioning the existence of religious instruction, or the merits of government policy on the issue, but about ensuring constitutional rights are respected when public money is involved. The Oireachtas is uniquely entrusted with this responsibility. It cannot continue to fund schools without ensuring that Article 44.2.4 is upheld in practice, not just in theory.