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Freedom of religion in the Irish primary school system: a failure to protect human rights?

  • Alison Mawhinney (a1)

Abstract

In the Republic of Ireland nearly all primary schools are state-funded but the vast majority of these schools are owned and managed by religious bodies. There is no system of state-run schools. This paper discusses the protection of freedom of religion within this unique system of schooling. In particular, it examines the notion of ‘the integrated curriculum’ whereby all schools in receipt of state funding are legally obliged to ensure that a religious spirit informs and vivifies the whole work of the school. The paper identifies the international human rights standards relevant to the teaching of religion in schools. Through empirical evidence based on interviews with parents, teachers and pupils, an assessment is made of how far Irish law and practice respect these standards. The outcome of this evaluation of the use of religious bodies in non-state service provision is discussed.

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1. Rules for National Schools under the Department of the Education (Dublin: The Stationery Office, 1965) r 68. In Ireland any primary school in receipt of state funding is officially known as a national school.

2. Clearly children have rights, independent of their parents’ rights, to freedom of religion, thought and conscience as well as to education. However, given that this paper concentrates on the role of religion in the primary education sector where the potential for conflict between children’s and parents’ rights is arguably minimal, the focus will be predominantly on parental rights.

3. Hartikainen v Finland (Comm No 40/1078) UN Doc A/36/40, Decision of 9 April 1981, Kjeldsen, Busk Madsen and Pedersen v Denmark (1979–80) 1 EHRR 711.

4. Ibid, para 53. This formula of words has been relied upon by the court and Commission in subsequent cases; see, for example, Jimenez and Jimenez Merino v Spain (Application No 51188/99) Reports of Judgments and Decisions 2000-VI.

5. Ibid, para 54.

6. Ibid, para 53.

7. Ibid, para 52.

8. Ibid, para 54.

9. See the website available at http://www.cogsci.princeton.edu/cgi-bin/webwn.

10. The Chambers Dictionary (Edinburgh: Chambers Harrap Publishers Ltd, 1998).

11. Clarke, D Church and State: Essays in Political Philosophy (Cork: Cork University Press, 1984) p 215. It is of interest to note an eight-point test developed by the Ontario Court of Appeal to assist in distinguishing between religious indoctrination and education about religion: Corporation of the Canadian Civil Liberties Association v Ontario (1990, 71 OR (2d) 341 (CA)). The test states, inter alia, that a school may sponsor the study of religion, but may not sponsor the practice of religion; may expose students to all religious views, but may not impose any particular view; should seek to inform about various beliefs but not seek to conform a student to any one belief; should strive for student awareness of all religions, but not press for student acceptance of any one religion; should educate about religions, not convert to any one religion and the school’s approach should be academic, not devotional. For a discussion of this case, see

12. (Application No 71860/01) Decision of 17 June 2004.

13. Above n 3, para 54. Similarly, in Jimenez, above n 4, the court noted that ‘there is a wide network of private schools in Spain which coexist with the state-run system of public education. Parents are thus free to enrol their children in private schools providing an education better suited to their faith or opinions. In the instant case, the applicants have not referred to any obstacle in preventing the second applicant from attending such a private school’.

14. Van Dijk, P. and Van Hoof, GJH Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer Law International, 3rd edn, 1998) p 649.

15. Report of 16 May 1980, B.42 (1985) 38–39. Van Dijk and van Hoof note that in a later decision the Commission ignored the question of whether parents could afford private education as an alternative: W & DM and M & HI v United Kingdom (Applications 10228/82 and 10229/82) (1984) 37 DR 96 at 100.

16. Evans, C. Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001) p 90.

17. Ibid.

18. Clarke, D Freedom of thought and educational rights in the European Convention’ (1987) 29 The Irish Jurist 40.

19. Above n 3.

20. Ibid, para 2.1. This course was compulsory for those students who had been exempted from religious instruction classes. Article 18(4) of the ICCPR provides that ‘States Parties to the present Convention undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’.

21. Ibid, para 10.4. Finland had admitted to difficulties in the teaching of the course. The Human Rights Committee accepted that appropriate action was being taken by the domestic authorities to ensure that the requirements of Art 18(4) would be met within the framework of the existing legislation: para 10.5.

22. CCPR/C/82/D/1155/2003, Decision of 23 November 2004

23. Ibid, para 14.3.

24. Ibid.

25. (Application No 27417/95) 27 June 2000.

26. Ibid, paras 80–81. In this case the court found no violation as the applicant association could easily obtain supplies of the required meat from Belgium.

27. Evans, M. Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997) p 359.

28. For an examination of the right to an effective education, see Kilkelly, U The Child and the European Convention on Human Rights (Aldershot: Ashgate, 1999) pp 6768.

29. Manoussakis and Others v Greece, Reports of Judgments and Decisions 1996-IV at 1365.

30. Serif v Greece, Reports of Judgments and Decisions 1999-IX at para 53.

31. While a state must permit such schools to exist, it does not have to fund them and it is permitted to impose minimum educational standards on these schools. Where a state does provide financial support to private educational establishments, its duty to act as a neutral and impartial organiser of religious rights obliges it to do so on a non-discriminatory basis.

32. Kokkinakis v Greece Series A No 260-A 25 May 1993 at 18. The court noted that this follows both from para 2 of Art 9 and the state’s positive obligation under Art 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention.

33. The schools were selected from the full list of primary schools using a disproportionate stratified sampling technique to allow for the better representation of the smaller categories of school type, that is Protestant, multi-denominational and inter-denominational schools.

34. Judgemental and snowballing sampling techniques were used to form a sampling framework. Initial contact was made through placing letters in the main daily newspapers and through contacting humanist associations, campaign organisations and trade unions. Of the 13 parents, 11 related their experiences with respect to Catholic schools and 2 with respect to Anglican schools. Of the 10 teachers, 8 had taught in Catholic schools and 2 in Anglican schools.

35. It is of interest to note that in 1831 when the Irish school system was established a notable feature was that schools had to offer a curriculum which combined moral and literary instruction but separate religious instruction. Religion was to be taught at a fixed time of the day and parents could withdraw their children from such instruction if they wished. However, as schools became increasingly denominational in character, this feature of a separate and timetabled religion class gradually diminished and the concept of the integrated curriculum, whereby religion was expected to be integrated into all subjects and school life, became more prevalent. For a detailed account of the background to the establishment and subsequent operation of the Irish education system and its treatment of religious education, see Akenson, D The Irish Education Experiment: The National System of Education in the Nineteenth Century (London: Routledge & Keegan Paul, 1970).

36. The state does own nine schools. These schools are known as Model Schools and were founded before the establishment of the state in 1922. They were originally used as training schools for pupil teachers in the nineteenth century. Although under ministerial control, these schools operate according to a religious ethos: five are run under Catholic patronage and four under Church of Ireland (Anglican) patronage: Department of Education and Science, Press Release, 17 February 2007, available at http://www.education.ie.

37. Currently five of the religious schools in the country have an inter-denominational ethos as opposed to a mono-denominational ethos. An inter-denominational ethos implies that Roman Catholic and Protestant beliefs are promoted in the one school: ibid.

38. Currently there are 41 such schools (19 of which are located in the greater Dublin area) out of a total population of approximately 3171 primary schools: see the website available at http://www.educatetogether.ie.

39. Education Act 1998, s 15(1).

40. In recent decades, bodies other than churches have been recognised as patrons. The patron of a multi-denominational school may be the board of trustees of the school or ‘Educate Together’, the limited company that acts as the representative organisation of multi-denominational schools throughout Ireland. The patron of an Irish-language school may be Foras Pátrúnachta na Scoileanna Lán Ghaeilge, which is a limited company set up for that purpose. More recently, in February 2007, the Minister for Education announced that a new model of patronage was being investigated whereby local authorities could act as a patron for a new primary school in a situation where a traditional patron was not available. The model will be piloted in a new school due to open in 2008 after a process of consultation with established patrons.

41. Commission on School Accommodation Report of the Technical Group Criteria and Procedures for the Recognition of New Primary Schools (Dublin: Department of Education and Science, January 1998) p 58.

42. Education Act 1998, s 15(2)(a).

43. Rules for National Schools under the Department of the Education, above n 1. Technically, schools that are privately owned but receive state funding and adhere to the rules and regulations of the Department of Education are referred to as national schools.

44. The Primary Curriculum 1999 (Dublin: Department of Education and Science, 1999).

45. Together this legislation outlaws discrimination in, inter alia, employment, vocational training and the provision of goods and services, including primary schools, on nine distinct grounds, including religious belief. However, each act contains significant exemptions for religious education establishments that are run by religious orders or institutions that promote certain religious values. For example, s 7 of the Equal Status Act permits primary schools to refuse admittance to students who are not of the school’s denomination in order to allow the ethos of the school to be maintained.

46. Constitution of Ireland 1937.

47. Article 42.4: ‘The state shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation’.

48. (Unreported) 1 October 1979, Supreme Court.

49. These constitutional provisions developed from the ‘Articles of Agreement for a Treaty between Great Britain and Ireland 1921’. Article 16 of that Treaty provides: ‘Neither the Parliament of the Irish Free State nor the Parliament of Northern Ireland shall make any law so as either directly or indirectly to endow any religion or prohibit or restrict the free exercise thereof or give any preference or impose any disability on account of religious belief or religious status or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school or make any discrimination as respects state aid between schools under the management of different religious denominations or divert from any religious denomination or any education institution any of its property except for public utility purposes and on payment of compensation’.

50. Article 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’.

51. Article 44.2.5: ‘Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes’. Education is traditionally included in ‘charitable purposes’ and thus gives religious patrons the right to ‘maintain institutions, for the purpose of schooling’: Commission on School Accommodation, above n 41, p 13.

52. Constitution Review Group Report of the Constitutional Review Group (Dublin: The Stationery Office, 1996) p 382. The Review Group was established by the Government of Ireland in 1995 to review the Constitution and to establish those areas where constitutional change may be desirable or necessary with a view to assisting the All-Party Committee on the Constitution in its work.

53. Article 44.2.3: ‘The state shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status’. Constitutional case-law makes clear that this provision applies strictly only to the state: Schlegal v Corcoran and Gross [1942] IR 19; McGrath and O’Ruairc v Trustees of Maynooth College [1979] ILRM 166. Furthemore, it has been held that in order to protect the constitutional guarantee to the free profession and practice of religion it may, at times, be necessary to distinguish between persons or bodies on the grounds of religious profession, belief or status: Quinn’s Supermarkets v Attorney General [1972] IR 1; Mulloy v Minister for Education [1975] IR 88.

54. The 1971 Curriculum was published in the form of a two-volume Teachers’ Handbook comprising more than 700 pages.

55. The Primary Curriculum, above n 44, p 19.

56. Irish National Teachers Organisation Teaching Religion in the Primary School: Issues and Challenges (Dublin: INTO, 2003) p 20.

57. ‘Archbishop says schools must have Catholic ethos’ The Irish Times 5 February 2005.

58. See the two sections above dealing with the case-law of the European Court of Human Rights and the Human Rights Committee. Having ratified both the Convention and the ICCPR, Ireland has accepted an obligation to abide by the standards set by this international jurisprudence.

59. Above n 8.

60. Above n 3.

61. Above n 38.

62. This lack of encouragement may be contrasted with education policy in England where the government is pursuing a policy of encouraging the establishment of ‘trust schools’ by groups of parents dissatisfied with local schools provision. For example, Part 1, s 3 of the Education and Inspections Act 2006 gives parents an increased say in the provision of schools in their area by requiring local authorities to respond to representations by parents who are not satisfied with the local provision of schools.

63. Article 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’.

64. Article 42.4 also gives constitutional support for the state funding of denominational schools where it reads the state ‘…shall endeavour to supplement and give reasonable aid to private and corporate educational initiative’. The decision of the Supreme Court in Campaign to Separate Church and State Ltd v Minister for Education[1998] 3 IR 321 confirms that the principle of non-endowment of religion found in Article 44.2.2 does not prohibit state funding of denominational schools. See Hogan, G. and Whyte, G. JM Kelly: The Irish Constitution (Dublin: LexisNexis Butterworths, 4th edn, 2003) pp 19401942.

65. For a detailed review of Arts 44 and 42 and the relevant case-law, and for a discussion of the various interpretation approaches that may be applied to these constitutional provisions, see O’Connell, R.Theories of religious education in Ireland’ (1999) 14 Journal of Law and Religion 443.

66. Gerry Whyte has noted that that until recently any potential discordance caused by this tension was obscured by the dominant social consensus. However, ‘that consensus is now breaking up. Parents are seeking a greater say in the education of their children while humanists are more assertive in defence of their rights’: G Whyte ‘Education and the Constitution: convergence of paradigm and praxis’ (1994) XXV–XXVII The Irish Jurist 79.

67. Walshe, J. A New Partnership in Education: From Consultation to Legislation in the Nineties (Dublin: Institute of Public Administration, 1999) p 180.

68. Constitution Review Group, above n 52, p 375.

69. Ibid, pp 386–387.

70. Ibid.

71. Clarke, above n 18, p 52.

72. The Parliamentary All-Party Committee on the Constitution is reviewing aspects of the Constitution following the 1996 report.

73. Section 30(e): ‘[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’. Rule 69(2)(a) of the Rules for National Schools contains a similar opt-out clause: ‘No pupil shall receive, or be present at, any religious instruction of which his parents or guardians disapprove’.

74. Furthermore, the Act does not reflect the instructions found in the Rules for National Schools (1965), which stipulate that the hours of religious instruction should be fixed and indicated on a timetable so as to facilitate the withdrawal of pupils not wishing to participate: r 69(2)(b) and 69(5).

75. Campaign to Separate Church and State in Ireland v the Minister for Education [1998] 2 ILRM 81. The case dealt with the question of the constitutionality of the state paying the salaries of chaplains in community schools (a type of secondary level school). The court ruled that the state may fund denominational education provided that the funding is made available on a non-discriminatory basis.

76. Ibid, at 101. Hogan and Whyte suggest that ‘this approach would clearly protect the display of religious artefacts in publicly-funded schools and possibly also the public funding of the integrated curriculum, i.e. a curriculum permeated by religious values, provided this does not constitute religious instruction as such’: Hogan and Whyte, above n 64, p 2070.

77. This Act aims to give further domestic effect to the rights and freedoms guaranteed under the Convention. It creates a new requirement in statutory interpretation; the possibility of an action against an organ of the state as a result of a contravention by such an organ to perform its functions in a manner compatible with the state’s obligations under the Convention provisions; and the possibility of an action or application for a declaration by the High Court or Supreme Court that a statutory provision or rule of law is incompatible with the state’s obligations under the Convention provisions.

78. In the Matter of Article 26 and the Employment Equality Bill 1996 118/97 at 16.

79. [1979] ILRM 166.

80. Ibid.

81. A definition of ‘organ of the state’ is set out in s 1 of the Act: ‘organ of the state’ includes a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial powers of the state are exercised. The corresponding application provision of the UK Human Rights Act 1998 suggests a less restrictive approach to applicability. Article 6(3) of that Act provides that the Act shall be applicable to public authorities including ‘any person certain of whose functions are functions of a public nature… ’. However, to date, the approach by the courts towards defining this provision has been criticised as being overly narrow and institutional; see, for example, Joint Committee on Human Rights The Meaning of Public Authority under the Human Rights Act Ninth Report of Session 2006–07. HL 77, HC 410, 28 March 2007 (London: TSO, 2007).

82. E/1990/5/Add.34, para 693.

83. Brian Lenihan, Minister of State at the Department of Justice, Equality and Law Reform. Seanad Debate, 19 June 2003.

84. The school, Gaelscoil Thulach na nÓg, is an inter-denominational Irish-language school founded in Dunboyne, Co Meath in 1998.

85. In primary schools run by the Catholic Church it is normal practice to undertake sacrament preparation during school hours (First Confession and First Communion at the age of 7–8 and Confirmation at the age of 11).

86. Editorial Comment The Irish Times 2 August 2002.

87. Initial ESCR Report E/1990/5/Add.34, para 39.

88. E/C.12/1999/SR.16, para 39.

89. E/C.12/1/Add.35, para 28. With respect to primary education, Art 13 requires states to ensure that it is compulsory, available free to all and respects the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions. Article 14 requires states to work out and adopt a plan of action to ensure the principle of compulsory education free of charge for all. The reference to ‘quality of education’ in the Committee’s recommendation would thus imply that it is not only concerned about access to free primary schooling in Ireland but that it is also uneasy about the extent to which primary education is in conformity with parental convictions.

90. CCPR/C/SR.1235, para 38.

91. Ibid, para 39.

92. CCPR/C/SR.1239, para 44.

93. CCPR/C/SR.1847, para 58.

94. CCPR/C/SR.1848, para 3.

95. Second Periodic Report of State Parties (Unedited Version): Ireland (CRC/C/83 Add.17, 7 November 2005).

96. Ibid, paras 526–527.

97. CRC/C/SR.1182, para 9. In its initial report to the Committee on the Rights of the Child in 1998, Ireland cited Art 42.1 of the Constitution as protecting religious freedom in schools. It stated that this article ‘grants parents the liberty to ensure that the religious and moral education of their children is fully protected’. It further noted that the Constitution grants every child the right ‘to attend a denominational school receiving state funding without having to participate in religious instruction in the school’. No member of the Committee on the Rights of the Child questioned these statements: CRC/C/11/Add.12, paras 163–164.

98. Ibid, para 26.

99. CRC/C/IRL/CO/2, paras 61–62.

100. CERD/C/IRL/CO/2, para 18.

101. For arguments in favour of this arrangement, see Clarke, above n 18, p 53.

* I am grateful to Laura Lundy, Tom Hadden, Kennedy Mawhinney and the anonymous referees for comments made on earlier drafts of this article. The usual caveat applies.

Freedom of religion in the Irish primary school system: a failure to protect human rights?

  • Alison Mawhinney (a1)

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