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AI Briefing to TDs on Education (Amendment) Bill debate

Posted: Mon Nov 08, 2010 11:50 pm
by Conor

8 November 2010.

This brief by Atheist Ireland (see comments on issues which arose during the first part of the Second Stage debate in the Dáil on the Education (Amendment) Bill 2010, and draws attention to the findings of the 1996 Constitution Review Group which suggested that the present system of denominational education may conflict with constitutional provisions on education.

1. During the first part of the Second Reading debate in the Dáil on 13 and 14 October 2010 on the Education (Amendment) Bill, a number of issues emerged which Atheist Ireland believes need to be further clarified during the remainder of the Second Stage process on 10 and 11 November. In this Briefing, we seek to offer members of the Select Committee on Education and Skills, and other interested TDs, Atheist Ireland’s perspective on these issues. We call for the Bill to be amended in order to protect the human rights of non-religious parents and children. The Bill provides for the Vocational Education Committees (VECs) to establish, maintain and become patron of primary schools.

2. Several TDs discussed their experiences with VECs during the earlier part of the Second Stage debate. It is evident that many elected politicians are relatively familiar with how their local VEC operates at secondary level. Atheist Ireland, however, while not endorsing the VEC secondary model, suggests that public representatives ought not to assume that VECs’ existing experience will necessarily translate easily to primary level. Indeed, the Bill recognises this by acknowledging that the governance process for VEC primary schools will be different from that which applies in VEC secondary schools. VECs have no experience of primary education other than through the pilot study which preceded this Bill. It is during primary years, rather than secondary, that the major Catholic ceremonies of First Communication and Confirmation take place, and the VECs are not currently equipped to manage this difference in a way which fully respects parental wishes.

3. Atheist Ireland believes that, alongside a secular Constitution, the provision of a secular education system is the most significant element in ensuring that our public life is conducted appropriately for a modern and pluralist republic. During the first part of the Second Stage debate, several TDs (including the Minister) suggested that VECs would be able to offer non-denominational education. The reality, however, is that in our public education system, non-denominational still generally means Catholic in practice. For example, An Mhodhscoil in Limerick is formally a non-denominational primary school with the Minister of Education as patron. However, its board of management chooses to operate an integrated curriculum with a specifically Catholic ethos, using the textbooks approved by the hierarchy of the Catholic Church in Ireland. A copy of the school’s religious education policy is freely available on its website, and can be found at ... cation.pdf. Atheist Ireland does not intend to single out this particular school, merely to offer it as a very typical illustration of what actually happens in our supposedly non-denominational, publicly-financed, state school system. Because the school’s board of management is not regarded as an ‘organ of the state’ and because the Education Act 1988 gives the government no power over a school's ethos, in practice non-religious parents would not be able to make a case that their rights were ignored under the European Convention of Human Rights Act 2003. The same will be true of the new VEC primary schools proposed in the Education (Amendment) Bill. The formal designation of the VEC primary schools is less meaningful than the choices which will be made – if this Bill passes without amendment – by the boards of management in each of the schools. The only way to offer our children a genuinely non-denominational education is for the State to require schools to have a secular ethos. While universal reform may not be immediately achievable, the Education (Amendment) Bill 2010 does provide legislators with an opportunity to pilot such a model through the proposed VEC primaries.
4. Under Section 15(2)(b) of the 1998 Education Act, boards of management are responsible for upholding the ethos of a school, and are accountable to the school’s patron for that. It may be possible to use the Education (Amendment) Bill 2010 as a vehicle for an amendment to that part of the 1998 Act, such that the boards of VEC primary schools are required to operate a secular ethos with no permeation of religion into other subjects and with religious instruction being provided for in school premises but outside school hours. While the State cannot discriminate, the reality is that our primary education system is not controlled by the State but rather by school patrons. The current position is that any board of management can decide what ethos should prevail in their school – and those standards need not be based upon the intent of the European Convention on Human Rights. The ambiguities and complexities of the Irish Constitution result in parents enjoying no guaranteed protection from a religious ethos in their child’s school. As the Education (Amendment) Bill 2010 is presently drafted, the State will have no power in relation to ethos in the new VEC schools. Unless the boards of management of these schools are deemed to be ‘organs of the State’ as defined by Section 1(1) of the 2003 European Convention on Human Rights Act, then no parent will be able to take a case against the State for their failure to protect their human rights in these new schools.
5. Indeed, the Catholic Church states quite openly that true religious education – as opposed to doctrinal religious instruction – is unacceptable to it. In 2009 the Vatican issued a Circular Letter to the Presidents of Bishops’ Conferences on Religious Education in Schools. The purpose of that letter was to recall some of the principles that are rooted in Catholic Church teaching. The Vatican stated there: “The marginalization of religious education in schools is equivalent to assuming – at least in practice – an ideological position that can lead pupils into error or do them a disservice. Moreover, if religious education is limited to a presentation of the different religions, in a comparative and ‘neutral’ way, it creates confusion or generates religious relativism or indifferentism” (Circular Letter from Cardinal Zenon Grocholewski, Prefect of the Congregation for Catholic Education, Vatican, to the Presidents of Bishops’ Conferences on Religious Education in Schools, 5 May 2009).
6. As a religious ethos means integrating religion into all subjects and as it is not the teaching of the Catholic Church to convey religion objectively, no subject under the curriculum is conveyed in an objective, critical and pluralistic manner. The Irish State protects by legislation the right of schools to integrate religion into all subjects and does not oblige schools to ensure it is taught objectively despite the fact that non-religious parents have no choice but to access an education for their children in these schools. There is a clear difference between this and what is required by human rights law as the European Court of Human Rights has stated: “The second sentence of Article 2 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind with regard to religion (see, in particular, paragraph 14 of Recommendation 1720 (2005) Council of Europe, in a calm atmosphere which is free of any misplaced proselytism” (para 52, Hasan and Eylem Zengin v Turkey, ECHR, 9th October 2007).

7. That Ireland has changed enormously – demographically and culturally – over the last two decades is not only undeniable but also an indication of the vitality and strength of our republican democracy. This is now a modern and pluralist society for a diverse people. Social policy – and in particular, education policy – must accommodate these changes in order to promote the further development of active and tolerant citizenship. This means, in part, that it is no longer acceptable to simply assume that all Irish are Catholics, or even religious believers at all. Public policy should, wherever possible, tend towards neutrality in this regard so that no specific theology is privileged.
8. As long ago as 1996, the Constitution Review Group warned that the system of denominational education raised significant questions about how that may conflict with the (in part) ambiguous and mutually contradictory constitutional provisions on education (see attached Appendix). The Group noted that our Constitution assumed that public education would be secular, with religious instruction provided for separately. It is now possible to amend the Education (Amendment) Bill 2010 so that the proposed VEC primary schools would reflect in reality the situation best provided for in the Constitution.
9. During the earlier portion of the Second Stage debate on 13 October 2010, Fergus O’Dowd TD criticised the fact that negotiations between the Catholic Church and the Department so far have been conducted behind closed doors: “We would like that debate to be opened out into the public domain. One way of doing so is through the Oireachtas, in particular the Joint Committee on Education and Skills which could, prior to the taking of the Committee Stage of this Bill invite in parents, representatives of the different churches and none and other interested parties to tease out where we want to go in terms of patronage.” Atheist Ireland wholeheartedly endorses this suggestion, and respectfully requests that the Joint Committee issues an early invitation to all interested parties to air this issue in advance of the Bill moving to Committee Stage.
10. Finally, Atheist Ireland wishes to draw attention to the contribution on 13 October 2010 of Ulick Burke TD who mentioned the briefing paper which Atheist Ireland sent to members of the Select Committee on Education and Skills prior to that debate: “I ask that the Tánaiste and her officials should examine the concerns expressed by the Atheist Ireland group. Every Member received an e-mail from the latter in respect of its concerns regarding issues of human rights and also the management of schools. The Tánaiste must acknowledge that there may be a difficulty in this regard and respond to the concerns expressed by the group to which I refer in a positive way. I will say no more on the matter other than to remark that the Tánaiste must, when replying to this debate or on Committee Stage, deal with the concerns of this group and those of others.” Atheist Ireland has provided the Minister with a copy of the material referred to, and hopes that she will respond constructively and substantively to Mr Burke’s request.


Atheist Ireland here presents, without commentary, a series of remarks excerpted from the report of the Constitution Review Group’s 1996 Report. We believe that they emphatically point to the difficulties caused in practice by the integrated curriculum in schools today. While wholescale reform of the education system is needed, the Education (Amendment) Bill 2010 could be amended in such a way as to ensure that one small part of the primary sector operates in a manner which respects the human rights of non-religious parents and children. The extracts below illustrate the inequities in the present system which could be remedied in the new VEC primary schools if the Education (Amendment) Bill were to be successfully amended.

Article 44.2.4 deals with two distinct provisions…. The second provision is that a child has the right to attend a school which is in receipt of public money without attending religious instruction at that school. As the Review Group has already noted, this provision has its origins in the Stanley letter of 1831 which provided the administrative foundation for the National School system. The British Government had originally intended to establish a one school system for the children of different religious beliefs and, accordingly, the various pre-1922 Home Rule Bills and the Government of Ireland Act 1920 had sought to protect the rights of religious minorities by providing for a clause of this kind. Despite the fact that this clause was also contained in the Treaty, Article 8 of the 1922 Constitution and the present Article 44.2.4, by ‘the mid-twentieth century, the system of National Education in the Republic of Ireland was one which was de jure undenominational, but de facto denominational in 97 per cent of cases’: see Appendix 24, Hyland −‘The multidenominational experience’.

The efficacy of this constitutional guarantee was further undermined in 1971 with the introduction of an integrated curriculum, albeit unintentionally and for what were deemed to be excellent educational reasons. Curricular integration meant that the constitutional requirement of separate religious and secular instruction was no longer strictly observed. It may be noted that this change was in contrast to the pre-1922 Rules for National Schools which had sought to emphasise the nondenominational character of grant-aided national schools. Thus, Rule 13 of the 1890 Rules had provided: ‘No emblems or symbols of a denominational nature shall be exhibited in the school-room during the hours of united instruction.’

Section III of the Rules prescribed elaborate arrangements whereby secular and religious instruction were to be kept strictly separate with a view to preserving the entitlements of parents to exercise their right of withdrawing their children from religious instruction. For example, Rule 18 stipulated that the teacher was required, immediately before the start of religious instruction, ‘to announce distinctly to the pupils’ that the hour for religious instruction had arrived, and that the teacher ‘must put up, and keep up, during the period allotted for such religious instruction, and within view of all pupils, a notification thereof containing the words “Religious Instruction” printed in large characters, on the form supplied by the Commissioners’.

In Professor Hyland’s words: ‘Taken together, the Rules [for National Schools 1965] and the provisions of the 1971 curriculum created a new situation. The State now formally recognised the denominational character of the national school system.... It had removed the requirement for teachers to be sensitive to the religious beliefs of ‘those of different religious persuasions’. According to the curriculum guidelines, all schools were expected to offer an integrated curriculum where religious and secular instruction would be integrated. While the rule under which parents were allowed to opt their children out of religious instruction still remained, the rule became effectively inoperable since religious and secular instruction would now be integrated.’

With the increasing diversity of religious beliefs and secular views in the State, Article 44.2.4 clearly has the potential in the context of an integrated curriculum to give rise to difficulties…. In summary, therefore, the present reality of the denominational character of the school system does not accord with Article 44.2.4. The situation is clearly unsatisfactory. Either Article 44.2.4 should be changed or the school system must change to accommodate the requirements of Article 44.2.4.

‘...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’

As already noted, this proviso is capable of giving rise to a number of difficulties stemming mainly from the fact that it was designed for a system of education which was supposed to be non-denominational, but with provision for separate religious instruction. As the Review Group has already noted, the reality is otherwise. The educational system is de facto denominational in character.

… However, if the school gives preference to children of a particular religion, this might be seen as a form of indirect discrimination by the State because the school is publicly funded, especially if this meant that a child was thereby deprived of the opportunity of attending the nearest and most convenient school or even (to take a more extreme case) if he or she were denied any effective opportunity of attending school.

These and similar problems have been avoided to date largely by ad hoc and pragmatic responses to particular situations. But with an increasingly diverse and rights-conscious society, these problems cannot be ignored. Many of these difficulties are attributable to the fact that, unlike other countries, there is not a parallel system of non-denominational schools organised by the State which would cater for the interests of minorities in the examples already described.

The present situation, therefore, presents a potential conflict of rights to which there is no satisfactory answer. The conflict lies between the right of the child (exercised through its parents) not to be coerced to attend religious instruction at a publicly funded school and the right of denominational schools in receipt of such public funding to provide for the fullness of denominational education through the medium of an integrated curriculum and other measures designed to preserve the religious ethos of a particular school. The provisions of Article 42.3.1 must also be borne in mind: ‘The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.’

Requirements that the school must be prepared in principle to accept pupils from denominations other than its own and to have separate secular and religious instruction are not unreasonable or unfair.

… 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