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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Shiel v. Minister for Education and Science [1999] IEHC 146; [1999] 2 IR 321; [1999] 2 ILRM 241 (16th April, 1999)
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Cite as: [1999] 2 ILRM 241, [1999] 2 IR 321, [1999] IEHC 146

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O'Shiel v. Minister for Education and Science [1999] IEHC 146; [1999] 2 IR 321; [1999] 2 ILRM 241 (16th April, 1999)

THE HIGH COURT
1996 No. 9998 P

BETWEEN

NORA O'SHIEL (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND MARGARET BOYLE O'SHIEL AND ALL THOSE NAMED
IN THE FIRST SCHEDULE HERETO
FIRST NAMED PLAINTIFFS
AND
MARGARET BOYLE O'SHIEL AND ALL THOSE NAMED
IN THE SECOND SCHEDULE HERETO
SECOND NAMED PLAINTIFFS
AND
COOLEENBRIDGE LIMITED
THIRD NAMED PLAINTIFF
AND
THE MINISTER FOR EDUCATION AND SCIENCE IRELAND AND
THE ATTORNEY GENERAL
DEFENDANTS

Judgment of Ms. Justice Laffoy delivered on the 16th day of April, 1999
THE PLAINTIFFS

1. The first named Plaintiffs, to whom I will refer as "the Infant Plaintiffs", are infants and they are pupils at the school known as Cooleenbridge School in Tuamgraney, Co. Clare. Each of the second named Plaintiffs, to whom I will refer as "the Parent Plaintiffs", is the parent of one of the Infant Plaintiffs. The Third named Plaintiff, which I will refer to as "the Company", is a company limited by guarantee and incorporated in the State under the Companies Acts, 1963 to 1990. Cooleenbridge School was established and is run by a group of parents, now represented by the Parent Plaintiffs, who wish their children to be educated in accordance with the ideology and pedagogy enunciated by Rudolph Steiner, who established a school in Stuttgart in 1919. Schools which are based on the Steiner principles have come to be known as "Waldorf Schools" because the impetus for the establishment of the first school came from a lecture given by Steiner in the Waldorf-Astoria cigarette factory in Stuttgart on 23rd April, 1919. The Company is the corporate vehicle which owns and manages Cooleenbridge School.

2. Since its establishment Cooleenbridge School has been funded by the parents of the children who have attended it either by direct contributions or by fund-raising activities. Currently, it costs approximately £120,000 per annum to run the school.

3. In these proceedings the Plaintiffs' claim, in broad terms, is that the Defendants have infringed the Infant Plaintiffs' constitutional right to free primary education under Article 42 of the Constitution in that the first named Defendant (the Minister) rejected an application by the Plaintiffs for recognition of Cooleenbridge School, which recognition would have entitled Cooleenbridge School to receive funding from the State.


THE HISTORY OF PRIMARY EDUCATION IN IRELAND PRIOR TO 1937

4. For about 80 years prior to 1922, the provision of primary education in Ireland was entrusted to the Commissioners of National Education in Ireland, a body corporate created by Royal Charter in 1845. The system which operated prior to 1922 is outlined in the judgment of Murnaghan J. in McEneaney -v- Minister for Education [1941] I.R. 430. The funds necessary for the purpose of primary education were provided by Parliament and handed over to the Commissioners to be administered. In administering the funds, the Commissioners devised a mode of application known as the "managerial system". The system was adopted to obviate difficulties connected chiefly with religious belief. In most cases the schools were not the property of the Commissioners, but they were recognised as national schools. A manager, usually the parish priest, or rector of the Church of Ireland, was nominated by an outside authority and the nomination was sanctioned by the Commissioners. When sanctioned, the duties and function of the manager were minutely provided for in Rules and Regulations made by the Commissioners.

5. Following the establishment of Saorstát Éireann in 1922, a number of changes occurred. Article 10 of the Constitution of Saorstát Éireann provided that all citizens of Saorstát Éireann should have "the right to free elementary education". Section 1 of the Ministers and Secretaries Act, 1924 (the Act of 1924) provided for the establishment of the Department of Education which should -


"...comprise the administration and business generally of public services in connection with Education, including primary, secondary and university education...and all powers, duties and functions connected with the same, and .... include in particular the business, powers, duties and functions of the branches and officers of the public services specified in the Fourth Part of the Schedule to this Act...".

6. Among the branches of administration which were assigned to the Department of Education was the Commissioners of National Education in Ireland. By order of the Executive Council dated 16th August, 1923 all the jurisdictions, powers and duties of the Commissioners of National Education in Ireland were transferred to a new board called the National Education Commissioners. That new board, in turn, was dissolved by order of the Executive Council dated 2nd August, 1935, whereupon all the jurisdictions, powers, duties and functions formerly exercised by it were expressly transferred to the Minister. A revised code of "Rules and Regulations for National Schools under the Department of Education" was issued in 1932. The position, accordingly, when the Constitution of Ireland came into force in December, 1937 was that primary education was directly regulated by the Minister by the revised regulatory code introduced in 1932.



ARTICLE 42 OF THE CONSTITUTION OF IRELAND

7. Article 42 provides as follows:-


"1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3 1º 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.

2º The State shall, however, as guardian of the common good, require in view of actual conditions that children receive a certain minimum education, moral, intellectual and social.

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.

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."

8. There is no definition of "primary education" in the Constitution. However, I did not understand there to be - and I cannot see how there could be - any real controversy between the parties as to the meaning of the expression. In Ryan -v- The Attorney General [1965] IR 294, having quoted Article 42.1 and Article 42.2, O'Dalaigh C.J. defined education at page 350 in the following terms:-


"Education essentially is the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral."

9. Primary education is the first stage or level in time of that process. As such, it is of necessity elementary. As it has been known in Ireland over the last 60 years, primary education has meant the teaching and training of children from age 4 or 5 to age 12, 13 or 14.


DEVELOPMENT OF PRIMARY EDUCATION AFTER 1937

10. There have been major reforms and improvements of primary education since 1937, particularly in the period since 1960. The changes which emerged from the evidence as being of relevance to the issues in these proceedings can be summarised as follows:-


(a) The introduction of new Rules for National Schools in 1965 and subsequent
alterations of them;
(b) Changes in relation to teacher training and teacher qualification;
(c) The introduction of a new curriculum in 1971; and
(d) The recognition of multi-denominational schools and schools giving instruction exclusively through the medium of Irish (Gaelscoileanna).

11. At the beginning of 1965 new rules entitled "Rules for National Schools under the Department of Education" were introduced by the Minister with the concurrence of the Minister for Finance. In the preface to the Rules, Article 42 and Article 44.2.4 of the Constitution were recited and there followed a statement in the following terms:-


"In pursuance of the provisions of these Articles the State provides for free primary education for children in national schools and gives explicit recognition to the denominational character of these schools."

12. Rule 165 provided that the rules might be altered or rescinded by the Minister with, in the case of rules involving finance, the concurrence of the Minister for Finance. The rules have in fact been altered time and again since 1965. Unfortunately, no updated version or compendium of the rules has been published since 1965. As the Defendants acknowledge, this gives rise to a very unsatisfactory state of affairs, particularly as the amendments have been made by a variety of instruments: rules, regulations, memoranda, circulars and press releases communicating ministerial decisions. References to the Rules hereafter in this judgment relate to the rules introduced in 1965 as so altered.

13. The basic provision of the Rules as introduced in 1965 dealing with eligibility for recognition as a teacher in a national school and entitlement to be paid a salary directly by the Department of Education was Rule 77. That Rule provided that persons who had completed successfully a recognised course of training were eligible for recognition. In 1974 the then Minister made a policy decision that the recognised course of training would be a three year course in a college of education leading to the degree of Bachelor of Education. The official policy for a quarter of a century has been to aspire to a graduate teaching profession in primary schools. When the Rules were introduced in 1965 there were many untrained teachers employed in national schools who were called junior assistant mistresses in the Rules. Under various initiatives throughout the late 1960's and 1970's they received training by virtue of which they received recognition. By 1975 there were no junior assistant mistresses in the system. In fact, on the evidence, it would appear that there are very few unqualified teachers employed on a permanent basis in the recognised primary schools in the State, perhaps as few as three, who are employed in schools for children from the traveller community. That is not to say there are no unqualified teachers working in primary schools on a day to day basis. Unqualified substitute teachers are employed on a per diem basis to fill in for teachers who are absent on the grounds of illness, maternity leave and so forth. In October and November 1998 on any one day there could have been as many as 600 unqualified substitutes employed in the recognised primary schools in the State.

14. There are also a number of special situations in relation to teacher qualification provided for in the Rules. For instance, there is a category of restricted recognition, which was introduced in 1984 and announced in a Press Release of 8th February, 1984, which applies to appointments in certain categories of special national schools, (i.e., schools for children with special needs) for teachers with a qualification approved by the Department of Education from a teacher training course of at least 3 years duration which includes specialised training in one or more areas of special education, for example, a 3 year course in a training college which trains teachers in Montessori pedagogy. Teachers possessing such qualifications are restricted to employment and redeployment in the relevant categories of special schools. Since 1981 there has also been provision for recognition of teachers trained in Northern Ireland and in Britain who have completed satisfactorily a training course at a recognised training college in Northern Ireland or Britain. There is a requirement, however, that such a teacher be proficient in the Irish language and pass An Scrúdú Caílióchta sa Ghaeilge (written and oral). Finally, recognition may be gained by virtue of Council Directive No.89/48/EEC, as given effect to in European Communities (General System for the Recognition of Higher Education Diplomas) Regulations, 1991 (S.I. No. 1 of 1991) (the 1991 Statutory Instrument), which, in broad terms, applies to teachers who are nationals of a Member State of the European Union who possess a qualification from that Member State based on a post-secondary course of at least 3 years at a university or other establishment of higher education.

15. Rule 70 of the Rules provides that the Minister may prescribe a programme of instruction in any subject of the curriculum for pupils of national schools and he may, from time to time, alter the programme of instruction in any subject of the school curriculum. In its original form, the same Rule stipulated the subjects of the curriculum and distinguished between obligatory subjects, which included Irish, and optional subjects. A new curriculum for primary schools was introduced in 1971. It represented a departure from previous practice, both in relation to philosophy and methodology. The underlying philosophy was child-centred. While it provided a framework for the teacher, it allowed for a great degree of flexibility. It emphasised the importance of activity methods, the integrated nature of learning and the use of the environment. Since the mid-1980's, the 1971 curriculum has been subject to review. A major revision of the primary school curriculum by the National Council for Curriculum and Assessment, which is the body which advises the Minister on curriculum and assessment matters both at primary and post-primary level, has just been completed and it is anticipated that the revised curriculum will be launched later this year. On the evidence, it is clear that the revision was and continues to be a massive undertaking and that all major partners in education, school management, parents, teachers, the Department of Education and education faculties of colleges of education and universities, were represented in the process. As a matter of practice all primary schools in the State which are recognised and receive State funding are required by the Minister to, and do in fact, implement the primary school curriculum.

16. Up to the 1970's the denominational model of primary school, which had developed in the 19th Century despite the intentions of the administration in setting up the system of national education in 1831, was universal. This was reflected in Rule 3 of the Rules which empowered the granting of State aid for the establishment of a new national school on application "by the representatives of a religious denomination". Since the 1970's a certain degree of diversity in school type has occurred. Multi-denominational schools under the aegis of the "Educate Together" movement have been recognised. Gaelscoileanna, in which Irish is the medium of instruction, some under denominational patronage and some not, have also been recognised. Some interesting facts emerged at the hearing in relation to the recognition process. In every case, recognition was on the basis of the school complying with the Rules and, in particular, the provisions of the Rules in relation to teacher qualification and curriculum, including the teaching of Irish. Issues of need and avoidance of duplicating existing functions and of viability were addressed. A concept of provisional recognition was introduced to deal with the viability issue. Broadly speaking, the financial consequences of recognition of a primary school are that the teachers' salaries are paid directly by the Department and an annual capitation grant per pupil, which is currently set at £50 per pupil for mainstream schools with sixty pupils or more, is paid to the manager of a school and capital grants are also available for the provision of buildings and facilities. In the case of a school which receives provisional recognition, the teachers' salaries are paid and the capitation grants are paid but no capital support is given until viability is established. In practice, during the provisional period the school tends to be located in rented accommodation and a rent subsidy is available from the Department.

17. The most striking development in primary education since 1937 has been the enactment of the Education Act, 1998, the only legislation regulating primary education passed since the founding of the State apart from the School Attendance Act, 1926 (the Act of 1926). However, it is agreed by the parties that the Act, which was enacted about half way through the hearing of these proceedings, does not bear on the resolution of the issues which arise in these proceedings.


CURRENT POSITION IN RELATION TO PRIMARY SCHOOLS

18. At present three categories of primary schools function in the State: private schools not recognised by the State; private schools which are recognised by the State; and established schools. The Minister assumes no supervisory role whatsoever in relation to private non-recognised schools, which cater for approximately 7,200 pupils. The recognised private schools include the denominational schools, the "Educate Together" schools, Gaelscoileanna and special schools which cater for children with special needs. There are approximately 3,200 recognised schools in the State catering for about 460,000 pupils. There are 117 special schools catering for about 7,500 pupils. The recognised schools are private in the sense that they are not publicly owned, but they are funded by the State and they must operate an open enrolment policy. The established schools, of which there are 9, are owned by the State and were established as Model schools prior to 1922.

19. The evidence establishes that there are 15 recognised primary schools within a twelve mile radius of Cooleenbridge School. All are denominational schools under the patronage of the Bishop of Killaloe. Five of those schools are within a five mile radius of Cooleenbridge School, the nearest being Tuamgraney National School, which is a two teacher school with 34 pupils, and the largest being Scarriff National School, which has six teachers and a remedial teacher and caters for 142 pupils. I am satisfied on the evidence that primary education to a satisfactory level in accordance with the prescribed curriculum for primary schools is provided in all of those schools. There is no private non-recognised primary school in Co. Clare. If Cooleenbridge School did not exist, there would be no diversity of choice of primary education in Co. Clare.


THE PLAINTIFFS' APPLICATION FOR RECOGNITION

20. The first formal approach to the Department of Education for State funding of Cooleenbridge School was made by letter dated 7th February, 1991. The Department's response was by letter dated 4th July, 1991, which outlined the requirements of the Rules in relation to recognition and the possibility of recognition on a provisional basis initially. It also dealt with the requirements in relation to management of the school and it indicated that the patron would have to furnish a declaration to the Department that the school would be conducted in accordance with the Rules. It also outlined the financial benefits which would accrue from recognition, including the payment of teachers' salaries provided they were qualified as national school teachers and appointed in accordance with the Rules.

21. No comprehensive formal application for funding was made until March 1994. In the interim, the representatives of Cooleenbridge School maintained contact with the Minister and with representatives of the Department. Moreover, the representatives of the school participated in educational initiatives which were ongoing during that period. For example, in September 1992 they made a submission to the Department on the Green Paper on Education in Ireland which had then been recently published. As a result of these contacts, in November 1993 the then Minister's Special Adviser suggested that the best way forward was to submit a set of initial proposals to the Department on two issues, namely, for recognition of Steiner Schools and for recognition of the teachers. It was suggested that the proposals need not be comprehensive, as the relevant sections within the Department would require more details as the matter progressed. In response to that suggestion, the Irish Steiner Schools Association (the Association) submitted an application dated 16th March, 1994 for recognition of the Steiner Waldorf Schools and for recognition of the teachers in the schools. At the time there was a second Waldorf Steiner School in the State located in Dublin. That school is not involved in these proceedings.

22. The documentation submitted to the Department with the application of 16th March, 1994 included the following:-


(a) Details of the staff employed at the time in Cooleenbridge School setting out their qualifications. Of the four class teachers listed, only one had a qualification which carried an entitlement to recognition under the Rules. As regards the other three class teachers, the details of their relevant qualifications given were as follows:-

(i) Michael Hall (U.K.) Education Seminar Certificate (1991);
(ii) Edinburgh (U.K.) Waldorf Education Seminar Certificate (1990); and
(iii) B.Sc. (Hons.) in Environmental Science and London (U.K.) Waldorf

23. Education Seminar Certificate.


24. A Steiner Seminar is a course of practical training for teachers. Michael Hall is a Waldorf School in Sussex.


(b) An outline curriculum, which was based on a curriculum drawn up by the Holywood Rudolph Steiner School in Co. Down and had been adapted to the Cooleenbridge situation. The subject of Irish was dealt with in two paragraphs following a section on foreign languages. The two paragraphs were in the following terms:-

"9. The above guide for the teaching of German and French is applicable also to the teaching of Irish, which begins in Class 1 and continues through the full school career.

10. It is further acknowledged that whereas a rationale for the teaching of German and French is derived from the existence of living cultures in these languages, the teaching of Irish carries with it the further responsibility on the part of the school and community to provide a rationale out of their own interest in and use of the language. It is envisaged, therefore, that along with the teaching of Irish in the school, we will initiate a programme of study and practice of spoken Irish for parents. There will be a high degree of expectation that parents will participate and that some spoken Irish will become a feature of community life."

25. The application was referred to the Inspectorate within the Department for consideration. The view in the Inspectorate was that recognition, including partial recognition, should be withheld. The principal areas of difficulty identified were teacher qualification and the teaching of Irish. Other difficulties were also adverted to. Curriculum content and teaching methodology, and the issue as to whether fees were charged to pupils were raised. The matter was also referred to the administrative side of the Department. It would appear that consideration was given to pursuing the perceived difficulties further with the Association. However, this did not happen. Eventually, the Minister's decision on the application was communicated to Cooleenbridge School in a letter dated 28th February, 1995 from the then Minister's then Programme Manager. The response was that, as Cooleenbridge School did not meet the Department's requirements for recognition, it would not be possible to grant-aid it.

26. On 12th April, 1995 Messrs. Loughnane & Co., the Solicitors acting for the Plaintiffs in these proceedings, wrote to the Minister seeking an outline in writing of the Department's requirements for recognition. The response to this letter was a letter dated 30th November, 1995 in which it was stated that the position in relation to the recognition of Steiner Schools was set out in the Department's letter of 28th February, 1995 and had not altered in the interim. The case had received detailed consideration and assessment in the Department before the decision was communicated. There was no further correspondence or contact between the parties prior to the initiation of these proceedings.

27. In keeping with its policy in relation to private non-recognised schools, no officer of the Inspectorate or any other branch of the Department of Education has ever visited Cooleenbridge School, either in connection with the application for recognition or otherwise.


COOLEENBRIDGE SCHOOL NOW

28. The enrolment in Cooleenbridge School for the current school year is in excess of 100 pupils. Five full-time teachers are employed to teach kindergarten and classes 1 to 7 inclusive. As regards teacher qualification, the position is much as it was in March of 1994, in that only one of the teachers has a qualification which carries an entitlement to recognition under the Rules. In fact, since the school's inception in 1986, she is the only teacher who has taught in the school who is qualified to teach in a mainstream recognised primary school in the State. The four other full-time teachers have been trained in Steiner pedagogy and have Steiner qualifications, three from the United Kingdom and the fourth from the State of Michigan. In relation to the three teachers with Steiner qualifications from the United Kingdom, all of whom commenced in Cooleenbridge School in September 1998, the evidence, which was not precise, indicates that one teacher has a London Waldorf teacher training qualification based on a one year course and the other two trained at Wynstones School in Gloucester and have considerable teaching experience. The Michigan State qualification, a Master of Arts degree in Waldorf education, was gained as a result of a two year course at the Waldorf Institute affiliated to Mercy College in Detroit. On the evidence, it is not possible to do any comparative analysis of these qualifications and the qualifications on the basis of which the Minister recognises primary teachers. No assessment of Steiner teacher training has been carried out by the Department. None of the Steiner qualifications from the United Kingdom to which I have referred earlier confer qualified teacher status in that jurisdiction or qualify the holder to teach in a State primary school in Northern Ireland, or England, Scotland or Wales. The Michigan State qualification, although recognised as a qualification for teaching in a Steiner school, on its own does not qualify the holder to teach in a State school in the State of Michigan.

29. The current position in relation to the teaching of Irish is that classes 1 to 5 inclusive each receive 3 classes of 45 minutes duration per week in Irish from one of the parents who teaches on a part-time basis and who has an honour in Irish in the Leaving Certificate Examination and has worked as a substitute teacher in a recognised primary school. The class teacher for classes 6 and 7 is the teacher whose qualification is recognised in the State and she is qualified to teach Irish to that class. There is no formal teaching of Irish in the kindergarten. Currently Irish is not used in the kindergarten and the pupils first introduction to Irish in the school is in Class 1 at age 7. In the relatively recent past, a curriculum has been devised for the teaching of Irish, which is based on the Steiner curriculum for teaching a foreign language. On the evidence, I am satisfied that there is a genuine desire in Cooleenbridge School to improve the teaching of Irish in the school, but that lack of resources has meant that the school is unable to attract a teacher qualified to teach Irish.

30. Pupils who have completed their primary education in Cooleenbridge School usually move on to mainstream second level schools in the Limerick/Clare area for their further education. On the basis of the evidence of the headmasters of three of the second level schools which have taken pupils from Cooleenbridge School, Scarriff Community School, Villiers College Limerick and Tulla Secondary School, I find that, in general apart from some difficulties in relation to the Irish language, historically pupils from Cooleenbridge School have presented as well equipped educationally to embark on secondary education as pupils who have attended recognised primary schools.

31. Cooleenbridge School is one of a network of about 700 Waldorf schools world-wide.


THE PLAINTIFFS' CLAIM

32. In these proceedings, which were initiated by Plenary Summons which issued on 15th November, 1996, the Plaintiffs seek the following reliefs:-

1
(A) an order directing provision by the Minister and Ireland for free primary education for the Infant Plaintiffs at Cooleenbridge School;
(B) a declaration that the Minister and Ireland provide for free primary education for the Infant Plaintiffs in Cooleenbridge School in accordance with the conscientious choice and lawful preference of the Parent Plaintiffs;
(C) an order setting aside the ruling of the Minister communicated by the letter of 28th February, 1995 that it was not possible to grant aid to Cooleenbridge School for the provision of free primary education for the Infant Plaintiffs;
(D) a declaration that that ruling is void and of no effect having regard to the provisions of the Constitution;
(E) a declaration that the Rules whereby the Defendants purport to delimit the right of the Infant Plaintiffs and the Parent Plaintiffs to provision for free primary education and which have not been enacted by the Oireachtas and have not otherwise been approved by a law enacted by the Oireachtas are unconstitutional and void and have no legal effect having regard to the following provisions of the Constitution, that is to say, Articles 15.2; 40.1; 40.3; 41.1; 42.3 and 42.4;
(F) a declaration that the Minister and Ireland are not and have not been entitled to withhold provision for free primary education from the Parent Plaintiffs and the Company, who are and have been providing primary education for the Infant Plaintiffs in Cooleenbridge School, by virtue of the following articles of the Constitution, that is to say: Articles 40.1; 40.3; 41.1; 42.3 and 42.4; and
(G) damages.

33. At the hearing of the action it was agreed by the parties that the question of the quantification of the damages, if any, to which the Plaintiffs are entitled should be deferred until after the Court has dealt with the issue of liability.

34. In addressing the issues which the Plaintiffs' claim and the Defendants' response to it raise, I propose first summarising the submissions made by the Plaintiffs and the Defendants, emphasising that what follows is merely an outline of the very comprehensive oral and written submissions made by Counsel on both sides.

THE PLAINTIFFS' SUBMISSIONS

35. In outline, the following submissions were made on behalf of the Plaintiffs:-


1. The Parent Plaintiffs are entitled to choose to have their children educated in a Waldorf Steiner School using Waldorf Steiner methods of education and such choice is an exercise of their constitutional right under Article 42 of the Constitution which the State is obliged to respect.

2. Insofar as the State discriminates between private schools which are aided by the State and those such as Cooleenbridge School, which are not so aided, that discrimination is a failure to respect and give equal weight to an equally valid constitutional choice of primary education by the Parent Plaintiffs.

3. The State's duty to provide for free primary education extends to parents such as the Parent Plaintiffs and to children such as the Infant Plaintiffs who are receiving primary education at Cooleenbridge School and is not limited solely to those who opt to send their children to another type of private school, for example, a denominational national school or a school run in accordance with the Rules.

4. The Rules are invalid to the extent that they purport to -

(a) fail to respect equally the parental choice of the Parent Plaintiffs,
(b) provide for rules of recognition against the constitutional interests of the Plaintiffs in Cooleenbridge School, and
(c) attempt to delimit the extent of the State's duty to provide free primary education.

5. The evidence establishes that the children who have attended and are attending Cooleenbridge School are receiving primary education within the meaning of Article 42.4 and the State is obliged to make provision for such and has failed to do so. While the Plaintiffs did not contend that Article 42.4 creates an absolute obligation to provide for every conceivable parental choice of primary education, they submitted that if it is established on the balance of probabilities that the Parent Plaintiffs, through the Company, have been and are providing primary education within the meaning of Article 42.4, then under that Article the State has a duty to make provision for the cost of that primary education and the provision they contended for is the provision which is made for primary schools which the State recognises. The only limitations which they acknowledged as affecting the State's duty under Article 42.4 to provide for free primary education are the obvious constraints inherent in the provision itself, namely, that what is provided must be education, that it must be provided in a school and that it must either attempt to or meet the standard of what can reasonably be defined as primary education.

6. Insofar as the Defendants rely upon the provisions of the Rules, or the Minister's interpretation of them, and the ruling communicated in the letter of 28th February, 1995 with regard to curriculum, the place of the Irish language in the curriculum and teacher qualification, the Rules are ineffectual in that they have no legal basis and are therefore incapable of affecting the proper constitutional scope of Article 42.

7. Insofar as the Rules permit of the recognition of Cooleenbridge School, or of the qualifications of the teachers in Cooleenbridge School or any of them, or the curriculum used in Cooleenbridge School, then the Minister's decision in the circumstances infringes the Plaintiffs' rights under Article 42 and ought to be set aside and declared invalid for that reason.

THE DEFENDANTS' SUBMISSIONS

36. In outline, the Defendants submitted as follows:-

1. The Defendants acknowledge that the Parent Plaintiffs are entitled to choose to have their children educated in a Waldorf Steiner School using Waldorf Steiner pedagogy and that such choice is an exercise of their constitutional right under Article 42. The exercise of that right has not been interfered with in any way by the Defendants.
2. Article 42 distinguishes between the right of parents to choose how to educate their children and the obligation on the State in regard to funding education. The State's obligation is not co-extensive with the parents right of choice and there is no obligation on the State to fund in accordance with the parents choice.
3. The State's duty under Article 42.4 is to provide for free primary education. The State has discharged that obligation by funding the established schools and the recognised schools within the State. As regards the Infant Plaintiffs, at a local level the State has discharged its obligation under Article 42.4 by the provision of fifteen recognised schools within a twelve mile radius of Cooleenbridge School.
4. The Plaintiffs' proposition that, if they establish that the Parent Plaintiffs, through the Company have been and are providing primary education within the meaning of Article 42.4, the State has a duty to make provision for the cost of that primary education under Article 42.4, is based on an incorrect interpretation of Article 42.4 in the context of Article 42 and of the Constitution as a whole and is unsustainable. While the Defendants recognise that the Plaintiffs provide a very special type of primary education in Cooleenbridge School, it was contended that there is no obligation of the State to provide funding for that education.
5. Article 42.4 does not impose an absolute obligation on the State to fund primary education.
6. The determination of what is or is not an adequate standard of education to merit recognition and, consequently, eligibility for public funding is an issue of policy and not a matter for the Court. It is a matter for the Government since it has implications in relation to distribution and allocation of public funds and constraints imposed on public expenditure and the taxable capacity of the economy.
7. While the Constitution does not define "primary education" and does not specify the criteria to be adopted for recognition of schools, it is to be inferred that it envisages that funding or support for institutions which fall short of the provision of the certain minimum level of education referred to in Article 42.3.2 would not be in the public good and this is a factor which the State is entitled to have regard to in discharging its constitutional obligation under Article 42. Similarly, the State is justified in allocating the limited resources available to schools which serve the public interest by providing what the State regards and can stand over as the best available education for its children. The adoption of core standards, that is to say, eligibility criteria, is necessary.
8. The criteria for recognition of schools are the criteria set out in the Rules. A condition of grant of recognition is that the school comply with the Rules so as to ensure that the highest standard of education is provided to pupils attending a school in receipt of public funds. The Rules stipulate, inter alia, that teachers have appropriate qualifications to provide that education and that a core curriculum is followed.
9. The Rules accord with constitutional principles and do not infringe the Constitution either in themselves or in their manner of implementation. They represent a reasonable, rational and lawful basis for the provision of public funding, which respects parental choice but also ensures that there is provision for a nation-wide system of free primary education which is of high, identifiable and regulated standards both in terms of the qualifications of the teachers teaching in the system and the curriculum which is followed.
10. The Minister's ruling communicated in the letter of 28th February, 1995 was taken because teachers with appropriate qualifications are not employed in Cooleenbridge School and because of the absence from the curriculum submitted for consideration of any credible Irish language programme of instruction.
11. The Defendants submitted that the respective rights and obligations of the Plaintiffs and the Defendants fall to be considered primarily under Article 42 and, as regards requirements in relation to the teaching of the Irish language, Article 8. On the facts neither Article 40.1 nor Article 40.3 comes into play. The recognised schools are open to all but nobody can be compelled to avail of primary education provided in a recognised school. No issue of discrimination as between one body of citizens and another body of citizens arises here, nor does any question of denial of equality before the law.


CORE ISSUE: THE EXTENT OF THE STATE'S DUTY UNDER ARTICLE 42.4

37. Essentially, the Plaintiffs' claim is a claim for funding of Cooleenbridge School by the State on the same basis as other primary schools recognised by the State are funded. The core issue in determining whether that claim is sustainable is the extent of the State's liability under Article 42.4. The Plaintiffs' claim based on Article 42 rests solely on the first limb of Article 42.4, which provides that the State shall provide for free primary education.

38. The parties are agreed that the starting point for this Court in determining the extent of the obligation created by those words is the decision of the Supreme Court in Crowley -v- Ireland , [1980] I.R. 102. While there was a divergence of views in the Supreme Court as to the application of the law to the facts in that case, I think that, on a fair reading of the minority and majority judgments, there was unanimity as to the extent of the State's obligation under Article 42.4 in the context in which the issue was being considered.

39. The minority judgment was delivered by O'Higgins C.J. Having contrasted Article 42.4 with Article 10 of the Constitution of the Irish Free State, O'Higgins C.J. went on to state as follows (at page 122):-


"However, the imposition of the duty under Article 42, s. 4 of the Constitution creates a corresponding right in those in whose behalf it is imposed to receive what must be provided. In my view, it cannot be doubted that citizens have the right to receive what it is the State's duty to provide under Article 42, s. 4."

40. O'Higgins C.J. then went on to consider the textual differences between the Irish language text and the English version of Article 42, on the basis that any conflict between the English and Irish texts would have to be resolved upon the proper interpretation of the Irish text, but his view was that the differences indicated were more apparent than real. He then went on to deal with the extent of the obligation mandated in Article 42.4 in the following passage:-


"This Article was intended to avoid imposing a mandatory obligation on the State directly to provide free primary education. Such, if imposed, might have led to the provision of free primary education in exclusively State schools. Rather was it intended that the State should ensure by the arrangements it made that free primary education would be provided. When one remembers the long and turbulent history of the church schools in Ireland, and the sustained struggle for the right to maintain such schools by the religious authorities of all denominations in all parts of Ireland, one can well understand the care with which the words used must have been selected.
In the English text, the State is obliged 'to provide for' free primary education and in the Irish text, freely translated, the State is obliged to make arrangements to have such available. In my view, the effect of this part of Article 42, in accordance with the words used both in the Irish and in the English text, is to oblige the State to see that machinery exists under which and in accordance with which such education is in fact provided. The State discharges this obligation by paying teachers in the national schools owned by the Churches, by making grants available for the renovation, repair and, at times, building of national schools, by paying for heating and for school books and by the provision of a proper curriculum and appropriate supervision. It is only when such assistance to the church schools is not possible, or cannot succeed in providing what is required, that the State must act directly to do so."

41. The majority judgment was delivered by Kenny J. He identified the issue for decision by the Supreme Court as whether the State - acting through its officer, the Minister, in whom was vested the performance of the duties and functions of the State in connection with education - had failed in its constitutional duty imposed by Article 42 to provide for free primary education and he continued as follows (at page 126):-


"The effect of that Article is that each child in the State has a right to receive a minimum education, moral, intellectual and social; that the primary and natural educator of the child is the family; and that the State guarantees to respect the inalienable right and duty of parents to provide this education. They may provide it in their homes or in private schools or in schools recognised or established by the State. However, the State is under no obligation to educate. The history of Ireland in the 19th century shows how tenaciously the people resisted the idea of State schools. The Constitution must not be interpreted without reference to our history and to the conditions and intellectual climate of 1937 when almost all schools were under the control of a manager or of trustees who were not nominees of the State. That historical experience was one of the State providing financial assistance and prescribing courses to be followed in the schools; but the teachers, though paid by the State, were not employed by and could not be removed by it: this was the function of the manager of the school who was almost always a clergyman. So, Section 4 of Article 42 prescribes that the State shall provide for free primary education. The effect of this is that the State is to provide the buildings, to pay the teachers who are under no contractual duty to it but to the manager or trustees, to provide means of transport to the school if this is necessary to avoid hardship, and to prescribe minimum standards.

The distinction between providing free education and providing for it is brought out vividly in the Irish version which is 'ní folair don Stát socrú do dhéanamh chun bun-oideachas do bheith ar fáil in aisce' whose agreed literal translation is:- 'The State must make arrangements to have basic education available free'. I think that the change from Article 10 of the Constitution of the Irish Free State - 'All citizens of the Irish Free State (Saorstát Éireann) have the right to free elementary education' - was intended to emphasise that the State's obligation was not to educate but to provide for it. Thus, the enormous power which the control of education gives was denied to the State: there was interposed between the State and the child the manager or the committee or board of management."

42. The factual context in which the foregoing principles were enunciated was the non-availability of free primary education in three national schools in the Parish of Drimoleague because of an industrial dispute between the teachers and their trade union, INTO, on the one hand, and the manager of the schools on the other hand, which commenced on 1st April, 1976. On 1st January, 1978, the Department of Education had arranged for buses to bring the children affected by the strike from their homes to national schools in neighbouring parishes and to take them home after school. In applying the legal principles he had enunciated to those facts, Kenny J., in the majority judgment, found that the totality of the evidence failed to establish that there had been a breach of the constitutional duty imposed on the State. The minority view coincided with that of McMahon J. in the High Court that, during the greater part of the period from March 1976 to the end of December 1977, the State had been in breach of its obligation to provide for free primary education for the plaintiffs, who represented the children who had been deprived of free primary education in Drimoleague Parish.

43. What clearly emerges from reading Crowley -v- Ireland in relation to the factual background is that the choice of the parents of the plaintiffs in that case was to avail of the arrangements made by the Minister for providing for free education in the denominational schools in the Parish of Drimoleague. Their choice coincided with the Minister's method of providing for free primary education. Their complaint was the interruption of the delivery of free primary education through outside intervention - the industrial action by the teachers. The question which the facts in the instant case raise is whether the State has discharged its obligation under Article 42.4 by making arrangements for the provision of a form of free primary education which is at variance with the Parent Plaintiffs' lawful preference. The choice of the Parent Plaintiffs is to educate their children, the Infant Plaintiffs, through the medium of the Waldorf Steiner pedagogy at Cooleenbridge school. The Defendants acknowledge that the education being delivered at Cooleenbridge school is primary education, albeit, a very special type of primary education. However, the Defendants disavow any obligation to fund the parental choice on the ground that the State has already discharged its constitutional obligation to provide for free primary education in the East Clare area by funding fifteen denominational schools, which are conducted in accordance with the Rules, within a twelve mile radius of Cooleenbridge school and which have open access to all seeking enrolment, including the Infant Plaintiffs. The Plaintiffs contend that the State's stance is no answer to their claim. There is no constitutional mandate for respecting their choice of education any less than the choice of any other parent or excluding them from the operation of Article 42.4 as interpreted by the Supreme Court in Crowley -v- Ireland .

44. In effect, it seems to me that what the Defendants are saying is that the Minister has discharged his obligation of providing for free primary education in a particular locality even though the provision he has made is incompatible with the lawful preference of an appreciable number of parents in the locality. What I must consider now is whether this proposition is tenable having regard to the proper construction of Article 42.

45. As to the approach the Court should adopt in interpreting Article 42, I accept the submission made by Mr. Shipsey, on behalf of the Defendants, that in construing Article 42, this Court should have regard to the canons of constitutional construction set out by Henchy J. when delivering the decision of the Supreme Court in Tormey -v- Ireland [1985]

46. I.R. 289 in the following passage at pages 295-296:-


"The rule of literal interpretation, which is generally applied in the absence of ambiguity or absurdity in the text, must here give way to the more fundamental rule of constitutional interpretation that the Constitution must be read as a whole and that its several provisions must not be looked at in isolation, but be treated as interlocking parts of the general constitutional scheme. This means that where two constructions of a provision are open in the light of the Constitution as a whole, despite the apparent unambiguity of the provision itself, the Court should adopt the construction which will achieve the smooth and harmonious operation of the Constitution. A judicial attitude of strict construction should be avoided when it would allow the imperfection or inadequacy of the words used to defeat or pervert any of the fundamental purposes of the Constitution. It follows from such global approach that, save where the Constitution itself otherwise provides, all its provisions should be given due weight and effect and not be subordinated one to the other. Thus, where there are two provisions in apparent conflict with one another, there should be adopted, if possible, an interpretation which will give due and harmonious effect to both provisions. The true purpose and range of a Constitution would not be achieved if it were treated as no more than the sum of its parts."

47. Article 42 is a complex provision and embodies a number of interlocking elements.

48. First, it focuses on the primacy of the family and the rights of parents in relation to the education of their children. It guarantees the inalienable right of parents to provide for the religious and moral, intellectual, physical and social education of their children. It identifies the options available to parents in educating their children: they can educate them at home, or in private schools, or in schools recognised or established by the State. It underpins the freedom of choice of parents in relation to the education of their children by expressly prohibiting the State obliging parents to send their children to schools established by the State or to any particular type of school designated by the State in violation of their conscience and lawful preference. The State is permitted to directly intervene in the education of children in two respects only and in both instances the State has a duty, as well as a power, to intervene. The State, as guardian of the common good, must ensure that children receive a certain minimum education, moral, intellectual and social. The parameters of this power and duty of intervention were considered by the Supreme Court in In Re: Article 26 of the Constitution and the School Attendance Bill, 1942 [1943] I.R. 334 when, in relation to the impugned provision of the Bill, the Supreme Court stated as follows (at page 346):-


"We are of opinion that the section is open to objection from a constitutional point of view in one other respect. Under subsection 1, not only the education, but also the manner in which such child is receiving it must be certified by the Minister. We do not consider that this is warranted by the Constitution. The State is entitled to require that children shall receive a certain minimum education. So long as parents supply this general standard of education we are of opinion that the manner in which it is being given and received is entirely a matter for the parents and is not a matter in respect of which the State under the Constitution is entitled to interfere."

49. A more radical form of intervention is permitted and mandated under Section 5 in exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children. In those circumstances, the State, as guardian of the common good is obliged by appropriate means to endeavour to supply the place of the parents.

50. Secondly, Article 42 imposes a duty on parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

51. Thirdly, in addition to its obligations to intervene already referred to, duties are imposed on the State -

(1) to provide for free primary education,
(2) to endeavour to supplement and give reasonable aid to private and corporate educational initiatives, and
(3) when the common good requires it, to provide other educational facilities or institutions.

52. Fourthly, Article 42 inferentially recognises certain rights of children, for instance: the right identified by Kenny J. in Crowley -v- Ireland to intervene so that they receive a certain minimum education; the right identified by O'Higgins C.J. in Crowley -v- Ireland to receive what it is the State's duty to provide for under Article 42.4; and, by analogy, the right to have the State intervene and endeavour to supply the place of the parents in the exceptional cases mentioned in Section 5. Section 5 expressly characterises the rights of the child as being natural and imprescriptable.

53. When one adopts a global approach to the interpretation of Article 42 the values enshrined in it become obvious. It is concerned with education in a broad sense - religious and moral, intellectual, physical and social. In its entirety it is imbued with the concept of parental freedom of choice. While parents do not have the choice not to educate their children, it recognises that all parents do not have the same financial capacity to educate their children. It is in this overall context that the obligation is imposed on the State to "provide for free primary education". In my view it would pervert the clear intent of the Constitution to interpret that obligation as merely obliging the State to fund a single system of primary education which is on offer to parents on a "take it or leave it" basis. In the case of parents of limited or modest means unable to afford, or to afford without hardship, fees charged by private schools, it would render worthless the guarantee of freedom of parental choice, which is the fundamental precept of the Constitution. If the Defendants' stance - that it has discharged its constitutional obligations to the Plaintiffs by providing financial aid for 15 denominational schools within a 12 mile radius of Cooleenbridge School - was tenable, it would render meaningless the guarantee of parental freedom of choice in the case of the Parent Plaintiffs. It is not tenable. Moreover, it is clear from the evidence that it is not the stance adopted by the Minister in practice, as the past recognition of multi-denominational schools and Gaelscoileanna indicates.

54. In order to fulfil its constitutional obligation to provide for free primary education, in my view, the State must have regard to and must accommodate the expression of parental conscientious choice and lawful preference. However, this does not mean that the State must accede to an application for financial aid from any group of parents who are united in their choice of primary education which establishes that what is being provided by it is education, that it is being provided it in a school and that it meets a standard of what can reasonably be defined as primary education, as the Plaintiffs contended. As was pointed out by the Supreme Court judgments in Crowley -v- Ireland , the State's constitutional obligation is to make arrangements for the availability of free primary education. Those judgments identified the main features of the arrangements then in place: subsidisation of provision of school buildings and facilities by means of capital grants; meeting the day-to-day costs of running the schools by payment of teachers' salaries and by means of capitation grants; and prescribing and enforcing standards, through provision of a curriculum and supervision. It is also implicit in Article 42.4, in my view, that the scheme by which the arrangements are put in place, involving as it must, the disbursement of public money, be rational. Even though the State must have regard to the constitutional guarantee of parental freedom of choice in framing such a scheme, nonetheless it is proper for the State and, indeed, I would say incumbent on the State, to incorporate in the scheme measures to ensure that need and viability are properly assessed and that there is accountability.

55. In summary, therefore, I reject the Defendants' contention that they have discharged their constitutional obligation to the Plaintiffs by provision of funded denominational national schools in East Clare. I also reject the Plaintiffs' contention that once the Parent Plaintiffs, being a group of parents exercising a similar lawful preference as to the manner in which they educate their children, establish in this Court that they are providing education for their children in a school which meets the standard which can be reasonably defined as primary education, this Court can direct that they be funded on the same basis as primary schools recognised by the State are funded. The correct constitutional position is somewhere between the two polarised positions adopted by the parties in these proceedings. Fulfilment of the State's constitutional obligation under Article 42.4 must take account of the parental freedom of choice guaranteed by Article 42, but it must be based on arrangements which have a rational foundation and prescribe proper criteria for eligibility which accord with the purpose of Article 42 and of the provisions of the Constitution generally.

56. Unquestionably fixing the parameters of the criteria for recognition of a primary school and consequent eligibility for public funding has budgetary implications. However, in my view, it does not follow that the issue whether the criteria fixed are proper having regard to the provisions of the Constitution is not justiciable. Nor does it follow that the Court would be usurping the function of the Executive if it were to find that any criterion was wrongfully exclusionary against the constitutional interest of a child or his parent and if it were to direct that proper provision in accordance with the State's constitutional obligation be made for the child. As is pointed out in Casey on Constitutional Law in Ireland, 2nd Edition at page 526 the judgments in Byrne -v- Ireland , [1972] I.R. 241 show that, failing action by other organs of State, it falls to the Courts to secure performance of the State's constitutional obligations. In his judgment in that case (at page 280) Walsh J., albeit obiter, illustrated the point by reference of Article 10 of the Constitution of Saorstát Éireann and the obligation thereby created, which he stated would have been clearly enforceable against Saorstát Éireann if it had not implemented the Article.

57. Accordingly, I must now consider whether, in adjudicating on the application for recognition of Cooleenbridge School, the Minister applied criteria which took account of the Plaintiffs' lawful preference and which otherwise accorded with the purpose of Article 42 and of the provisions of the Constitution generally.



THE RULES

58. The Defendants' position is that the criteria for recognition contained in the Rules do not infringe the Constitution and provide a valid basis in law for the implementation of the State's obligations under Article 42.4. The Defendants have never itemised all of the relevant criteria for recognition which determine eligibility for State funding of primary education and the Minister's judgment on whether there is compliance on the part of the Plaintiffs with such criteria, either in response to the Plaintiffs' Solicitors' request or in these proceedings. However, the Defendants have identified two of the criteria, relating to teacher qualification and the teaching of Irish, and contended that the Plaintiffs have failed to comply with those criteria and, consequently, that the decision of the Minister rejecting the application for recognition communicated in the letter dated 28th February, 1995 was properly made in accordance with the Rules. It was not to be implied, however, it was submitted on behalf of the Defendants, that these two matters were the Defendants' only concerns with regard to recognition of Cooleenbridge School. On the evidence, it appears that some of the other matters of concern are the approach to early childhood learning in the Steiner kindergarten, a perceived lack of comprehensiveness and continuity in the Steiner curriculum and the absence of a principal teacher figure in the management of a Waldorf Steiner School.

59. As I understand the legal submissions made on behalf of the parties, notwithstanding the case pleaded, the Plaintiffs and the Defendants did not engage on the issue of the validity of the Rules as a whole as a body of prescriptions and proscriptions regulating primary education. It was submitted on behalf of the Plaintiffs that the State can only regulate the constitutional rights of the Parent Plaintiffs and of the Infant Plaintiffs to be found in Article 42 by legislation. The Rules are merely administrative rules and cannot adversely affect those constitutionally protected rights. The Plaintiffs based that submission on Article 15.2 of the Constitution which vests the sole and exclusive power of making laws for the State in the Oireachtas. Nonetheless, they did not seek to have the Rules struck down in their entirety. It is to the application of the Rules to them that the Plaintiffs' challenge is directed. They submitted that if and insofar as the Minister in applying the Rules to them purported to regulate their constitutionally protected rights in such a way as to diminish those rights, the Rules are invalid.

60. The Plaintiffs also queried whether the Minister is "the State" for the purpose of recognising or withholding recognition from a school as envisaged in Article 42 and submitted that, as the Legislature has not entrusted the Minister explicitly with the function of recognising or withholding recognition from schools, he cannot be equated with the State for that function. However, it was acknowledged that, as the State under Article 42.4 is responsible for the discharge of the constitutional duty to provide for free primary education and as the Minister has been entrusted by the Oireachtas under the Act of 1924 with fulfilling the functions of the State in relation to primary education, it is the Minister who must provide for free primary education and, in the event of default by him, this Court can order him so to do.

61. In response, the Defendants asserted that the Rules are lawful even though they do not have the statutory basis. They do not purport to be legislation and are merely administrative measures. However, they are administrative measures, it was submitted, which have, as it were, the imprimatur of the Oireachtas because annually in the Appropriation Act the Minister is mandated by the Oireachtas to make payments in respect of the provision of primary education. The Rules have been in operation for a very extensive period and the Oireachtas must be taken to have understood that the expenditure of sums authorised by it for the funding of primary education would be in accordance with the terms of the Rules.

62. There are a number of general observations which can be made in relation to the Rules and their status having regard to the provisions of the Constitution.

63. First, Article 44.2.4 provides as follows:-


"Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations...".

64. That provision would seem to envisage the funding of schools being regulated by legislation. Secondly, the dearth of legislation governing educational policy in the State and, particularly in regard to primary education, has been adversely commented on in the past by academic commentators, for instance, by the editors of the 3rd edition of Kelly on The Irish Constitution at page 1060 and by Casey at page 526, as well as judicially. Costello J., as he then was, in an unreported judgment delivered on 20th November, 1990 in O'Callaghan -v- The Meath Vocational Education Committee & Ors ., stated as follows:-


"It is a remarkable feature of the Irish system of education that its administration by the Department of Education is largely uncontrolled by statute or statutory instruments and many hundreds, perhaps thousands, of rules and regulations, memoranda, circulars and decisions are issued and made by the Department and the Minister (dealing sometimes with the most important aspects of educational policy) not under any statutory power but merely as administrative measures. The measures are, not of course, illegal. But they have no statutory force and the sanction which ensures compliance with them is not a legal one but the undeclared understanding that the Department will withhold financial assistance in the event of non-compliance."

65. That case concerned the exercise of a ministerial power under the Vocational Education Act, 1930. The same Judge returned to the same topic in McCann -v- The Minister for Education , [1997] 1 I.L.R.M. 1, a case concerning the operation of the scheme for payment of incremental salaries to secondary teachers, the most important distinctive feature of which was that the regulations made by the Minister for the purpose of administering it had no statutory basis and were not made pursuant to any express statutory powers. In his judgment, Costello P. stated as follows (at page 8):-


"This does not mean that they are illegal or invalid on the ground that either (a) the Minister lacked power to make them or that (b) they should have been, but were not, made under the 1914 Act [Intermediate Education (Ireland) Act, 1914]. Since 1925, Dáil Éireann has voted annual supplies to the Department of Education which contain an item in the estimates of the expenditure of the Department which specifies the sum to be spent on the payment of incremental salaries to secondary teachers. The Central Fund (Permanent Provisions) Act, 1965 and the annual Appropriation Acts authorise expenditure by the Minister out of public funds of sums to provide this service. The sum so appropriated may as a result be lawfully spent by the Minister, and as part of his administrative functions the Minister may properly adopt a scheme which contains rules under which the payment for such salaries may be made. These rules may be referred to as 'non-statutory' rules or perhaps more accurately as 'administrative measures'... This method of administering funds voted by the Oireachtas has the advantage of flexibility and informality, but also has disadvantage that the exact terms of a ministerial scheme may not be readily available and may, indeed, be difficult to ascertain."

Thirdly, in Crowley -v- Ireland , Kenny J., in the passage from his judgment which I have referred to earlier, characterised the Minister as the officer of the State in whom is vested the performance of the duties and functions of the State in connection with education and through whom the State acts. The Plaintiffs have implicitly accepted this in making the application for recognition to the Minister and in naming the Minister as a defendant in these proceedings and have explicitly accepted it in their submissions.

66. Fourthly, although this was not the situation when the Minister rejected the Plaintiffs' application for recognition and funding or, indeed, when the hearing of these proceedings commenced in this Court, the Education Act, 1998, which provides for the recognition of primary schools and the basis on which they are to be funded, is now on the statute book.

67. The Rules at issue in these proceedings were adopted with the express intention of regulating the State's obligation to provide for free primary education under Article 42.4 and the correlative right to receive free primary education. The first occasion after coming into force of the Constitution on which the Rules and Regulations for National Schools then in operation were considered was in McEneaney -v- Minister for Education. In that case, the plaintiff, who had been first appointed as a principal teacher in 1920, challenged the applicability to him of a new rule which had been promulgated by the Minister in 1930, the effect of which was to bar him from receiving increments of salary unless he obtained a certificate of competency to give bilingual instruction. He was successful in the Supreme Court. In essence, what the Supreme Court held was that no alteration could be made to the rules to affect teachers who had acted upon the rules as they stood, although it was not suggested that the rules could not be altered to govern new relationships. In concluding the majority judgment of the Supreme Court, Murnaghan J. stated as follows at page 444:-


"The Department is not, in the case of teachers appointed under one set of Rules, entitled to modify these Rules to the detriment of individual teachers who may not come up to special standards devised from time to time. The object of the Department to promote the use of the Irish language is a laudable one and is, as has been stated, the avowed policy of the State, but the methods taken to promote this object must not be contrary to the rules of law. The principle in question would equally be applicable if the Department sought to insist on special qualifications which had not the same meritorious foundation."

68. The basis of that decision was that an administrative rule cannot interfere with existing contractual rights. The provisions of the Constitution were not averted to.

1 The issue of the Rules in a contest with the State next arose in Crowley -v- Ireland . There, the plaintiffs, in reliance on the decision in McEneaney -v- The Minister for Education , contended that the Minister could change the Rules so as to permit the parents to employ unqualified teachers, and could provide the parents with money to pay the salaries of the new teachers. It was submitted on behalf of the State that under the Rules the Minister had no power to pay teachers directly. That submission was accepted in both the minority and majority judgments in the Supreme Court, although in the minority judgment O'Higgins C.J. considered it to be no excuse for not doing what he considered the Minister's constitutional obligation required him to do. Having commented that, if the Minister had taken any direct open action, for instance, the recruitment of teachers for the Drimoleague Schools who were not members of INTO, this action would have certainly provoked a countrywide strike, which the Minister reasonably regarded as the greater evil, Kenny J. went on to deal with the issue of payment of temporary teachers in the following passage in the majority judgment (at page
130):-

"Then it was said that the Minister should have paid the temporary teachers who were employed. Mr. McCarthy was being paid his salary and it would have been a misapplication of public monies for the Minister to pay salaries to unqualified teachers who could not be appointed under the Rules for National Schools."

69. That statement said no more than that the Minister was bound by the Rules in the disbursement of public monies. In my view, it is not of assistance in determining the issue which arises here because Kenny J. had earlier found, on the totality of the evidence, that the plaintiffs had failed to establish that there had been a breach of the constitutional duty imposed on the State.

70. The final authority which was referred to by Mr. McGuinness on behalf of the Plaintiffs as being of assistance in determining the legal status of the Rules was a statement by Costello P. in McCann -v- The Minister for Education . In that case, one of the arguments advanced on behalf of the plaintiff was that the test of proportionality should be applied and, if it was, the impugned ministerial decision would be shown to be invalid. Costello P., having explained the test, dealt with this argument in the following passage of his judgment (at page 11):-


"I will assume for the purposes of this judgment that an administrative measure (as distinct from statutory provision) which restricts a constitutionally protected right to an extent not required to achieve the object of the measure is invalid. But the present case is not concerned with such a case. In this case, the impugned decision (dealing as it does with a claim for incremental credits in setting a level of salary) is not one which restricts a legally protected right. As there is, therefore, no basis for suggesting that illegality attaches to it on the grounds that the restriction it imposes is excessive, the proportionality test has no application. The proportionality test cannot be extended to administrative orders, measures, decisions or regulations, which do not attack legally protected rights."

71. It was suggested, on behalf of the Plaintiffs, that the foregoing passage is of significant importance in the context of Article 42.2.1. and Article 44.2.4 as to how the State can constitutionally delimit for itself the extent of its obligation under Article 42.4, in that, on the Plaintiffs' case all of the Infant Plaintiffs have a constitutional right to provision being made for their free primary education which, by application of the Rules, is being infringed. I do not accept the proposition that the passage from the judgment in McCann -v- The Minister for Education , which I have just quoted is of assistance in resolving the issue which arises in this case as to the effect of the Rules on the Plaintiffs' constitutional rights. The only ruling in that passage was that the Plaintiff was not asserting a legally protected right. For the purposes of dealing with the argument advanced, Costello P. made an assumption, not a finding, that the proportionality test extends to administrative measures which attack legally protected rights.

1 None of the foregoing authorities is directly in point on the proposition canvassed by the Plaintiffs that the proper constitutional scope of Article 42 cannot be diminished by administrative measures and that, in so far as the Rules purport to do so, they are invalid to that extent. It seems to me that as a matter of fundamental principle that proposition must be correct. If authority is needed for it, it is to be found in Greene -v- Minister for Agriculture , [1990] 2 IR 17 where administrative schemes providing for payment of cattle headage payments in implementation of an EEC Directive were held to be unconstitutional as an infringement of the pledge by the State in Article 41 to guard with special care the institution of marriage and protect it against attack. In his judgment, Murphy J. stated as follows (at page 27):-

"The ministerial schemes not being laws enacted by the Oireachtas are not invalidated by virtue of Art. 15, s.4 of the Constitution.... The ministerial schemes are defective and must be condemned because they fail to respect and vindicate express constitutional rights."

72. Therefore, it is necessary to consider whether the provisions of the Rules in relation to teacher qualification and the place of the Irish language in the curriculum trench on the Plaintiffs' constitutional rights under Article 42.4 as properly construed. If they do, they are invalid to that extent.

TEACHER QUALIFICATION

73. The Plaintiffs contended that the effect of the imposition of a requirement as a pre-condition to recognition that they employ only teachers with qualifications generally recognised by the Minister is to set at nought the Parent Plaintiffs' choice of Steiner education for their children, because, as a pre-condition to securing funding, they would be obliged to employ teachers who are not trained in the Steiner philosophy and methodology. By enforcing the provisions of the Rules in relation to teacher qualification against them, they submitted, the Minister is making them conform with his choice and is negativing their choice and thus infringing their constitutional rights under Article 42. Even in applying the Rules the Minister does not have to adopt such an uncompromising approach, they suggested, as the Minister has power to alter or rescind a Rule and has frequently done so in the past. They cited the precedent of the restricted recognition extended to Montessori trained teachers. They also cited the precedent of both untrained teachers and substitute teachers who do not meet the requisite qualifications who teach in recognised primary schools.

74. The Defendants stood over the policy introduced a quarter of a century ago of having a comprehensively trained graduate teaching profession in primary schools recognised by the State and contended that it would be a retrograde step to depart from that policy. As a matter of principle the Minister must have a standard in relation to qualifications. As a matter of administrative convenience he must have a standard. The standard he has is the appropriate standard. As regards the precedent of affording restricted recognition to Montessori trained teachers in special schools, that was an exceptional measure to deal with the exceptional situation of children with special needs.

75. On this issue the factual position is quite clear. Since its establishment in 1986 there has been, and there is now, only one teacher employed in Cooleenbridge School who is eligible for recognition as a teacher in a State recognised primary school. Accordingly, the only question which arises for consideration on this issue is whether the requirement that teachers employed in the school are qualified for recognition in accordance with the Rules is a proper criterion for eligibility for recognition of the school which is consistent with the purpose of Article 42 and the provisions of the Constitution generally.

76. It is undoubtedly proper for the Minister to prescribe standards in relation to academic competence, nature and duration of training, experience and like matters for deeming a person eligible for qualified status to teach in a recognised primary school in the State. On the evidence, I am satisfied that the standards currently prescribed for recognition as a teacher in a mainstream recognised primary school are proper standards and, in so far as the parents of children in mainstream recognised primary schools choose the type of education delivered by teachers qualified in accordance with those standards, I see no conflict between the imposition of the standards and the provisions of the Constitution. But the type of education which the Plaintiff Parents have chosen for their children is Steiner education, which teachers qualified by reference to the prescribed standard are not trained to deliver. The evidence does lead to the conclusion that requiring teachers employed in Cooleenbridge School to conform to the prescribed standard as a pre-condition to recognition of the school would negative the Plaintiff Parents' lawful preference. This leads to the question whether the failure of the Minister to seek a solution to accommodate the choice of Steiner education within the system of recognised primary schools by relaxing the normal teacher qualification criteria is an infringement of the constitutional rights of the Plaintiffs.

77. If there is a reasonable solution available, it seems to me that the failure of the Minister to adopt it would constitute a breach of the Plaintiffs' constitutional rights. To suggest that there should be no prescribed standard is not a reasonable solution. While the Plaintiffs did not overtly suggest that there should be no prescribed standard at all, by seeking the relief they claim in these proceedings on the basis of the evidence adduced, in essence that is what they are doing. To suggest that full time permanent teachers should be regarded in the same light as substitute teachers is not a reasonable solution. There may be the possibility of a reasonable solution in the precedent of restricted recognition of Montessori trained teachers in special schools.

78. The correspondence with the Department of Education in 1991 and later in 1993 and 1994 was conducted by Pearse B. O'Shiel on behalf of Cooleenbridge School. Mr. O'Shiel is the father of the first of the Infant Plaintiffs and the husband of the first of the Parent Plaintiffs. In the course of his evidence, he was questioned in depth as to the attitude of the Plaintiffs in relation to teacher qualification. His evidence was that what the Plaintiffs want is for the Department of Education to enter into a process and come to an agreement with them about the recognition of their teachers which would satisfy the Department's requirements and also the rights of the parents in choosing Steiner education for their children. The Plaintiffs have a two-fold problem with the teacher training which is available within the State: it is denominational and operates under an ethos other than the ethos chosen by the parents for Cooleenbridge School; and the training is in a pedagogy which differs from the pedagogy used in Cooleenbridge School chosen by the parents. If the Plaintiffs were to employ teachers with qualifications recognised by the State, they would be employing teachers who are trained in a methodology and a pedagogy which is the choice not of the parents but of the Department of Education. Mr. O'Shiel testified that the Plaintiffs never adopted the position that the Minister must recognise their teachers' Steiner qualifications. The Plaintiffs' position was that there must be a third possibility (between the State insisting on the requirement that the teachers in Cooleenbridge School possess the qualifications prescribed under the Rules and the Plaintiffs insisting that the Minister must recognise their teachers' Steiner qualifications) which was that they would together arrive at a position that would be acceptable to Cooleenbridge School, the teachers and the parents, on the one hand and the Department of Education, on the other hand. To the Plaintiffs that did not seem beyond the realms of possibility.

79. Mr. Sean O'Fiachra, the Deputy Chief Inspector in the Department of Education with responsibility for inspection in the primary sector and special education, testified that the attitude in the Department has changed somewhat significantly since February, 1995. New Rules governing recognition of teachers qualified in the European Union who hold qualifications covered by the 1991 Statutory Instrument have been introduced which envisage the granting of provisional recognition subject to satisfying the Irish language requirements, on an undertaking to satisfy the language requirements within two years. However, Mr. O'Fiachra foresaw this route to recognition as being a difficult route for Cooleenbridge School if more than one teacher was seeking provisional recognition on this basis. As things stand, there is an even more fundamental difficulty because, on the evidence it would appear that none of the full time teachers in Cooleenbridge School qualifies under the 1991 Statutory Instrument.

80. On the evidence, it is not possible to conclude that, as a matter of probability, there was or is a reasonable solution to the teacher qualification dilemma. It is not possible to put the matter any further than I have already put it: there may be the possibility of a solution in the approach adopted by the Minister in relation to restricted recognition for Montessori trained teachers in special schools. However, restricted recognition for Montessori trained teachers is based on a qualification which has been assessed and approved by the Department of Education and which is derived from a teacher training course of at least three years duration, which has a specialised component. There is no evidence from which one could conclude that, if the Minister's Officials had assessed the qualifications of the Steiner trained teachers in Cooleenbridge School in 1993/1994 or if they had assessed the qualifications of the Steiner trained teachers currently employed there, applying correct legal principles they would have had to find that the qualifications are of a sufficient standard to merit the type of approval which qualification based on a three year training course in the Montessori method, which includes specialised training in one or more areas of special education, merits.

81. I am conscious that there is an important constitutional right at stake in these proceedings - freedom of parental choice in relation to the education of children. I consider that in response to the application for recognition from Cooleenbridge School in March 1994 there should have been a more searching and pro-active approach from the Defendants. While I have no doubt that the Plaintiffs were aware at all material times that teacher qualification was one of the Department's requirements which was referred to in the letter of 28th February, 1995 as not being met by the Steiner Schools, I am of the view that they were entitled to a more informative response to their solicitor's letter of 12th April, 1995 than they got.

82. The process the Plaintiffs embarked on to enforce what they believed to be their legal rights, these proceedings, is not a mediation process. It is a process which provides a remedy if a breach of rights is established. For the reasons I have outlined, I am not satisfied that, in the application of the provision of the Rules in relation to teacher qualification to the Plaintiffs, the Defendants have infringed the Plaintiffs' constitutional rights under Article 42.4.



IRISH

83. Article 8 of the Constitution provides as follows:-


"(1) The Irish language as the national language is the first official language.
(2) The English language is recognised as a second official language.
(3) Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof."

84. The Defendants contended that, having regard to the position of Irish as the first official language, the Defendants are justified in insisting that teachers teaching in primary schools in receipt of State funding have qualifications which enable them to teach Irish to a reasonable standard and that the curriculum taught will ensure that the national language is given a prominence consistent with its constitutional status. They relied on the following passage from the judgment of Henchy J. in The State (Cussen) -v- Brennan [1981] I.R. 181 in support of that proposition:-


"It is incontestable that under a Constitution which recognises Irish as the first official language (Article 8) and which empowers the State in its enactments to have due regard to differences of capacity, physical and moral, and of social function (Article 40, s.1), a law may provide that proficiency in Irish be a qualification for an office when proficiency in Irish is relevant to the discharge of the duties of that office."

85. The Plaintiffs' response to the Defendants' argument is that, notwithstanding the provisions of Article 8, no law has been enacted by the Oireachtas which makes it mandatory for a pupil to be taught Irish or for a teacher to teach Irish in a primary school or requires or permits the non-recognition or non-funding of a school where every teacher is not capable of teaching Irish. It was further submitted on their behalf that it is not within the competence of the Minister to make such imposition on pupil or teacher by the Rules and they cited the decision of Judge Devitt in Carberry -v- Yates (1935) 69 I.L.T.R. 86 and the decision of this Court (Geoghegan J.) delivered on 31st July, 1998 in D.P.P. -v- Best [1998] 2 ILRM 549 as supporting this proposition. Both of those cases concerned prosecutions under the Act of 1926. The earlier decision was a pre-1937 decision. The decision of Geoghegan J. was on foot of a consultative case stated by a Judge of the District Court in a prosecution of a parent for non-attendance of her children at school, where the defence of "reasonable excuse" that the children were "receiving suitable elementary education in some manner other than by attending a national or other suitable school" was available under the relevant provision of the Act of 1926 and the parent relied on her constitutional right to educate the children at home as a defence. There was evidence in the District Court to the effect that there was no provision for the children to study Irish in the home. Geoghegan J. considered the defence that the children were "receiving suitable elementary education" in the context of the State's obligation under Article 42.3.2 to require that the children "receive a certain minimum education, moral, intellectual and social" and he concluded, on the particular facts of the case, that the Judge of the District Court would not be entitled to form a view beyond reasonable doubt that a suitable elementary education was not being provided by the parent, having regard to the provisions of Article 42. He made the following additional observation:-


"It is obviously implicit in the view which I have taken that I agree with the late Judge Devitt that the inclusion of the Irish language in the curriculum, at least in the case of children not living in the Gaeltacht, is not essential to comply with the constitutional minimum."

86. On the issue of the teaching of Irish, there are two questions to be addressed: whether the requirement of the Rules under which Irish is a compulsory subject on the primary school curriculum is inconsistent with the provisions of the Constitution so as to be invalid; and, if not, whether on the evidence Irish is being taught insufficiently or inadequately or by teachers not suitably qualified in Cooleenbridge School.

87. In my view, as a matter of construction of Article 42, it is not correct to equate the "certain minimum education, moral, intellectual and social" which the State, as guardian of the common good, is obliged to require that children receive under Article 42.3.2 with the "primary education" which the State is obliged under Article 42.4 to provide for without cost to children or their parents. While the degree of compulsion which the State is permitted and, indeed required, to impose is limited under Article 42.3.2 by the terms of the provision by reference to "actual conditions" prevailing and also in the qualification of education by the words "certain minimum", there is no similar limitation, express or implied, on the States' obligation to provide for free primary education under Article 42.4. It is inconceivable that in 1937 the framers of the Constitution intended that the State should be under a duty to fund primary education to a "certain minimum" level only. Such an intention is not manifested by the words used in Article 42 or indicated by its purpose. Accordingly, I consider that the decisions in Carberry -v- Yates and D.P.P. -v- Best are of no relevance to the issue which arises in this case.

88. In line with what I believe to be the State's constitutional obligation under Article 42.4, the question which arises here is whether the prescription of Irish as a compulsory curriculum subject in primary schools under the Rules is a proper criterion for eligibility for recognition in accordance with the purpose of Article 42 and the provisions of the Constitution generally. In my view, an obligation to provide for the education of the children of the State at their first stage of formal teaching and instruction must involve an obligation to provide for education in the constitutionally recognised first official language of the State. It follows that the requirement of the Rules that teachers teaching in recognised primary schools should have proficiency in Irish is a valid provision under the Constitution. In my view, it is also a valid requirement under European Community Law and in its application to the facts of this case, applying the test laid down by the Court of Justice in Groener -v- Minister for Education [1990] I.L.R.M. 335, it is neither disproportionate nor discrimatory.

89. Turning to the evidence, it is undoubtedly the case that the treatment of Irish in the Cooleenbridge School curriculum which was submitted to the Department of Education in March 1994 was totally inadequate and the Minister was justified in withholding recognition on that account. Despite the best efforts of the parents running Cooleenbridge School, the current position in relation to the teaching of Irish in the school is not satisfactory. Three of the four class teachers have no competence in the Irish language and it is not possible to adopt an integrated approach to the teaching of Irish in relation to those classes. Moreover, not only is it impossible to have the Irish language or an aspect of the Irish language as the theme of the main lesson, which is the most important component in the Steiner curriculum, but it is also impossible to integrate the speaking, reading and writing of Irish into the main lesson. The concern is not the quality of the instruction in Irish which the pupils in classes 1 to 5 in Cooleenbridge School currently receive. The concern is that provision cannot be made for a core element of the curriculum in a manner which is consistent with either the philosophy underlying the national curriculum or, as I understand it, the philosophy underlying the Steiner approach to education.



DECISION ON RELIEF CLAIMED

90. The Plaintiffs have not established that the rejection of their application for recognition of Cooleenbridge School by the Minister's decision communicated in the letter dated 28th February, 1995 was in breach of their constitutional rights under Article 42.4, or any other provision of the Constitution, nor have they established that in the circumstances currently prevailing they have the right to require the State to fund Cooleenbridge School in the manner in which a recognised primary school is funded. Accordingly, they are not entitled to any of the reliefs they claimed.

91. I regret that the Court has not been able to provide any solution for the Plaintiffs. The strong commitment of the Parent Plaintiffs to their children's education is evident and commendable. I hope that in the future they will be able to mediate the difficulties which have hindered recognition with the Department of Education. I have already referred to one aspect of Mr. O'Fiachra's evidence in relation to what he called the changed "environment" since February 1995. He also indicated that in the event of the Plaintiffs reapplying for recognition they should encounter a degree of flexibility in the Department in relation to the curriculum issues, other than the question of Irish and early childhood learning. It would be unfortunate if Cooleenbridge School ceased to operate because of lack of resources. If it were to close, I think the ultimate irony would be that it would probably cost the State as much to deal with the consequences of closure as it would fund the school if it was recognised.


© 1999 Irish High Court


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