The Review Group was established by the Government of Ireland on 27 April 1995

To review the Constitution, and in the light of this review, to establish those areas where constitutional change may be desirable or necessary, with a view to assisting the all-Party Committee on the Constitution, to be established by the Oireachtas, in its work. In their review, the Group should take into account that certain constitutional matters, i.e. Articles 2 and 3, Divorce, the Right to Bail, Cabinet Confidentiality and Votes for Emigrants are the subject of separate consideration.

Dr T K Whitaker Chairman

David Byrne SC

Dr Alpha Connelly

Mary Finlay SC

Dermot Gleeson SC Attorney General

James Hamilton BL

Mahon Hayes

Gerard Hogan FTCD, BL

Professor Aine Hyland

Dr Finnula Kennedy

Professor Michael Laver FTCD

Dr Kathleen Lynch

Diarmaid McGuinness BL

Dr Dermot Nally

Dr Blathna Ruane BL

Jim O'Donnell Secretary

John Conlon Assistant Secretary

The secretariat was provided by the Institute of Public Administration

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Article 42

42.1 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.

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

42.3.1 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.

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

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

42.5 In exceptional cases, where the parents for physical or moral reasons fail in the 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.

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There are almost 1,000,000 people, including children, young and mature people, enrolled in full-time education in the State. They attend schools, colleges, universities and further education centres.

The primary education sector comprises national schools, special schools, and non-aided private primary schools. It serves almost 500,000 children. There are just over 3,200 national schools and 115 special schools. There is also a small number of non-aided national schools catering for about 2% of the population. The national schools, which account for the education of 98% of children in the primary sector, are staffed by over 20,000 teachers.

The term 'primary school' is increasingly being used in recent years to replace the term 'national school' which more accurately describes publicly funded primary schools. There is no legislation underpinning the founding of these schools but their origins date back to the Stanley Letter of 1831. The national school system was intended to be a system of religiously mixed schools. However, during the nineteenth century the three main churches (Catholic, Church of Ireland and Presbyterian) refused to co-operate in the provision of religiously mixed education and the system became increasingly denominational. By the early twentieth century only a relatively small number of schools were under religiously mixed management.

While the de facto denominational reality of the national school system has never been legislatively enshrined, the successive editions of Rules for National Schools since the foundation of the State have increasingly recognised this denominational reality (see Appendix 24 - 'The multi-denominational experience').

All national schools are privately owned but publicly funded. In the case of the vast majority of schools, their owners are diocesan trustees (Roman Catholic, Church of Ireland, trustees nominated by other churches or, in the case of multi-denominational schools, a limited company or a trust.) Every national school is ultimately controlled by a patron. (In the case of Catholic or Church of Ireland schools, the bishop is the patron; in the case of multi-denominational schools, the patron is a limited company. Most Gaelscoileanna are under the patronage of the local Catholic bishop but within the past three years Gaelscoileanna have set up their own patronage body which is a limited company and new Gaelscoileanna may now opt to be under the patronage of the local bishop or under the patronage of the new limited company.) The patron of a national school is responsible for the nomination of the board of management of that school although parents and teachers have a role in electing representatives to the board - the names to be subject to the formal approval approval of the patron. The patron also plays an important role in setting up the selection board for a school principalship and for approving all appointments to a school.

The patron also has the power under the Rules and Constitution of Boards of Management to assume management of a school in the event of unsatisfactory performance by a board of management.

There is no substantive legislation underpinning the national school system. The recently published White Paper on Education (1995) states. 'there has been no substantive legislation enacted in relation to first and second level education in the twentieth century, other than the Vocational Education Act 1930. The School Attendance Act 1926 is the only legislation relating to primary school children passed this century. Referring to this general lack of legislation in the case O'Callaghan v Meath VEC in November 1990 in the High Court, Costello J stated:

It is a remarkable feature of the Irish system of education that the administration by the Department of Education is largely uncontrolled by statute or statutory instruments and that 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. These 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.

The current rules of the Department of Education in relation to the administration of primary education are contained in two documents - Rules for National Schools (most recent edition 1965) and Rules and Constitution of Boards of Management (most recent edition mid-1980s). There are also myriad circulars and memoranda which complement both of these documents, but no complete set of circulars and memoranda is officially available.

The following table shows the number of national schools other than special schools for mentally and physically disabled pupils under the patronage of the various churches.

Catholic    2,998

Church of Ireland*    190

Presbyterian    18

Methodist    1

Jewish    1

Multi-denominational     10

Muslim    1

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Total    3,209

* The total for Catholic schools includes 138 all-Irish schools in the

Gaeltacht and 69 all-Irish schools outside the Gaeltacht.

This table refers to the situation in 1992. Since then a further four multi-denominational schools have opened. There are now fourteen such schools, one of which is an all-Irish school.

Although Article 42.2 states that, 'parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State' (emphasis added), no national schools have been established by the State since 1922.

In keeping with the principle of subsidiarity underlying the 1937 Constitution, a proportion of both the current and the capital costs of national schools must be provided from local sources. This requirement dates from 1831. In relation to capital funding the school patron/trustees must provide the full cost of the site on which the school is located and a proportion ranging from 5-15% of the cost of erecting and furnishing the school. In relation to current costs, the full costs of teachers' salaries is borne by the State. In relation to the running costs, the State pays an annual capitation grant - currently £45 - subject to the proviso that a local contribution is first paid into the school account by the school's board of management. The current amount is £10. (However in her budget speech in January 1996 the Minister for Education indicated that the local contribution may be phased out.) The reality is that the State grant of £45 per pupil per annum is heavily subsidised by the local community to meet the full running costs of the school. The full running cost varies from school to school and to some extent reflects the local wealth. In relatively affluent communities the total cost of running a school may be considerably higher than the total cost of running the same sized school in a less affluent community. Schools in less affluent communities are often much less well-equipped and less well-resourced than schools in better off areas. In recent years some efforts have been made by the Government to give extra support to schools in disadvantaged areas but even with this, such support does no more than equalise the playing field in terms of basic physical resources.

The second level sector comprises secondary, vocational, community and comprehensive schools. There are just over 370,000 pupils in this sector attending a total of 782 publicly aided schools. Four hundred and sixty-one of these schools are secondary, 248 are vocational and 73 are community and comprehensive. There is a small number of other aided and non-aided schools, for example agricultural colleges.

Secondary schools, sometimes referred to as voluntary secondary schools, educate 61% of second level students. These schools are privately owned and managed. The majority are conducted by religious communities; some are run by diocesan authorities - Catholic diocesan colleges. Others are run by boards of governors - these are mostly under Protestant management and some have charters dating back to the seventeenth and eighteenth century. A small number of schools, both Catholic and Protestant, are owned by individuals.

Secondary schools, then known as intermediate schools, first became eligible for State financial aid under the Intermediate Education Act 1878. Under this Act schools could apply for grant aid from the Intermediate Board through a system of payment by results, in other words, schools were paid on the basis of the success of their students at the end-of-year examinations conducted by the Intermediate Board, which was a statutory board set up under the 1878 Act. State aid was initially quite limited and no financial support was available for building or furnishing secondary schools. Such financial aid did not become available until 1964. During the past thirty years, financial grants ranging from 85% to over 90% of the cost of approved secondary school building have been available from the Department of Education. As in the case of national schools, the full cost of the site is paid by the school authorities. Consequently, the building is owned by the school authorities. As regards current costs, the total teachers' salaries are paid by the Department of Education. An annual capitation grant is paid in respect of each pupil attending a non fee-paying Catholic secondary school - this amount is currently about £160. In the case of Protestant secondary schools, the Department pays a block grant to the Protestant Secondary Schools Grants Committee. Some other specific grants are available at secondary level, especially in regard to courses funded from ECU funds, for example the new Leaving Certificate Applied Programme. While in practice many secondary schools need to supplement to Government grant from voluntary or other contributions, there is no requirement on a secondary school to provide a local contribution in order to be eligible for receipt of State funding - unlike the national school situation. (Strictly speaking, secondary schools are responsible for paying a small proportion of a teacher's salary, currently the amount involved stands at £400 per annum per teacher - a secondary school salary scale starts at about £15,000 per annum. However, negotiations are currently underway to transfer the £400 payment from the school to the Department of Education.)

The Intermediate Education Act 1878 and the Intermediate Education (Amendment) Act 1924 are still relevant. The Rules and Programme for Secondary Schools is issued on a more or less annual basis, in accordance with the requirements of this legislation. There is little specific legislation covering the secondary school sector, apart from the Teachers Registration Council Act 1988 which established the Secondary Teachers Registration Council. This council is the competent body in relation to the registration and recognition of all teachers in secondary schools, including those seeking mutual recognition of qualifications from other EU countries.

Vocational schools educate approximately 26% of all second level students and are administered by Vocational Education Committees (VECs). They are non-denominational schools and are funded up to 93% of the total cost of provision by the State. The balance is provided by receipts generated by the committees. Vocational education is regulated by the Vocational Education Act 1930 and subsequent amendments. Within the last ten years community colleges have been established under the general management of the VECs. Some vocational schools have now become community colleges.

These schools educate 13% of second level students and are allocated individual budgets by the State. The first comprehensive schools were set up in the 1960s and were originally set up by the State to provide second level education in areas where no previous provision was available. The original expectation was that comprehensive schools would be religiously inclusive, that is to say, they would not be under the exclusive control of one religious denomination. However, it did not prove possible to gain the agreement of the churches to such an arrangement and comprehensive schools are either Protestant or Catholic. Apart from one Protestant school built in the late 1980s (East Glendalough in Wicklow) no further comprehensive schools were built after 1970. Instead, an almost identical type of school, named a community school, replaced the comprehensive school. During the 1970s and 1980s a long and sometimes acrimonious debate went on between Church and State about the control and ownership of community schools. Eventually, concessions were made by the State to the Catholic Church in relation to the appointment of certain types of teachers (for example the church was given a veto over the appointment of Religious Education teachers); in addition, some places on the teaching staff were reserved for members of named religious orders; it was agreed that a chaplain nominated by the local bishop would be a permanent full-time paid member of the staff; a deed of trust was agreed between the Minister for Education and the church and this deed of trust gave certain rights to the church (usually through a named religious order), including the right to nominate some of the members of the board of management.

In a recent High Court judgement - Campaign to Separate Church and State v the Minister for Education (1996) - Costello P has ruled that community schools set up under this model can be regarded as (a) denominational schools and (b) Catholic community schools 'in that the religious worship and religious instruction it provides are those of the Roman Catholic Church'. He has also ruled that it is constitutional for the State to pay the salaries of chaplains in such schools.

Provisions in relation to education in the Constitution are contained in Article 42 (sections 1, 2, 3, 4 and 5) and Article 44.2.4/ Discussion on education must also be considered in the broader context of fundamental rights and of Articles 41 (the Family) and 44 (Religion). It has been stated (see Kelly, The Irish Constitution, Dublin 1994, at p 1052) that Article 42:

clearly reflects Roman Catholic social teaching inasmuch as it explicitly recognises, inter alia, the constitutional right and duty of parents to provide for the education of their children and the freedom to provide such education in private schools.

Article 42.1 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.

Article 42.2 states that parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State. Subsection 3 adds that 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. In this regard, it is of interest that the State has not established any primary (national) schools since 1937, nor indeed since the foundation of the State. There are a few Model Schools (owned by the State) still in use as primary schools but these were established before the foundation of the State in 1922.

Under the provisions of Article 42.3.2, the State shall, as guardian of the common good, require, in view of actual conditions, that the children receive a certain minimum education, moral, intellectual and social.

The subsidiary role of the State in education is highlighted in Article 42.4 which reads: '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.' The State regards itself as fulfilling the obligation to provide for free primary education by providing the greater part of the capital and current cost of schools, by paying the teachers' salaries, prescribing a curriculum and providing free transport to schools where necessary. (Presentation by the Department of Education to the National Education Convention, October 1993.)

There is a potentially important difference between the wording of the 1922 Constitution and the 1937 Constitution in relation to education. The 1922 Constitution of the Irish Free State contained the following provision (Article 10): 'All citizens of the Irish Free State (Saorstát Éireann) have the right to free elementary education'. The background to the insertion of the word 'for' in Article 42.4 may be summarised as follows. In May 1934 a top-level civil service review group under the chairmanship of John Hearne, then legal adviser to the Department of External Affairs (and later to be one of the chief drafters of the present Constitution), was established by the Government and this committee reported directly (and privately) to the Government in July of that year. The task of the committee was to indicate which provisions of the 1922 Constitution should be regarded as fundamental and recommend how they could be protected from change. The committee's recommendations formed the backdrop to the work on the present Constitution which took place between May 1935 and 1937. On the advice of Seosamh O'Neill, then Secretary to the Department of Education, the 1934 committee did not include Article 10 of the 1922 Constitution in its list of fundamental Articles, although it also recommended that the key principles underlying that clause be preserved.

O'Neill's reasoning is set out as an appendix to the 1934 report (SPO s 2979).

Article 10 has never been fully invoked and we have not so far obtained a legal interpretation of it, or the obligation which it imposes... Apart, however, from the obligation that elementary education should be free, there are other claims that might possibly be made under the Article in question. These include:

1 whether a small number of children, say two, three or four, living on an island, or at a long distance from a national school could successfully claim the right to be transported daily to a national school or to have a school established for their use.

2 whether the Article could be construed to put an obligation on the State not only to pay the teachers, but also to build, equip and maintain schools and provide free books and requisites for the schoolchildren. In my opinion, the present position is that the principle underlying the Article is fundamental and should be preserved, if possible, but in the absence of a clear definition of the State's obligation under the Article it would be undesirable to put it in such a position as to make it more difficult to deal by legislation with any problem that might arise thereunder.

The education Article in the first official draft of the Constitution circulated to Government Departments in March 1937 simply stated that, 'the State shall provide free primary education'. However, following representations by various Departments (including the Department of Finance), which echoed O'Neill's concerns lest this provision be interpreted as embracing the full cost of education, such as text-books and other requisites, the word 'for' was written in hand for the Second Revise (see de Valera papers, 1079/3). Article 42 thus read:

'The State shall provide for free primary education...'

Article 42.5 recognises that, '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 to the natural and imprescriptible rights of the child. The implications of this Article, particularly in the context of the relative balance between parental and children's rights, are discussed in more detail in this chapter - section on 'The Family'.

In a general reference to the provisions on education in the Constitution, it has been stated by one noted commentator that, 'like some constitutional Rip Van Winkle they have lain dormant for the most part since their enactment in 1937': see Whyte, G, 'Education and the Constitution' in D Lane (ed), Religion, Education and the Constitution, Dublin 1992, at p 84. Whyte continues:

[Articles 42 and 44 were] drafted at a time when there was little or no demand for non-denominational education, these provisions reflected Roman Catholic social teaching by enshrining a principle of parental supremacy in respect of the education of children. Operating now in a different type of society to that of the 30s, this constitutional principle may have practical consequences that were never envisaged nor intended by the authors.

In the context of the issues which are raised below and in the section on Religion, it is germane to make reference to the most recent census figures (1991), particularly in so far as they highlight the growing number of people who do not belong to one of the main Christian churches. The following table shows the population classified by religion in the 1981 and 1991 censuses of population:

Catholic         3,204,476        3,228,327

Church of Ireland    95,366        89,187

Presbyterian       14,255        13,199

Methodist        5,790       5,037

Jewish          2,127      1,581

Other stated Religions 10,843        38,743

No Religion       39,572        66,270

Not stated         70,976        83,375

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Total        3,443,405        3,525,719

As can be seen from these figures, about 6% of the population does not belong to a church which owns and manages national schools (including the 2.4% 'not stated'.) Moreover, there is evidence from recent surveys that a growing number of parents would prefer, given the choice, to have their children educated in multi-denominational or non-denominational schools.

In the 1930s when the Constitution was framed, it was generally accepted that the church leadership was acting on behalf of parents in negotiations relating to education. This is no longer the situation as it was clear during the debate following the publication of the Green Paper on Education in 1992. The Report on the National Education Convention, which summarises the discussions which took place in Autumn 1993 on the then forthcoming White Paper on education and educational legislation, indicates the extent to which the role of the parents qua parents is now recognised by the government. In submissions in relation to the control and management of schools at both primary and second level the views of parent bodies (National Parents' Council - primary and post-primary tier) did not coincide with the views of the Roman Catholic hierarchy, particularly in relation to the structure of the boards of management. Parents in the 1990s expect to be consulted in their own right in relation to education and not to be consulted through intermediaries. The Minister for Education has accepted this and structures for consultation with parents are now in place. The growing demand for multi-denominational schools and all-Irish schools in recent years reflects the more assertive role being played by parents in education.

Another significant change in the educational context, particularly at second level, relates to the shrinking number of religious (priests, nuns and brothers) teaching in secondary schools. In the 1930s, members of religious communities probably represented a substantial majority of those teaching in secondary schools. As recently as 1966 members of religious orders as a percentage of secondary teachers was approximately 50%. The current proportion is less than 10% and is estimated to fall to less than 5% by the end of this decade.

There is also much greater awareness in the 1990s of the implications of educational inequality than there was in the 1930s. The implications of the failure of the education system to cater adequately for the needs of the less advantaged are serious - for the individual, for the economy and society (see Breen, R and Shortall S, 'The Exchequer Costs of Unemployment Among Unqualified Labour Market Participants' in Bradley et al (eds), The Role of the Structural Funds: Analysis of Consequences for Ireland in the Context of 1992, ESRI, Dublin 1992, for estimates of the costs to the exchequer of social welfare and other payments for unemployed people resulting from educational failure).

For a variety of historical and other reasons, the creation of wealth in Irish society is heavily dependent for the foreseeable future on the quality of education provided across all sectors of the economy. Moreover, knowledge, and increasingly the credentialised knowledge provided by formal education, is a major form of capital in its own right. Because of the central role which knowledge plays in determining the generation of wealth, it is extremely important that all people have access to education, and can participate and benefit from it so that they are not precluded from the process of wealth generation in society. As the Annual School Leavers Surveys conducted by the Department of Labour show, there is a positive correlation between the level of education attained and employment opportunities, and those who leave school without any formal credentials are severely disadvantaged in the labour market.

Education is also of crucial importance for both personal development and for the development of civil society. It is essential for the development of all the social, cultural and political institutions which contribute to the creation of an inclusive, dynamic and integrated democratic state. The failure to equalise access to and participation in education means that much of the talent and ability available in society is underutilised and alienation and detachment develops among those who are precluded from participation.

Despite the increased participation by all social groups in education over the last thirty years, there are still major differences in both access to education and participation in it, based on social class. The analysis of School Leavers Surveys for 1991 - 1993 shows that only just over half (52.5%) of the young people from unskilled manual backgrounds reach leaving certificate level while over 95% of those from professional backgrounds do. (Higher Education Authority, Report of the Steering Committee on the Future of Higher Education, Dublin 1995, Table 12.) A similar pattern obtains at third level. Professor Clancy's study, Access to College, Patterns of Continuity and Change, Higher Education Authority, Dublin 1995, shows that while there has been an increase in the rate of participation by all social groups in the last twelve years, disparities in participation based on social class are still considerable. 38% of all higher education entrants come from the four highest socio-economic groups although these comprise just 21% of the relevant population while just 35% of entrants come from the five lowest socio-economic groups although they constitute almost 56% of the relevant age cohort. This contrast in participation rates at the upper and lower end of the class continuum is, however, much greater, with 89% of the children of higher professional parents going on to higher education compared with just 14% of those from unskilled and semi-skilled manual backgrounds (Clancy, op cit, pp 154-155). At present those who have most private resources can benefit most from all forms of education because their families can bear both the direct and indirect costs that prolonged participation in education demands. What this means in effect is that those with most private resources benefit most from State investment in education according as the cost of education rises from first level to third level (Tussing, 'Equity in the Financing of Education' in S Kennedy One Million Poor, Turoe Press, Dublin 1981). Education is now seen by many as playing a crucial role in determining access to the labour market and thereby access indirectly to wealth via wages, salaries and related benefits (Breen, Education, Employment and Training in the Youth Labour Market, ESRI, Paper No 152, Dublin 1991; Conference of Religious of Ireland Justice Commission, Tackling Poverty, Unemployment and Exclusion, Dublin 1994).

When the 1937 Constitution was drafted, education was largely regarded s the preserve of the young. That perspective has changed in recent decades and the designation of 1996 as 'The Year of Lifelong Learning' by the European Commission is one indication of this change. The Government White Paper on Education (p 77) states:

Learning is a lifelong process, building on the foundation of formal schooling. Access to lifelong learning and training is important for all people - including those who for whatever reason, completed their formal education without reaching their full potential.

Adult education is a rapidly growing area in Ireland and is regarded as having significant potential to tackle educational disadvantage. There are sizeable numbers of adults who left school at or before the minimum school leaving age who are seriously disadvantaged as a result of their low levels of educational achievement. (Report of the National Education Convention). The Government recognises that it is important such adults should have an opportunity to return to the education system and that the system should be sufficiently flexible to cater for their needs. In this regard the White Paper states that, 'Adult education and training will be an integral part of the framework for the future development of education'.

Report of Constitution Review Group, 1996 - Articles 40 - 44

Some issues in relation to the constitutional provisions for education have been raised in case law; others have been raised by the Department of Education both in chapter 18 of the White Paper on Education, Charting our Education Future (1995) and in its submission to the Constitution Review Group; yet others have been raised from other bodies to the Review Group.

1 relative rights of the State, of parents and of the child

The relative rights of the State (Article 43.3.2), of parents (Articles 42.1, 42.2 and 42.3.1) and of the child (Article 42.5) in the area of education were discussed by the Review Group not just in relation to Article 44 but also in the context of Article 41 - The Family and Article 44 - Religion.

The Review Group is concerned that giving to the family rights which are described as inalienable or imprescriptible, even if they are interpreted as not being absolute rights, potentially places too much emphasis on the rights of the family as a unit compared with the rights of individuals within the unit. The Review Group considers that the description of any rights or duties specified in Articles 41 or 42 should not include the adjectives 'natural'. inalienable. imprescriptible'. It also considers that, while it is desirable that the family should retain a certain authority and autonomy, this should not be such as to prevent the State or other third parties from intervening where the protection of the individual rights of one member of the family requires this.

Remove the adjectives 'natural', inalienable, imprescriptible' from Articles 41 and 42.

2 whether the rights of parents in regard to education should be confined to married parents

A further consideration is that Article 42 as created envisages only what might be termed the straightforward case of a married couple and their children. Indeed, the reference to parents in Article 42.1 is confined to the family based on marriage: see, for example, The State (Nicolaou) v. An Bord Uchtála (1996) IR 567/ For all the reasons already set out in the discussion on Article 41 with regard to the position of non-marital parents, the Review Group is of the opinion that, consistently with these earlier recommendations, it is appropriate that the rights under Article 42 should apply to all non-marital parents, provided they have appropriate family ties and connections with the child in question.

Article 42.1 should be amended to apply to all non-marital parents, provided they have appropriate family ties and connections with the child in question.

3 compulsory school attendance

Articles 42.1 and 42.2 recognise that parents have an inalienable right and duty to provide for the religions and moral, intellectual, physical and social education of their children and that they shall be free to provide this education 'in their homes or in private schools or in schools recognised or established by the State'. In 1942 the Oireachtas passed the School Attendance Bill 1942 which attempted to supplement the earlier School Attendance Act 1926. The Bill proved to be controversial and was referred to the Supreme Court which ruled that it was repugnant to the Constitution: In re Article 26 of the Constitution and the School Attendance Bill 1942 [1943] IR. 334. Section 4(1) of the Bill would have ensured that children between the ages of six and fourteen would be deemed not to be receiving a suitable minimum education other than by attending school 'unless such education and the manner in which such a child is receiving it, have been certified...by the Minister (for Education) to be suitable',

The Supreme Court examined the meaning of the phrase a 'certain minimum education' and concluded:

What is the meaning and extent of this provision? What is referred to as a 'certain minimum education' has not been defined by the Constitution and, accordingly, we are of the opinion that the State, acting in its legislative capacity through the Oireachtas, has power to define it. It should, in our opinion, be defined in such a way as to effectuate the general provisions of the clause without contravening any of the other provisions of the Constitution. Subject to these restrictions, it seems to us that the State is free to act so long as it does not require more than 'a certain minimum education' which expression, in the opinion of this Court, indicates a minimum standard of elementary education of general application.

The court found the section to be unconstitutional on several grounds, among them that a Minister, even if acting on a reasonable construction of the section might:

...require a higher standard of education than could properly be prescribed as a minimum standard under Article 42.3.2....We are further of the opinion that the standard contemplated by the section might vary from child to child, and accordingly, that it is not such a standard of general application as the Constitution contemplates.

Moreover, the court also noted:

Under subsection 1 not only the education, but 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 the 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.

With regard to the former grounds, it has to be noted that these comments were made before the development of the doctrine of the presumption of constitutionality whereby it is presumed that all adjudications, discretions etc, conferred by an Act of the Oireachtas will be exercised in a constitutional fashion. East Donegal Co-Operative Ltd v. Attorney General [1970] IR 317. If a modern-day version of the Bill were to be referred, there must be a good chance that the Supreme Court, applying this doctrine, would it not find it unconstitutional on this ground: see Kelly, op cit, p 1055. Moreover, as Professor Casey has noted, the content and manner of education are not readily separable in the manner in which the Supreme Court suggested: See Constitutional Law in Ireland, London 1992, at p 527.

However, the court was surely correct when it hinted (although it did not have to decide the point) that the Bill as drafted was unconstitutional inasmuch as:

One of the excuses under section 3 is that there is not a national school, a suitable school, or a recognised school accessible to the child which the child can attend and to which the parent of the child does not object on religious grounds to send the child. It is contended that the grounds in view of the provisions of Article 42.3.1 ...that the State shall not oblige parents in violation of their conscience and lawful preference to send their children to the schools named therein.

In other words, the Bill almost certainly violated Article 42.3.1 in not allowing for a defence on the ground that there was no accessible school for the child to which the parents did not object on grounds of conscience and lawful preference.

The Committee on the Constitution (1967) expressed concern about situations where parents might be failing to provide for their child 'a certain minimum education, moral, intellectual and social'. The committee recommended that Article 42.3.2 might be replaced by a provision somewhat on the following lines:

Laws, however, may be enacted to oblige parents who have failed in their duty to provide for

the education of their children to send their children to schools established or designated

by the State.

The Review Group considers that the right and duty of educating children should be vested in parents. This right ought, however, to be subject to the best interests of the child and the right of the State to ensure that children receive a minimum education. The entire question poses delicate issues of balancing between the respective rights and interests of parents, children and the State. In the opinion of the Review Group an amendment on the lines suggested by the Committee on the Constitution (1967) is neither necessary or desirable. If such an amendment were introduced, difficulties could arise where a parent might claim that no suitable school was available and that the schools 'established or designated by the State' would be in 'violation of their conscience and lawful preference' (Article 42.3.1)

A further consideration is the reference to 'in view of actual conditions' in Article 42.3.2. The meaning of this phrase is obscure and difficult to interpret, but it seems to mean that the standard of minimum education on which the State can insist may vary according to circumstances prevailing in the family environment and in society at large. In one sense this is unexceptionable, but difficulties would arise if this minimum standard were judged solely by reference to the personal circumstances or expectations of each family. An example might help to illustrate the point. At some stage in the near future basic computer literacy might well be regarded as an essential feature of a minimum educational standard in that such knowledge might be a prerequisite for participation in society. If this were so, the parents who were educating their children at home should not be able to evade their duties to the child by pleading that they could not afford, or did not have the expertise, to give their children such training. In short, the Review Group considers that, having regard to the importance of education for all children, the rights of parents should, where necessary, give way to the right of the State to insist on - in the interests of the child itself (whose interests in such circumstances will have to be regarded as paramount if our recommendations concerning Article 41 are accepted) - a certain minimum education and this should not be contingent on 'actual conditions'.

Summing up, therefore, the Review Group considers that it is not necessary to amend Article 42.3.2 in the manner suggested by the Committee on the Constitution (1967). Instead, it considers that a fair balance may be struck between the interests of the child and the respective right of the parents and the State by preserving the right of parents as provided for in Article 42.3.1, while at the same time providing that the State is entitled to insist on a certain minimum education which would apply to all children.

The related question of the meaning of a 'certain minimum education' is considered at Issue 7 below.

In the case of Article 42.3.1, no change is proposed. However, the words 'in view of actual conditions' should be deleted from Article 42.3.2 and, following the discussion at Issue 7 below, further amendments to this provision are suggested.

4     whether the Constitution should be amended to provide a more explicit statement of the         obligations of the State to provide free education, and/or whether the rights of the child to education should be explicitly stated.

The right to education is recognised in many international declarations and conventions, including the UN Universal Declaration of Human Rights (1948), the UN Declaration of the Rights of the Child (1959), and the UN Convention on the Rights of the Child (1989). The constitutions of many countries of the world also assert the right to education. These include countries as diverse as Spain (Article 270) Italy (Articles 33 and 34), the Czech Republic (Article 33), Macedonia (Article 44) the Russian Federation (Article 43), and Namibia (Article 20).

Concerning Article 42, the two major contemporary decisions are Crowley v Ireland [1980] IR 102 and O'Donoghue v. The Minister for Health (1993). In the Crowley case the Supreme Court held by a majority that the duty laid upon the State by Article 42.4 was not to 'provide' but to 'provide for' free primary education - a distinction brought out by the Irish version. In his judgement, Kenny J stated:

However, the State is under no obligation to educate. The history of Ireland in the nineteenth 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 at 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... 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 the Board of Management'.

However, in a more recent High Court case (currently being appealed to the Supreme Court) the State's obligation in relation to education is interpreted differently. In O'Donoghue v. Minister for Health, the plaintiff, suing through his mother, was an eight-year-old mentally handicapped boy who sued the Ministers for Health and Education on the ground that, in failing to provide free primary education for him, they had deprived him of his rights under Article 42. O'Hanlon J acceded to this claim and granted a declaration that the respondents had deprived the plaintiff of his rights under Article 42.

Some submissions to the Review Group recommended that the rights of all children to education should be spelt out in the Constitution. On the other hand, some submissions seem to take the view that this right is already implicit in Article 42 and are concerned at the relatively limited obligation on the State to provide only free primary education.

In so far as the Department of Education's submission refers to Article 42.4, it expresses concern about the resource implications of the O'Donoghue judgement. It states that the ruling could, at least in principle, also be applied to an exceptionally talented child. The submission goes on to state: 'The net effect in either case might amount to an open-ended obligation on the State to provide for any and every facility which could demonstrably assist the child', and asks whether the Constitution Review Group might consider the extent to which it would be appropriate for the courts to adjudicate on the fairness of the distribution and allocation o public funds and to what extent the constraints and demands on public expenditure and the taxable capacity of the economy are relevant issues which should be considered by the courts.

The Review Group considered the points made in the various submissions and in particular addressed the issues of providing a more explicit statement of:

1) the obligations of the State to provide free education

2) the rights of the child to education.

In relation to the first point, some members of the Review Group would like to see the word 'for' (after 'provide') removed from Article 42.4. However, others felt that the removal of the word 'for' might be construed in such a way as to broaden the subsidiary role of the State in the provision of education.

It was agreed that the alternative approach of enshrining in the Constitution the right of the child to free primary education was preferable. A question arose whether this right should be extended to include the right to free second level education. Some reservations were expressed about this on the basis that it was proper that the resource implications should be determined by the Government and the Oireachtas. On the other hand, the point was made that it is now almost thirty years since free second level education was introduced, and from this year on fees for third level education will be abolished.

Finally, the Review Group considered that the language of Article 42.4 tended to constrain unduly the right of the State to provide 'other educational facilities or institutions'. It considers that the word where appropriate' should replace the existing words 'where the public good requires it'.

The right of every child to free primary education should be explicitly stated in the Constitution. The Oireachtas should also seriously consider extending this right to second level education as this may be defined by law. If the right is so extended, the new Article might read as follows:

Every child has a right to free primary and second level education. The State shall provide for such education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, where appropriate, provide other educational facilities or institutions with due regard, however, for the rights of the parents, especially in the matter of religious and moral formation.

5     whether the right to education should be extended to all persons

In the context of the general commitment to lifelong learning at national and European level, the question arises whether the right to education should be extended to include all persons.

It was noted that the 1922 Constitution contained a provision that 'All citizens of the Irish Free State (Saortstát Éireann) have the right to free elementary education'. It was also noted that the right of persons to education (not 'free' education) is recognised in many international declarations and conventions, though what it connotes is not clear.

The relationship between education and the creation of wealth has been highlighted earlier in this chapter. There is a high correlation between unemployment and lack of educational attainment and while it is recognised that there is a cost involved in correcting educational failure, this cost has to be compared to the price society eventually pays for educational failure in welfare, health and other costs.

Some members of the Review Group favour the extension of the right to education to all persons and argue that the right could be qualified so that it would not entail unrealistic financial or other demands.

A majority of the Review Group, however, was against such an amendment because of its indefinite nature and unassessable implications.

7 whether there should be a specific provision in the Constitution promoting equality

Some members of the Review Group consider that, in view of the importance of education both in determining access to the labour market and for the potential development of the individual and the social, cultural and political development of society, there should be a provision in the Constitution that the State would promote equality of access to, and participation in, education. It was suggested that, without such a protection, there is no clear requirement on the Government or the legislature to disburse funds between individuals in education in an equitable manner.

'Equality in education' as described above, is an aspect of the general issue of greater economic equality in society. The majority of the Review Group is not persuaded that the attainment of either equality objective can be effectively advanced by means of a specific constitutional provision of this kind. Their attainment depends rather on such policies in the economic, social and fiscal areas as may be sanctioned by the Oireachtas, resourced with approval from public funds, and effectively pursued over time. A provision as suggested would be more appropriate as a directive principle, if Article 45 is retained.

A majority of the Review Group does not favour the inclusion of any absolute requirement in the Constitution which would remove the necessary discretion of Government and the Oireachtas in policy matters but see no objection to a directive principle 'to promote equality of access to, and participation in, education' being included in Article 45, if retained.

7     whether there should be a definition of education including a definition of 'a certain minimum education'

Article 42.1 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. Article 42.3.2 states, '...the State shall, however, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social'. While one can understand why the word 'religious' is omitted from Article 42.3.2, it is more difficult to justify the inclusion of the word 'physical' in one and not the other. There may have been historical reasons for this but it is unlikely that such reasons are any longer valid.

At different times in history one can come up with good reasons why other aspects of education might be included, for example, creative, aesthetic, spiritual, ethical. The National Council for Curriculum and Assessment currently proposes the following as a statement of the general aim of education:

The general aim of education is to contribute towards the development of all aspects of the individual, including aesthetic, creative, critical, cultural, emotional, intellectual, moral, physical, political, social and spiritual development, for personal and family life, for working life, for living in the community and for leisure.

In its submission to the Constitution Review Group, the Department of Education points out that the word 'education' itself in Article 42 leaves room for doubt and has been the subject of judicial interpretation.

The Department also raised the question of the definition of 'a certain minimum education' and expressed concern that the absence of a more precise definition could leave the State vulnerable, in enacting any future school attendance legislation, to a charge that it is seeking to impose a level of education which is greater than the minimum as envisaged by the Constitution, or that alternatively it might be argued that the level of education set by the State as a minimum was too low. The Department's submission suggests that a provision in the Constitution to the effect that it is for the Oireachtas to determine the level of education required as a minimum may avoid these potential difficulties.

In light of the foregoing discussion, the Review Group considers that it is better not to attempt to itemise the various aspects of education (for example 'religious', 'intellectual', 'social') and that Article 42 should simply refer to education. However, special arrangements should be made - as far as State intervention is concerned - in respect of religious and moral education, since it would be regarded as wrong if the State were to compel a child to receive a particular type of religious or moral education.

It is true that the term 'certain minimum education' is susceptible of a variety of interpretations, a point well illustrated by the Supreme Court's decision in the School Attendance Bill case. However, the Review Group considers that the Constitution should, where possible, endeavour to state propositions at a sufficient level of generality to permit evolution and development. The definition of a certain minimum education would nowadays include more than was understood by that term in 1937 and, sixty years hence, it will assuredly embrace even more than it does today. However, the Review Group considers that the Oireachtas should have the express power to define by law the meaning of this term. Any such legislative definition of the term would, however, be subject to possible review by the courts where it was plainly demonstrated that the Oireachtas had, under he guise of definition of minimum education, actually gone further than was ever envisaged by Article 42.3.2.

The sections might thus be amended to read as follows:

Article 42.1 The State acknowledges that the primary educator of the child is the family and guarantees to respect the right and duty of parents to provide, according to their means, for the education of their children.

Article 42.3.2 The State shall require that children receive a certain minimum education as may be determined from time to time by law, provided that the State shall at all times have due regard to the right of parents to make decisions concerning the religious and moral education of their children.