The Education (Welfare) Act, 2000, is unconstitutional

The Attorney General has argued before the Supreme Court that failure to object to a statute implies acceptance of its validity. From The Constitutionality of Bills and laws by David Byrne, in the report of the Constitution Review Group:

In Murphy v Attorney General [1982] IR 287 Kenny J referred to the facts of the case and to the argument made by counsel for the Attorney General that the plaintiff was estopped from recovering payment of the tax overpaid by him on the basis that his failure to object to a system of taxation amounted to a representation that he accepted that the system was valid. (p 558)

Home educators in Ireland recognise that The Education (Welfare) Act, 2000, is objectionable on grounds of unconstitutionality:

From The multi-denominational experience by Áine Hyland, in the report of the Constitution Review Group:

When the Rules [for national schools] were eventually revised by the Minister for Education in `1965, no cognisance was taken of the fact that not all national schools were attended exclusively by children of the same denomination. Neither was there any provision made for parents who might not wish their children to attend denominational schools, although Article 42.4 which recognised 'the rights of parents, especially in the matter of religious and moral formation' was quoted. In the preface of the new Rules (1965 edition), the following statement was made.(18)

In pursuance of the provisions of these Articles [Articles 42 and 44.2.4°] the State provides for free primary education for children and gives explicit recognition to the denominational character of these schools.

It is difficult to understand how Articles 42 and 44.2.4° can be construed in this way. It is one thing to recognise that denominational schools are an acceptable element in the system and to guarantee that all schools will receive equal treatment - it is quite a different thing to say that all schools are denominational and to enshrine such a statement in the official rules for national schools. (p 633)

...by the mid-twentieth century, the system of national education in the Republic of Ireland was one which was de jure undenominational, but de facto denominational in 97 per cent of cases.(14) (p 632)

Taken together, the Rules of 1965 and the provisions of the 1971 curriculum created a new situation. The State now formally recognised the denominational character of the national school system and made no provision for, nor even adverted to the rights of those children whose parents did not wish them to attend exclusively denominational schools. It had removed the requirement for teachers to be sensitive to the religious beliefs of 'those of different religious persuasions'. According to the curriculum guidelines, all schools were expected to offer an integrated curriculum where religious and secular instruction would be integrated. While the rule under which parents were allowed to opt their children out of religious instruction still remained, the rule became effectively inoperable since religious and secular instruction would now be integrated. Even if religious instruction were separately timetabled, it could be assumed that a specifically denominational ethos would 'permeate the school day'. (p 634)

When the Rules were eventually revised by the Minister for Education in `1965, no cognisance was taken of the fact that not all national schools were attended exclusively by children of the same denomination. Neither was there any provision made for parents who might not wish their children to attend denominational schools, although Article 42.4 which recognised 'the rights of parents, especially in the matter of religious and moral formation' was quoted. In the preface of the new Rules (1965 edition), the following statement was made.(18)

In pursuance of the provisions of these Articles [Articles 42 and 44.2.4°] the State provides for free primary education for children and gives explicit recognition to the denominational character of these schools.

It is difficult to understand how Articles 42 and 44.2.4° can be construed in this way. It is one thing to recognise that denominational schools are an acceptable element in the system and to guarantee that all schools will receive equal treatment - it is quite a different thing to say that all schools are denominational and to enshrine such a statement in the official rules for national schools. (p 633)

The revision of the Rules in 1965 went much further than anything that the Catholic Church had sought to achieve in either the nineteenth or twentieth centuries. The proposed revisions in the 1870s and the 1890s would have recognised the denominational character of a school in an area where there was choice. It was one thing for the State to accept the validity of the request of Catholic schools for formal recognition of the denominational character of their schools: it was an entirely different thing, in conceding this demand, to ignore the consequences for those citizens who regarded denominational education as being 'in violation of their conscience and lawful preference'.(22) (p 634)

The Education (Welfare) Act contains the provision for the issuance of a School Attendance Notice in respect of a child whose parents have not satisfied the National Educational Welfare Board that they are providing a "certain minimum education".

This provision would only be constitutional when the School Attendance Notice required the child to attend a school that was of the same denomination as the parents, otherwise the Notice would fail to vindicate the parents' constitutional right specifically enumerated in Article 42.3.1:

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.

The Education (Welfare) Act is, therefore, fundamentally flawed in that the enforcement of School Attendance Notices would be constitutional in the case of parents of the same denomination as the school specified in the Notice and unconstitutional due to violating the 'conscience and lawful preference' of those parents who are not of the same denomination as the specified school.

Discrimination of this nature contradicts Article 40.1:

40.1 All citizens shall, as human beings, be held equal before the law.

From Equality before the law, The concept of equality, from the report of the Constitution Review Group:

Equality, therefore, prohibits both direct and indirect discrimination. The European Court of Justice (ECJ) explained these concepts of direct and indirect discrimination in case C-279/73 Finanzami Köln-Altstadt v Schumacker [1995] ECR I - 225 in the following terms:

It is also settled that discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations.

Direct discrimination thus involves treating people differently when they are in a comparable situation and should be treated the same. It occurs when someone is disadvantaged or favoured in comparison to someone else by reference to some characteristic such as colour or religion and there is no good reason for distinguishing between them on this basis or the distinguishing characteristic does not justify the extent of the disadvantage or favour. Indirect discrimination involves treating people the same when they are in different situations and should be treated differently. (p 221)