In particular, the right to “not attend” must not be conflated with “opting out” or “not participating”. These ambiguous phrases have no basis in law, and in practice they allow schools to make children sit at the back of the religion class.
And the Department of Education has a duty to ensure that policy is turned into an administrative scheme that abides by the Constitution, and that, in any given situation, the result should be the same, whether it is administrator A or administrator B who has taken the decision.
However, on 25 May the Minister for Education Norma Foley gave a written reply in the Dail to Richard Bruton TD about this issue. Both the question and the answer use phrases that are different from the right expressed in Article 44.2.4 the Constitution, which is:
Legislation providing State aid for schools shall not… be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.
The question uses the following phrase: “do not wish to participate in” instead of “not attend”
The Minister’s reply uses the following phrases:
- “have their children opt out” instead of “not attend”
- “the right to opt of religion classes” instead of “not attend”
To add to the confusion, the Minister also uses the phrase “without attending” when quoting from Section 30 of the Education Act. She also refers interchangeably to “religious instruction classes”, “religious instruction in the school”, and “religion classes.”
She also states that the manner in which any school ensures that the right to opt out of religion classes is upheld is a matter for the school concerned. This is contrary to the recent Supreme Court judgment in the Burke case, which states that:
Policy . . . must be turned into an administrative scheme… Any such a scheme must abide by the Constitution. That is the over- arching jurisdiction under which every organ of the State must act.It is of the essence of good administration that the principle must be fairly clear and precise so that, in any given situation, the result should be the same, whether it is administrator A or administrator B who has taken the decision.
The right to not attend religious instruction is written into the Constitution. It is not a matter for each school concerned because it is the Condtitutional duty of the Minister and also a condition of state funding.
Here is the question from Richard Bruton TD:
To ask the Minister for Education and Skills if her Department has undertaken a review of the manner in which schools with religious patrons have delivered on the obligations to children for whom it has been indicated that they do not wish to participate in religious arrangements; and if she is considering issuing guidelines on the matter.
Here is the response from the Minister for Education Norma Foley:
Under Article 44 of the Constitution and in accordance with Section 30 of the Education Act, 1998, parents have a right to have their children opt out of religious instruction classes if they so wish. It is expected that this right will be upheld by schools on foot of a parental request.
Under the provisions of the Education (Admission to Schools) Act 2018, where schools provide religious instruction, they must clearly set out in their admission policies the school’s arrangements for students, where the parent or in the case of a student who has reached the age of 18 years, the student, has requested that the student attend the school without attending religious instruction in the school.
The manner in which any school ensures that the right to opt out of religion classes is upheld is a matter for the school concerned. Each individual school must determine the particular arrangements which are most appropriate in its individual circumstances having regard to local issues such as available space, supervision requirements and how the school concerned organises classes etc.
The right of parents to have their child opt out of religion classes applies in all schools regardless of the denomination or ethos of the school concerned.
Atheist Ireland continues to lobby to vindicate the Constitutional right of any child to attend a school receiving public money without attending religious instruction at that school. This includes highlighting when the Minister for Education uses language that is imprecise or contrary to Supreme Court judgments.
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