Article 42 of the Constitution which refers to education is focused on the parents’, right to educate their children.
Article 42.4 guarantees free primary education. It provides that the State shall provide for free primary education and shall endeavor 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, for the rights of parents, especially in the matter of religious and moral formation.
The State may require that children be given “a certain minimum education”. This may be provided by parents themselves, but must meet minimum standards.
The European Convention on Human Rights 1st Protocol, acknowledges a right to education. It is also recognized in the UN Covenant on Economic, Social and Cultural Rights and the UN Convention on the Rights of the Child.
The Education Act provides that education is compulsory to the age of 16 years.
In Crowley v Ireland, legal action was taken on behalf of children who had missed a substantial amount of school due to industrial action at a particular school. The INTO had sought to prevent its members from teaching children who had been taught there, in other schools. The child had received no education for a year and took legal action against the State in consequence.
An injunction had been ordered requiring the State to provide buses and have them send to schools in other areas. The trial judge ruled that the INTO’s actions contravened children’s constitutional rights.
The Supreme Court overturned this decision by a majority of three to two and held that State had fulfilled its obligations. The court held that the State’s obligation was to provide for education including transport, if this was necessary to avoid hardship and in fixing of minimum standards. Because teachers were refusing to teach, the State was held not to be liable.
The State funds, religious owned and sponsored school. It may not require its students to attend instruction contrary to the conscience of the parent or student. In O’Shiel v Minister for Education, where parents established their own “Steiner’ systems school, State had refused recognition because teachers, only one teacher had the recognised qualifications, and Irish was not taught.
Because of freedom of choice guaranteed by the Constitution, the State was limited as to the extent to which it could guide the manner in which the schools could function. This was stated to be contrary to the clear intent of the Constitution if it was only to fund a single system of primary education and offer to parents on a take it or leave it basis. It does not however follow that parents were entitled to have — where the State acceded to an application for financial aid from any group of parents.
The State must take account of parental freedom of choice and must base its approach on arrangements that have a rational foundation and prescribed proper criteria for eligibility. Budget constraints must be taken into account but are not determinative. It was held reasonable for the State to require that Irish be taught in schools, did not consider the existing requirements of the State in relation to qualifications as overly onerous. It did press the State to make a more searching and proactive approach.
Primary Education Guarantee
The guarantee of free primary education has been the subject of a number of cases. Sinnott v Minister for Education concerned the rights of an autistic child to education. The obligation is to provide facilities necessary to ensure children obtain education.
In Crowley v Ireland, it was said that the 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, it was indicated that the State should ensure that the arrangements by which the free primary education would be provided. Its function is to see that the machinery exists under which and in accordance with which education is in fact provided.
The State discharges the obligation by paying teachers in national schools owned by churches by making grants available for the renovation, repair, building of national schools, paying for heating and books and provision of proper curriculum and supervision. It is only when such assistance to the church school is not possible, or cannot succeed in providing what is required, the State must act directly, to do so.
The “certain minimum” education, mentioned in the Constitution is not defined. In the Sinnott case, Hardiman J said, the duty to provide for free primary education is a complex one involving enormous annual expense and requiring for its implementation the taking and constant reviewing of decisions on policy both by the legislature and executive.
Primary Education for Older Children
In the Sinnott case, the duty of the State to an autistic child was considered. The state accepted that the virtual nonexistent educational provisions for the plaintiff, to the age of 18 who was autistic, did not meet the required standard. This obligation was owed to the child personally and not to his parents.
It was held that the obligation lasts until the persons become adults and this includes persons with mental disabilities. The Supreme Court held that the state’s obligations ceased once the person reached 18 years, irrespective of the fact that the provision prior to that age was deficient and that the person suffered from impairment to the mental capacity.
The absence of provision for autistic children was, found to contravene Article 40.2.4. It also was discrimination in breach of the equality guarantee. The type of education required for autistic children was not considered because the State conceded its breach of duty to provide primary education to the plaintiff before the age of 18.
Extent of Guarantee
In O’Donaghue v Minister for Health, the nature and extent of the right were discussed. The case was endorsed in the Sinnott case.
The constitutional obligation involves giving a child such advice, instruction and teaching as will enable him or her to make the best possible use of his or her inherent and potential capacities, physical, mental or moral, however limited these capacities may be. Such education as will be conducive to the child’s achieving the fullest possible social integration and individual development; such education as will enable the child to develop his or her capabilities and skills to the maximum and will hasten the process of social integration and reintegration.
The process will work differently for each child, according to the child’s own natural gifts or lack thereof. In the case of a child who is deaf, dumb blind or otherwise physically or mentally handicapped, a completely different programme of education has to be adopted and a completely different rate of progress has to be taken for granted than would be regarded as appropriate for a child suffering from no such handicap.
Education in a formal setting involving schools and teachers, educational equipment of any kinds and integration as far as possible in the conventional and school environment can be of real benefit to children thus handicapped.
Limits of Court Intervention
The Sinnott case also endorsed the following statements made in an earlier High Court case.
A distinction is made between the two types of justice which should exist in a political community; distributive justice and commutative justice. There is an important distinction to be made between the relationship, which arises in dealings between individuals (a term which includes dealings with individuals and servants of the State and public authorities) and in the relationships which arise between an individual and those in authority in a political community (the government). When goods held in common for the benefit of the entire community (which nowadays includes wealth raised by taxation) fall to be distributed and allocated.
Distributive justice is concerned with the distribution and allocation of common goods and common burden. It cannot be said that any of the goods held in common (or any part of the wealth raised by taxation) belong exclusively to any member of the political community. An obligation in distributive justice is placed on those administering the common stock of goods, the common resource and the wealth held in common, which has been raised by taxation to distribute them and the common wealth fairly and to determine what is due to each individual.
That distribution can only be made by reference to the common good and by those charged with furthering the common good, the government. It cannot be made by any individual who may claim a share in the common stock and no independent arbitrator, such as a court, can adjudicate on a claim by an individual that he has been deprived of what is his due.
The situation is very different in the case of commutative justice. What is due to an individual from another individual (including a public authority) from a relationship arising from the mutual dealings can be ascertained and is due to him exclusively and the precepts of commutative justice will enable an arbitrator such a court to decide what is properly due, should the matter be disputed.
This distinction explains where the court has jurisdiction to award damages against the State when a servant of the State for whose activity it is vicariously liable, commits a wrong and why it may not get jurisdiction in cases where the claim is for damages based on failure to distribute adequately in the plaintiff’s favour, a proportion of the community’s wealth
Directive Principles of Social Policy
The directive principles of social policy in Article 45 of the Constitution are not binding.
The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.
1 The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.
2 The State shall, in particular, direct its policy towards securing:–
i That the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provision for their domestic needs.
ii That the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to subserve the common good.
iii That, especially, the operation of free competition shall not be allowed so to develop as to result in the concentration of the ownership or control of essential commodities in a few individuals to the common detriment.
iv That in what pertains to the control of credit the constant and predominant aim shall be the welfare of the people as a whole.
v That there may be established on the land in economic security as many families as in the circumstances shall be practicable.
3 1° The State shall favour and, where necessary, supplement private initiative in industry and commerce.
2° The State shall endeavour to secure that private enterprise shall be so conducted as to ensure reasonable efficiency in the production and distribution of goods and as to protect the public against unjust exploitation.
4 1° The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged.
2° The State shall endeavour to ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength.
Traditionally, the courts have not adjudicated on matters of economic welfare, economic rights and distributive decisions of the government. These were so-called issues of distributive justice rather than commutative disjustice.
Article 45 provides that the principles of social policy set out are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws are a matter for the Oireachtas exclusively and are not cognizable in any court under any of the provisions of the Constitution.
The courts have occasionally referred to the directive principles in other contexts such as the right to earn a livelihood. It appears that the principles are only relevant in relation to post-1937 legislation’s constitutionality. It appears that regard may be had to them in respect of pre-1937 legislation.
In Murtagh Properties v. Cleary, it was not accepted that the Article recognised a right to work. The court indicated that the courts may have regard to the terms of the Articles but they have no jurisdiction to consider the application of the principles to the making of laws.
Legitimate Expectations and Fair Procedures
Constitutional fair procedures are applicable to rights, entitlements and legitimate expectations created under statutory schemes. See generally the sections on administrative law.
In FN v Minister for Education which related to children who could not be controlled and are a risk to themselves and others, it was held that where there is a child with very special needs which cannot be provided by the parents or guardians, there was a constitutional obligation on the State under Article 42.5 to cater for those needs in order to vindicate the constitutional rights of the child.
It was not clear what the extent of this obligation may be. In this case, the State was obliged to establish as soon as reasonably practicable, suitable arrangements of containment and treatment for the child. Proceedings were adjourned to ascertain to allow the State take measures in light of its duty.
The case has been stated to be wrong in subsequent Supreme Court cases, insofar as it may require the State to detain young persons who have not been convicted of an offence.