Religion

Cases

McGee v. Attorney General

[1974] IR 284

WALSH J. :
The facts of this case are not in dispute and I do not find it necessary to recite them in any detail. The central facts are that the plaintiff is a young married woman and that the case is concerned with the impact of the provisions of s. 17 of the Criminal Law Amendment Act, 1935, upon the sexual relations between the plaintiff and her husband.
The effect of the statutory provision in question is to make it a criminal offence for any person to sell or expose, offer, advertise, or keep for sale or to import or to attempt to import into the State any contraceptive. Section 17 of the Act of 1935 invokes s. 42 of the Customs Consolidation Act, 1876, and thereby includes contraceptives among the list of prohibited imports with the result that an importation of such an article could lead to the person importing the article being prosecuted and convicted under s. 186 of the Act of 1876. For the purpose of s. 17 of the Act of 1935 the word”contraceptive” means “any appliance, instrument, drug, preparation or thing, designed, prepared, or intended to prevent pregnancy resulting from sexual intercourse between human beings.” I thought it necessary to give this definition in the detail in which it appears in the Act of 1935 so as to make clear that this case is not in any way concerned with instruments, preparations, drugs or appliances, etc., which take effect after conception, whether or not they are described as or purport to be contraceptives. Whether any such article is designed to or in fact takes effect after conception is a question which in each particular case can be decided only as one of fact based on the best available scientific evidence.
The event which led immediately to the present proceedings was the refusal of the second defendants to permit the importation by the plaintiff of a contraceptive jelly for use by her in her sexual relations with her husband, with the consent of her husband, and which had been prescribed for her by her medical adviser. It does not appear to be in dispute that the article in question is a contraceptive within the statutory definition to which I have already referred.
There is no law in force in the State which prohibits the use of contraceptives, either in or outside of marriage, or the manufacture or distribution of contraceptives within the State. It appears to be the accepted fact that at present there are no contraceptives manufactured within the State and, therefore, that any contraceptives presently available within the State must necessarily have been imported in breach of the statutory provisions; although if innocently imported it would not attract a penalty to the importer. Such importation, however, would leave the goods liable to seizure.
The plaintiff seeks a declaration that s. 17 of the Act of 1935 is inconsistent with the Constitution and was not carried forward by Article 50 of the Constitution and no longer forms part of the law of the State. She also seeks a declaration that the seizure by the second defendants of the commodity in question was unauthorised by law and was illegal. In consequence she also seeks damages for detinue or conversion.
Article 50, s. 1, of the Constitution provides:”Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.” I have referred to the wording of s. 1 of Article 50 because, apart from being the foundation of the present proceedings, one of the submissions made on behalf of the Attorney General was to the effect that a statutory provision in force prior to the Constitution could continue to be in force and to be carried over by Article 50 even though its provisions were such as could not now be validly enacted by the Oireachtas Supreme because of the provisions of the Constitution. Stated as a general proposition, I find that this is in direct conflict with the very provisions of Article 50 and is quite unsustainable. However, in my opinion, there are circumstances in which the proposition could be partially correct.
If a pre-Constitution statute was such that it was not in conflict with the Constitution when taken in conjunction with other statutory provisions then in existence and with a particular state of facts then existing, and if such other statutory provisions continued in effect after the coming into force of the Constitution and the particular state of facts remained unaltered, the provisions of the first statute might not in any way be inconsistent with the provisions of the Constitution. If, however, subsequent to the coming into force of the Constitution the other statutory provisions were repealed and the state of facts was altered to a point where the joint effect of the repeal of the other statutes and the alteration of the facts was to give the original statute a completely different effect, then the question would arise of its continuing to be part of the law. In my view, Article 50, by its very terms (both in its Irish and English texts), makes it clear that laws in force in Saorstát Éireann shall continue to be in force only to the extent to which they are not inconsistent with the Constitution; and that, if the inconsistency arises for the first time after the coming into force of the Constitution, the law carried forward thereupon ceases to be in force.
The relevance of this to the present case is clear. There is no evidence in the case to indicate what was the state of facts existing at the time of the passing of the Act of 1935 and the years subsequent to it up to the coming into force of the Constitution, and even for a period after that. It appears to have been assumed, though there is no evidence upon which to base the assumption, that contraceptives were not manufactured within the State at that time or were not readily available otherwise than by sale. The validity or otherwise of a law may depend upon an existing state of facts or upon the facts as established in litigation, as was clearly indicated by this Court in Ryan v. The Attorney General .51To control the sale of contraceptives is not necessarily unconstitutional per se; nor is a control on the importation of contraceptives necessarily unconstitutional. There may be many reasons, grounded on considerations of public health or public morality, or even fiscal or protectionist reasons, why there should be a control on the importation of such articles. There may also be many good reasons, grounded on public morality or public health, why their sale should be controlled. I use the term “controlled”to include total prohibition. What is challenged here is the constitutionality of making these articles unavailable. Therefore, the decision in this appeal must rest upon the present state of the law and the present state of the facts relating to the issues in dispute. Therefore, even if it were established that in 1935, 1936 or 1937, or even 1940, contraceptives were reasonably available without infringement of the law, that would not necessarily determine that s. 17 of the Act of 1935 now continues to be in full force and effect.
The relevant facts, which are not in dispute in this case, are that at the present time the effect of s. 17 of the Act of 1935, if it is still in force, is effectively to make contraceptives unavailable to persons within the State without an infringement of the law and the possibility of a criminal prosecution and conviction.
The plaintiff claims that s. 17 of the Act of 1935 is inconsistent with ss. 1 and 3 of Article 40 of the Constitution. In respect of s. 1 of Article 40, it is claimed that s. 17 of the Act of 1935 discriminates unfairly against the plaintiff and fails to hold her, as a human person, equal before the law in that it fails to have due regard to her physical capacity, her moral capacity and her social function in the situation in which she now finds herself. The latter reference is to the plaintiff’s particular condition of health. So far as s. 3 of Article 40 is concerned, it is claimed that, by reason of s. 17 of the Act of 1935, the State has failed to guarantee in its laws to respect and as far as practicable by its laws to vindicate her personal rights or to protect them from unjust attack, and has failed to vindicate her life, her person and her good name and her property rights. It is also claimed that s. 17 of the Act of 1935 is inconsistent with Article 41 of the Constitution in that it violates the inalienable and imprescriptible rights of the family in a matter which the plaintiff claims is peculiarly within the province of the family itself, in that the section attempts to frustrate a decision made by the plaintiff and her husband for the benefit of their family as a whole and thereby attacks and fails to protect the family in its constitution and authority: that claim was based on s. 1 of Article 41. Section 2 of Article 41 is invoked by the plaintiff in her claim that s. 17 of the Act of 1935 fails to recognise and give due weight to a private family decision of the plaintiff and her husband touching her life within the home and by attempting to frustrate that decision endangers the plaintiff’s life and refuses to allow her to live her life within her home as she and her husband think best in the interests of the family.
The plaintiff has also invoked the provisions of s. 1 of Article 42 of the Constitution by relating the decision taken by herself and her husband to practise contraception as being partly motivated by their desire to provide for the better education of their existing children; and she submits that s. 17 of the Act of 1935 attempts to frustrate that decision. The plaintiff also says that her decision to practise contraception is in accordance with the dictates of her own conscience, and she invokes s. 2 of Article 44 of the Constitution which guarantees to every citizen freedom of conscience and the free profession and practice of religion, subject to public order and morality. The plaintiff claims that s. 17 of the Act of 1935 prevents her from leading her private life in accordance with the dictates of her own conscience. Article 45 of the Constitution, which is the Article which deals with the directive principles of social policy, is also invoked by the plaintiff. She relies on s. 1 of that Article wherein it is stated that 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. In the same vein, the plaintiff also invoked that portion of the preamble to the Constitution in which the people, in giving themselves the Constitution, express the intention to seek “to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured . . .”
Articles 40, 41, 42 and 44 of the Constitution all fall within that section of the Constitution which is titled”Fundamental Rights.” Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority; and the family, as the natural primary and fundamental unit group of society, has rights as such which the State cannot control. However, at the same time it is true, as the Constitution acknowledges and claims, that the State is the guardian of the common good and that the individual, as a member of society, and the family, as a unit of society, have duties and obligations to consider and respect the common good of that society. It is important to recall that under the Constitution the State’s powers of government are exercised in their respective spheres by the legislative, executive and judicial organs established under the Constitution. I agree with the view expressed by O’Byrne J. in Buckley and Others (Sinn Féin) v. The Attorney General 52 that the power of the State to act for the protection of the common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and capable of being reviewed by the Courts. In concrete terms that means that the legislature is not free to encroach unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or by act or omission to abandon or to neglect the common good or the protection or enforcement of the rights of individual citizens.

Turning to the particular submissions made on behalf of the plaintiff, I shall deal first with the submission made in relation to the provisions53 of Article 41 of the Constitution which deals with the family. On the particular facts of this case, I think this is the most important submission because the plaintiff’s claim is based upon her status as a married woman and is made in relation to the conduct of her sexual life with her husband within that marriage. For the purpose of this Article I am of opinion that the state of the plaintiff’s health is immaterial to the consideration of the rights she claims are infringed in relation to Article 41. In this Article the State, while recognising the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law, guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State. The Article recognises the special position of woman, meaning the wife, within that unit; the Article also offers special protection for mothers in that they shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. The Article also recognises the institution of marriage as the foundation of the family and undertakes to protect it against attack. By this and the following Article, the State recognises the parents as the natural guardians of the children of the family and as those in whom the authority of the family is vested and those who shall have the right to determine how the family life shall be conducted, having due regard to the rights of the children not merely as members of that family but as individuals.
It is a matter exclusively for the husband and wife to decide how many children they wish to have; it would be quite outside the competence of the State to dictate or prescribe the number of children which they might have or should have. In my view, the husband and wife have a correlative right to agree to have no children. This is not to say that the State, when the common good requires it, may not actively encourage married couples
either to have larger families or smaller families. If it is a question of having smaller families then, whether it be a decision of the husband and wife or the intervention of the State, the means employed to achieve this objective would have to be examined. What may be permissible to the husband and wife is not necessarily permissible to the State. For example, the husband and wife may mutually agree to practise either total or partial abstinence in their sexual relations. If the State were to attempt to intervene to compel such abstinence, it would be an intolerable and unjustifiable intrusion into the privacy of the matrimonial bedroom. On the other hand, any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.
The sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. If the husband and wife decide to limit their family or to avoid having children by use of contraceptives, it is a matter peculiarly within the joint decision of the husband and wife and one into which the State cannot intrude unless its intrusion can be justified by the exigencies of the common good. The question of whether the use of contraceptives by married couples within their marriage is or is not contrary to the moral code or codes to which they profess to subscribe, or is or is not regarded by them as being against their conscience, could not justify State intervention. Similarly the fact that the use of contraceptives may offend against the moral code of the majority of the citizens of the State would not per se justify an intervention by the State to prohibit their use within marriage. The private morality of its citizens does not justify intervention by the State into the activities of those citizens unless and until the common good requires it. Counsel for the Attorney General did not seek to argue that the State would have any right to seek to prevent the use of contraceptives within marriage. He did argue, however, that it did not follow from this that the State was under any obligation to make contraceptives available to married couples. Counsel for the second defendants put the matter somewhat further by stating that, if she had a right to use contraceptives within the privacy of her marriage, it was a matter for the plaintiff to prove from whence the right sprang. In effect he was saying that, if she was appealing to a right anterior to positive law, the burden was on her to show the source of that right. At first sight this may appear to be a reasonable and logical proposition. However, it does appear to ignore a fundamental point, namely, that the rights of a married couple to decide how many children, if any, they will have are matters outside the reach of positive law where the means employed to implement such decisions do not impinge upon the common good or destroy or endanger human life. It is undoubtedly true that among those persons who are subject to a particular moral code no one has a right to be in breach of that moral code. But when this is a code governing private morality and where the breach of it is not one which injures the common good then it is not the State’s business to intervene. It is outside the authority of the State to endeavour to intrude into the privacy of the husband and wife relationship for the sake of imposing a code of private morality upon that husband and wife which they do not desire.
In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the Constitution. If this right cannot be directly invaded by the State it follows that it cannot be frustrated by the State taking measures to ensure that the exercise of that right is rendered impossible. I do not exclude the possibility of the State being justified where the public good requires it (as, for example, in the case of a dangerous fall in population threatening the life or the essential welfare of the State) in taking such steps to ensure that in general, even if married couples could not be compelled to have children, they could at least be hindered in their endeavours to avoid having them where the common good required the maintenance or increase of the population.
That, however, is not the present case and there is no evidence whatever in the case to justify State intervention on that ground. Similarly it is not impossible to envisage a situation where the availability of contraceptives to married people for use within marriage could be demonstrated to have led to or would probably lead to such an adverse effect on public morality so subversive of the common good as to justify State intervention by restricting or prohibiting the availability of contraceptives for use within marriage or at all. In such a case it would have to be demonstrated that all the other resources of the State had proved or were likely to prove incapable to avoid this subversion of the common good while contraceptives remained available for use within marriage.
In my opinion, s. 17 of the Act of 1935, in so far as it unreasonably restricts the availability of contraceptives for use within marriage, is inconsistent with the provisions of Article 41 of the Constitution for being an unjustified invasion of the privacy of husband and wife in their sexual relations with one another. The fundamental restriction is contained in the provisions of sub-s. 3 of s. 17 of the Act of 1935 which lists contraceptives among the prohibited articles which may not be imported for any purposes whatsoever. On the present state of facts, I am of opinion that this provision is inconsistent with the Constitution and is no longer in force.
For the reasons I gave earlier in this judgment, the prohibition of the importation of contraceptives could be justified on several grounds provided the effect was not to make contraceptives unavailable. For example, the law might very well prohibit for health reasons the importation of some if not all contraceptives from sources outside the country if, for example, there is a risk of infection from their use. No such reason has been offered in the present case and in any such instance, for the reasons already given, the law could not take other steps to see that contraceptives were not otherwise available for use in marriage.
As this particular case arose primarily out of the ban on importation, I think that, in so far as Article 41 is concerned, the declaration sought should only go in respect of sub-s. 3 of s. 17 of the Act of 1935. That does not necessarily mean that the provisions as to sale in sub-s. 1 of s. 17 cannot be impugned. If, in the result, notwithstanding the deletion of sub-s. 3, the prohibition on sale had the effect of leaving a position where contraceptives were not reasonably available for use within marriage, then that particular prohibition must also fall. However, for the moment I do not think it is necessary to make any declaration in respect of that.
So far I have considered the plaintiff’s case only in relation to Article 41 of the Constitution; and I have done so on the basis that she is a married woman but without referring to her state of health. I now turn to the claim made under Article 40 of the Constitution. So far as this particular Article is concerned, and the submissions made thereunder, the state of health of the plaintiff is relevant. If, for the reasons I have already given, a prohibition on the availability of contraceptives for use in marriage generally could be justified on the grounds of the exigencies of the common good, the provisions of s. 1 of Article 40 (in particular, the proviso thereto) would justify and would permit the State to discriminate between some married persons and others in the sense that, where conception could more than ordinarily endanger the life of a particular person or persons or particular classes of persons within the married state, the law could have regard to this difference of physical capacity and make special exemptions in favour of such persons. I think that such an exemption could also be justified under the provisions of s. 3 of Article 40 on the grounds that one of the personal rights of a woman in the plaintiff’s state of health would be a right to be assisted in her efforts to avoid putting her life in jeopardy. I am of opinion also that not only has the State the right to do so but, by virtue of the terms of the proviso to s. 1 and the terms of s. 3 of Article 40, the State has the positive obligation to ensure by its laws as far as is possible (and in the use of the word”possible” I am relying on the Irish text of the Constitution) that there would be made available to a married woman in the condition of health of the plaintiff the means whereby a conception which was likely to put her life in jeopardy might be avoided when it is a risk over and above the ordinary risks inherent in pregnancy. It would, in the nature of things, be much more difficult to justify a refusal to do this on the grounds of the common good than in the case of married couples generally.
Next I turn to the submissions made on behalf of the plaintiff which relate to the provisions of s. 2 of Article 44 of the Constitution. In my view these submissions are based on a mistaken interpretation of the constitutional provision in question. In particular the reference to the decision of this Court in Quinn’s Supermarket v. The Attorney General 54 is misinterpreted. That particular case dealt with a situation where a law might be in such terms as to impose upon a member of a particular religion the choice of exercising his religion and thereby suffering some economic or other loss, or foregoing the practice of his religion to avoid the loss in question. It was held that any such law would be invalid having regard to the provisions of s. 2 of Article 44. In the present case the plaintiff says that, so far as her conscience is concerned, the use of contraceptives by her is in accordance with her conscience and that, in using them, she does not feel that she is acting against her conscience. It was submitted that social conscience, as distinct from religious conscience, falls within the ambit of Article 44. I do not think that is so. The whole context in which the question of conscience appears in Article 44 is one dealing with the exercise of religion and the free profession and practice of religion. Within that context, the meaning of s. 2, sub-s. 1, of Article 44 is that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience in so far as the practice of religion is concerned and, subject to public order and morality, is free to profess and practise the religion of his choice in accordance with his conscience. Correlatively, he is free to have no religious beliefs or to abstain from the practice or profession of any religion. Because a person feels free, or even obliged, in conscience to pursue some particular activity which is not in itself a religious practice, it does not follow that such activity is guaranteed protection by Article 44. It is not correct to say, as was submitted, that the Article is a constitutional guarantee of a right to live in accordance with one’s conscience subject to public order and morality. What the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one’s conscience and, in the context of the Article, that means contrary to one’s conscience so far as the exercise, practice or profession of religion is concerned.
However, the reference to Quinn’s Supermarket v. The Attorney General 55 is relevant to this case in another way. The judgment in that case pointed out that the Constitution recognises and reflects a firm conviction that the people of this State are a religious people and that, as it then stood, the Constitution referred specifically to a number of religious denominations which coexisted within the State, thereby acknowledging the fact that while we are a religious people we also live in a pluralist society from the religious point of view. In my view, the subsequent deletion of sub-ss. 2 and 3 of s. 1 of Article 44 by the fifth amendment to the Constitution has done nothing to alter this acknowledgment that, religiously speaking, the society we live in is a pluralist one. It was also pointed out in that case that the guarantees of religious freedom and freedom of conscience were not confined to the different denominations of the Christian religion but extended to other religious denominations: see s. 2 of Article 44 which guarantees freedom of conscience and the free profession and practice of religion to every citizen, whether of the Christian religion or not.
Both in its preamble and in Article 6, the Constitution acknowledges God as the ultimate source of all authority. The natural or human rights to which I have referred earlier in this judgment are part of what is generally called the natural law. There are many to argue that natural law may be regarded only as an ethical concept and as such is a re-affirmation of the ethical content of law in its ideal of justice. The natural law as a theological concept is the law of God promulgated by reason and is the ultimate governor of all the laws of men. In view of the acknowledgment of Christianity in the preamble and in view of the reference to God in Article 6 of the Constitution, it must be accepted that the Constitution intended the natural human rights I have mentioned as being in the latter category rather than simply an acknowledgment of the ethical content of law in its ideal of justice. What exactly natural law is and what precisely it imports is a question which has exercised the minds of theologians for many centuries and on which they are not yet fully agreed. While the Constitution speaks of certain rights being imprescriptible or inalienable, or being antecedent and superior to all positive law, it does not specify them. Echoing the words of O’Byrne J. in Buckley and Others (Sinn Féin) v. The Attorney General 56, I do not feel it necessary to enter upon an inquiry as to their extent or, indeed, as to their nature. It is sufficient for the court to examine and to search for the rights which may be discoverable in the particular case before the court in which these rights are invoked.
In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law. The same considerations apply also to the question of ascertaining the nature and extent of the duties which flow from natural law; the Constitution speaks of one of them when it refers to the inalienable duty of parents to provide according to their means for the religious, moral, intellectual, physical and social education of their children: see s. 1 of Article 42. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charitynot the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts. The development of the constitutional law of the United States of America is ample proof of this. There is a constitution which, while not professing to be governed by the precepts of Christianity, also in the Ninth Amendment recognises the existence of rights other than those referred to expressly in it and its amendments. The views of the United States Supreme Court, as reflected in the decisions interpreting that constitution and in the development of their constitutional law, also appear firmly to reject legal positivism as a jurisprudential guide.
Three United States Supreme Court decisions were relied upon in argument by the plaintiff: Poe v. Ullman 57; Griswold v. Connecticut 58; and Eisenstadt v. Baird 59 My reason for not referring to them is not because I did not find them helpful or relevant, which indeed they were, but because I found it unnecessary to rely upon any of the dicta in those cases to support the views which I have expressed in this judgment.
Lastly, I wish to emphasise that I have given no consideration whatsoever to the question of the constitutionality or otherwise of laws which would withhold or restrict the availability of contraceptives for use outside of marriage; nothing in this judgment is intended to offer any opinion on that matter.
For the reasons I have given, I would grant the plaintiff a declaration that sub-s. 3 of s. 17 of the Criminal Law Amendment Act, 1935, is not, and was not at any time material to these proceedings, of full force and effect as part of the laws of the State.

 

 

Murphy v. I.R.T.C.

[199] IR 12
Barrington J.

This is an appeal from the judgment and order of Geoghegan J. delivered and made herein on the 25th April, 1997.
The applicant is a pastor attached to the Irish Faith Centre, a bible based christian ministry. The centre is not an incorporated body and the applicant makes the application on his own behalf and on its behalf.
In these proceedings the applicant challenges a decision of the first respondent, made in March, 1995, to refuse to permit an independent radio station, 98FM, to broadcast the following advertisement which had been submitted by the centre for transmission:-
“What think ye of Christ? Would you, like Peter, only say that he is the son of the living God? Have you ever exposed yourself to the historical facts about Christ? The Irish Faith Centre are presenting for Easter week an hour long video by Dr. Jean Scott PHD on the evidence of the resurrection from Monday 10th – Saturday 15th April every night at 8.30 p.m. and Easter Sunday at 11.30 a.m. and also live by satellite at 7.30 p.m.”
The broadcasting station, 98FM, was prepared to broadcast the advertisement. The first respondent however felt itself bound by the provisions of s. 10(3) of the Radio and Television Act, 1988, which provides as follows:-
“No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute”
and banned the broadcast.
In the court below the applicant made a two-pronged attack upon the decision of the first respondent. He submitted first, that the decision of the first respondent that the advertisement was “directed towards any religious. . . end” was mistaken in law. Alternatively, he submitted that if the first respondent had correctly construed s. 10(3) as prohibiting the publication of an advertisement such as that of the applicant then the sub-section was unconstitutional.
The submission that the first respondent had misunderstood the nature of the advertisement or misconstrued the terms of the section was never advanced with great force and was abandoned in the course of the hearing in this Court. The debate therefore turned upon the constitutionality of the sub-section. The applicant submitted that the sub-section, by totally banning advertisements directed towards any religious end violated guarantees of freedom of religion contained in Articles 44.2.1 and 3 of the Constitution. He also submitted that they violated guarantees of free speech and free expression contained in Article 40.6 of the Constitution and guarantees of communication implied in Article 40.3 of the Constitution. Moreover he submitted that s. 10(3), constituting as it did a total ban on the broadcasting of any advertisement “directed towards any religious end”, swept far too widely and violated the principle of proportionality.
Relevant constitutional provisions
The constitutional provisions relied upon by the applicant read as follows:-
Article 44.
“2.1 Freedom of conscience and the free profession and practice of religion are, subject to public order and morality guaranteed to every citizen.
3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”
Article 40
“3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
6.1 The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-
i. The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”
High Court judgment
The learned High Court Judge rejected the submission that the prohibition contained in s.10(3) of the Act of 1988 was an attack on the freedom of conscience or the free profession or practice of religion guaranteed by Article 44.2.1 of the Constitution. The prohibition on this particular advertisement, he held, was not an attack on freedom of conscience or the free practice of religion. Indeed, he held that the advertisement itself “might be an intrusion on the quiet possession of religious beliefs”. Nor, he held, could the advertisement be regarded as a discrimination made on the grounds of religious profession, belief or status contrary to Article 44.2.3 of the Constitution. This latter provision, he held, prohibited the making of distinctions on the grounds of religious profession belief or status (see Quinn’s Supermarket v. Attorney General [1972] I.R. 1) but the ban on this type of advertisement did not distinguish between persons on the grounds of religious profession, belief or status. This ban applied, no matter what the religion, and therefore there could be no question of religious discrimination involved.
Article 40
The learned trial judge next turned to the submission based upon the alleged violation of an implied right to communicate based on Article 40.3.1 of the Constitution and the right to freedom of expression guaranteed by Article 40.6.1 of the Constitution. The learned High Court Judge was at some loss to understand the conclusion which some people have drawn from the decision of Costello J. in Attorney General v. Paperlink Limited [1984] I.L.R.M. 373, that the right to communicate information derives from Article 40.3.1 but that the right to communicate opinions derives from Article 40.6.1 of the Constitution. Nevertheless, he held that the present case raised the question of the general right to communicate and this, he concluded, derived from Article 40.3 of the Constitution. In the view he took of the case, Article 40.6.1 of the Constitution was not relevant.
He held that Article 40.6.1 was not relevant for two reasons. First, he held that the proposed advertisement was not primarily concerned with matters of opinion but had, as its principal purpose, the communication of information. Secondly, he held that Article 40.6.1 did not seem to have any application to the right of a private citizen to express private opinions with a view to influencing some other person or persons.
At the same time the learned trial judge expressed some puzzlement as to why such diverse rights as the right to freedom of expression, the right to free assembly and the right to join associations and unions should be referred to collectively in one paragraph at Article 40.6.1 of the Constitution. Superficially the rights would seem to refer to quite different matters but nevertheless the learned High Court Judge, took the view, that the framers of the Constitution had deliberately included them in the one sub-section for a reason. He drew the conclusion that the reason was that they were concerned with the influencing of public opinion. An advertisement, and in particular a religious advertisement, was however, directed to the individual listener and for that reason he drew the conclusion that Article 40.6.1 had nothing to do with the matter at issue in this case.
The case therefore turned upon the provisions of Article 40.3.1. The learned trial judge accepted that the rights guaranteed by Article 40.3 were not absolute but might be regulated in the interests of the common good. He then drew an analogy with art. 10 of the European Convention on Human Rights (which deals with freedom of expression) and asked himself if the restriction on the advertisement in question would be regarded as a reasonable limitation on freedom of expression by the European Court of Human Rights. He said at [1997] 2 I.L.R.M. 467 at p. 476:-
“What would be considered to be reasonable limitations under that article should equally be considered reasonable limitations under Article 40.3 of the Constitution.”
Having considered the cases on art. 10 of the European Convention on Human Rights he reached the conclusion that for a restriction to survive under that article it was not essential to show that the ban was absolutely necessary. He continued at p. 479:-

“It is sufficient, in my view, if there are good reasons in the public interest for the ban. Irish people with religious beliefs tend to belong to particular churches and that being so religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytising. Religion has been a divisive factor in Northern Ireland and this is something which the Oireachtas may well have taken into account. As McCullough J. pointed out [in R. v. Radio Authority, ex p. Bull [1996] Q.B. 169) a person listening to commercial radio is for all practical purposes compelled to listen to the advertisements. That being so, it is legitimate for any Oireachtas to have regard to the type of advertisements which might be permitted. The impugned section enjoys the presumption of constitutionality. It is not obvious to me that a restriction on religious advertising is not a reasonable restriction in the interests of the common good on this particular form of exercise of the right to communicate.”
Proportionality
The learned trial judge then went on to deal with the submission that the prohibition in the present case was a blanket prohibition and therefore offended the principle of proportionality. The learned trial judge said that he could not accept this view. He added at p. 479:-
“On the legislation as it stands there are very few limitations on the right to advertise and in that sense proportionality has already been taken into account.”
He accordingly concluded that the sub-section was not invalid having regard to the provisions of the Constitution.
Submissions of applicant
Article 44.
The applicant submitted that s. 10(3) of the Act of 1988 constituted a manifest discrimination or distinction on the grounds of religious profession and belief and thus violated Article 44.2.3 as interpreted in Quinns Supermarket v. Attorney General [1972] I.R. 1. Had the applicant attempted to advertise any other form of meeting or video display he would have been perfectly free to do so. It was only because the advertisement was interpreted as directed towards a religious end that its publication was prohibited. This, the applicant submitted, constituted a discrimination or distinction on the ground of the applicant’s religious profession belief or status.
The applicant also claimed support for this interpretation from the judgment of the United States Supreme Court in Rosenberger v. Univ. of Virginia (1995) 515 U.S. 819. In that case, the United States Supreme Court condemned a decision of the University of Virginia to refuse to grant funding to a christian student newspaper while supporting similar secular student publications. The case turned upon the establishment clause in the American Constitution but the applicant found support in the following statement of principle of Rehnquist C.J. where he stated:-
“The viewpoint discrimination inherent in the University’s regulation required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief. That course of action was a denial of the right of free speech and would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the establishment Clause requires.”
Article 40.6.1 and Article 40.3.1
The applicant submitted that the restriction clearly interfered with the applicant’s unspecified constitutional right to communicate guaranteed by Article 40.3.1 and with his right of freedom of expression guaranteed by Article 40.6.1. It was not just a question of interfering with the applicant’s private right to express his convictions and opinions. It was also an interference with his public right of freedom of expression.
Proportionality
The applicant further submitted that the ban imposed by s.10(3) was not only an interference with his rights guaranteed by Article 40 and Article 44 of the Constitution but was a disproportionate interference with them. There was no necessity for the sub-section to sweep so widely and it offended the principle of proportionality as expounded by these courts in numerous decisions including Cox v. Ireland [1992] 2 I.R. 503; In re The Matrimonial Home Bill, 1993 [1994] I I.R. 305 and Heaney v. Ireland [1994] 3 I.R. 593.
Moreover the applicant submitted that, even if one accepted that some forms of religious advertising might be offensive to some citizens, there was no impracticality in having a more sophisticated control whereby, through some form of administrative action, religious advertisements likely to cause offence might be banned while innocuous religious advertisements might be permitted.
Respondents’ submissions
Article 44.
Counsel for the second respondent submitted that the learned High Court Judge had been perfectly right to find that s.10(3) did not offend Article 44 of the Constitution. The sub-section, he submitted, in no way impeded freedom of conscience or the free profession or practice of religion and did not constitute a discrimination on the grounds of religious profession belief or status.
Article 40.3 and Article 40.6.1 of the Constitution.
Counsel for the second respondent referred to the fact that the learned trial judge had held that Article 40.6.1 had no relevance to the case, firstly, because the advertisement in question was principally concerned with communication of information and the source of this right is Article 40.3 and, secondly, because the advertisement was addressed to individual listeners and was not concerned with the influencing of public opinion. While counsel agreed that Article 40.6.1 was not relevant to the applicant’s case he nonetheless submitted that the learned trial judge’s interpretation of Article 40.6.1 as being confined to communications intended to influence public opinion was overly restrictive and that the learned trial judge had erred in law in this respect. Again counsel submitted that the case was essentially to be determined on the basis of the right to communicate guaranteed by Article 40.3.1. But, accepting that there was a right to communicate guaranteed by Article 40.3.1, he submitted that the restriction contained in s.10(3) was a legitimate restriction; that it was reasonable for the Oireachtas to decide to impose that restriction; and that the learned trial judge was correct in holding that this was a legitimate exercise of legislative power on the part of the Oireachtas. At the same time counsel demurred at the suggestion of the learned trial judge that broadcasting should not be regarded as a special category of communication.
He also rejected any suggestion that there might exist a constitutional right to broadcast. He also submitted that the learned trial judge had not adopted the correct approach to the problem presented by the present case. He had placed too much emphasis on the European Convention on Human Rights. This error in approach was illustrated by his statement that an Irish statutory provision which offended article 10 of the European Convention would be unconstitutional in most if not all circumstances. While it was permissible to pay some regard to the provisions of the European Convention, in the final analysis, the constitutional validity of Acts of the Oireachtas had to be decided by reference to the provisions of the Irish Constitution.
Counsel further submitted that any right which the applicant might have in the present case fell to be regulated in accordance with the provisions of the common good.
Proportionality
Counsel submitted that any right which the applicant might have fell to be regulated by the Oireachtas in accordance with the principle of proportionality as expounded in Heaney v. Ireland [1994] 3 1.R. 593. The restriction contained in s.10(3) of the Act of 1988 was, he submitted, neither arbitrary, unfair or irrational. It applied to all religions irrespective of the religious profession belief or status of the person seeking to have the advertisement broadcast. There were very rational grounds for the restriction. Persons wishing to advertise for religious purposes might use many varied means of communication other than radio or television. There was no prohibition on broadcasting per se, merely on broadcasting advertisements of a particular kind.
Conclusion
The legislation.
The learned trial judge complained that no evidence had been adduced to explain to him the policy underlying the prohibition of religious advertisements contained in s.10(3) of the Act. But the Court thinks it is possible to gain some assistance on this point by examining the context in which the prohibition appears in the Act of 1988. Section 9 of the Act of 1988 imposes on every broadcasting contractor a duty to ensure that “all news broadcast by him is reported and presented in an objective and impartial manner and without any expression of his own views”.It goes on to provide that the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is to be fair to all interests concerned and that the broadcast matter must be presented in an objective and impartial manner and without any expression of the broadcaster’s own views. It then goes on to provide that if it is not practicable to provide the necessary balance in a single broadcast the broadcaster may cover the missing issues in two or more related broadcasts provided all broadcasts are transmitted within a reasonable period of each other. The broadcasting contractor must also ensure that “anything which may reasonably be regarded as offending against good taste or decency, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by him”.
Section 10 provides that programmes broadcast in a sound broadcasting service may include advertisements inserted therein. Section 10(3) contains the prohibition:-
“No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.”
It seems to the Court important to stress that there are three kinds of advertisements which are totally banned. These are:-
1. advertisements directed towards any religious end,
2. advertisements directed towards any political end,
3. advertisements which have any relation to an industrial dispute.
One can best glean the policy of the Act of 1988 by looking at the three kinds of prohibited advertisement collectively. One might get a false impression by singling out one kind of banned advertisement and ignoring the others. All three kinds of banned advertisement relate to matters which have proved extremely divisive in Irish society in the past. The Oireachtas was entitled to take the view that the citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements, if permitted, might lead to unrest. Moreover the Oireachtas may well have thought that in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals.
Article 44.
There is no question of any form of discrimination or distinction being made by s. 10(3) on the grounds of religious profession belief or status. The ban contained in sub-s. (3) is directed at material of a particular class and not at people who profess a particular religion. All people in the same position are treated equally. The fact that people who wish to advertise motor cars or tinned beans may be treated differently is not relevant.
It appears to the Court that the prohibition on advertising contained in s.10(3) is broad enough to cover not only advertisements tending to favour any or all religions but also advertisements tending to attack all or any religion. It cannot therefore be regarded as an attack on the citizen’s right to practise his religion. It may however constitute a limitation on the manner in which the citizen can profess his religion.
It appears to the Court that it is not sufficient to say, in reply to this argument, that religion is a private affair and that the citizen’s right to profess his religion is not affected by denying him access to the airwaves. Religion is both a private and a public affair and a citizen, convinced of the truth of his own religion, will naturally wish not only to convert his fellow citizens, but to influence the evolution of society.
Counsel for the applicant drew our attention to a passage which appears at p. 164 of Dr. Kohn’s book on “The Constitution of the Irish Free State” where Dr. Kohn makes this point, forcefully, in relation to the right of freedom of conscience guaranteed by article 8 of the Constitution of 1922. He wrote:-
“Freedom of conscience, however, would be of merely passive significance if it were not supported by further guarantees for the unhampered expression of spiritual conviction in word and action. It is not the abstract principle but its articulate forms of profession and practice which require to be protected against administrative or legislative restriction. Freedom of profession connotes the right of the believer to state his creed in public and propagate it in speech and writing, freedom of practice his right to give practical expression in forms of private and public worship. Both imply a right to active intervention in the public sphere. Hence the imposition of the restriction that the exercise of such liberty must not conflict with ‘public order and morality’.”
Some people might say that Dr. Kohn’s reference to the right of the believer to “state his creed in public and to propagate it in speech and writing” arises more appropriately under the right of freedom of expression guaranteed by Article 40.6.1 than under Article 44. But, in the present case, where the applicant relies on both articles it is not necessary to explore this matter further.
It is sufficient to admit that the ban on religious advertising is a restriction, however limited, on the freedom of the citizen to profess, express or practise his religion and to inquire whether, in the circumstances of the case, the restriction is justified.

Article 40.3 and Article 40.6.1
This case raises, yet again, the relationship between the unspecified right to freedom of communication guaranteed by Article 40.3 of the Constitution and the express right to freedom of expression guaranteed by Article 40.6.1 of the Constitution. The learned trial judge expressed himself puzzled as to why the right to express convictions and opinions should be protected by Article 40.6.1 of the Constitution while the right to communicate information should be protected by a different article namely Article 40.3 of the Constitution. He was also puzzled as to why three rights so diverse as the right of freedom of expression, the right to free assembly and the right to join associations and unions should all be protected by the same sub-section of Article 40.6. He felt that the framers of the Constitution must have grouped these three rights together for some specific purpose but, as he was of the view that the case turned upon the right of freedom to communicate and not on the right of freedom of expression, he did not consider it necessary to carry this analysis any further.
The right to communicate as an unspecified right impliedly protected by Article 40.3 of the Constitution was first identified by Costello J. (as he then was) in his judgment in Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373. It was also referred to by Keane J. in Oblique v. The Promise Production Co. [1994] 1 I.L.R.M. 74, when he stated:-
“Article 40.6.1 is concerned not with the dissemination of factual information, but the rights of the citizen, in formulating or publishing convictions or opinions, or conveying an opinion; and the rights of all citizens, including conveying information, arises in our law, not under Article 40.6.1 but under Article 40.3.1.”
It appears to the Court that the right to communicate must be one of the most basic rights of man. Next to the right to nurture it is hard to imagine any right more important to man’s survival. But in this context one is speaking of a right to convey one’s needs and emotions by words or gestures as well as by rational discourse.
Article 40.6.1 deals with a different though related matter. It is concerned with the public activities of the citizen in a democratic society. That is why, the Court suggests, the framers of the Constitution grouped the right to freedom of expression, the right to free assembly and the right to form associations and unions in the one sub-section. All three rights relate to the practical running of a democratic society. As Barrington J. stated in Irish Times Ltd. v. Ireland [1998] 1 I.R. 359, the rights of the citizens “to express freely their convictions and opinions” guaranteed by Article 40.6.1 is a right not only to communicate opinions but also to communicate the facts on which those opinions are based. If this means that there is a certain overlapping between the right to communicate impliedly protected by Article 40.3 and the right of the citizens freely to express their convictions and opinions guaranteed by Article 40.6.1, so be it. The overlap may result from the different philosophical systems from which the two rights derive.
The Court agrees, however, with counsel for the second respondent when he submits that the learned trial judge was perhaps unduly restrictive in denying to the applicant any right to rely on Article 40.6.1 because he was not attempting to influence public opinion. The Court doubts if the guarantee of freedom of expression contained in Article 40.6.1 is confined to those who wish to influence public opinion. A politician who addresses the nation over the airwaves is clearly attempting to influence public opinion. But an advertisement, though apparently directed at an individual consumer, may also be intended to influence consumers generally. One could not say that the advertisement in the present case, with its opening question “What think ye of Christ?”, is directed exclusively at individuals and not at the citizenry at large.
The Court is not suggesting that to invoke the protection of Article 40.6.1 a person must be attempting to influence the citizens at large. But, on the facts of the present case, it would appear that the applicant is prima facie entitled to invoke the protection of Article 40.6.1 as well as the protection of Article 40.3.
His problem is that both the right of freedom of expression and the right of freedom of communication are personal rights and both can, in certain circumstances, be limited in the interests of the common good.
As Kenny J. put the matter in Ryan v. The Attorney General [1965] I.R. 294 at p. 312:-
“None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this. When dealing with controversial social, economic and medical matters on which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen.”

Proportionality
It is clear from what has gone before that s. 10(3) amounts to a certain limitation on the applicant’s right freely to profess his religion, on his right of free communication and on his right to freedom of expression. It is also clear from the foregoing analysis of the legislation that the Oireachtas wished to protect society from certain dangers which it perceived. The real question is whether the limitation imposed upon the various constitutional rights is proportionate to the purpose which the Oireachtas wished to achieve.
In Heaney v. Ireland [1994] 3 I.R. 593 at p. 607, Costello J. (as he then was) (whose judgment on this issue was upheld on appeal by this Court) described the principle of proportionality as follows:-
“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights and has recently been formulated by the Supreme Court in Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,
(b) impair the right as little as possible, and
(c) be such that their effects on rights are proportional to the objective . . .”
In the present case the limitation placed on the various constitutional rights is minimalist. The applicant has the right to advance his views in speech or by writing or by holding assemblies or associating with persons of like mind to himself. He has no lesser right than any other citizen to appear on radio or television. The only restriction placed upon his activities is that he cannot advance his views by a paid advertisement on radio or television. The case is totally different from that which existed in Cox v. Ireland [1992] 2 I.R. 503, where a person who had violated the relevant section in even a minor way was liable to lose his job (if he was a public servant) and to be barred forever from obtaining employment in the public service.
As previously stated the restriction on constitutional rights in the present case is very slight. That is probably what the learned trial judge had in mind when, in the course of his judgment, he used the phrase:-
“Proportionality has already been taken into account.”
Counsel for the applicant, argued that it would have been possible to have had – instead of a blanket ban on religious advertising – a more selective administrative system whereby inoffensive religious advertisements would be permitted, and religious advertisements likely to cause offence, banned. No doubt this is true. But the Oireachtas may well have decided that it would be inappropriate to involve agents of the State in deciding which advertisements, in this sensitive area would be likely to cause offence and which not. In any event, once the Statute is broadly within the area of the competence of the Oireachtas and the Oireachtas has respected the principle of proportionality, it is not for this Court to interfere simply because it might have made a different decision.
It therefore appears to the Court that the ban on religious advertising contained in s. 10(3) of the Act of 1988 is rationally connected to the objective of the legislation and is not arbitrary, unfair or based on irrational considerations. It does appear to impair the various constitutional rights referred to as little as possible and it does appear that its effects on those rights are proportional to the objective of the legislation.
It seems to the Court clear that the learned trial judge dismissed the applicant’s claim because the applicant had failed to rebut the presumption of constitutionality in favour of the statutory provision attacked. The Court does not think his statement that an Irish statutory provision which offended article 10 of the European Convention would be unconstitutional in most if not all circumstances was intended the raise the suggestion that one could by examining the European Convention decide on whether a statute violated the Irish Constitution or not. Whatever methodology may be adopted by the European Court of Human Rights in deciding its cases we are bound to presume that a statute passed since the enactment of the Constitution does not violate the Constitution and we can only rule such an Act unconstitutional if that presumption has been rebutted. In the present case, it has not been rebutted and the Court therefore upholds the decision of the learned trial judge and dismisses the applicant’s appeal.

Quinn’s Supermarket v. Attorney General

[1972] IR 1

 

WALSH J.:
This is an appeal against the decision of Mr. Justice McLoughlin given on the 1st July, 1968, which declares that the provisions of Articles 2, 3, and 4 of the Victuallers’ Shops (Hours of Trading on Weekdays) (Dublin, Dun Laoghaire and Bray) Order, 1948, as amended by the Victuallers’ Shops (Hours of Trading on Weekdays) (Dublin, Dun Laoghaire and Bray) Order, 1948 (Amendment) Order, 1968, are ultra vires the Shops (Hours of Trading) Act, 1938, and are invalid having regard to the provisions of the Constitution. The learned judge also directed that the second defendant should be restrained from proceeding against the second plaintiff in the District Court on foot of a complaint by the second defendant that the second plaintiff had committed an offence under the provisions of the Order of 1948.
The Act of 1938 was an Act to make provision for regulating the hours during which shops might remain open for the serving of customers. Section 25 of the Act1 permitted the Minister for Industry and Commerce to declare by order certain areas to be trading areas for the purpose of that order, and to declare that it should not be lawful for the proprietor of any shop situated in such trading area to keep open such shop for the serving of customers on any weekday before a specified hour or after a specified hour (not being earlier than 6 p.m.) or to make a similar order in respect of the proprietors of shops of a specified class. The Minister for Industry and Commerce made the Order of 1948 in respect of certain victuallers’ shops in a trading area comprising the County Borough of Dublin, the Borough of Dun Laoghaire and the Urban District of Bray. The hours of trading in respect of those shops provided by the Order of 1948 were that it would be unlawful to open them before 8 a.m. and to keep them open after 6 p.m. on any weekday other than Saturday; on Saturday the opening time was the same but the closing time was extended to 6.30 p.m. The trading area was defined in Article 3 of the Order of 1948, the hours of trading were stated in Article 4 and the expression”victualler’s shop” was defined in Article 2.
It is upon the provisions19 of Article 2 of the Order of 1948 that this case turns. By the definition set out in that Article the expression “victualler’s shop” meant any shop in which the business of selling any one or more of the following, namely, fresh beef, mutton, lamb and veal is carried on (whether any other business is or is not carried on in that shop), “but does not include any shop in which the only business carried on therein is that of selling meat killed and prepared by the Jewish ritual method.” The Order of 1968 re-defined the trading area with which we are concerned in particulars which are not material to the decision of this case, and varied Article 4 of the Order of 1948 by the addition of the following words:”In any case in which no transaction which is connected with the sale of meat is effected and in which no meat is exposed for sale, customers in a victualler’s shop in the trading area may be served outside the hours specified in Article 4.” This latter change was clearly designed to meet the position of supermarkets which trade in several different kinds of foodstuffs, including butcher’s meat, and the change enabled such a shop to carry on the sale of its other goods after the hours of trading specified, provided no meat was exposed for sale outside those hours.
The first plaintiffs are the proprietors of a shop at Finglas which is within the specified trading area and is a victualler’s shop within the definition of the Order of 1948; the shop is a supermarket carrying on the sale of a wide variety of commodities which are almost entirely foodstuffs. Among them is a department known as “the butcher’s section” for the sale of fresh meat of all kinds. The department does not sell fresh meat, or any kind of meat, which has been killed and prepared by the Jewish ritual method. The second plaintiff is the managing director of the first plaintiffs.

The plaintiffs have challenged the validity of the Order of 1948 on the grounds that it discriminates between victuallers’ shops, namely, those which sell all kinds of fresh meat and those which sell only meat killed and prepared by the Jewish ritual method. It was submitted that this discrimination imposed a disability upon the plaintiffs on the ground of religious profession, belief or status and that, in any event, it was a discrimination grounded upon religious profession, belief or status; it was submitted that such disability or discrimination is prohibited by Article 44, s. 2, sub-s. 3, of the Constitution20, and that it was contrary to the provisions of Article 40, s. 1, of the Constitution which says:”All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” In holding that the Order of 1948 was invalid having regard to the provisions of the Constitution, Mr. Justice McLoughlin’s order21 does not refer specifically to any provision of the Constitution; but his judgment in the case makes it quite clear that he based his decision solely upon the provisions of Article 44, s. 2, sub-s. 3, of the Constitution.
In the course of his judgment Mr. Justice McLoughlin refers to and recites the provisions of Article 40, s. 1, but he does not discuss it in relation to the case, or at all. One may assume, therefore, that the submission based on that particular provision was not argued with any great force as, indeed, was the case in this Court also. However, the matter was relied upon in this Court by the plaintiffs in their answer to the defendants’ appeal and it is, therefore, necessary to deal with it. The provisions of Article 40, s. 1, of the Constitution were discussed in the decision of this Court in The State (Nicolaou) v. An Bórd Uchtála .22As was there decided, this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete; but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow. Furthermore, it need scarcely be pointed out that under no possible construction of the Constitutional guarantee could a body corporate or any entity but a human being be considered to be a human person for the purposes of this provision. In my view this provision has no bearing whatsoever upon the point to be considered in the present case, as no question of human equality or inequality arises. It is also quite clear that the provision cannot be invoked to support the terms of the Order of 1948 by reference to differences of capacity, physical or moral, and of social function.
I now turn to the provisions of Article 44 of the Constitution. It is clear that the provisions of s. 2, sub-ss. 1-3, of that Article are the relevant provisions. They read as follows:
“1 Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
2 The State guarantees not to endow any religion.
3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”
It is unnecessary to cite the Irish text but I will refer to one phrase in it later in this judgment for the purpose of indicating that it clears up any ambiguity which might be thought to exist in the English-language version.
It is conceded, and it is clear, that there is no question of public order or morality arising in the present case, so that the guarantee of free profession and practice of religion in sub-s. 1 of s. 2 of Article 44 may be applied without any qualification based upon public order or morality. Sub-section 2 of s. 2 of Article 44 need not be considered further as there is no question of any employment of State funds or public funds in the matters which arise out of the effects of the exception made in the Order of 1948.
The plaintiffs’ case is based upon sub-s. 3 of s. 2 of Article 44. The plaintiffs have certainly suffered a disability in the sense that they are legally disqualified from, and are deprived of the power of, carrying on the business of selling meat after the hours set out in the statutory instrument. This is a deprivation but in my view, where the provision speaks of disabilities, the disability must be one which is suffered and imposed on the ground of the religious profession, belief or status of the person so disabled. That the provision was aimed at preventing the imposition of a personal, or perhaps even a corporate, disability is quite clear from the Irish text which is:”Ní cead don Stát neach do chur fá mhíchumas ar bith . . .”If an imposed disability is to be examined, and the grounds upon which it is imposed are to be examined, clearly the grounds must relate to the person or body upon whom the disability is imposed. In so far as the present case is concerned, there is no evidence whatsoever that the disability suffered or being suffered by the plaintiffs has anything whatsoever to do with the religious profession, belief or status of the second plaintiff or of the share holders of the first plaintiff. One may safely assume that the first plaintiff itself has neither religious profession, belief or status.
That the correct approach is that the question of disability should be examined on a subjective basis is, in my view, amply borne out by the provisions with regard to discrimination. It was submitted on behalf of the defendants here that “discrimination” should be construed as if it read “discrimination against”. In my view the learned High Court judge was quite correct in rejecting that submission. If the provision had read “discrimination against” meaning distinguishing unfavourably on the grounds of religious profession, belief or status it would also mean that the test would have been related to the religious profession, belief or status of the person discriminated against. It is the omission of the word “against” which confirms me in my view that this portion of the constitutional provision should be construed as meaning that the State shall not make any “distinction” on the ground of religious profession, belief or status. This is confirmed by the Irish text which says “ná aon idirdhealú do dhéanamh . . .” To discriminate, in that sense, is to create a difference between persons or bodies or to distinguish between them on the ground of religious profession, belief or status; it follows, therefore, that the religious profession, belief or status does not have to be that of the person who feels he has suffered by reason of the distinction created. Indeed it is wide enough to enable the person who might be thought to have profited from the distinction but who did not accept the validity of such distinction, to challenge it by showing that it was based upon the religious profession, belief or status of the suffering party. In such instance the suffering party could avail of the remedies open to him under the “disability” provision, as well as under the “discrimination” provision, if in fact he was suffering a disability.
Therefore, I am of opinion that the exception made in relation to the sale of meat killed according to the Jewish ritual is a discrimination on the ground of religious profession, belief or status within the meaning of sub-s. 3 of s. 2 of Article 44 and that it is, prima facie at least, unconstitutional on its face. However, the matter does not end there. Certain questions of fact in this case are of vital importance. Evidence was given orally in the High Court by witnesses of the Jewish religion and further evidence was offered in this Court, at the request of the Court, by the Chief Rabbi of Ireland. None of this evidence is contradicted as a question of fact and, so far as the Court is concerned, the question of what are the beliefs or professions of the Jewish religion is a question of fact.
The facts are that it is an essential element of the Jewish religion that only meat killed and authorised by the Jewish ritual method should be eaten by persons practising the Jewish religion, and that the shops dealing in the sale of meat killed by the Jewish ritual method are owned, and were owned at; the date the order was made, by members of the Jewish religion who, by the tenets or rules of their religion, would be compelled to close their shops before the
hours of sunset on Friday afternoons and would be prohibited from re-opening before sunset on Saturdays. This was so even though many, if not all, of the employees of these shops would not be of the Jewish religion. For the sake of convenience, I shall refer to meat “killed and prepared by the Jewish ritual method” as kosher meat. It also appears that over 90% of all the Jewish families in Ireland accept these rules as the binding rules of their religion and acknowledge that the required duty of Judaism is to observe these rules regarding meat and other kosher foods. Such observance is a strict commandment in the code of Jewish law. It is also a fact that, in any case where in special circumstances it might be unavoidable that the supply of kosher meat might be conducted by one who was not a practising member of the Jewish faith, it was essential that a religiously observant Jewish representative, fully cognisant of all the requirements regarding the meat, should at all times supervise the supply and sale of such meat.
The conclusion of fact is that between the hours of sunset on Friday afternoons and sunset on Saturday afternoons it would not be possible for any practising member of the Jewish religion to obtain any meat for consumption save that which, by the commandments of his religion, he is forbidden to eat; between those hours such person would be left with the choice of observing his religion’s commandments and in consequence going without meat, or of being compelled to act in breach of his religion’s commandments by buying the type of meat that he is forbidden to buy. If by law the hours of trading in kosher meat is confined to hours which present a member of the Jewish religion with the choice I have mentioned, then that law interferes with the free profession and practice of that religion.
Therefore, there arises a conflict between the constitutional guarantee of the free profession and practice of religion and the constitutional guarantee against discrimination on the ground of religious profession, belief or status. A number of decisions of the Supreme Court of the United States have been cited during the submissions in this Court and have been of great assistance. The plaintiffs strongly relied upon McGowan v. Maryland 23;
they also relied upon Two Guys from Harrison-Allentown Inc. v. McGinley. 24 In these, and some other cases, the United States Supreme Court rejected claims that Sunday-closing laws were laws “respecting an establishment of religion, or prohibiting the free exercise thereof” which words are taken from the First Amendment of the Constitution of the United States. In those cases the court held that the establishment claim was the only issue of religion which the appellants could raise.
In McGowan v. Maryland 25 it was pointed out that the appellants alleged only economic injury to themselves. They did not allege that there was any infringement of their own religious freedom due to Sunday closing. In the present case it is to be noted that the plaintiffs do not allege anything except economic injury to themselves; they do not allege any infringement of the religious profession or belief of the second plaintiff or of the shareholders of the first plaintiff. As Chief Justice Warren stated in McGowan v. Maryland 25 “there is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces.” However, he went on to point out that, in the development of the various laws dealing with this subject through the centuries and their more modern emphasis upon secular considerations, “it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States.” ibid. p. 444. It was pointed out in that case that the First Amendment did not ban regulation of conduct whose reason or effect merely happened to coincide or harmonise with the tenets of some or of all religions. In McGowan v.Maryland 25 the appellants were employees of a large shop who were convicted and fined for selling a commodity on Sunday in violation of a Maryland law which generally prohibited the sale on Sunday of all goods, with some exceptions of which this was not one. In their appeal, they alleged that the law was one which sought to enforce religious beliefs in that Sunday-closing laws were motivated by religious considerations. The essential factor of the decision in that case was that the United States Supreme Supreme Court held as a fact that the laws were not so motivated, but were in fact guided by secular considerations even though that type of law may have had its origins in religious practice.
A case much more in point to the circumstances of the present case is that of Sherbert v. Verner. 26 In that case a Seventh-Day Adventist was discharged by an employer for refusal to work on Saturday, the Sabbath day of her faith, and was refused unemployment compensation by the South Carolina Employment Security Commission on the ground that her refusal to work on Saturdays caused other employers to refuse to employ her and therefore disqualified her because of her failure to accept suitable work. This view was upheld in the courts of South Carolina and eventually an appeal was taken to the United States Supreme Court from the South Carolina Court. The South Carolina courts had held that the regulations in question did not restrict her religious freedom. It was held by the United States Supreme Court, reversing the decisions of the South Carolina courts, that the denial of unemployment compensation benefits to a Seventh-Day Adventist for the reasons stated restricted the free exercise of her religion; the court rejected the contention that the extension of unemployment compensation benefits to Sabbatarians in common with Sunday worshippers tended to foster the establishment of the Seventh-Day Adventist religion in South Carolina. This decision was based upon the court’s view that the ruling of the South Carolina authorities forced the appellant to choose between following the precepts of her religion and forfeiting her unemployment benefits on the one hand, and of abandoning one of the precepts of her religion in order to accept work on the other hand. In the words of Mr. Justice Brennan, who delivered the judgment of the court, at p. 404 of the report: “Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.”
In Braunfeld v. Brown 27 the Supreme Court of the United States dealt with a case which concerned the constitutional validity of the application to the appellants, who were of the Jewish religion, of a Pennsylvania criminal statute which prohibited the Sunday retail sale of certain commodities; the appellants claimed that the statute interfered with the free exercise of their religion. Because they were of the orthodox Jewish faith, the appellants were required to close their place of business from sunset on Friday until after sunset on Saturday. Their complaint was that the statute compelled them to close on Sunday also so that, in effect, their competitors had an advantage over them and because, unless they were permitted to remain open on Sunday, they were suffering economically since they could only trade five days a week as against the six days a week of their competitors. The appellants complained that they were left with the choice of having to abandon some of their religious practices or incur the economic loss involved in adhering to such practices. Chief Justice Warren, in giving the judgment of the court, stated at p. 607 of the report:”If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.” The court upheld the validity of the law in question on the grounds that it simply regulated a secular activity even though its operation was to make the practice of their religion by members of the Jewish faith more expensive. He was also of opinion that the law’s effect did not inconvenience all members of the Jewish faith but only those who believed it was necessary to work on Sunday. Braunfeld v. Brown 28 was decided before Sherbert v. Verner 29 and it was expressly distinguished in the latter case; notwithstanding which, some commentators in the United States treat Sherbert v.Verner 29 as having overruled the decision in Braunfeld v.Brown. 28 In fact it will be seen at p. 404 that Mr. Justice Brennan in his opinion in Sherbert’s Case 29 distinguished Braunfeld’s Case 28 on the ground that in Sherbert’s Case 29the burden upon religious practices was heavier. In any event Sherbert’s Case 29 is the later decision, and it is to be noted that in Braunfeld’s Case 28 Mr. Justice Brennan read a dissenting opinion whereas in Sherbert’s Case 29 he read the opinion of the majority of the court.
So far as I have ascertained, no case in the United States has dealt directly with the question of conflict between a constitutional provision guaranteeing and protecting the free exercise of religion and one which prohibits discrimination on the grounds of religious profession or belief. I think the correct approach is to be found in the opinion of Mr. Justice Brennan which was a concurring opinion in the decision of the Supreme Court of the United States in Abington School District v. Schempp .30 This was a case in which the Supreme Court of the United States unanimously concluded that the practice of reading the Bible as a morning devotional exercise in a Pennsylvania school was unconstitutional. Mr. Justice Brennan’s concurring opinion went to great pains to point out not only what the court was deciding in that case but also what it was not deciding; and he examined in detail the values which the First Amendment was designed to protect. He pointed out that certain practices might apparently be in violation of the establishment clause in the United States Constitution but that to invalidate them might seriously interfere with the religious liberties protected by the First Amendment. He gave as one example the provision of churches and chapels in military establishments for those in the armed services. He also gave as an example the provision by the Government of chaplains in penal institutions. He pointed out that such provisions might be assumed to contravene the establishment clause and yet be held to be constitutional on the grounds that they were necessary to secure for the members of the armed forces or the prisoners, as the case might be, the right of practice of religion guaranteed by the First Amendment since the Government had deprived such persons of the opportunity to practise their faith at places of their choice.
At p. 231 of the report he said:”The fact is that the line which separates the secular from the sectarian in American life is elusive. The difficulty of defining the boundary with precision inheres in a paradox central to our scheme of liberty. While our institutions reflect a firm conviction that we are a religious people, those institution by solemn constitutional injunction may not officially involve religion in such a way as to prefer, discriminate against, or oppress, a particular sect or religion. Equally the Constitution enjoins those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends where secular means would suffice. The constitutional mandate expresses a deliberate and considered judgment that such matters are to be left to the conscience of the citizen, and declares as a basic postulate of the relation between the citizen and his government that ‘the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand. . . .’ . . . . The First Amendment forbids both the abridgment of the free exercise of religion and the enactment of laws ‘respecting an establishment of religion.’ The two clauses, although distinct in their objectives and their applicability, emerged together from a common panorama of history. The inclusion of both restraints upon the power of Congress to legislate concerning religious matters shows unmistakably that the Framers of the First Amendment were not content to rest the protection of religious liberty exclusively upon either clause . . . . . . ”
Later, at p. 294, Mr. Justice Brennan said: “These considerations bring me to a final contention of the school officials in these cases: that the invalidation of the exercises at bar permits this Court no alternative but to declare unconstitutional every vestige, however slight, of cooperation or accommodation between religion and Government. I cannot accept that contention. While it is not, of course. appropriate for this Court to decide questions not presently before it, I venture to suggest that religious exercises in the public schools present a unique problem. For not every involvement of religion in public life violates the Establishment Clause. Our decision in these cases does not clearly forecast anything about the constitutionality of other types of interdependence between religious and other public institutions. Specifically, I believe that the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First Amendment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. When the secular and religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers as much to church as to state which the Framers feared would subvert religious liberty and the strength of a system of secular government. On the other hand, there may be myriad forms of involvements of government with religion which do not import such dangers and therefore should not, in my judgment, be deemed to violate the Establishment Clause. Nothing in the Constitution compels the organs of government to be blind to what everyone else perceives that religious differences among Americans have important and pervasive implications for our society. Likewise nothing in the Establishment Clause forbids the application of legislation having purely secular ends in such a way as to alleviate burdens upon the free exercise of an individual’s religious beliefs. Surely the Framers would never have understood that such a construction sanctions that involvement which violates the Establishment Clause. Such a conclusion can be reached, I would suggest, only by using the words of the First Amendment to defeat its very purpose.”
The words of Mr. Justice Brennan are very pertinent to the question at issue in this case. Our Constitution reflects a firm conviction that we are religious people. The preamble to the Constitution acknowledges that we are a Christian people and Article 44, s. 1, sub-s. 1, acknowledges that the homage of public worship is due to Almighty God but it does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith. In Article 44, s. 1, of the Constitution the State recognises the existence of the several religious denominations there named, including the Jewish Congregations, as well as all other unnamed ones existing at the date of the coming into operation of the Constitution. This declaration is an express recognition of the separate co-existence of the religious denominations, named and unnamed. It does not prefer one to the other and it does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so.
Section 2, sub-s. 1, of Article 44 of the Constitution guarantees freedom of conscience and the free profession and practice of religion in terms which do not confine these to Christianity and Judaism. It appears to me, therefore, that the primary object and aim of Article 44, and in particular the provisions of s. 2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person so practising religion or holding those beliefs to any disabilities on that account, or permit distinctions on the ground of religious profession, belief or status between persons in the State who are free to profess and practise their religion. If, however, the implementation of the guarantee of free profession and practice of religion requires that a distinction should be made to make possible for the persons professing or practising a particular religion their guaranteed right to do so, then such a distinction is not invalid having regard to the provisions of the Constitution. It would be completely contrary to the spirit and intendment of the provisions of Article 44, S. 2, to permit the guarantee against discrimination on the ground of religious profession or belief to be made the very means of restricting or preventing the free profession or practice of religion. The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.
In my view, the provisions31 of s. 25 of the Shops (Hours of Trading) Act, 1938, did not require that all orders or regulations made by the Minister for Industry and Commerce pursuant to the powers there granted should be of such strict or general application that no provision could be made to exempt the person or persons whose practice of religion would be restricted or prevented without such exemption. In my view, the section, if it had so intended, would itself have been invalid.
It is quite clear that the exemption which was achieved by way of definition of the term “victualler’s shop” in the Order of 1948 was intended to avoid any such restriction upon the practice of their religion by members of the Jewish religion in the trading area mentioned in the Order. The fact that it might cause less hardship in the year 1968 than in the year 1948, because of the improvements in the method of keeping meat for a period in refrigerators, does not affect the issue. To hold otherwise would be to penalise those members of the Jewish religion who have not got such facilities in their homes.
So long as the present dietary laws remain a binding part of the Jewish religion, then a sufficient exemption of the type under review would be not merely not invalid but would be necessary if the hours of trading were regulated as at present. If, however, at some future date there is a change in these dietary laws to the extent that they are no longer binding upon members of the Jewish religion, as indeed there have been some changes in respect of members of the Catholic religion, then the position alters and such an exemption might no longer be justifiable having regard to the provisions of the Constitution. As in Ryan v. The Attorney General 32 the validity of the exempting provision would depend upon the existing state of fact, which in this case would be that these dietary laws are a binding part of the Jewish religion. What I have said about the laws of religion is not to be construed in any way as saying that a similar exemption would be valid in respect of pious customs or practices which linger on after they have ceased to be a binding part of religion and, a fortiori, in respect of purely secular activities or restrictions which historically had their origins in religious observance.
Finally, I come to the plaintiffs’ complaint that the discrimination is more than is necessary as it results in shops in which the only business carried on is the sale of kosher meat being open without restriction as to hours on every weekday as well as on Sundays. All shops are permitted to be open for the sale of meat on Sundays. Up to the outbreak of the last war, it was the practice in the Jewish Community for shops engaged in the sale of kosher meat to open only for a short time on Saturday night after the end of the period of the Jewish Sabbath, so as to cater for the needs of people buying meat for Sunday. It appears that this practice ceased during the war years because shops tended to close down after dark and it appears that the practice has not been revived at any time since then, though of course it might be revived at any time if the need for its revival existed. It always was and still is the practice for these shops to open for a period on Sunday mornings. Shopkeepers engaged in the sale of other meat do not apparently avail themselves of the right to trade on Sunday. Sunday then is usually the first occasion after the previous Friday that members of the Jewish religion are able to purchase the only meat which, according to their religion, they may lawfully consume. Even if the former practice of opening the shops after dark on Saturdays still continued, the time of day might prove to be very inconvenient to many Jewish people and the provision of the Order of 1948 which excludes such shops from the definition of “victualler’s shop” would not be a justification for closing them on Sundays. Without the Sunday opening, the very pressures upon the practice of the Jewish religion which the Order of 1948 sought to avoid would not have been removed. Furthermore if, for the sake of maintaining a balance of trading hours, the Order of 1948 had sought by a special provision to make it unlawful for the proprietor of any shop in which the only business carried on was that of selling kosher meat to keep such shop open for the serving of customers on Sundays, it would have the very infirmity which the plaintiffs have contended for in this case in relation to the exclusion. Such a distinction could not at all be justified on the grounds that it was necessary to permit the free exercise of anyone’s religious practice or belief, even if it did result in all butchers’ shops having the same number of trading hours each week.
In my opinion the plaintiffs are justified in their complaint that the discrimination is more than is necessary in so far as it relates to weekdays other than Saturdays. There is no evidence whatsoever to suggest that the free practice of the Jewish religion would be hampered in any way by the application of the fixed hours to the koshermeat shops on those days, and no such ground has been advanced by the Attorney General in support of his appeal against the order of the High Court. For the reasons I have already given, a discrimination on Saturdays would not be invalid. However, the words of the exemption in Article 2 of the Order of 1948 gives exemption for every day, and by its terms is incapable of being modified by deletion so as to confine it to Saturdays. Therefore, in my view it is invalid although an exemption from the trading hours on Saturdays would not be invalid even if in practice such an exemption was not availed of. Such an exemption would avoid the possibility of a member of the Jewish Community having to choose between the practice of his religion and the sale or purchase of meat on that day.
In conclusion it is only proper to state that at all times throughout this case the plaintiffs made it clear that the object of these proceedings was in no way directed towards the withdrawal of the present provision relating to the particular shops in question, but rather to use the existence of that exclusion as a means of invalidating the whole Order so that the plaintiffs would then be free from any of the restrictions imposed by the Order in relation to the trading hours of victuallers’ shops. In my opinion this appeal should be dismissed.

BUDD J.:
I agree.

FITZGERALD J.:
I also agree.
The religion ground
The sections of the Bill relevant to this issue viz. ss. 12 and 37 have already been set forth in the course of this decision and it is unnecessary to repeat them.
Summary of submissions of counsel assigned by the Court
Counsel assigned by the Court submit that the provisions quoted are repugnant to the Constitution in that they would, if enacted into law, purport to legalise religious discrimination contrary to the provisions of Article 40, s. 1 and Article 44, s. 2 of the Constitution and to endow certain religions contrary to the provisions of Article 44, s. 2, sub-section 2. They say that the sections, if enacted into law, would have the effect of making religion a criterion for employing people, for dismissing them from their employment or for admitting them to vocational training.
Moreover they submit that the form of religious discrimination which the sections purport to permit is far wider than anything necessitated by any provision of Article 44 of the Constitution and is totally disproportionate. The reference to religious “ethos” is so vague as not to be justifiable. Each of the religious institutions referred to in s. 37 will therefore be entitled to define its own ethos and thereby to dictate the circumstances in which its staff can be appointed, promoted or dismissed. The result will be to undermine, in an unconstitutional way, the right of citizens who are members of a minority religious denomination or who have no religion to earn their livelihood. Moreover they submit that the Bill refers to “institutions” and is therefore broad enough to cover private hospitals and other institutions which are not institutions maintained by a religious denomination for religious or charitable purposes of the kind contemplated by Article 44, s. 2 sub-s. 5 of the Constitution.

 

The Employment Equality Bill, 1996

[1999] 2 IR 321
Hamilton C.J.

Summary of submissions of counsel for the Attorney General
Counsel for the Attorney General submit that insofar as the Bill purports to authorise a religious discrimination or distinction, the discrimination or distinction authorised is a form of positive discrimination necessary (and no more than is necessary), to give effect to the provisions of Article 44 of the Constitution. Moreover they submit that the Bill would offend Article 44 of the Constitution if the ban on religious discrimination contained in s. 6 of the Bill stood alone without the exception contained in section 37. They deny that the Bill in any way authorises the endowment of any religion. They say moreover that State aid to religious and charitable institutions maintained by various religious denominations is authorised by the Constitution and the kind of distinctions made by the Bill are also authorised by necessary implication. Moreover they say that the institutions referred to in the distinctions under discussion are religious, educational or medical institutions under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values. These bodies will invariably be boards of governors, trustees or guardians under the control or influence of the various religious denominations and are the “institutions for religious or charitable purposes” referred to in Article 44, s. 2, sub-s. 5 of the Constitution. Counsel admit that a tension does exist between the right to equality guaranteed by Article 40, s. 1, the right to free profession and practice of religion guaranteed by Article 44, s. 2 and the right to earn a livelihood guaranteed by Article 40, s. 3 of the Constitution, but they submit that the sections under discussion represent a balanced attempt by the Oireachtas to resolve these tensions.
Relevant constitutional provisions
Article 40, s. 1 of the Constitution provides as follows:
“1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
Article 44 is entitled “Religion” and reads as follows:
“1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
2. 1 Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
2 The State guarantees not to endow any religion.
3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
4 Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor 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.
5 Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
6 The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”
Some of the provisions of Article 42 (dealing with education) may also be relevant to the present discussion. Article 42 provides, inter alia,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. 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.
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.
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 . . .”
Conclusions of the Court on religion ground
It will be noted that while in the preamble the “People of Éire” humbly acknowledge their obligations to our Divine Lord Jesus Christ Article 44 imposes certain duties upon the “State”. These duties are more general and less specific than the obligations acknowledged by the people in the preamble. The duty of the State is to respect and honour religion though no specific religion is identified. The Constitution then goes on to guarantee freedom of conscience and free profession and practice of religion “subject to public order and morality” to every citizen.
It is clear from Article 42 that the State acknowledges that the primary and natural educator of the child is the family. The State accordingly 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. The State may, as guardian of the common good, require that children receive a certain minimum education, moral intellectual and social. The clear implication is that the religious education of the children is primarily a matter for the parents and parents are free to provide this education in their homes or in private schools or in schools recognised or established by the State. The State shall however endeavour to supplement and give reasonable aid to private and corperative 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. Legislation, however, providing State aid for schools, must not discriminate between schools under the management of different religious denominations and every religious denomination is to have the right to manage its own affairs and to maintain institutions for religious or charitable purposes.
It is quite clear therefore that the State is entitled to support denominational schools though it is forbidden to discriminate between schools under the management of different religious denominations. It is also clear that Articles 42 and 44 of the Constitution reflect the system of denominational education which in fact existed in Ireland at the date of the coming into operation of the Constitution.
This system does not involve the endowment of any religion. The endowment of a religion implies the selection of a favoured State religion for which permanent financial provision is made out of taxation or otherwise. This kind of endowment is outlawed by Article 44, s. 2, sub-s. 2 of the Constitution. The Constitution does however expressly authorise State aid for schools but forbids the State to discriminate between the schools under the management of different religious denominations or to pass any legislation which would affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. The provision of such State aid across the board to schools maintained by the various religious denominations cannot be regarded as the endowment of any one religion.
Institutions for religious or charitable purposes
Article 44, s. 2, sub-s. 5 provides that every religious denomination is to have the right to maintain institutions for religious or charitable purposes. One can get a clearer picture of what is meant by “religious denomination” if one looks at two sub-sections of the Constitution which were deleted by the fifth amendment to the Constitution in 1972. Section 1, sub-s. 2 (now deleted) of Article 44 referred to the special position of the Holy Catholic Apostolic and Roman Church as Guardian of the faith professed by the great majority of the citizens. Sub-section 3 (also deleted) went on to provide as follows:
“The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.”
The term “religious denomination”, was therefore intended to be a generic term wide enough to cover the various churches, religious societies or religious congregations under whatever name they wished to describe themselves.
These various religious denominations may control religious, educational or medical institutions, whether directly or through a board of guardians or trustees and it appears to the Court that these are the religious educational and medical institutions referred to in s. 37. sub-s. 1 of the Bill and that they are also governed by the phrase “institutions for religious or charitable purposes” referred to in Article 44, s. 2 sub-s. 5 of the Constitution.
The Court rejects the submission that a private hospital could be a medical institution within the meaning of s. 37, sub-s. 1 of the Bill without being an institution for charitable purposes referred to in Article 44, s. 2 sub-s. 5 of the Constitution. The Court accepts the submission of counsel for the Attorney General that the term “institutions for religious or charitable purposes” is at least broad enough to cover the four categories of legal charities adopted by Macnaghten L.J. in Commissioners for Special Purposes of Income Tax v. Pemsel [1891] A.C. 531 and approved by the former Supreme Court in Barrington’s, Hospital v. Commissioner of Valuation [1957] I.R. 299 and by Keane J in In re the Worth Library [1995] 2 I.R. 301. At p. 583 of the report Macnaghten L.J. stated that:
“How far then, it may be asked, does the popular meaning of the word ‘charity’ correspond with its legal meaning? ‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed, every charity that deserves the name must do either directly or indirectly.”
Religious discrimination
The central submission of counsel assigned by the Court in relation to the religion ground is that s. 37 contravenes the guarantees of freedom of conscience and the free profession and practice of religion contained in Article 44, s. 2, sub-s. 1 and the ban on imposing any disabilities or making any discrimination on the ground of religious profession, belief or status contained in Article 44, s. 2, sub-section 3. Alternatively, they maintain that the Oireachtas has failed to preserve a proper balance between the rights of members of the various religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. Consequently, they allege the relevant provisions of the Bill, if enacted into law, would constitute an unjust and disproportionate attack on the rights of these other citizens.
This Court accepts that it is not generally permissible to make any discrimination, or even to make any distinction, between citizens on the grounds of religious profession, belief or status.

This Court has also had to accept that occasions may arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. This problem first arose in Quinn’s Supermarket v. Attorney General [1972] I.R. 1 where the Court had to accept that certain distinctions should be made in favour of the Jewish congregations arising from the fact that the Jewish Sabbath fell on a Saturday and not on a Sunday. In the course of his judgment, delivering the majority opinion of this Court, Walsh J stated at p. 24 that:
“Section 2, sub-s. 1, of Article 44 of the Constitution guarantees freedom of conscience and the free profession and practice of religion in terms which do not confine these to Christianity and Judaism. It appears to me, therefore, that the primary object and aim of Article 44, and in particular the provisions of s. 2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person so practicing religion or holding those beliefs to any disabilities on that account, or permit distinctions on the ground of religious profession, belief or status between persons in the State who are free to profess and practice their religion. If, however, the implementation of the guarantee of free profession and the practice of religion requires that a distinction should be made to make possible for the persons professing or practicing a particular religion their guaranteed right to do so, then such a distinction is not invalid having regard to the provisions of the Constitution. It would be completely contrary to the spirit and intendment of the provisions of Article 44, s. 2, to permit the guarantee against discrimination on the ground of religious profession or belief to be made the very means of restricting or preventing the free profession or practice of religion. The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.”
Walsh J. returned to the same theme in Mulloy v. Minister for Education [1975] I.R. 88 where he stated at p. 96:
“As explained in the judgment given in this Court in Quinn’s Supermarket v. The Attorney General [1972] I.R. 1, it is not permissible to create differences between persons or bodies or to distinguish between them on the ground of religious profession, belief or status, irrespective of whether the difference is to their benefit or to their disadvantage save where it is necessary to do so for the implementation of the constitutional right to the full and free practice of religion.”
In McGrath v. Maynooth College [1979] I.L.R.M. 166, Henchy J. expressed similar views at p. 187 where he stated:
“The constitutional provision invoked here [Article 44.2.3] must be construed in the terms of its purpose. In proscribing disabilities and discriminations at the hands of the State on the ground of religious profession, belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to a sapping and debilitation of the freedom and independence given by the Constitution to the doctrinal and organisational requirements and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.”
It is interesting to note that the American Federal Supreme Court has had to face a similar problem. The American Civil Rights Act, 1964, outlawed religious discrimination in employment. But para. 702 of the Act exempted religious organisations from this prohibition. The plaintiff in the case of the Corporation of the Presiding Bishop v. Amos 483 U.S. 327 was a building engineer employed for some 16 years by the Mormon church to work in a gymnasium. He was dismissed because he failed to produce a certificate that he was a member of the Mormon church and eligible to attend its temples. The court upheld the constitutionality of para. 702 as not violating the guarantees of freedom of religion contained in the first amendment to the American constitution. The reasoning in the concurring judgment of Brennan J. is relevant to the present discussion. At p. 342 of the report he says:
“For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organisations religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself. Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organisations often furthers individual religious freedom as well.
The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on a subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.”
It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofarbut only insofaras this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.
Proportionality
Section 37, sub-ss. 1 and 2 and s. 2 of the Bill are an exception to the general rule against discrimination on the religious ground set out in section 6. It is admittedly a balancing between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one’s livelihood on the other. Counsel assigned by the Court however submit that the Oireachtas has got the balance wrong in that s. 37, in particular, unduly favours the right to free profession and practice of religion at the expense of the other rights named.

No serious criticism can however be advanced against s. 37, sub-s. 2 which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. The attack has been directed more against sub-s. 1 which entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee “where it is reasonable to do so in order to maintain the religious ethos of the institution” or to take action “which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution”.
The use of the words “reasonable” and “reasonably necessary” implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis.
Counsel assigned by the Court point to the use of the word “ethos” in sub-s. 1 and submit that the religious institution or denomination will state in each case what its “ethos” is and that the test will in fact become subjective. It is true that “ethos” is a vague term and is nowhere defined in the Bill. Chambers English Dictionary gives, inter alia, the following meaning to the word “the distinctive habitual character and disposition of an individual group”. It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the court and the court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.
Section 12
This deals with vocational training and is justified in the same manner as s. 37, sub-section 1. It first outlaws discrimination and then for the purpose of ensuring the availability of nurses for hospitals and teachers for primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools provides that the prohibition of discrimination on the religion ground is not to apply in respect of:
“(a) the nomination of persons for admission to the School of Nursing pursuant to clause 24 (4) (a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970, (Section 76) (Adelaide and Meath Hospital, Dublin incorporating the National Childrens Hospital) Order, 1996, or
(b) places in a vocational training course specified in an order made under subsection (5).”
Sub-section 5 provides that:
“Where an educational or training body applies to the Minister for Health, in the case of hospitals, or to the Minister for Education, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health or the Minister for Education, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health or the Minister for Education, as the case may be, to meet the purposes set out in subsection (4).”
Again, and for the reasons already discussed in relation to s. 37, sub-s. 1, it appears to the Court that s. 12 represents a reasonable balancing between the principle of equality before the law on the one hand and the principle of the free profession and practice of religion on the other hand.
For these reasons the Court rejects the challenge to the Bill based on the religion ground.

J. McG. and W. McG. v An Bord Uchtala and Attorney General

High Court

13 May 1974

[1973 No. 2036 P.]
[1975] 108 I.L.T.R 62
Pringle J.

Pringle J.:

The plaintiffs, who are husband and wife, seek a Declaration that the provisions of section 12 of the Adoption Act, 1952, (No. 25 of 1952), as amended by the provisions of section 6 of the Adoption Act, 1964, (No. 2 of 1964), are repugnant to the Constitution of Ireland and are invalid and of no effect and a Declaration that the decision and Order of the first-named defendant dated the 1st day of May, 1973, in relation to the application of the plaintiffs for an adoption Order for a male child named Mark born out of wedlock to the second-named plaintiff, were made unlawfully and without jurisdiction and in excess of jurisdiction, were ultra vires and failed to have due regard to the natural and constitutional rights of the plaintiffs and each of them and of the said child.

The facts are not in dispute and can be shortly stated. The plaintiffs were married on the 4th day of July, 1970. The first-named plaintiff is an accountant aged 27 years and is a Roman Catholic. The second-named plaintiff is 26 years of age and is a member of The Church of England The child Mark was born to the second-named plaintiff on the 8th day of June, 1967, when she was unmarried and, while originally brought up as a Member of The Church of England, is now, and was at the time the application hereinafter referred to, being brought up a Roman Catholic and will shortly be making his First Communion in that Church. He has resided since their marriage with the plaintiffs, who have two young sons. The first-named plaintiff is not the father of Mark.

The plaintiffs applied on the 28th day of March, 1973 to the first-named defendants for an adoption order under section 9 of the Adoption Act, 1952, for the adoption of the child Mark, and by letter dated the 1st day of May, 1973, the plaintiffs were informed by the first-named defendants that, having considered the application at a sitting on that date, the Board decided to reject the application on the sole ground that the provisions of section 12 (2) of the Adoption Act, 1952 were not satisfied. This sub-section provides as follows:

“(2) The applicant or applicants shall be of the same religion as the child and his parents or, if the child is illegitimate, his mother.”
Under sub-section (5) of the same section it is provided that:

“(5) A child’s religion shall be taken to be that in which he is being brought up.”
It is quite clear that, if these sub-sections are valid, the child Mark could not be adopted under the Act by the plaintiffs, as the plaintiffs are not both of the same religion and therefore cannot be said to be of the same religion either of the child or of his mother. Similarly, the female plaintiff could not adopt her own child as she is not of the same religion as the child. The constitutionality of the provisions of section 12 of the Act is contested by the plaintiffs on several grounds They are alleged to be repugnant to the Constitution on the grounds:— (a) that they contravene the provisions and requirements of Article 40, sections 1 and 3 of the Constitution and, (b) that they contravene the provisions and requirements of Articles 41 and 44 of the Constitution. I propose to deal first with the contention that the section, and particularly sub-section (2) thereof, contravene Article 44, and particularly sub-Article 2 (3), of that Article which provides as follows: “The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.” Mr. Conolly and Mr. Barrington on behalf of the plaintiffs submitted that the effect of sub-section (2) of section 12 of the Act is both to impose a disability on, and to make a discrimination in respect of, (a) the plaintiffs as a group, (b) the plaintiffs individually and (c) the child, on the ground of religious profession or belief. In regard to the plaintiffs as a group, that is to say as husband and wife, it was contended that there is a disability imposed and a discrimination caused on the ground of their religious profession or belief between a husband and a wife who are of the same religion and a husband and wife, like the plaintiffs, who are of different religions, and in regard to the plaintiffs as individuals on the ground that each of the plaintiffs is under a disability and is discriminated against, because they happen to have married a person of a different religion and, in addition, the female plaintiff is under a disability and is discriminated against as the mother of a child whom she cannot adopt because they are not of the same religion. As regards the child, the contention is that he is under a disability and is discriminated against because he is not of the same religion as both the plaintiffs and because he is not of the same religion as his mother. It is conceded on behalf of the plaintiffs that the right to adopt legally, or to be adopted legally, is not a natural right, but are rights created by the Act, which the plaintiffs say should be equally available to all persons who satisfy the requirements of the Act in regard to residence, age, and otherwise, regardless of their particular religious profession or belief. That the right to apply for and obtain an Adoption Order provided for in the Act is a valuable right both for the adopters and the child is quite clear. Section 24 (a) of the Act provides that, “upon an adoption order being made the child shall be considered with regard to the rights and duties of parents and children in relation to each other as the child of the adopter or adopters born to him, her or them in lawful wedlock,” and by section 26 valuable property rights, either on intestacy or under a disposition by instrument inter vivos or by will, are conferred on both the adopted child and on the adopter or adopters and under section 11 of The Irish Nationality and Citizenship Act, 1956, upon an Adoption Order being made in which the adopter, or where the adoption is by a married couple, either spouse, is an Irish citizen, the adopted child, if not already an Irish citizen, shall be an Irish citizen.

As regards the meaning to be given to the words “disabilities” and “discrimination” in Article 44 (2) (3) of the Constitution, I was referred by Mr. Conolly to the judgment of the Supreme Court in the case of Quinn’s Supermarket v. The Attorney General [1972] I.R. 1 in which Walsh J., said at page 15 “The plaintiff’s case is based upon sub-section 3 of section 2 of Article 44. The plaintiffs have certainly suffered a disability in the sense that they are legally disqualified from, and are deprived of the power of carrying on the business of selling meat after the hours set out in the statutory instrument. This is a deprivation but in my view, where the provision speaks of ‘disabilities’, the disability must be one which is suffered and imposed on the ground of the religious profession, belief or status of the person so disabled. That the provision was aimed at preventing the imposition of a personal or perhaps even a corporate, disability is quite clear from the Irish text, which is: “ Ni cead don Stát neach do chur fa mhichmas ar bith. ” If an imposed disability is to be examined, and the grounds upon which it is imposed are to be examined, clearly the grounds must relate to the person or body upon whom the disability is imposed” and, later on the same page, “That the correct approach is that the question of disability should be examined on a subjective basis is, in my view, amply borne out by the provisions with regard to discrimination. It was submitted on behalf of the defendants that ‘discrimination’ should be construed as if it read ‘discrimination against’. In my view the learned High Court Judge was quite correct in rejecting that submission. If the provision had read ‘discrimination against’— meaning distinguishing unfavourably on the grounds of religious profession, belief or status—it would also mean that the text would have been related to the religious profession belief or status of the person discriminated against. It is the omission of the word ‘against’ which confirms me in my view that this portion of the constitutional provision should be construed as meaning that the State shall not make any ‘distinction’ on the ground of religious profession, belief or status. This is confirmed by the Irish text which says na aon idirdhealu do dheanamh. To discriminate, in that sense, is to create a difference between persons or bodies or to distinguish between them on the grounds of religious profession belief or status: It follows, therefore, that the religious profession belief or status does not have to be that of the person who feels he has suffered by reason of the distinction created. Indeed it is wide enough to enable the person who might be thought to have profited from the distinction, but who did not accept the validity of such distinction, to challenge it by showing it was based upon the religious profession, belief or status of the suffering party. In such instance the suffering party could avail of the remedies open to him under the disability provision, as well as under the ‘discrimination’ provision, if in fact he was suffering a disability”

This judgment was relied upon by Butler J. in his judgment in the unreported case of Mulloy v. The Minister for Education and The Attornel General (delivered on the 22nd day of March, 1974) where he held that the provisions of a scheme introduced by the Minister for Education in regard to incremental salaries for secondary teachers infringed the provisions of Article 44 (2) (3) of the Constitution, because they excluded clerics. The learned Judge said: “It seems to me to be clear beyond argument that the terms of the scheme confining it to lay teachers does create a difference and does distinguish between them and teachers of a different religious status, namely clerics such as the plaintiff. It is also clear that the ground of such discrimination is the difference in religious status.” This case is also an answer to the argument of Mr. Liston for the Attorney General that the right infringed must be a natural right, as the right held to be infringed in that case was stated by the learned Judge to be “the right to be considered for such payment on the same footing as a lay teacher in a similar position to his”

Mr Liston submitted that the Legislature, in conferring the right of legal adoption, was entitled to provide reasonable restrictions on this right and that the provision that the adopter or adopters should be of the same religion as the child and his parents, or if the child is illegitimate, his mother, was a reasonable restriction. I cannot accept that submission I do not agree that the restriction was a reasonable one, and, even if it were, it could not be valid if it infringed the Constitution, as I am satisfied it did. One of the matters decided in the Quinn’s Supermarket Case was that, as the primary object of Article 44 section 2 (as stated in sub-section 1) was to secure and guarantee to every citizen freedom of conscience and the free profession and practice of religion, a discrimination within the meaning of sub-section 3 was not invalid if the implementation of the primary object required the making of that discrimination. It has not been suggested that the primary object of Article 44 required the making of the discrimination relied on in this case.

I have approached this case, as I must, on the basis that the provisions of the Act must be presumed to be constitutional and that the onus would, in the ordinary case, be on the plaintiffs to rebut this presumption I agree however with the statement of Chief Justice Taft in the American case of Bailey v Arexel Furnishing Co. 259 U.S. 42 where he said: “But in the Act before us the presumption of validity cannot prevail, because proof to the contrary is found on the very face of its provisions.” I consider that that is the position here, that is to say that the provisions of section 12 (2) are clearly on their face in contravention of Article 44 (2) (3) of the Constitution for the reasons advanced by Counsel for the plaintiffs. If this is not so, I hold that the plaintiffs have discharged the onus of rebutting the presumption of their constitutionality. The sub-section referred to, in my opinion, clearly imposes disabilities and makes a discrimination (within the meaning put upon those words in the Supreme Court) on the ground of religious profession or belief and therefore is invalid.

Having regard to the opinion which I have formed as to the invalidity of the sub-section by reason of Article 44 (2) (3) of the Constitution, I do not consider it necessary to decide whether or not it is also invalid having regard to Article 40, section 1 or 3, or Article 41.

I will therefore make an Order declaring that the provisions of section 12 (2) of The Adoption Act, 1952 are repugnant to the Constitution and are invalid and of no effect, and that the decision and Order of the first-named defendants made on the 1st day of May, 1973, in relation to the application of the plaintiffs for an Adoption Order for the child Mark were unlawful and invalid I will make no Order on foot of the other claims of the plaintiffs, but I will give liberty to either party to apply

McGrath and O’Ruairc v Maynooth College

[1979] ILRM 166
Supreme Court (Ireland)
Judge: O’HIGGINS C.J., KENNY J., Henchy J., GRIFFIN J., PARKE J.

JUDGMENT delivered the 1st day of November 1979by O’HIGGINS C.J.

The Issues
In these proceedings the Court is concerned with joint appeals by bothPlaintiffs against the Judgment and Order of Mr. Justice Hamilton in theHigh Court and a cross-appeal by the Defendants against so much of thesaid Judgment and Order as found in favour of the first-named Plaintiffthat he had not been validly removed from office and as awarded himdamages and also against the failure of Mr. Justice Hamilton to awardcosts against the second-named Plaintiff. Both Plaintiffs were on theteaching staff of St. Patrick’s College, Maynooth, and, having beendismissed or removed from office by resolution of the Defendants, theyhave brought these proceedings seeking a declaration that the resolutionwas invalid. The issues which arise on this appeal are numerous. In thefirst place consideration must be given to the true statusandrole of St. Patrick’s College, Maynooth (hereinafter referred to asMaynooth), having regard to the claim made by the Plaintiffs that theCollege Statutes, or those of them as are relied upon in theseproceedings, are ultra vires the powers of the Defendants. There is alsothe question whether the procedures adopted by the Defendants indismissing the Plaintiffs from their offices were correct under theseStatutes, and if so, whether they were in violation of thePlaintiffs” rights under the Constitution. With particularreference to the second-named Plaintiff there is the question whetherthe Rescript of Laicisation, which he had received, obliged him toresign from his teaching post and if so whether such a requirementamounted to discrimination against him on the grounds of religiousstatus, contrary to the Constitution. Generally, in relation to theproceedings brought under the College Statutes against the Plaintiffs,there is the question whether in the circumstances the Defendants actedbona fide or, on the contrary, maliciously and capriciously in doingwhat they did. Finally, on the Defendants” appeal.the question is raised whether on the evidence the trial Judge wasentitled to hold that the first-named Plaintiff had been removed fromhis office for a reason or cause not disclosed to him.

What is Maynooth?
In the first place I propose to consider the true position or status ofMaynooth, having regard to Irish law. While there have been numerousreferences in the transcript to the provisions of Canon Law this codecannot, in my view, affect the questions at issue, except in so far asits provisions are made relevant under our law. Such relevance could beestablished by contract or by statutory obligation in particularinstances. In the absence of such, the law to be applied is the law ofIreland.

Maynooth was incorporated or founded pursuant to the provisions of anAct of the Irish Parliament, 35 Geo. III C. 21 entitled

“An Act for the better education of persons professing the Popishor Roman Catholic Religion”.

The purpose of the Act was thus stated in the Preamble:

“Whereas, by the laws now in force in this kingdom, it is notlawful to endow any College or Seminary for the education exclusively ofpersons professing the Roman Catholic Religion, and it has now becomeexpedient that a Seminary should be established for thatpurpose.”

The Act went on to appoint Trustees who were authorised to set about theestablishment of “one academy for the education only of personsprofessing the Roman Catholic Religion, to collect money for thispurpose, to acquire land and to erect the necessary buildings.” Bysection 3 the Trustees, inter alia, were given power “to make suchbye-laws, rules, regulations and statutes for the government of the saidacademy ……… as to the trustees……… shall seem meet.” The provisions of thisAct were altered and enlarged by subsequent Acts. These were in turnwholly or partially repealed by the Statute 32 & 33 Vic. C. 42. Theunrepealed portions of these later Acts gave the Trustees visitorialpowers, incorporated them as a body politic and corporate under the name”The Trustees of the College of Maynooth” and provided thatthey could sue and be sued in that name. Following itsopening in 1800 both clerical and lay students were admitted to Maynoothas appears from the “Centenary History of Maynooth” to whichboth this Court and the High Court have been referred. In 1817 theadmission of lay students was discontinued. From that year until 1967Maynooth catered exclusively for clerical students, that is, for thosewho were studying for the priesthood. In 1896 Maynooth was constituted aPontifical University by the Holy See under the title “AthenaeumS. Patricii Manutiae” with faculties of theology, canon law andphilosophy. Following the establishment of the National University ofIreland, Maynooth was, in 1910, pursuant to the provisions of the IrishUniversities Act 1908, declared to be a recognised college of the newUniversity. In 1967 lay students were again admitted and their numbernow far exceeds that of clerical students. A State grant out of fundsnow administered by the Higher Education Authority is, and has been forsome years, paid to Maynooth and this has been considerably augmentedsince the re-admission of lay students in 1967. Thisgrant is used for the payment of salaries of professors and teachers insuch posts as those held by the two Plaintiffs.

Having regard to its statutory origins and to its development over whatis now almost two centuries, the question is: what in essence isMaynooth? It is a recognised College of the National University ofIreland. This does not make it either a constituent College of thatUniversity nor, of course, a university in its own right. Recognition asa College of the National University merely means that because studiesof a university type approved by the Governing Body of the NationalUniversity of Ireland are therein pursued under teachers recognised bythat Body, students pursuing such courses are eligible to receivedegrees (Section 2(4) Irish Universities Act 1908). If such coursesceased to be approved or the teachers were no longer recognised,Maynooth would not cease to function. It would no longer be a recognisedCollege of the National University of Ireland but this would not affectits statutory authorityand function as a place of education. This authority stems from thefounding Statute of 1795 and not from any recognition, conceded orgranted by the National University of Ireland. In precisely the sameway, in my view, is Maynooth’s position as a Pontifical University undercannon law irrelevant to its true and essential role under our law. Ifrecognition as a Pontifical University were withdrawn, the prestige andreputation of Maynooth as a place of learning in the Catholic worldwould, no doubt, suffer. This would, however, in no way affect orrestrict its right to exist and to teach. This right, which isMaynooth’s essential raison d’être, is to be found, not inrecognition as a Pontifical University, but in the provisions of ourstatute law under which it was established, incorporated and givenauthority, functions and duties.

Maynooth’s Essential Role
In my view, therefore, one looks to these founding statutes in order todetermine Maynooth’s essentialfunctions and proper status. It is clear from the preamble to theStatute 35 Geo. III Ch.21 that it was founded as a”seminary”. This word “seminary” derives fromthe Latin “seminarium” which means a seed plot, and has overthe centuries been used to describe a place of education for aparticular purpose in which persons of a particular class or destinedfor a particular profession are trained or produced. In particular, atleast in these islands, the word “seminary” connotes aschool, college or academy for the training of persons as priests in theCatholic Church. That such was the type of institution sought by theCatholic Bishops of Ireland when they presented their petition to theLord Lieutenant prior to the passing of the 1795 Act, is reasonablyclear. In this petition presented in 1794 the bishops asked for the”establishment of seminaries for the training of ecclesiasticsdestined to receive Holy Orders” (See History of Maynooth, p.98).The Act, recognising the need for a Catholic seminary in Ireland,authorised the establishment of “one academy for theeducation only of persons professing the Roman Catholic religion”.Pursuant to this statutory authority, Maynooth opened in 1800 as aninstitution for the training of students aspiring to the priesthood andhas over almost two hundred years continued to fulfil this function. Ihave no doubt that this is and continues to be Maynooth’s essentialrole. Recognitions as a Pontifical University and as a College of theNational University are honours which have added to Maynooth’s prestige,reputation and standing but although they may conceal, they cannot alterMaynooth’s true function and role. Such an alteration can only bebrought about by a change in the law and no such change has takenplace.

The College Statutes
I turn now to consider the College Statutes, or rather those of themwhich appear to be relevant in these proceedings. These Statutes wereadopted by the Defendants on the 2nd October 1962 in purported exerciseof the power in that regard bestowed upon them by the Act of 1795. InChapter I which comprises Statutes 1 to 17Maynooth is described and provision is made for its Governing Body,which is the Defendants, and for their meetings and functioning. Thedescription of Maynooth is contained in the opening Statute and is asfollows:

“St. Patrick’s College, Maynooth, is a major seminary for theeducation of aspirants to the priesthood for all the dioceses ofIreland. It is a Pontifical University and a Recognised College of theNational University of Ireland.”

For the reasons which I have already given I regard this description asa precise and exact one. Statutes 12, 13, 14, 15 and 16 deal with theVisitors. These include the four Metropolitans, ex officio, togetherwith at least four other bishops elected each year. The Visitors aregiven power to meet in College and have the duty to examine carefullyall matters affecting the discipline, studies and finances of theCollege and to make necessary inspections. The Visitors act on behalf ofthe Trustees in relation to matters of urgency, but their decisions mustbe referred to a subsequent meeting of the Trustees. Chapter IIcomprising Statutes 18 to 41 deals with the CollegiateBody. The Collegiate Body consists of the superiors (the President andVice-President), the Deans, the Spiritual Fathers, the bursar, thelibrarian, the curator of the museum, the professors, the lecturers, theassistant bursar and the students. All members of this Body exceptstudents and part-time professors and lecturers are designated asofficials. The particular rights of officials as to board, use of rooms,lights, fire, attendance, salary, medical treatment, etc., are dealtwith in Statutes 21 to 25. Statute 26 requires to be noted and providesas follows:

“Every College official enjoys stability of tenure according tothe terms of his appointment, but shall be liable to dismissal: first,if guilty of dereliction of the duties of his office or grave violationof the College Statute or grave external offence against Catholic faithor morals or grave delinquency against clerical obligations, if he be apriest; secondly, if he suffers such loss of reputation that hiscontinued association with the College would in the judgment of theTrustees be gravely prejudicial to its interest.”

Statute 27 provides as follows:

“If an official of the College be guilty of grave dereliction ofduty or of a serious public offence, it shall be the duty of thePresident to give immediate notice thereof to the Visitors or to theTrustees. Should the President be so guilty, this duty shall devolve onthe other members of the Administrative Council.”

Statute 28 provides:

“Any official of the College may, upon due cause as specified inStatute 26, be removed from his office by the Trustees. He shall besupplied by the President with a written statement of the cause allegedand should within fifteen days submit in writing his defence orexplanation, which shall be considered by the Trustees. If the Trusteesdecide upon his removal, their decision shall be communicated to him inwriting and he has the right within another fifteen days to submit afurther written statement and, if the Trustees so decide, he may beheard by them in his own defence. The Trustees shall then give theirdecision in writing and the only appeal from it is to the HolySee.”

Statute 31 provides:

“College officials are bound by these Statutes and by suchstatutes and regulations as shall from time to time be enacted by theTrustees and signified to them in writing.”

Statute 33 provides that each official, after appointment by theTrustees shall be given a copy of the College Statutes and shall sign adeclaration to the following effect:

“I ……..hereby declare that I accept office subjectto the Statutes of St. Patrick’s College, Maynooth, relating to the saidoffice, that I will observe the Statutes of the College faithfully andperform the duties of my office.”

Statute 36 provides as follows:

“Every College official is bound not merely to perform the dutiesof his office but also to reside continuously within the College exceptduring his recognised vacation periods ……..”

Statute 37 provides:

“In addition to the permission required by Canon Law, officialsrequire the permission of the President for the publication of books orarticles. Should the President withhold such permission, appeal may betaken to the Trustees or to the Visitors. In the case ofarticlesin ecclesiastical journals the President may give a generalpermission.”

Statute 40 provides:

“College officials are forbidden to make any statement or publishany writings prejudicial to ecclesiastical authority or the interests ofthe College. In lecturing on subjects having moral or religiousimplications they shall exercise great prudence so as not to disturb theconsciences of the faithful.”

Chapter-III deals with the President and provides for the exercise ofhis authority and the general supervision by him of the running of theCollege. None of the other provisions or statutes require to beparticularly noted, except the obligation imposed on professors andlecturers by Statute 142 “to co-operate with the superiors inmaintaining the discipline of the College….”

It has been suggested in argument that these Statutes are ultra viresthe powers of the Defendant. I used the word “suggested”deliberately because I did not understand this submission to the pressedvery seriously. It was more in the nature of an assessment of whatchanges had taken place in Maynooth and an appraisal of theStatutes in the light of these changes. It was stated in evidence andurged at the Bar that very many of these College Statutes have not beenobserved and have in fact fallen into disuse. It was also urged that theStatutes with their code of discipline and strict rules of supervisionare inappropriate to a university atmosphere and inimical to the kind ofacademic freedom which is necessary to a university and which ought toprevail in Maynooth. In this respect it was pointed out that Maynoothhad now become an open centre of third level education and that as aconsequence the former small and confined collegiate body, for whom theStatutes were designed, no longer existed. There may be validity inthese assertions as matters of fact. I cannot see, however, even if suchbe the case, that they establish any legal imperfection or weakness inthese Statutes. The Statutes seem to me to be well within therule-making powers conferred on the Defendants by Section 3 of the 1795Act. This Section authorises the Defendants to make rules, regulationsand statutes “for the government ofthe said academy, and, for the education and government of all suchpersons to be on the foundation thereof, or to be educated therein andfor the appointment and election of a president, masters, fellows,members and officers of the said academy.” The fact that theStatutes having been made are not being observed in whole or in part maybe a reason for administrative action or review but it does notinvalidate what has been done. Again, the fact that the Statutes are notattuned to the changes which have taken place is no argument againsttheir validity, although it may well constitute a reason forre-examination and amendment. It must be remembered, however, thatMaynooth has no power to be other than what it was founded to be.Changes may take place and new developments may occur but there is astatutory limit to what these may be and to how far they may go. Theessence of Maynooth is that it is a religious seminary and only theCireachtas acting within the Constitution can permit it to beotherwise.

Court’s Power to Review
It is now necessary to consider other submissions made on behalf of thePlaintiffs. These relate to the procedures adopted and the groundsadvanced for their removal from office. Before doing so, however, Iwould like to mention some general principles which should, in my view,guide a court when it is asked to exercise a power of judicial review ina case of this nature. The Plaintiffs claim that the decision of theDefendants, who are a statutory body, should he set aside as beinginvalid. The Defendants assert that the decision in question wasproperly made, was within their competence and was in accordance withthe statutes or rules which apply. Subject to the submission as to ultravires, already dealt with, it is not contested that under these statutesor rules the Defendants had the power to remove or dismiss. ThePlaintiffs” claim, however, that in the circumstances of thiscase, the exercise of this power by the Defendants was unjustified andthey seek the intervention of the Court. The extent to which the Courtmay go inentertaining such a claim has been the subject of many decisions overthe years. These decisions emphasise that regard must be had to the trueand proper function of the Court in exercising this power of judicialreview. This function is to consider whether the decision in questionwas properly made, not whether it was a decision which ought to havebeen made. Court intervention may be sought because of incompetence inthe decision-making authority or because the process or procedure wasunjust or illegal. It may not be sought merely because the decisionarrived at on the facts claimed or established, was, incorrect. What theCourt must consider, accordingly, is whether the decision to remove ordismiss was exercised for reasons or grounds which were authorised,whether it was so exercised in accordance with the procedure authorisedand, if so, whether this procedure was fair and just. If the procedure,even if authorised, were not fair or if what was done was done mala fideor capriciously, then the Court could properly intervene because ofinjustice in the one case and lack of competencein the other. While the correctness or otherwise of the decision cannotbe questioned once it is arrived at bona fide, fairly, and within thecompetence of the deciding body, one other thing should be said. Theremay be circumstances, and it is urged that such exist in this case, inwhich the decision or act complained of is so manifestly wrong and”beyond all reason” (to use the phrase of Brett L.J. in Dawkins v. Antobus 17 Ch. Div.615 at 630) as to be, itself,evidence of mala fides. If such be the case this factor could properlybe considered in support of a contention that the power had beenexercised not bona fide but wrongly and for reasons not authorised.

The Facts
Having set out what I consider to be the legal principles which apply tocases of this kind, I now propose to refer to the relevant facts uponwhich the Plaintiffs” claim is based.

As already mentioned, both Plaintiffs were members of the teaching staffat Maynooth. The first-named Plaintiff was the Professor of Logic andGeneralMetaphysics and was initially appointed for three years on the 18th June1968, and his appointment was confirmed as being permanent on the 22ndJune 1971. He was then as priest. The second-named Plaintiff wasLecturer in Modern Languages and was also initially appointed for athree-year period on the 13th October 1970 and his appointment wasconfirmed as being permanent on the 9th October 1973. He was also apriest. In the academic year 1974/1975 both Plaintiffs were grantedsabbatical leave. On their return to Maynooth in October 1975 bothPlaintiffs adopted lay or non-clerical attire. The then President spoketo each Plaintiff privately about this. He was informed by thefirst-named Plaintiff that he had come to a decision to seek laicisationand by the second-named Plaintiff that he had in fact applied to hisBishop, the late Cardinal Conway, for laicisation. The President havingreported back to the College Visitors on his interviews with thePlaintiffs received a request from them to issue a directive to eachPlaintiff to resume the wearing of clerical dress forthwith. This thePresidentdid by letter to each Plaintiff, date 27th November 1975. The issuing ofsuch directive or precept was authorised by Statute 49. NeitherPlaintiff obeyed this directive. The first-named Plaintiff wrote to thePresident on December 1st, 1975, indicating his view that the wearing ofclerical garb by priests was becoming less habitual and an intention onhis part not to obey the directive. The second-named Plaintiff repliedto the President asserting that there was no obligation under theCollege Statutes to wear clerical dress. This Plaintiff also, somemonths later, ceased to reside in Maynooth. He did so because of hisapplication for laicisation but without receiving permission to do so.The First-named Plaintiff some time towards the end of 1975 initiatedthe process of laicisation through his Bishop, the Bishop of Kildare andLeighlin. It appears, however, that he had some doubts about continuingthis process and by letter dated 5th July 1976 his Bishop wrote to himrecalling him to the Diocess and saying:

“After much consideration I have come to the conclusion that achange of work and a returnto your own Diocese would afford the best hope of saving you for thepriesthood.”

This Plaintiff declined to comply with this direction and indicated thathe proposed to remain in Maynooth as he was “entitled to do sounder the College Statutes”. By letter dated November 1st, 1976,the first–named Plaintiff was informed on behalf of the Defendantsas follows:

“The question of your continuance as a member of the staff ofMaynooth College has been under consideration by the Trustees.

The Trustees have adverted to the fact that, despite an admonitionissued to you in 1969, you have continued to publish writingsprejudicial to ecclesiastical authority and to the interests of theCollege.

They have also adverted to the fact that you have declined to complywith the directive of the President, issued, as you are aware on theexpress instructions of the Visitors, and conveyed to you in writing ina letter from the President, dated 27th November 1975.

It appears to the Trustees that the above facts constitute a derelictionof the duties of your office and a grave violation of the CollegeStatutes. They also believe that these facts, and other matters of whichyou are aware, have resulted in such loss of reputation thatyourcontinued association with the College would be gravely prejudicial toits interests.

The Trustees feel that, in all the circumstances of the case, it is notin the best interests of Maynooth College that you should continue as amember of the staff, and they wish you to submit forthwith yourresignation from your position in the College with effect from the 31stDecember 1976.

The Trustees propose that your salary should be payable to you up to the31st March 1977 conditional upon your resigning forthwith and desistingfrom further lecturing or other participation in the work of the Collegefrom the end of the present term. In such event, the Trustees wouldalso, without binding themselves in any way, give sympatheticconsideration to the question of an ex gratia payment to you on theseverance of your connection with the College. Should you be unwillingto submit your resignation as requested, I am asked to inform you thatthe Trustees will give consideration to the question of your dismissalin accordance with the provision of the Statutes of theCollege.”

The request to resign contained in this letter was declined by thisPlaintiff who continued to lecture and to participate in the work of theCollege. At this stage, this Plaintiff, although he had initiated theprocess oflaicisation, had not received the rescript and was still a priest.

The second-named Plaintiff in relation to his application forlaicisation had two interviews with his Bishop, the late CardinalConway. At the first of these, on 17th January 1976, the Cardinalinformed him that laicisation would entail his leaving Maynooth andadvised him to submit his resignation. At the second interview whichtook place after the rescript had been granted the Cardinal told himthat he could no longer retain his position in Maynooth and asked him tosubmit his resignation. He also told him that if he did so his salarywould be paid up to the 31st December 1976 and that the Diocese wouldassist him if he did not get other employment. This Plaintiff and theCardinal had subsequent correspondence aimed at clarifying theconsequences of the Plaintiff either resigning or failing to resign. Theend result was that this Plaintiff did not resign.

The next step was the receipt by each Plaintiff ofletters dated 1st February 1977 written by the President on behalf ofthe Defendants. These were formal letters initiating the procedure forremoval from office under Statute 28 of the Maynooth Statutes. Theletter to the first-named Plaintiff gave the following reasons for theproposed action:

“Despite an admonition issued to you in 1969 (following thepublication of the first article listed below) you have continued topublish writings prejudicial to ecclesiastical authority and to theinterests of the College. References made to articles published in”The Irish Times of the 21st March 1969. “The Furrow”of December 1971, “Concilium” of March 1973 and “TheMaynooth Review” of November 1975.

You have declined to comply with a directive of the President, issued,as you are aware, on the express instructions of the Visitors, andconveyed to you in writing in a letter from the President dated 27thNovember 1975.”

The letter contained a request that he resign his position and expressedthe hope that “even at this stage” he would do so. It alsoconveyed an assurance that if he did resign his salary would continue tobe paid up to September 30th, 1977, and that an ex gratiaseverancepayment would also be considered. In the event of his declining toresign he was told that he “should within fifteen days of thereceipt of this letter submit in writing your defence or explanation andthis will be considered by the Trustees.” The letter to thesecond-named Plaintiff indicated that the reasons for the proposedaction was that, as follows:

“1. As you know, the terms of the Rescript of Laicisation, bywhich the Trustees are also bound, include the rule that you areforbidden to hold a teaching post in a College such as Maynooth.Following upon your application for laicisation you were informed by theCardinal on behalf of the Trustees that the Trustees wished you toresign from your teaching post in Maynooth College in the event oflaicisation. This was communicated to you at a meeting with His Eminenceon the 19th January 1976. Following upon receipt of the Rescript youwere again asked on behalf of the Trustees to submit your resignation,but you have hitherto refused to do so. It appears to the Trustees thatyour refusal to resign in these circumstances amounts to a graveviolation of the obligation imposed upon you as a laicised priest, bythe Norms of the Holy See and the terms of the Rescript and thereforeamounts to a grave delinquency against your clerical obligationsasa priest.

a 2. (a) You have declined to comply with a directive of thePresident, issued, as you are aware, on the express instructions of theVisitors, and conveyed to you in writing in a letter from the Presidentdated 27th November 1975.

(b) It appears that you have, over a substantial period, been inbreach of the rule of Residence imposed by the College Statutes.

(c) It appears to the Trustees that the facts set out in 2(a) and(b) constitute a dereliction of the duties of your office and a graveviolation of the College Statutes. You are referred to the followingCollege Statutes in particular – Chapter II, No. 36; Chapter III, Nos.43, 44, 45, 46, 47, 49; Chapter IX, No. 142.”

This letter also asked for this Plaintiff’s resignation and containedthe same offer as to salary and severance pay It also requested that, inthe event of this Plaintiff declining to resign, the submission by himof his defence or explanation.

Neither Plaintiff opted to resign. Each submitted by letter a writtendefence. That of the first-named Plaintiff

(1) queried what statements in his published writingswere prejudicial to ecclesiastical authority;

(2) asserted that the articles in “The Furrow” and”Maynooth Review” received the imprimatur of the Bishop ofKildare and Leighlin and were, therefore, judged free from doctrinal andmoral error, that the article in “Concilium” had beenfavourably referred to in a number of Catholic theological journals andthat in respect of “The Irish Times” article he had onlybeen admonished for the manner of publication and not for thecontent;

(3) also asserted that the President’s directive to him had nobinding force because it did not relate to the carrying out of hisduties as Professor and that the College Statutes did not prescribeclerical dress;

(4) in addition, made the case that as a Professor of the Faculty ofPhilosophy his appointment was governed not only by the College Statutesbut also by those of the Pontifical University.

The reply of the second-named Plaintiff

(1) queried whether the Rescript of Laicisation obliged him toresign, denied that he had been requested toresign, stated that in his correspondence he had been seekingclarification, asserted that since he had been laicised he could not beguilty of a breach of clerical obligations;

(2) as to the allegation with regard to clerical clothes the case wasmade that no obligation in this respect was imposed by the Statutes;

(3) dealt in detail with his non-residence on the basis that it waswith the implied approval of the Trustees following his application forlaicisation.

This letter ended as follows:

“In short, may I repeat, I have not refused to resign. Thequestion of considering resignation does not even arise until such timeas I am given an assurance that the verbal undertaking with regard tomonies owed to me will be honoured in the event of my resigning, and Iam given explicit clarification with regard to these monies in the eventof my not resigning. I am not a laicised priest. I am now a layman whois attempting to carry out the duties of his office to the best of hisability.

I contend that there is no power to require me to wear clericaldress.”

By letter dated 29th March 1977, the matter at this stage having passedinto the hands of solicitors, the solicitors for the Defendants gave tothe solicitors for the Plaintiffs details and particulars of the mannerin which the four articles written by the first-named Plaintiff werealleged to have been prejudicial to ecclesiastical authority and to theinterests of the College. This letter stated that the Defendants had meton the 15th March and had considered the written submissions from thePlaintiffs. It also stated that a further meeting would be held on the15th April at which any further submissions would be considered. Theletter also intimated that if the Plaintiffs wished to attend thismeeting or to be legally represented thereat this would be permitted.The Plaintiffs” solicitors then sought permission from theDefendants to be represented at this further meeting by thePlaintiffs” trade union, the Irish Federation of UniversityTeachers. When this was refused the Plaintiffs” solicitors byletter dated 14th April stated that the Plaintiffs would not be present.This letter alsoforwarded a further statement from the first-named Plaintiff dealing indetail with the allegations in relation to the four articles which havebeen referred to by the Defendants. The Defendants met on the 15th Aprilas arranged, and decided to circulate for consideration the furthersubmission by the first-named Plaintiff and on that account to postponeconsideration of both cases to a further meeting. This further meetingwas held on the 6th May 1977 at which meeting resolutions removing bothPlaintiffs from their posts were adopted by the Defendants. It is theseresolutions which are challenged as being invalid in these proceedings.In the High Court Mr. Justice Hamilton had before him the oral evidenceof the Plaintiffs elaborating their answers to the charges broughtagainst them, the evidence of Dr. Shanahan, a Doctor of Canon Law, withregard to the requirements of the Rescript of Laicisation, and otherwitnesses whose evidence was not material. He also had the minutes ofthe meetings of the Defendants and the Visitors, and various otherdocuments and correspondence. As indicated, he came to theconclusion that the first-named Plaintiff was entitled to succeedbecause in his view the real reason for the proceedings against him washis application for laicisation and as this had not been stated as acause or reason pursuant to the relevant Statutes, the proceedingsagainst him were not in order. He held that the second-named Plaintiffhad been validly removed. In the events which have happened, both thesedecisions are now subject to appeal in this Court, and as a consequencethe Court must pronounce on the validity of what was done, having regardto the legal principles which apply.

The Issues on this Appeal
In dealing with the issues which arise on these appeals I have thoughtit convenient to take the various submissions made on behalf of thePlaintiffs seriatim, whether these arise on the appeal of thesecond-named Plaintiff or by way of reply to the Defendants”appeal in respect of the Order in favour of the first-namedPlaintiff.

In the first place it was contended on behalf of bothPlaintiffs that the decisions to remove them from their positions wasone arrived at by the Defendants long before the meeting at which theactual resolutions were passed. This submission is based partly on amemorandum of Cardinal Conway’s interview with the second-namedPlaintiff: on the 10th July 1976 in which the late Cardinal noteshimself as saying to the Plaintiff:

“I said that I very much hoped that in his own interest as well asin the interest of the College and the Church he would resign. I saidthe Trustees had gone into this very fully and I had seldom seen them sostrong or so united in their views. They were quite resolved to pursuethe matter to the very end. It had been considered in March when theconclusion was reached very strongly and it had been looked at again inJune when the conclusion had been confirmed. Arrangements had been madefor meetings during the summer to deal with what the bishops saw as amajor issue.”

It was also based on the minutes of a Visitors’ meeting of July 2nd,1976, which was attended by the Bishop of Kildare and Leighlin. It wasrecorded that at this meeting the case of the first-named Plaintiff wasdiscussedand that the Bishop of Kildare and Leighlin informed the Visitors thathe would recall “Dr. McGrath for service in the Diocese of Kildareand Leighlin and instruct him to submit his resignation from his officein the College.” The Bishop of Kildare and Leighlin’s letter tothis Plaintiff, dated 5th July, recalling him to the Diocese was alsorelied upon. It was submitted that these items of evidence indicated apredetermination by the Defendants before the Plaintiffs were eithercharged or heard, to remove them from Maynooth. On this account it wascontended that the entire proceedings against both Plaintiffs wereconducted contrary to the principles of natural justice and wereinvalid. In my view, this submission, even if factually correct does notentitle the Plaintiffs to succeed. A preconceived view as to what actionshould be taken or as to what the result ought to be, does notinvalidate administrative action of the kind in question provided thebody concerned is willing to hear what may be said by the party chargedand affords to him a full and real opportunity of making his defence.Theessential requirement that the decision be a bona fide and honest one isnot destroyed merely because prior to its making the body in question orindividual members thereof already had strong views as to what should bedone.

With regard to the first-named Plaintiff a number of submissions weremade which called in question both the competence of the Defendants toremove him from office, and their bona fides and honesty of purpose indoing so. The submission as to competence was, as I understand it, basedon three grounds. In the first place it was contended that thedisciplinary Statutes relied on by the Defendants had fallen into disuseand were on that account inoperative. Secondly, it was objected that thedismissal proceedings, having regard to the facts upon which they werebased, were inimical to academic freedom and were inappropriate to auniversity or open centre of third level education such as Maynooth hadbecome. Thirdly, it was alleged that the procedures applied were not inaccordance with the Statutes of the Pontifical University and, inparticular, that any question oforthodoxy involved as to this Plaintiff’s writings should have beendecided by an ad hoc commission appointed under these Statutes. In myview, none of these submissions succeed. As I have already indicated, Ido not regard the failure to observe or enforce the Maynooth Statutes,if such be the case, as a ground for invalidating them. In my view,these Statutes were made by the Defendants within their statutorypowers. They were so made and adopted as recently as 1962. I can see nobasis for asserting that because from time to time individual Statuteshave not been observed in practice, the entire code or any part of ithas ceased to have legal validity. On the contrary it seems to me thatthis Plaintiff accepted his appointment expressly under these Statutesand agreed to observe and to be bound by them. Again, with regard to thesubmission based on the changed status of Maynooth, I can only repeatthe view which I have already expressed, that Maynooth is and remainsessentially a seminary and that this is its status in law. Academicfreedom in any institution is necessarily qualified andcurtailed by the rules and regulations which apply. It may be that thetime has come or has long since passed when the rules or statutes ofMaynooth should be modified or changed, but until this is done theStatutes as they stand prescribe the conditions upon which, by expressassent, office holders in Maynooth hold their offices. With regard toMaynooth’s status as a Pontifical University this is a status underCanon Law – it is not a status know to our law. In the same way, theStatutes of the Pontifical University are statutes enforceable underCanon Law – they are not as such cognisable or enforceable under ourlaw. The Plaintiff’s appointment was made under the Statutes of Maynoothwhich are legal instruments made in accordance with the civil law ofIreland. Prior to his appointment the Plaintiff signed a declarationaccepting his office subject to the provisions of these Statutes. It wasfrom his office in Maynooth that he was removed by resolution of theDefendants and from no other office. I can see no basis either in thePlaintiff’s appointment or his implied contract with the Defendants uponwhich therules or Statutes of the Pontifical University can be considered asapplying in accordance with our law. It may be that these Statutes arerelevant under Canon Law. It may be that in accordance with theirprovisions this Plaintiff has a cause of action against the Defendants.If this is so, such cause of action must be pursued by him in the courtsappropriate under Canon Law.

I turn now to the submissions made on behalf of this Plaintiff that theproceedings brought against him by the Defendants lacked bona fides andwere not honestly pursued for the reasons assigned. This is a seriousallegation and one which must be considered fully and carefully. All theDefendants are Bishops of the Catholic Church in Ireland. This fact,however, is irrelevant in law – what is relevant is that they are astatutory body entrusted with statutory powers. Like every otherstatutory body they can only exercise these powers for the purposes andin the manner laid down. Like every other statutory body exercising suchpowers there is a presumption that they have acted in good faith. Ifdishonesty or mala fides,capricious conduct or irresponsibility were established, such wouldinvalidate what was done. A heavy onus, however, lies on the person whoalleges that such in fact existed. He must adduce positive evidence thatsuch was the case or be able to point to circumstances from which aninference of bad faith ought probably to be drawn. In this case theallegation is that the Defendants had predetermined that the Plaintiffshould be got rid of and on that account put forward as grounds for hisremoval charges which were so trivial, grotesque and unreasonable as toindicate on the balance of probability the existence of mala fides andin that sense a dishonest approach to the proceedings against thisPlaintiff. Involved in this allegation is the suggestion that thecharges or reasons put forward were contrived in order to comply withthe Statutes but that on examination they lacked any real substance. Itseems to follow that if the charges actually put forward can, reasonablybe regarded as being covered by the Statutes then the inferencesuggested cannot be drawn and this submission fails. It isnecessary,therefore, to have regard to the charges and to the facts andsurrounding circumstances upon which they are based. The first chargerelates to four articles published by the Plaintiff. These were asfollows:

The Irish Times, 21st March 1969;

The Furrow, December 1971;

Concilium, March 1973;

The Maynooth Review, November 1975.

In respect of these the allegation made by the Defendants was that theywere prejudicial to ecclesiastical authority and to the interests of theCollege. Statute 37 of the Statutes of Maynooth provides that “inaddition to the permission requested by Canon Law, officials require thepermission of the President for the publication of articles……..” Following the publication of the article inThe Irish Times on the 21st March 1969 the Plaintiff was reprimanded bythe then President of Maynooth and gave and undertaking that he wouldnot publish any further articles without the President’s permission. Theother three subsequent articles were in fact published without suchpermission. Statute 40 of the Statutes of Maynoothprohibits the publication of any writings prejudicial to ecclesiasticalauthority of the interests of the College. It is, of course, thisStatute which was relied on by the Defendants in their proceedingsagainst the Plaintiff. It seems to me that, leaving aside the firstarticle the publication of which was forgiven, the three subsequentarticles should be looked at to see whether they can reasonably beregarded as coming with in the prohibition contained in Statute 40. Thefirst of these was the article in “The Furrow” in December1971 In this article the Plaintiff uses the following words dealing witha document issued by the Episcopal Commission on Doctrine concerning abook by Hans Kung, entitled “Infallible?”:

“It is an open secret that the statement was drafted by the IrishTheological Commission. But who are the people who compose this groupand why have their names not been revealed to the public? If thefaithful are expected to take account of its findings, then they areentitled to know who its members are and what are their credentials. Allthat is known up to new is that a panel of twelve names was submitted tothe bishops by the Irish Theological Association, of which seven wereremoved and three episcopal nominees inserted intheir place; and that a panel of six names were submitted by theCatholic Biblical Association, of which four were removed and twoepiscopal nominees inserted in their place. It is not easy to see thenecessity for these manoeuvres. The nominees of the I.T.A. and theC.B.A. were hardly lacking in competence. Were they perhaps thought tobe insufficiently reliable? The Irish have enough of a sense of historyto be suspicious of anything resembling a packed jury – an institutiondesigned to give an air of objectivity to verdicts which had beenarrived at in advance.”

The second article is one in “Concilium” on the Concept ofInfallibility. In this article the Plaintiff discussed infallibility andargued against it. He expressed the view as follows:

“Even if we overlook the other difficulties here – and this is tooverlook a great deal – does this not deprive infallibility of any realmeaning? What assurance can a claim to infallibility give if thevalidity of the claim is dependent on a whole series of propositionswhose truth is not vouched for by infallibility? The conclusion of anargument cannot be more certain that the premises on which it depends.So what is to be gained by calling a doctrine infallible if itsinfallibility is so dependent on the noninfallible teaching of theChurch? Inany event if the non-infallible teaching of the Church can providecertainty on so many difficult matters, then what use is infallibility?It seems to provide certainly on compensation for the many difficultiesit created.” The Plaintiff went on in the article to express theview that “fallible man cannot be provided with an absoluteassurance against error”.

The third article in the “Maynooth Review” published inNovember 1975 was critical of the Church’s teaching on theindissolubility of marriage and contained the statement:

“The Church’s teaching on the indissolubility of marriage appearsto me to suffer from inconsistencies which are so serious as to be quiteincapable of being cleared up without recasting the entiredoctrine.”

Can it be said that these articles cannot reasonably be regarded asbeing prejudicial to ecclesiastical authority or to the interests of theSeminary in which the writer taught? In the first article the Bishopsare expressly criticised. In the second and third articles teachings ofthe Church enunciated by the ecclesiastical authorities are questionedand stated to be unacceptable. I have no doubt that the Plaintiff wasseeing and striving for thetruth in what he wrote. This, however, is not in issue. That is in issueis whether the Defendants could reasonably have regarded what waswritten as being within the prohibition contained in Statute 40. I feelbound to conclude that they could.

The second charge relates to the Plaintiff’s admitted refusal to obeythe directive given to him by the President. It was suggested that thesubject matter of this directive was trivial and that the whole affairshould be regarded as something of no importance. It may be that thisview is tenable but it does not appear to me to be relevant. Thequestion is whether the disobedience of this directive was something ofsignificance to the Defendants and whether they were entitled to regardthis act of disobedience by a teacher who was a priest in the Seminarywhich they administered as being a matter of grave consequence to theinstitution. They certainly appear to have regarded the reason for theissuing of the directive, the non-wearing of clerical dress, as a matterof considerable concern. It appears that it was raisedformally at a meeting of the Visitors on the 21st November 1975. Theminutes of that meeting state as follows:

“The meeting had before it a written report from the President ofthe College stating that two members of the College staff, namely, theRev. Patrick McGrath and the Rev. Malachy O’Ruairc, had not been wearingclerical dress in the College from the commencement of classes from the1st October 1975. The President had spoken to both priests on thismatter and both had continued lay attire after these meetings. ThePresident had reported the matter to the Administration Council and theCouncil agreed that it was proper to meet the men concerned privately inthe first instance and that the matter would then have to be broughtofficially to the notice of the Trustees. The Visitors decided torequest the President to direct the two priests concerned to resumewearing clerical dress forthwith and to report, each, in December as towhether this direction had been acted upon by the two priestsconcerned.”

I feel bound to conclude that at this meeting the Visitors regarded thenon-wearing of clerical attire by the two priests concerned as a seriousmatter and inrequesting the President to issue a directive the Visitors wished tobring home to both men concerned the importance to be attached to it. Weknow that this directive was duly issued by the President in accordancewith Statute 49. The Plaintiff’s reply indicated a determination on hispart not to obey the directive. It appears from the evidence that thewearing of clerical garb by priests in Ireland is an obligation imposedby Canon Law. In these circumstances can it fairly be said that thematter was of no importance and could not reasonably warrant any furtheraction by the Defendants. Based on the fact of what was published by thePlaintiff and on his refusal to obey the President’s directive theDefendants in their letter of February 1st, 1977, charged this Plaintiffwith a dereliction of the duties of his office and a grave violation ofthe College Statutes. It may be that their action was finally decidedupon after it became clear that the Plaintiff was not going to resignand was not going to leave Maynooth. This does not, however, affect thequestion which is fundamental to this branch of the case,whether the Defendants could reasonably have regarded the fact of whatwas published and the fact of refusing to obey the President’s directiveas constituting grave violations of the College Statutes. In my view,they were entitled so to regard these facts.

With regard to the second-named Plaintiff the submission is made thatthe major charge brought against him to the effect that he was in breachof the conditions of the Rescript of Laicisation in refusing to resignwas bad and wrong in law. It can be accepted that if the Defendants inthis sense had proceeded on a wrong basis their decision would not havebeen justified and could not be sustained. At issue in this submissionis the true status of Maynooth. The Rescript of Laicisation in paragraph6 provides inter alia that any priest “who has been returned tothe lay state” is not permitted to “fill the office ofrector (or any directive function) of spiritual director and professorin seminaries, theological faculties and similar institutions”. Itwas submitted that Maynooth came within the term “similarinstitutions”.On this basis reference was made to “Decrees and Decisions”of the Sacred Congregation for the Doctrine of the Faith in Rome of June1972 in which it was made clear that in “similarinstitutions” a dispensed priest was only prohibited from teachingin technology or disciplines closely related to it. As I have alreadystated in the earlier part of this Judgment, I take the view thatMaynooth is, always was and remains a seminary. For this reason, in myview, the Decrees and Decisions of 1972 have no application. I,therefore, conclude that the submission that the charge laid against thesecond-named Plaintiff was, on this account, bad in law fails. It wasfurther submitted in relation to this charge that the reference to”grave delinquency against your clerical obligations as apriest” could have no basis in relation to a person who had beenlaicised and that it was therefore, on this account, bad in law. In myview, the clerical obligation here mentioned and referred to in Statute26 contemplates the acceptance by a priest seeking laicisation of theobligation to abide by the conditionsupon which the Rescript he seeks is issued. I, therefore conclude thatthe submission that this charge was bad, on this account, alsofails.

In relation to the other charges brought against this Plaintiff, it doesnot seem to me that it can reasonably be said that these were withoutfoundation or preferred in bad faith. The fact that at the time he hadapplied for laicisation did not of itself authorise this Plaintiff todisobey the directive he had received from the President. This was amatter of internal discipline which, to his knowledge, had emanated fromthe Visitors. The Plaintiff’s reaction was to challenge the authorityupon which the directive was based and to refuse to obey it. Similarly,whatever may be thought about the obligation to reside in College, thefact was that this Plaintiff disregarded this obligation in breach ofthe College Statutes. It is not for this Court to say what importanceshould be attached to this breach or what mitigating circumstancesexisted. It was a breach which the Defendants were entitled to considerin relation to discipline within theinstitution which they administered.

It was further submitted on behalf of the Plaintiff that the proceedingsagainst them were not conducted fairly and that they did not get anopportunity of fully defending themselves. In this respect reliance wasplaced on the Defendants” refusal, on request, to permit thePlaintiffs” trade union representatives to be present at theDefendants” meeting. This request was made on behalf of thePlaintiffs after their solicitors had been informed of the date of theproposed meeting and that the Plaintiffs would be “free to attendand to be legally represented should they so desire”. In theresult the Plaintiffs” solicitors wrote as follows:

“Please note that neither Dr. McGrath nor Mr. O’Ruairc will beattending the meeting of the Trustees: Both regret that their requestfor permission to be represented by the Irish Federation of UniversityTeachers has been refused. Please note that the matter has been referredto the Labour Court. We enclose statement of Dr. McGrath forconsideration by the meeting. Please inform Dr. McGrath, Mr. O’Rourkeand the Irish Federation of UniversityTeachers of the proceedings of the meeting.”

The Plaintiffs did not attend the meeting but both fully availed of theopportunity to submit written defences or rejoinders to the charges.These were circulated amongst the Defendants and there is no evidence tosuggest that they were not fully and carefully considered. In fact byreason of the second submission from the first named Plaintiff referredto in the solicitors” letter just read, the meeting of the 15thApril was adjourned to a further meeting of the 6th May at which theresolutions involved in these proceedings were passed. In thesecircumstances, I find it impossible to conclude that there was anyfailure to afford to both Plaintiffs a full and reasonable opportunityto put forward any answer or explanation or plea for mitigation whichthey might wish to do and to be present at the meeting with their legalrepresentatives should they wish. Having been afforded an opportunity tobe present and to be represented, in my view, they were not entitled toinsist on a special form of representation. I cannot feel that there isany basis in the submissions made on behalf of the Plaintiffin respect of this aspect of the case.

In the High Court, in relation to the claim by the first-namedPlaintiff, Mr. Justice Hamilton came to the conclusion that “afactor in the decision to remove him from office was the fact that hehad also applied for a Rescript of Laicisation.” He later statedin his Judgment:

“I have already stated that I have come to the conclusion that thesubstantial reason for Dr. McGrath’s dismissal from the office which heheld in St. Patrick’s College, Maynooth, was that he had applied for aRescript of Laicisation.”

Whether the learned trial Judge regarded the application for laicisationas a factor in or the substantial reason for the Defendants”action is, in my view, immaterial. I do not think that it should beregarded in either light. There is a presumption that the Defendantswere acting bona fide and in accordance with the reasons and groundswhich they put forward and stated. Any inference to the contrary ought,in the absence ofpositive evidence, be an inference which was not merely a possible but aprobable one. In this case there is no evidence that any such reason orfactor was present to the minds of the Defendants. The learned Judgedrew an inference that this was so from the contents of a minute of theVisitor’s meeting on the 2nd July 1976 and the memorandum from the lateCardinal Conway of his meeting with the second-named Plaintiff on the10th July 1976. I have read both this minute and the memorandum. I canonly say that I do not agree that the inference drawn was justified. Infact, I feel that the bringing of the particular charges against thefirst-named Plaintiff is in itself, in the circumstances, strongevidence that it was these charges, and these alone, which thenconcerned the Defendants. They were, of course, aware that thisPlaintiff had applied for laicisation. If they wished to be rid of himbecause of this fact they merely had to await the granting of theRescript which was issued a few months later. They could then have actedagainst him if he failed to resign on the basis that he was inbreachof a condition of his Rescript. The fact that they acted sooner insteadof waiting, indicates to me that they were genuinely concerned, not withhis application for laicisation, but with the charges which they in factpreferred against him.

The Procedures authorised and not unjust
Having regard to the provisions of the Statutes, I am satisfied thatwhat was done by the Defendants was authorised thereby. I have not beenable to find any basis for the submission that the proceedings againstthe Plaintiffs were unfair or were conducted contrary to naturaljustice. I can find no evidence of bad faith or dishonesty in theDefendants” approach. I must conclude, therefore, that theDefendants acted properly and within their powers in coming to thedecision they reached. In so far, therefore, as the claim of eachPlaintiff rests on allegations of ultra vires or breaches of naturaljustice. I would dismiss it. There remains, however, the Constitutionalargument.

Constitutional Argument
It was contended on behalf of the second-named Plaintiff that theDefendants were precluded from relying on the conditions of the Rescriptof Laicisation because to do so amounted to discrimination on thegrounds of religious status contrary to the constitutional rights of thePlaintiff. Discrimination on religious grounds is prohibited by Article44.2.3 of the Constitution in the following terms:

“The State shall not impose any disabilities or make anydiscrimination on the ground of religious profession, belief orstatus”.

In this instance, the discrimination complained of is discrimination notby the State but by the Defendants. It is, however, submitted that sincethe Defendants dispense and administer grants from the State they are,for this purpose, to be regarded as agents of the State. Even if thissubmission be correct – and I am not to be taken as accepting that it is- the question remains whether what has been done amounts todiscrimination on the grounds of religious status. Discrimination inthis respect connotes something which is unjust or unfair – a selectivepreference amongst people with equal claims and rights. Here, what iscomplained of is an insistence that a condition of the Rescript becomplied with by the person who in seeking it agreed to do so. In myview, this is scarcely a discrimination or the grounds of religiousstatus. In any event, regard must be had to the fact that Maynooth is aSeminary and as such a religious institution. Article 44.2.5specifically confers on every religious denomination the right to manageits own affairs and to maintain institutions for religious purposes. TheDefendants as representatives of the Catholic Bishops of Ireland are theadministrative body in charge of Maynooth. In insisting that theRescript of Laicisation be honoured by a member of their teaching staffand, if necessary, in deciding that a priest who has been laicisedshould not teach in their Seminary, they are, in my view, acting withintheir rights under Article 44.2.5 of the Constitution. In my view,therefore, the claim thatthe Defendants, in acting as they did, were in breach of thisPlaintiff’s Constitutional rights also fails.

In the result, in my view, the appeal by the second-named Plaintiffshould be dismissed. I would allow the Defendants” appeal againstthe Order made in the High Court in favour of the first-namedPlaintiff.

Judgment delivered 1st November 1979 KENNY J. :

The facts in this case have been so fully and accurately stated by theChief Justice in his judgment that it is unnecessary for me to repeatthem. I propose to deal with what I regard as the main issues on whichthe result of this case depends.

The statue of Maynooth
What we now call St. Patrick’s College, Maynooth(“Maynooth”) was established by an Act of theIrishParliament passed in 1795 (35 G. III C. 21). The title to the Act was”An Act for the better education of persons professing the Popishor Roman Catholic Religion”. The preamble to it reads:”Whereas, by the laws now in force in this kingdom, it is notlawful to endow any College or Seminary for the education exclusively ofpersons professing the Roman Catholic religion and it is (sic) becomeexpedient that a Seminary should be established for that purpose”.The Act then provides that a number of named persons were to be trusteesfor the purpose of establishing, endowing and maintaining “oneAcademy for the education only of persons professing the Roman CatholicReligion”. The Act goes on to provide (s.3) that it should belawful for the trustees “to make such bye-laws, rules, regulationsand statutes for the government of the said academy, and for theeducation and government of all such persons to be on the foundationthereof, or to be educated therein and for the appointment and electionof a president, masters, fellows, members and officers of the saidacademy as to the trustees shall seem meet”. In 1979, s. 9 of theAct has a grim humour forit provides that it should not be lawful to receive into, or educate orinstruct in the said academy, any person professing the Protestantreligion.

The draftsman of this Act had a thoroughly confused mind. He recitesthat it was expedient to establish a seminary which he subsequentlycalled an academy. From 1800 to 1817 laymen who did not intend to becomeRoman Catholic priests were admitted as students to Maynooth but thispractice ceased in 1817 and from that year until 1966, the only personsadmitted to Maynooth were those who wanted to study for thePriesthood.

The political background to this Act is dealt with in his usual lucidmanner by that great Irish historian William Lecky ( History ofIreland in the eighteenth century Vol. III pp. 348/363.)He writes that during the greater part of the 18th century theecclesiastical education of the Roman Catholic priesthood was carried onin continental colleges and seminaries and that in 1782 Hely Hutchinson,a member of the Irish Parliament, had proposed that the higher educationof those who wished to be Roman Catholic priests should be carriedonat the University of Dublin. One cannot avoid speculating how differentmodern Irish history would have been if this generous and farsightedproposal had been adopted. Shortly after the French Revolution began,most seminaries in France were closed and in those which remained open,ideas and theories which to the Roman Catholic prelates seemedjacobinical and highly dangerous were taught. In 1794 the Roman Catholicprelates petitioned the Government for “the establishment ofseminaries for the training of Ecclesiastics detined to receive HolyOrders” (“History of Maynooth” p. 98). TheGovernment’s response was the draft bill which became the Act of 1795.By another irony of history, the Roman Catholic prelates through Grattanprotested against the exclusion of non-Romans from Maynooth (Lecky p.363).

By an Act of the Irish Parliament passed in 1800 (40 G. III C. 85) someamendments to the Act of 1795 not material to the issue in this actionwere made. The relevance of the Act is that its title is “An Actfor the better government of the seminary established atMaynoothfor the education of persons professing the Roman Catholicreligion”. It contains a recital that “a College orSeminary” had been established at Maynooth for the education ofpersons professing the Popish or Roman Catholic religion and that largesums had been granted out of public moneys to the Trustees to enablethem to improve and extend this institution.

In 1845 an Act was passed by the Imperial Parliament giving Maynooth anannual grant payable out of public moneys. The title of the Act was”an Act to amend two Acts passed in Ireland for the bettereducation of persons professing the Roman Catholic religion and for thebetter government of the College established at Maynooth…”This Act incorporated the Trustees of Maynooth in these words “theTrustees of said College or Seminary and their successors for ever shallbe one body politic and corporate, by the name of “The Trustees ofthe College of Maynooth” and by that name shall have perpetualsuccession and a common seal”.

Maynooth had however under the civil law no power of conferring degrees.In 1894 Maynooth was granteda Charter by the Holy See giving it the status under canon law of aPontifical University and was authorised to have faculties of theology,canon law and philosophy and was given power to give degrees in thesethree faculties. Such degrees were recognised by the canon law but notby the civil law.

When the debate about the establishment of the National University ofIreland was going on, Maynooth’s inability to grant degrees valid andrecognised under the civil law was much discussed. The Trustees ofMaynooth did not wish to become a constituent college of the new federaluniversity for two reasons. The first was that they did not wish to givethe governing body of the new university (the Senate) the extensivepowers over Maynooth which it was contemplated would be exercised overthe constituent colleges by the Senate. The second was that the newuniversity and its constituent colleges were to be multi-denominationaland no test whatever of religious belief was to be imposed or any personas a condition of his becoming or continuing to be a professor,lecturer, graduate or student in thenew university or in any of its constituent colleges, But as Maynoothwas, at that time at least, unquestionably a seminary, this latterprovision could not be accepted by the Trustees. So the ingenious deviceof giving the new university the power of recognising some teachers atMaynooth and conferring degrees of the new university on those who hadfollowed courses under and had been examined by the recognised teachersand an extern examiner appointed by the new university was adopted. Thisis the effect of s. 2 sub-s. 4 of the Irish Universities Act 1908.Shortly after its establishment, the Senate of the National Universitypassed a resolution recognising Maynooth for courses of studies in arts,science, philosophy and celtic studies. The teachers in any subject inwhich the students of Maynooth might be given degrees of the NationalUniversity had to submit applications to the Senate of the newuniversity to be recognised and only those so recognised might givecourses which would lead to the conferring of degrees of the newuniversity.

I interrupt this history of Maynooth to say that theargument that the Irish Universities Act 1908 made some change in thestatus of Maynooth and that it ceased to a seminary when it wasrecognised by the National University of Ireland is, in my opinion,incorrect. That Act made no change whatever in the status of Maynoothexcept that students attending courses at it could now get degrees fromthe National University of Ireland which were therefore, recognised bythe civil law.

The latest statutes of Maynooth were made in 1962. It was pleaded butnot seriously contended that the statutes relevant to these two caseswere not authorised by the Act of 1795 and were ultra vires. Inmy opinion the statutes relevant to this case were authorised by thepower given to the Trustees by the Act of 1795.

Statute 1 of chapter I of the Statutes of 1962 reads “St.Patrick’s College Maynooth is a major seminary for the education ofaspirants to the priesthood for all the dioceses of Ireland. It is aPontifical University and a Recognised College of the NationalUniversity of Ireland” while statute 145 of chapter X provides:”The purpose of St. Patrick’s College, Maynooth is totrain students for the priesthood”.

It may be that these statutes are out of date and do not reflect thegreat change in Maynooth since 1966. But so long as they are in force, acourt of law must apply them and draw conclusions from them. We have nopower to frame new statutes for Maynooth which will reflect its modernimage created by the change in 1966 or indeed, which will carry out thesweeping changes made in the Roman Catholic Church by the decrees of theSecond Vatican Council.

In 1966 because of the great demand in the Republic of Ireland forplaces in university colleges, the Trustees decided that they wouldadmit lay students to the courses which would lead to degrees of theNational University of Ireland. The number of lay students now greatlyexceeds that of the students for the priesthood and the number of layteachers exceeds that of priests who teach.

As Mr. Barrington (now Mr. Justice Barrington) who argued this case asleading counsel for the plaintiffs placed great reliance on the HigherEducation AuthorityAct 1971(“the Act of 1971”) as showing that Maynooth was no longerprimarily a seminary but was a university college, it is necessary forme to say something about that Act.

The Act of 1971 established a body known as An t- Údarás.Any request by an institute of higher education for State subvention hasto be submitted to an t- Údarás which is to assess amountsof State financial provision, both current and capital, which itrecommends for higher education and research and the amounts recommendedby it are, subject to the approvals of the Minister for Education andthe Minister for Finance paid to an t- Údarás which paysthe appropriate amount to the institution of higher education.Institution of higher education is defined by the Act of 1971 asmeaning

a “(a) a university

(b) a college of a university

(c) an institution which the Minister after consultation with ant- Údarás designates by regulations as an institution ofhigher education for the purposes of this Act”.

Maynooth has applied to and received from an t- Údaráslarge subventions (£802,500 in 1977) which areapplied for secular education only. Almost all the students for thepriesthood attend the lectures and sit the examinations for NationalUniversity of Ireland degrees as part of their education in Maynoothwhich has not been designated by the Minister under paragraph (c) of theAct of 1971.

Mr. Barrington then posed the dilemma. The subventions paid to Maynoothcannot be paid to it as a seminary for this would be an endowment of areligion which is prohibited by Art. 44 s. 2 sub-s. 2 of theConstitution. Therefore Maynooth is primarily a college of a universityand not a seminary or the subventions were paid to it illegally. Theanswer to this is, I think, that the words “a college of auniversity” in the Act of 1971 are wide enough to include arecognised college of a university. The words of the Act of 1971 are not”a constitutent college” but “a college”.Maynooth is a recognised college of a university but that does notprevent it being primarily a seminary. Much of the plaintiffs”argument was based on the fallacy that a seminary is an institution inwhich students for the priesthood only are educated but this isnot so. A proper education for a student for the priesthood shouldinclude some contact with the profane world in which he will have toexercisehis ministry.

In the light of this history is Maynooth primarily a seminary? Theplaintiffs did not dispute that it was a seminary but said that as itwas a recognised college of the National University and an academy andas the majority of its students and staff are lay, it should not now beclassified primarily as a seminary.

In 1794 the archbishops and bishops of the Roman Catholic Churchpetitioned the Government of the day for the establishment of aseminary, the Act of 1795 recited that it was expedient that a seminaryshould be established, from 1817 until 1966 students for the priesthoodonly were admitted, in the Act of 1845 it is called a college orseminary and the Statutes of 1962 provide that it is a major seminary.These facts in my opinion indicate that it is primarily a seminary: thisdoes not mean that it is not also a recognised college of a universitybut this is a subordinate role. The question of what it is of greatimportance in interpreting the Rescript for Laicization received by theplaintiff Mr. O’Ruairc from the Holy See.

The Statutes of Maynooth
I propose to deal only with the parts of the statutes which are relevantto these two cases. I have already quoted statute 1 of Chapter I.Statute 2 of chapter I provides that the government of the college isvested in a Board of Trustees which is a body corporate in canon andcivil law. Statute 18 of chapter II provides that the Collegiate Body isto consist of the Superiors (namely the President and Vice President),the Deans, the Spiritual Fathers, the Bursar, the Librarian, the Curatorof the Museum, the Professors, the Lecturers, the Assistant Bursar andthe students. The rights and duties of each are to be determined by thestatutes and by such rules and regulations as the Trustees or Visitorsmay at any time enact. All members of the Collegiate Body exceptstudents, part time professors and part time lecturers come under thedesignation of officials in the statute. S. 20 provides that collegeofficials shall hold office for such period and shall be entitled tosuch salaries and emoluments as shall have been determined by theTrustees and notifiedto them at their appointment. Statutes 26 and 28 are of such importancethat I must quote them:

“26. Every College official enjoys stability of tenure accordingto the terms of his appointment but shall be liable to dismissal: first,if guilty of dereliction of the duties of his office or graveviolation of the College Statutes or grave external offencesagainst Catholic faith or morals or grave delinquency againstclerical obligations, if he be a priest: secondly, if he suffers suchloss of reputation that his continued association with the College wouldin the judgment of the Trustees be gravely prejudicial to itsinterests.

28. Any official of the College may, upon due cause as specified instatute 26, be removed from his office by the Trustees. He shall besupplied by the President with a written statement of the cause allegedand should within fifteen days submit in writing his defence orexplanation which shall be considered by the Trustees. If the Trusteesdecide upon his removal, their decision shall be communicated to him inwriting and he has the right within another fifteen days to submit afurther written statement and, if the Trustees so decide, he may beheard by them in his own defence”.

Statute 31 provides that College officials are bound “by thesestatutes” and statute 33 enacts that each official afterappointment by the Trustees shall be given a copy of the CollegeStatutes and shall sign a declaration in these terms:

“I hereby declare that I accept office subject to the Statutes ofSt. Patrick’s College, Maynooth relating to the said office, that I willobserve the Statutes of the College faithfully and perform the duties ofmy office”.

Statute 128 provides that each faculty shall have such professorshipsand lectureships as are required by the regulations of the respectiveUniversity (sic) while statute 129 enacts that it belongs to theTrustees to establish professorships and lectureships. Statute 133provides that professors shall be appointed in the first instance for aperiod of three years and on the expiration of that time, a permanentappointment may be made by the Trustees. Statute 213 provides that theTrustees shall have power to appoint lecturers, either part-time orfull-time, upon such terms and for such periods as they shall determinein making the appointment.

There was some discussion during the argument as to whether theprofessors and lecturers hold office under the statutes or whether therelationship of master and servant existed between the Trustees andthem. As we have not been furnished by either party with a copy of anyresolution of the Trustees establishing a professorship, I cannotexpress any view upon this question which seems to me to be entirelyirrelevant to any of the issues which we have to determine.

The principles of law to be applied to the question whether theplaintiffs were validly removed from office.

Although Article 34 s. 3 of the Constitution gives the High Court”full original jurisdiction in and power to determine all mattersand questions whether of law or fact, civil or criminal, that Court,when reviewing the decision of an inferior court (except in appeals fromthe Circuit Court) or of a domestic tribunal does not try the caseagain. Under the statutes of Maynooth, the Trustees are a domestictribunal with power to remove any official (a term which is defined instatute 18 of chapter II) for any reason specified in thestatutesThe High Court and this Court on appeal have power to reverse thedecision of a domestic tribunal only when (a) the removal is not carriedout in accordance with the statutes or (b) there has been a breach ofthe requirements of natural justice or (c) there was no evidence beforethe domestic tribunal in which the members of it could have reached theconclusion they did or (d) the decision is one which the members of thedomestic tribunal on the facts proved could not, as honest men, havereached. Though (d) is an old fashioned way of expressing the idea ofbehind it, I think it is still the best. In Leeson v. The GeneralCouncil of Medical Education and Registration ( 1889 43 Ch. D. 366)the question at issue was whether the plaintiff had been guilty ofinfamous conduct in a professional respect. The domestic tribunal heldthat he had been and he appealed to the High Court which upheld theirdecision. He appealed to the Court of Appeal and in the couse of hisjudgment, that great lawyer Lord Justice Bowen said that one of thequestions they had to decide was whether there was evidence before thedomestic tribunal ofconduct, “which, if established was capable of being viewed byhonest persons as being infamous”. See also the advice of thePrivy Council given by Viscount Simon in White v. Kuzych 1951 2All E.R. 435. Therefore what we have to consider in this case is notwhether we agree with the decisions of the Trustees but whether in Mr.O’Ruairc’s case, the Trustees as honest men could regard his retaininghis teaching post in Maynooth after he had got the Rescript ofLaicization was and, in Mr. McGrath’s case, whether his refusal to wearclerical dress when in Maynooth, was a grave delinquency againstclerical obligations.

The constitutional argument
Mr. Barrington contended that the removal of the plaintiffs from officewas a violation of Article 44 s. 2 sub-s. 3 of the Constitution. Itreads: “The State shall not impose any disabilities or make anydiscrimination on the ground of religious profession, belief orstatus”.

The argument advanced was that this sub-articleapplied to Maynooth because it was receiving and was largely dependenton public moneys voted to it by the Dáil and that the removal ofthe plaintiffs was a discrimination against them on the ground ofstatus, that they were Roman Catholic priests who under the statuteswere liable to be removed for breaches of clerical discipline which didnot apply to lay persons. I reject both branches of this argument.

The prohibition imposed by the sub-section is confined to the State: itdoes not apply to bodies which receive public moneys from the Statewhether they be grants for income or capital purposes. The argument thatthe sub-section applies to any such institution is not supported by itswords which confine, the prohibition to the State and do not extend itto other institutions and I see no reason why the ordinary grammaticalmeaning should be so greatly extended.

Extending the constitutional prohibition to institutions which receivepublic moneys leads to ludicrous results. Maynooth is primarily aRomanCatholic seminary as I have already demonstrated. The Trustees arereasonably entitled to require that any of the staff who are RomanCatholic priests should observe the Canon Law of the Roman CatholicChurch. How can students for the priesthood be expected to have anyregard for that law if priests of that Church who are professors orlecturers in Maynooth openly break it and continue the violation of itwhen they have been requested to observe the part of the law which theyare violating by the President of the College. This is but one of theludicrous results (there are many others) which would follow from theplaintiffs” contention in relation to the Constitution.

I have had the advantage of reading the judgment of Mr. Justice Henchyon this aspect of the case and I entirely agree with it.

In my opinion all the plaintiffs’ arguments based on the Constitutionfail.

Mr. O’Ruairc’s case.
Mr. O Ruairc had been a Roman Catholic priest.He applied for laicization and on the 16th June 1976 a Rescript ofLaicization was granted to him by the Holy See. When giving evidence hemaintained vigorously that he ceased to be a priest when he got theRescript and said that there was no such thing as a laicized priest. Ifthis were correct, he could not on 6th May 1977 when the Trustees passedthe resolution to remove him, be guilty of “a grave delinquencyagainst clerical obligations” (statute 26).

The expert on canon law called as a witness by the plaintiffs (Dr.Daniel Shanahan) said that he did not agree with Mr. O’Ruairc’s views onthis. He said “once JK a priest, always a priest”. I have noqualifications in Biblical studies but it seems to me that Dr.Shanahan’s view is supported by the Old and New Testaments. I quote fromthe Jerusalem Bible which, though it does not have the verbal beauty ofthe Authorized Version, is generally accepted as being remarkable forits accuracy. In Psalm 110 this appears:

“Yahweh has sworn an oath which he never will retract. “Youare a priest of the order of Melchizedek and for ever””.

and this is quoted with approval by St. Paul in the Letter to theHebrews (in most editions of the Bible at chapter 5 but in the Jerusalemat chapter 7).

There is another and, to my mind, conclusive argument against Mr.O’Ruairc’s contention. The Rescript of Laicization prohibits him fromexercising priestly functions except that he may hear the confession ofand give Absolution to a person in danger of death. But if he ceased tobe a priest when he got the Rescript, this prohibition was unnecessaryfor he would have lost the power to exercise priestly functions. Thosewho granted the Rescript thought that the laicized priest remained apriest: if they thought that the laicized priest ceased to be a priest,how could they give him permission to give Absolution to a person whowas dying?

I am therefore of opinion that on 6th May 1977 Mr. O’Ruairc was a priestthough forbidden by the Rescript to exercise priestly orders except thehearing of confession when a person is in danger of death.

The Rescript is in Latin and contains a numberof prohibitions on what the priest who is being laicized may do. Mr.O’Ruairc, having accepted his laicization on the terms of the Rescript,is bound by these and cannot repudiate them. One of these conditions isthat he will not “(d) munere Rectoris (vel alio munere directivo),Directoris spiritualis JK et docentis fungatur in seminaris,facultatibus theologicis et similibus institutis”.

We have been given a translation into English of the Rescript but I havequoted the Latin to show that the prohibition is against teaching in anyseminary. In the translation “docentis” is”translated” as JK professor. Plainly it has not got thismeaning. Mr. O’Ruairc was not a “professor”rdquo; but theprohibition extends to any teaching post in a seminary.

Therefore when the resolution was passed, Mr. O’Ruair was acting in openbreach of one of the conditions attached to his laicization for, as Ihave already shown, Maynooth is primarily a seminary and he was teachingthere.

The Trustees were, as reasonable and honest men,entitled to hold that Mr. O’Ruairc was committing a breach of one of theconditions on which he was granted laicization and that by continuing toteach at Maynooth, he was committing a grave delinquency againstclerical obligations’

I am of opinion therefore that their decision to remove him from hispost in Maynooth was valid and that we should not interfere with it. Ithink that his action should be dismissed.

Mr. McGrath’s case.
The charges against Mr. McGrath were that despite a directive given tohim in writing by the then President of Maynooth (now Cardinal O’Fiaich)on 27th November 1975, he had consistently failed to wear clerical dresswhen in Maynooth and that he had published articles prejudicial toecclesiastical authority.

The canon law in Ireland requires a priest to wear clerical dress. Mr.McGrath maintained in writing to the Trustees and to the President thatit was common inrecent years for priests not to wear clerical clothes even in Maynooth.He did not dispute the existence of the canon law rule I have mentioned.The charge against him, however, was not that he did not wear clericalclothes but that he failed to do so after a directive was given to himto do so by the then President who was acting on the instructions of theVisitors. In November 1975 he was considering applying for laicizationbut had not made a final decision on this matter. Before the 1stFebruary 1977 he had informed his bishop that he was consideringapplying for a Rescript and was advised to resign from Maynooth and toreturn to parochial work.

Could the Trustees reasonably and honestly regard his refusal to wearclerical dress in Maynooth after he had got a directive to doso from the College President as grave delinquency against clericalobligations for he was not laicized at this time. I am aware frompersonal observation that many excellent priests do not wear clericalclothes (except on Sunday mornings) when they are on holidays outsidetheir diocese:A decision by the Trustees that a priest, who was a member of theteaching staff at Maynooth and who did not wear clerical clothes when hewas on holidays outside Maynooth, had committed a grave delinquencyagainst clerical obligations would be one that no honest man couldreach.

The position however is entirely different when a priest who is aprofessor at Maynooth refuses to wear clerical dress in Maynooth when hehas been specifically directed to do this by the Visitors and by theCollege President. Maynooth is a seminary and Mr. McGrath’s opendefiance of the Visitors, of the College President and of canon law bywearing clothes suitable for a layman but not for a priest could in myview be reasonably regarded by the Trustees as being a grave delinquencyagainst clerical obligations. Again it is not what I think on the matterwhich is the test but what the Trustees who are archbishops and bishopsas honest men might reasonably think. In this connexion the remarks ofViscount Simon in White v. Kuzych 1951 2 All E.R. 435 as to thedegree of impartialityrequired of the members of a domestic tribunal are very relevant. Ithink that the Trustees resolution to remove Mr. McGrath from hisposition in Maynooth was one that they could reasonably and honestlyadopt.

This makes it unnecessary for me to express any opinion on the questionwhether Mr. McGrath’s writings in which he expressed his views in verystrong language, were prejudicial to ecclesiastical authority.

Mr. McGrath succeeded in the High Court on the ground that he wasremoved from office by the Trustees not because he did not wear clericalclothes and not because his writings were prejudicial to ecclesiasticalauthority but because he was contemplating applying for a rescript oflaicization. This was not mentioned in the list of charges against himand his removal on this ground would entitle him to succeed in thisaction. I think that the evidence to support this ground was verytenuous consisting almost entirely of part of a conversation between theplaintiff and thelate Cardinal Conway of which Mr. McGrath gave evidence and a typedmemorandum of which was found among the Cardinal’s papers after he died.It is a charge that the Trustees acted with great duplicity and withconspicuous intellectual dishonesty and such an allegation should beproved by coercive evidence. I entirely agree with the way in which Mr.Justice Henchy has dealt with this matter in his judgment.

In my opinion, we should not interfere with the Trustees” decisionto remove Mr. McGrath. The order of the High Court in his favour shouldbe set aside and his action dismissed.

Judgment of Henchy J.delivered the 1st November 1979

These two plaintiffs, the one a professor and the other a lecturer inSt. Patrick’s College, Maynooth (“the College”) weredismissed by the Trustees of the College. In maintaining that thedismissals were wrongful, the plaintiffs have joined their claims forrelief in these single proceedings. While their two cases have a numberof common features, they are to be distinguished in certain crucialrespects, so I shall deal with the case of each separately. Before doingso, it is necessary to dispose of a constitutional pointwhich is common to both plaintiffs.

II The constitutional point
The submission has been made on behalf of the plaintiffs that theirdismissal, in so far it stems from their status, present or past, aspriests, rests on an unconstitutional discrimination which is to befound in the statutes of the College. It is said that they violate Art. 44, s.2, sub. 3, of the Constitution, which lays down that “theState shall not impose any disabilities or make any discrimination onthe ground of religious profession, belief or status”.

Each of the plaintiffs on taking up office entered into a signed writtendeclaration that he was accepting office subject to the statutes of theCollege relating to his office, and pledged himself to observe thestatutes faithfully and to perform the duties of his office. Thestatutory obligations attaching to an office in the College vary,depending on whether the office-holder is a priest or not. For instance,if he is a priest he may be dismissed for “grave delinquencyagainst clerical obligations” (statute 26). It is contended thatsuch terms of office imposed on a priest and not on a layman are anunconstitutional discrimination.

The constitutional provision invoked here must be construed in term ofits purpose. In proscribing disabilities and discriminations at thehands of the State on the ground of religious profession, belief orstatus, the primary aim of the constitutional guarantee is to givevitality, independence and freedom to religion. To construe theprovision literally, without due regard to its underlying objective,would lead to a sapping and debilitation of the freedom and independencegiven by the Constitution to the doctrinal and organisationalrequirements and proscriptions which are inherent in all organisedreligions. Far from eschewing the internal disabilities anddiscriminations which flow from the tenets of a particular religion, theState must on occasion recognize and buttress them. For suchdisabilities and discriminations do not derivefrom the Statue; it cannot be said that it is the State that imposed ormade them; they are part of the texture and essence of the particularreligion; so the State, in order to comply with the spirit and purposeinherent in this constitutional guarantee, may justifiable lend itsweight to what may be thought to be disabilities and discriminationsderiving from within a particular religion.

That is what happened here. The raison d’etre of the College.Whatever academic or educational accretions it may have gathered overthe years, has been that it has at all times been a national seminarywhere students are educated and trained for the Roman Catholicpriesthood. This inevitably means that at least some of its academicstaff must not alone be priests but priests with particularqualifications and with a required measure of religious orthodoxy andbehaviour. It is part of the purpose of the statutes (which,incidentally, were drawn up by the Trustees, who are all bishops of theRoman Catholic Church, and were not imposed by the State) that duestandards are tobe observed by those of the academic staff who are priests. Even if itbe said that the statutes are, by recognition or support, an emanationof the State, the distinctions drawn in them between priest and layman,in terms of disabilities or discriminations, are no part of what isprohibited by Art. 44, s. 2, subs. 3. They represent no prejudicialState intrusion where priest is advanced unjustifiably over layman, orvice versa (as was the case in Molloy v. Minister for Education 1975 I.R. 88). On the contrary, they amount to an implementation of theguarantee that is to be found in subs. 5 of the same section that”every religious denomination shall have the right to manage itsown affairs, own, acquire and administer property, movable andimmovable, and maintain institutions for religious or charitablepurposes”. These statutes are what the designated authorities ofthe Roman Catholic Church in Ireland have deemed necessary for thisseminary. Their existence or their terms cannot be blamed on the Stateas an unconstitutional imposition, particularly at the suitof these two plaintiffs who as priests formally and knowingly undertookto be bound by them. I would therefore uphold the conclusion reached inthe High Court that the plea that the relevant College statutes arerepugnant to Art. 44, s. 2, subs. 3, fails.

III The plaintiff Patrick J. McGrath
Once the constitutional objection to the validity of the statutes inquestion is rejected, the case made by each plaintiff becomesessentially a question whether the statutes were duly applied in eachcase. The constitutional issue apart, there has been no argument putforward that the statutes were not validly made by the Trustees inpursuance of the statutory powers vested in them. Nor has it been deniedthat each of the plaintiffs formally subjected himself to them onentering into office. Since the statutes set out the terms of office andthe circumstances of and procedure for removal from office, the validityof the dismissal of each plaintiff requires to be tested against whatthe statutes, duly construed in thecircumstances germane to each plaintiff’s case, permitted. If what wasdone by way of dismissal was in excess or in disregard of the powersconferred on the Trustees by the statutes, the dismissals were invalid.Otherwise, they must be held good.

The plaintiff Patrick J. McGrath was ordained a priest in 1961. He wasappointed Professor of General Metaphysics in 1968. He was absent onsabbatical leave during the 1974–5 academic year. During that yearhe decided to apply for laicisation. On returning to the College in theautumn of 1975, he proceeded to abandon the wearing of clerical dress,at least to the extent of not wearing the clerical collar and stockwhich were de rigueur for the clerical members of the academicstaff of the College. This decision, which was made and put into effectwithout any prior discussion with any of the College authorities,amounted to a breach of the cannon law statutes adopted in Maynooth in1957 and promulgated in 1960.

The matter having come to the notice of the Visitorsof the College, who are charged under the statutes with matters such asdiscipline, they made a directive that those of the clerical staff whohad abandoned the wearing of clerical dress should resume it forthwith.This directive was conveyed to Professor McGrath by the President of theCollege in November 1975. He ignored it. In fact he wrote to thePresident seeking to justify his non-compliance with the directive.

Meanwhile Professor McGrath had decided to set in train an applicationto Rome for his laicisation. In November 1975 he asked his bishop, thebishop of Kildare and Leighlin, to set the process in motion. In March1976 Professor McGrath appears to have written to his bishop saying thathe would like to have time to think things over. In July 1976 his bishopwrote to him saying that in an effort to save him for the priesthood hewas recalling him to his diocese and requesting him to resign hisprofessorship. A number of discussions with his bishop followed, in thecourse of which the request to him to resign was apparentlywithdrawn.

In November 1976 the secretary to the Trusteesof the College wrote to Professor McGrath stating that because, despitean admonition given to him in 1969, he continued to publish writingsprejudicial to ecclesiastical authority and to the interests of theCollege, and because of his non-compliance with the directive as toclerical dress, he was in dereliction of the duties of his office and inbreach of the statutes of the College. He was therefore asked to submithis resignation from his professorship from the 31 November 1976. Hisletter in reply was a rejection of the validity of the complaints and anintimation that he was passing the correspondence to his tradeunion.

In February 1977 the President of the College wrote to Professor McGrathstating that the Trustees of the College would shortly be consideringhis removal from office; that the causes alleged for removal were that1) despite an admonition given in 1969 he had continued to publishwriting prejudicial to ecclesiastical authority and to the interests ofthe College, and 2) that he had failed to comply with the directives asto clerical dress; and that if he was unwilling toresign, he should submit his defence or explanation within fifteendays.

Professor McGrath replied in a lengthy letter in which he rejected bothof the stated causes of dismissal. He denied that the writings inquestion were objectionable in the manner alleged. As to his refusal towear clerical dress, he said it had no bearing on the carrying out ofthe duties of his office; he had replied in December 1975 and sincealmost a year had elapsed without any further step having been taken bythe College authorities on foot of the directive, he had assumed thathis reply was deemed satisfactory.

Professor McGrath put the matter in the hands of his trade union (theIrish Federation of University Teachers) and his solicitors. TheTrustees of the College, having held a preliminary meeting to deal withthe matter, conveyed to his representatives the information that thequestion of dismissal would be dealt with at a meeting on the 15 April1977, that any submissions put in by him would be considered, and thathe could appear at the meeting and be represented bycounsel. Professor McGrath sought to be represented by his trade unionbut, that request having been refused, he neither attended in person norwas he legally represented.

Eventually, at a further meeting in May 1977, the Trustees resolved thatProfessor McGrath be removed from office. It is the validity of thatresolution that is challenged in the present proceedings. That challengesucceeded in the High Court. The Judge’s reason for holding theresolution of dismissal to be bad is to be found in the followingpassage in his judgment:

“I am not prepared to hold that these charges were not bona fidecharges, but am satisfied that the charges alleged against Dr. McGrathdid not include the real reason why it was considered desirable that heshould be dismissed from his post at St. Patrick’s College, Maynooth,namely the fact that he had applied for laicisation”.

Elsewhere in his judgment the judge described Professor McGrath’spending application for laicisation as “the substantialreason” for his dismissal.

What the judge held, therefore, would seem to be that while the twogrounds of dismissal relied on were genuine, there was another ground,i.e. the impending laicisation, which was the substantial reason for thedismissal; that in breach of statute 28 Professor McGrath was not givena written statement of that reason in advance; and that for that reasonthe dismissal was invalid.

I am unable to accept that it was open on the evidence to draw theinference that the substantial or primary reason for the dismissal ofProfessor McGrath was the impending laicisation. I think that inreaching that conclusion the judge may have relied on evidence adducedas to the intentions of the Trustees with regard to Professor McGrath’sco-plaintiff. But even if it were an established fact that the Trusteeshad it firmly in mind at an early stage to dismiss Professor McGrathbecause of his impending laicisation, there is no evidence whatsoeverthat, after they notified him that they would consider dismissing himfor the two stated reasons, they proceeded to dismiss himfor any reason other than the two stated reasons. The judge seemed toconsider that there was an onus, which was not discharged, on theTrustees to give evidence that they had not acted on a reason fordismissal other than the two notified reasons. I am satisfied that thatonus did not rest on them. They gave ample notice to Professor McGraththat his dismissal would be considered solely on the basis of those tworeasons, and they gave him an opportunity of attending the crucialmeeting of the Trustees, with or without his legal representatives. Heturned down the opportunity. It would be unjustifiable, therefore, todraw the inference that the Trustees, who were being legally advised atthe time, went outside the stated reasons when they considered andpassed the resolution that Professor McGrath be dismissed. Whatever mayhave been the intention of the Trustees at an earlier stage, there isnothing in the oral or documentary evidence to lend credence to thesuggestion that, once he had been given formal notice of the two reasonsfor which his dismissal would be considered, the Trusteeswent outside those two reasons.

The question, then, is whether the circumstances justified the dismissalon one or both of the two grounds relied on, for compliance with theprocedural requirements of the statutes is not in issue. In a mattersuch as their, where two independent reasons were given for thedecision, if either reason is a valid basis for the decision, that willbe sufficient to uphold it.

As to the first ground on which this dismissal is rested, I do not, inview of my opinion as to the second ground, feel called on to make ajudgment as to its validity. Statute 40 of the College statutes forbadeProfessor McGrath to “publish any writings prejudicial toeccleciasltical authority or the interests of the College”. It istrue that in 1969, after an article by Professor McGrath had beenpublished in a newspaper, and concern had been expressed by the Trusteesat the manner in which he had chosen to express his views in thatarticle, he gave an undertaking to the then President that he would notpublish anyfurther articles without the President’s permission. He broke thatundertaking when he published the further articles complained of. Butthat breach of undertaking was not relied on as a notified cause ofdismissal. The notice of cause given in writing so as to comply withstatute 28 was that, despite the admonition given to him in 1969,Professor McGrath had “continued to publish writings prejudicialto ecclesiastical authority and to the interests of theCollege” (italics supplied). The reported decisions of the courtsshow that where a domestic tribunal, such as the Trustees were in thiscase, is given jurisdiction to decide an issue of this kind, a courtwith jurisdiction to review the decision will not hold it to be invalidif it is one that, although not necessarily favoured by the court, couldreasonably have been come to in the circumstances. In view of the factthat the three articles in question here were each published with animprimatur, and that no oral evidence was given on behalf of the Collegeas to their effect on ecclesiastical authority or on the interests ofthe College, there is a question whetherthere was evidential material on which it could be said that it wasreasonable for the Trustees to hold that those articles were prejudicialto both ecclesiastical authority and the best interests of the College.However, because of my clear opinion on the second ground of dismissal,I find it unnecessary to express a concluded opinion on this point.

The second ground of dismissal is that Professor McGrath had failed tocomply with a directive from the President that he was to wear clericaldress. This directive was given to him in writing on the 1 November1975. He replied on the 1 December 1975 rejecting the directive, inspite of the fact that the wearing of clerical dress was an obligationunder canon law. The Trustees apparently took no further formal step inthe matter until the 1 November 1976 when Professor McGrath – a priestwhose laicisation did not take place until October 1977 – was written toand told that his refusal to wear clerical dress was being made a groundof dismissal. His reply was that default in regard to clerical dress wassomething thatwas overlooked by ecclesiastical authorities elsewhere, that theTrustees” silence on the matter for almost a year had led him tothink that his ignoring of the directive had been accepted, and thatthere was no obligation on him under the statutes of the College to wearclerical dress.

Whatever room there may have been for misapprehension on his part up toNovember 1976, there was thereafter no doubt that the Trustees wereinsisting, to the point of making it a ground of dismissal, that inorder to comply with the statutes Professor McGrath was bound to wearclerical dress. Yet he adamantly refused to do so. The issue then becamejoined as to whether the Trustees were legally entitled to treat hisdefiance of their directive as a ground of dismissal.

It is not in contention that, whatever may be the law or conventionelsewhere, the canon law as drawn up in Maynooth in 1957 and promulgatedin 1960 made the wearing of clerical dress mandatory. The Trusteesinsisted on compliance with that obligation.Professor McGrath insisted on disregarding it.

Statute 26 of the College statutes allows the Trustees to dismiss aCollege official for “grave delinquency against clericalobligations, if he be a priest.” Was Professor McGrath’s default,despite the insistence of his superiors, in regard to clerical dresssuch a grave delinquency?

The answer may be thought by some to be a matter of varying opinion. Toone person, the default may seem no less grave and inimical to necessarydiscipline and order than the refusal of an officer in a militaryacademy to wear military uniform. To another, it may seem no more agrave delinquency that when a professor in a university opts forinformal attire when giving his lectures. It must be borne in mind,however, apart from the fact that a civil court is not the ideal forumin which to decide what is a grave delinquency against clericalobligations, that a court has no jurisdiction to overrule a domestictribunal merely because it disagrees with its conclusion. It can rejectthat conclusion only when it is one that couldnot reasonably have been come to in the circumstances.

The first thing to note is that Professor McGrath’s default was a breachof canon law. Whether the Trustees would have been justified,doctrinally or as a matter of policy, in ignoring the default, was amatter peculiarly within their knowledge and discretion. Even if theyhad a discretion to treat it as being less than a grave delinquencyagainst clerical obligations, they were entitled, in deciding whether todo so, to weigh in the scales matters such as the behavioural standardsdeemed necessary for a clerical member of the staff of the College,Professor McGrath’s recalcitrance in the face of repeated requests toconform, and the example in matters such as dress that should be shownto seminarians by a priest-professor in the national seminary. If thisCourt were deciding the matter at first instance, or if it were sittingas a court of appeal from the Trustees, it might feel free to exerciseits own discretion in the matter. But since its jurisdiction is confinedto deciding whether the Trustees lawfully exercised theirdiscretion, I consider that it must be held that the Trustees did notact unreasonably in holding that Professor McGrath’s persistent refusalto wear clerical dress was a grave delinquency against clericalobligations.

I would, accordingly, hold that the decision to dismiss him waswarranted by his conduct and was duly made. It is therefore unnecessaryto consider what relief he would be entitled to if he had beenwrongfully dismissed.

IV The plaintiff Malachy Ó Ruairc
This plaintiff’s case differs from that of Professor McGrath in twocrucial respects: (1) he had been laicised when steps were taken todismiss him, and (2) the precise ground on which he has been held in theHigh Court to have been validly dismissed did not apply in ProfessorMcGrath’s case.

Malachy Ó Ruairc was ordained a priest in 1996. He was appointeda Lecturer in Modern Languages in the College in 1970. He was given asubbaticalleave of absence during the academic year 1974–5. On his return tothe College in the autumn of 1975 he applied to his bishop, CardinalConway, for laicisation. At the same time he discarded clerical dressand ceased to live in the College. The President of the Collegeinterviewed him and expressed disquiet at these aberrations from thenormal behaviour of a priest member of the staff of the College.

In November 1975 he was written to by the President informing him of adirective by the Trustees requiring clerical dress to be worn. Herefused to comply with that directive. He also informed the Presidentthat, as he had applied for laicisation, he would not comply with thestatutory requirement that he should live in the College.

In January 1976 he had an interview with Cardinal Conway. Mr. ÓRuairc’s behaviour had been considered by the Trustees and CardinalConway had undertaken to convey their views to him. The Cardinal toldhim that the opinion of the Trustees was that he shouldsubmit his resignation.

In July 1976 he had a further interview with Cardinal Conway, when hewas told that the rescript of laicisation had come through from Rome.The Cardinal went on to say that the Trustees had gone into the matterfully, that he had seldom seen them so strong and united in their views,and that they were intent on his resignation.

In February 1977 the President wrote to Mr. Ó Ruairc informinghim of that the Trustees would consider his removal and giving asreasons 1) his failure to comply with his rescript of laicisation, oneof the terms of which debarred him from continuing to teach in theCollege; 2) his failure to comply with the directive as to wearingclerical dress; and 3) his failure to comply with the directive toobserve the rule of residence in the College imposed by the statutes ofthe College. He was given the option of resigning.

In a lenghty reply Mr. Ó Ruairc rejected the grounds put forwardand the suggestion that heshould voluntarily resign. Thereafter the events leading up to thedismissal hearing paralleled Professor McGrath’s case. He referred thematter to his trade union and then to his solicitors, and he rejected anopportunity of appearing personally or of being legally representedbefore the Trustees. Finally, in May 1977, the Trustees passed aresolution that he be removed from his office as Lecturer in ModernLanguages.

Holding that the requirement of residence in the College and of wearingclerical dress no longer applied after his laicisation, the judge in theHigh Court decided the case against Mr. Ó Ruairc on the groundthat on the terms of his rescript of laicisation he was not entitled tocontinue to hold office in the College. In this appeal his counsel haveargued that that interpretation of the terms of the rescript isincorrect and that in any event the Trustees had debarred themselvesfrom giving his case a fair hearing by having decided in advance of thehearing that they would dismiss him. As to the latter point,theonly concrete evidence as to the mental attitude of the Trustees priorto the hearing is the statement of Cardinal Conway to Mr. ÓRuairc in July 1976 that it would be in the latter’s best interests toresign, that the Trustees had gone into the matter very fully, that he”had seldom seen them so strong or so united in theirviews”, and that “they were quite resolved to pursue thematter to the very end”. Put at its strongest from Mr. ÓRuairc’s view point, this meant no more than that at that preliminary orinterim stage the Trustees had formed a firm opinion that removal fromoffice must follow on his laicisation. That, however, would not besufficient to disqualify them from hearing his case. A domestic tribunalwith a power of dismissal does not necessarily rid itself ofjurisdiction by forming a preliminary conclusion one way or the other.Ideally, the members of the tribunal should not form any intention as totheir decision until the hearing is over. But the conduct of the personunder proposed dismissal, or the circumstances of the case generally,may be such that it would be toomuch to expect them to show “the icy impartiality of a Rhadamanthus”, to void their minds of the opinions to which reason compelstheir perceptions, to shut out the deductions to which a prima facieview is apt to lead even the most fair-minded, or to ignore what logicand common sense point out to be an inexorable matter of fact or anindisputable conclusion of law. What natural justice requires in thiscontext is that the tribunal must not, by reason of bias, prejudice,interest or the like, have debarred itself from being in a position togive, and to appear to give, a fair and impartial hearing. What amountsto disqualification depends on what is required to be decided at thehearing. If, as was the case here, the facts were not in dispute and theonly real preliminary to a decision to dismiss was a question of legalinterpretation, I see no reason why a pre-hearing conclusion on the partof the tribunal as to that interpretation should invalidate the hearing,especially if the conclusion turns out to be correct. A proposition tothe contrary is asinsupportable as a contention that a judge’s decision on a particularpoint of law is bad because in an earlier case, or in an earlier stageof the same case, he had expressed an opinion on the point.

What the Trustees had to decide as to this point was twofold: 1) did Mr.Ó Ruairc’s rescript of laicisation debar him from lecturing inthe College after laicisation? and 2) if so, did his insistence oncontinuing to lecture amount to “grave delinquency againstclerical obligation”? If the correct answer to the first questionwas yet, it could not be seriously contended that Mr. Ó Ruairc’sinsistence on continuing to lecture in the College was not a breach ofthe statute, as the Trustees found it to be.

The laicisation of a Roman Catholic priest derives from a Latin documentcalled a rescript. It is issued by the Vatican and appears to be incommon form-which is probably why the Trustees, who are all bishops andwould be not unfamiliar with its terms, were able to come to aconclusion, as soon as they learned that it had been granted to him,that it wouldbe incompatible with it for Mr. Ó Ruairc to continue lecturing inthe College. This is because the rescript requires the person who islaicised not to “fill the office of rector (or any other directivefunction), of spiritual director and professor (docens) inseminaries, theological faculties and similar institutions”.

The College in Maynooth is unquestionably a seminary. But because it hasbeen expanded in recent times, both in numbers and types of students, sothat the non-seminarians, male and female, greatly outnumber theseminarians, it has been argued on behalf of Mr. Ó Ruairc that itdoes not come within the prohibited range of “seminaries,theological faculties and similar institutions”. In other words,it is contended that while the College is a “seminary” inthe ordinary meaning of the word, it is neither a “seminary”nor a “similar institution” in the sense in which thoseexpressions are used in the rescript.

The interpretation of the words used in a rescript is a matter of canonlaw, which requires tobe proved by the evidence of an expert. When the rescript makesreference to “seminaries”, and the College falls within whatin ordinary language is understood to be a “seminary”, itwould require the clear evidence of an expert in canon law to thateffect before a court would hold that the College is not a”seminary” for the purposes of the rescript. That isparticularly so because of the express and implied terms of the statutesof the College. For example, statute 1 says:

“St. Patrick’s College, Maynooth, is a major seminary for theeducation of aspirants to the priesthood for all the dioceses ofIreland”.

And statute 145 contains the statement:

“The purpose of St. Patrick’s College, Maynooth, is to trainstudents for the priesthood”.

Under the existing statutory scheme of things, not alone is the Collegea seminary, but being a seminary is of the essence of itsexistence.

The only expert witness on this point called in the High Court was aMonsignor Shanahan, a parishpriest in England who holds a doctorate in canon law. He said that in1971 the Sacred Congregation for the Doctrine of the Faith gave aninterpretation of the words used in the rescript which stated that theprohibition should be confined to the teaching of theological orreligious studies in specified kinds of institutes. As I read thetranscript of Monsignor Shanahan’s evidence, I find no expression of apersonal opinion by him that the Trustees were wrong in their conclusionthat the College was included in the prohibition in the rescript. Hisevidence goes no further than to say that the declaration of the SacredCongregation for the Doctrine of the Faith as to the meaning of”similar institutions” is not compatible with the opinion ofthe Trustees. But this is to ignore the fact that the College is aseminary and that the opinion of the Trustees was formed by reference tothe status of the College as a “seminary” and not as a”similar institution”. Monsignor Shanahan refrained in hisevidence from saying that the College was not a seminary forthepurpose of the rescript. I am satisfied, therefore, that MonsignorShanahan’s evidence would not justify a rejection of the opinion of theTrustees that the rescript of laicisation debarred Mr. Oó Ruairefrom continuing in office as lecturer in the College after hislaicisation. That being so, the Trustees were justified in holding thathis insistence on retaining office after laicisation was a gravedelinquency against clerical obligations, thus being a ground fordismissal under statute 26. The effect of the rescript was that Mr.Oó Ruaire became not simply a layman but a laicised priest, andthe terms of the rescript were binding in canon law on both him and theTrustees.

I would uphold the dismiss of the claim by Mr. Oó Ruaire that hewas unlawfully dismissed.

IV
Up to recent times the College was exclusively a seminary, enjoying thestatus of a pontifical university and of a Recognized College oftheNational University of Ireland. Since 1966 it has been expanded into anopen centre of higher studies, to such an extent that the seminariansare now less than one-third of the total body of students. Whether it isconstitutionally permissible for the College while remaining essentiallythe seminary of a particular religion, to be financed as it is by theState, and whether in any event its statutes need to be revised to meetits changed academic status and composition, are questions that lieoutside the scope of this litigation. The particular issues we areconcerned with do not, in my view, call for any wider appraisal orinvestigation than is necessary for a decision as to whether the Collegestatutes in question are invalid for the reasons alleged and whetherthey have been properly applied in this case. I do not think, havingregard to the contractual relationship between the plaintiffs and theCollege, that an inquiry is necessary into the historical or legislativebackground of the College.

As far as these two plaintiffs are concerned,they each entered office in the College subject to a solemn undertakingby they that they would abide by the statutes of the College. Theparticular statutes invoked against them have not been shown to violatethe constitutional rights relied on or to be otherwise ultra vires. Norhas it been shown that those statutes have been incorrectly interpretedor unlawfully applied to the facts of the case. Those, and those alone,are the criteria by which the validity of the resolutions of dismissalmust be assessed.

I would, therefore, decide these appeals by holding that both plaintiffshave been validly dismissed from office.

JUDGMENT GRIFFIN J.

The first-named plaintiff from 1968 was a professor, and thesecond-named plaintiff from 1970 was a lecturer, in St. Patrick’sCollege, Maynooth (“the College”) until they were dismissedfrom office by the Trustees of the College on the 6th of May 1977. Asthe two cases overlapped somewhat, both plaintiffs were joined in theseproceedings, as their legal advisers, with some justification,apparently considered that the two cases could more conveniently betried at the sametime. Each plaintiff maintains that he was wrongfully dismissed fromoffice.

In the High Court, Mr. Justice Hamilton held that the dismissal of theplaintiff Dr. McGrath was invalid and assessed damages to him; hedismissed the claim of the plaintiff Malachy Ó Ruairc, holdingthat his dismissal was lawful. Both plaintiffs have appealed, Dr.McGrath contending that the order in his case should have been, not theaward of damages, but a declaration that he is still a professor inMaynooth. Mr. Ó Ruairc contends that the trial judge was wrong inholding that he was validity dismissed. The Trustees have appealedagainst the finding that Dr. McGrath was not validly dismissed, on theground that there was no evidence to enable the trial judge to draw theinference that Dr. McGrath was dismissed for a reason other than thatcomplained of.

The College was founded pursuant to the provisions – of an Act of theIrish Parliament of 1975 (35 Geo. III.c.2 In the Preamble it is statedthat it has become expedientthat a Seminary should be established for the education exclusively ofpersons professing the Roman Catholic Religion, and since its foundationthe College has been the National Seminary for the education of priestsfor the dioceses of Ireland. S. 3 of that Act provides for theappointment of Trustees, and gave the Trustees power to makebye–laws and statutes for the government of the College.

The Statutes currently in force were adopted by the Trustees on the 2ndof October 1962 and it was in pursuance of the provisions of thoseStatutes that the Trustees purported to dismiss the plaintiffs. Thepower of dismissal from office is contained in Statutes 26 and 28.Statute 26 provides that every College official (and each plaintiff wasa College official) shall be liable to dismissal (inter alia) if guiltyof dereliction of the duties of his office or grave violationof the College Statutes or grave external offence againstCatholic faith or morals or grave delinquency against clericalobligations, if he be a priest. Statute 28 provides that any official oftheCollege may, upon due cause as specified in Statute 26, be removed fromhis office by the Trustees, and specifies the procedure to be adopted upto the time the Trustees give their decision in writing. It alsoprovides for an appeal to the Holy See.

In the High Court, it was unsuccessfully argued on behalf of theplaintiffs that the Statutes of 1962 were ultra vires the powers of theTrustees. The plaintiffs appealed against the finding of the trial judgein that behalf. However, in this Court, no argument was adduced to theCourt on this ground, and it is beyond question that the Statutes of1962 were lawfully made by the Trustees. Under Statute 31, all Collegeofficials are bound by the Statutes. Under Statute 33, each officialafter appointment by the Trustees must be given a copy of the CollegeStatutes, and must sign a declaration in the following form:

“I hereby declare that I accept office subject to the Statutes ofSt. Patrick’s College, Maynooth, relating to the said office, that Iwill observe the Statutes of the College faithfully and performtheduties of my office”.

The declaration is required to be witnessed by the President of theCollege and preserved in the College Archives. Each of the plaintiffssigned the necessary declaration in the presence of the President, whowitnessed their signatures. Both plaintiffs were, accordingly, bound bythe Statutes.

The first question for determination on this appeal is, therefore,whether the Statutes were correctly interpreted and applied by theTrustees before dismissing the plaintiffs. As different considerationsapply to each of the plaintiffs, I propose to deal separately with them.Before doing so however, the functions of the court in matters of thiskind should be clearly understood.

It is well settled by authority that the jurisdiction of the courts toreview decisions of a domestic tribunal – and the Trustees were such atribunal in this case – is of a limited nature. Where such a tribunal isgiven jurisdiction by the rules or statutes to determine the issue inquestion, it must:

1. Act within its jurisdiction;

2. Comply strictly with the relevant rules or statutes both as tosubstance and as to any procedures laid down;

3. Observe the rules of natural justice – which are essentially therules of fair play and fair procedures;

4. Act honestly and reasonably in arriving at its decision.

Where, therefore, a discretion is given to such a tribunal, it is forthat tribunal alone to exercise it. Although a court might have arrivedat a different conclusion on the facts established, nevertheless wherethe tribunal has acted within the foregoing limits and where the factsare reasonably capable of being held to be a breach of the rules orstatutes, the decision of the tribunal is not reviewable by the courts.If, therefore, the exercise of its discretion is challenged, as in thiscase, the onus is on the plaintiff to prove that those limits have beentranscended.

The plaintiff Dr. Patrick J. McGrath.
Dr. McGrath was ordained a priest in 1961. He was appointed Professor ofLogic and General Metaphysics in the College on the 18th of June 1968.His appointment was for a probationary period of three years. In 1968,the Papal Encyclical, “Humanae Vitae” was issued. Havingregard to that was stated in the Encyclical, early in 1969, a Pastoralon Marriage was issued to the faithful by the entire Irish Hierarchy.Shortly afterwards, Dr. McGrath and two colleagues in the Collegedecided to contribute three articles to the Irish Times, and each ofthem contributed an article critical of the Bishops” Pastoral. Dr.McGrath’s article was published in the issue of the 21st of March 1969,and it could fairly be said to have joined issue with the bishops,containing expressions such as “negative”,”unbalanced”, and “misleading” in reference toportion of the Pastoral. The publication of this article by Dr. McGrathwas in breach of Statute 37, which requires that the permission of thePresident should be obtained for the publication of books or articles,and was in breach of Statute 40 under which officialsare forbidden to make any public statement or publish any writingsprejudicial to ecclesiastical authority or the interests of theCollege.

The then President, Dr. Newman, took up this breach of the Statutes withDr. McGrath, and obtained from him an assurance that he accepted theStatutes and an undertaking to abide by them for the future. But thematter did not rest there. The President officially informed theTrustees of this breach, and of the undertaking given by the plaintiff.The Trustees considered the matter at their meeting in April 1968, andon the 21st of April 1968 Dr. Lucey, by the direction of the Trustees,wrote to the plaintiff conveying the surprise, disappointment andconcern of the Trustees at the manner in which the plaintiff chose toexpress his views and asking the plaintiff to take note of theirconcern.

The plaintiff was confirmed in his appointment on the 22nd of June 1971.There had, in the meantime, been no further cause for complaint againsthim, and it seems to me to be a reasonable assumption that, but for hisundertaking, the confirmation of the plaintiff inhis appointment would, to put it at its lowest, have been inconsiderable doubt. However, notwithstanding his undertaking, subsequentto his confirmation in his appointment Dr. McGrath published threefurther articles which caused concern to the Trustees. The first ofthese was published in the December 1971 issue of “TheFurrow”. The Irish Hierarchy had appointed an Episcopal Commissionon Doctrine, and the previous issue of The Furrow published a documentissued by the Commission concerning Professor Hans Kung’s book”Infallible?.” In the course of his article, Dr. McGrathreferred to the Commission in somewhat disparaging terms, including thefollowing:

“The Irish have enough of a sense of history to be suspicious ofanything resembling a packed jury – an institution designed to give anair of objectivity to verdicts which had been arrived at in advance. Itmay be unfair to describe the Theological Commission in these terms, butthe manner of its selection and the secrecy surrounding it are notreassuring”.

The Irish Hierarchy, through their Secretary, wrote, tothe editor of The Furrow, and the editor appended a note in the nextissue stating that the expression “packing a jury” (notprecisely the phrase used by Dr. McGrath but the editor apparentlyequated it with his phrase) was unjustified.

The second article appeared in a journal entitled”Consilium” in March 1973, and again dealt with the teachingof the Church on the concept of infallibility. In this article, he was,on one view, joining issue with the Church on what is regarded as afundamental doctrine of the Church. The third article was published inthe “Maynooth Review” in November 1975 and was entitled”Marriage Annulment – A Second Look”. This article containedviews of a very controversial nature on the question of the teaching ofthe Church on the indissolubility of marriage. These included astatement towards the end of the article that “However oneapproaches the teaching of Jesus on divorce, there seems to be no way ofinterpreting it which does not render it incompatible with the Church’steaching on the indissolubility of marriage”.

Dr. McGrath had been absent from the College on sabbatical leave for theacademic year 1974/1975. He returned to the College at the beginning ofOctober 1975. While he was away on leave, he had made up his mind toapply for laicisation, but he did not communicate his decision to thePresident or to the Trustees. When he returned to the College he was notwearing the Roman collar and stock which was the conventional dress ofmembers of the staff of the College who were priests. Some three weeksafter his return, he was asked by the President why he was not wearingclerical dress and he told the President of his decision to seeklaicisation and gave the President permission to communicate hisdecision to the Trustees. The matter of clerical dress was broughtbefore the Visitors (who may be described as the executive committee ofthe Trustees, and who must include, under Statute 12, the fourMetropolitans ex officio and at least four other Bishops) at theirmeeting of the 21st of November 1975. The Visitors, who are required byStatute 16 to examine carefully all matters affectingthe discipline of the College, requested the President to direct Dr.McGrath to resume wearing clerical dress forthwith. By letter dated 27thof November 1975, the President directed the plaintiff accordingly. Farfrom obeying the directive, Dr. McGrath, by letter of the 1st ofDecember 1975 written to the President, sought to justify his failure towear a clerical collar on the grounds, inter alia, that priestsfrequently do not wear the clerical collar nowadays and that in manycountries the collar has disappeared as an article of clericaldress.

At about the same time, Dr. McGrath told his Bishop, Dr. Lennon, Bishopof Kildare and Leighlin, of his decision to seek laicisation, and askedhim “to set the process of laicisation of foot”. He appearshowever to have had some doubt or change of heart in what for a priestmust be an extremely difficult decision, because on the 19th of March1976 he wrote to Dr. Lennon stating that he would like “a littlemore time to think things over”. This was, to his Bishop, “awelcome letter because it seemed to indicate thatthere was a good hope that you would drop the idea oflaicisation”. On the 5th of July 1976, his Bishop wrote to Dr.McGrath stating that after much consideration he had come to theconclusion that a change of work and a return to his own diocese wouldafford the best hope of saving Dr. McGrath for the priesthood and herecalled him to his own diocese, which would require his resignationfrom the College, and directed him to send in his resignation to thePresident. Dr. McGrath refused to obey his Bishop’s direction, as hethought that it would be folly to resign his professorship and return tothe diocese when a decision was pending concerning his future status. Asa result of some discussions with his Bishop who, it was conceded, hadtreated Dr. McGrath with great sympathy, the direction from the Bishopwas later withdrawn.

On the 1st of November 1976, the Secretary of the Trustees wrote to Dr.McGrath stating that his continuance as a member of the staff of theCollege had been under consideration by the Trustees andthatdespite an admonition issued to him in 1969 he had continued to publishwritings prejudicial to ecclesiastical authority and to the interests ofthe College, and that he had also declined to comply with the writtendirective of the President of the 27th of November 1975, issued, as Dr.McGrath was aware, on the express instructions of the Visitors. Theletter further stated that the Trustees considered that theseconstituted a dereliction of the duties of his office and a graveviolation of the College Statutes. He was invited to resign from hisposition in the College with effect from the 31st of December 1976,failing which the Trustees would have to give consideration to thequestion of his dismissal in accordance with the Statutes. The plaintiffdid not comply with the request to resign, and on the 1st of February1977, the President of the College wrote to him stating that thequestion of his removal from his position as a member of the staff ofthe College would be considered by the Trustees at an early date. Thecauses alleged were:

1. that despite the admonition issued to him in 1969, he hadcontinued to publish writings prejudicial to ecclesiastical authorityand to the interests of the College, and

2. that he had declined to comply with the afore-mentioned directiveof the President (in relation to clerical dress).

The letter stated that it appeared to the Trustees that theseconstituted a dereliction of the duties of his office and a graveviolation of the College Statutes, that the Trustees requested hisresignation, and that if he was unwilling to resign he should, withinfifteen days of the receipt of the letter, submit in writing his defenceor explanation and this would be considered by the Trustees.

To this letter, Dr. McGrath replied on the 17th of February 1977,justifying the articles he wrote, and challenging the validity of thedirective from the President. He consulted his solicitors who enteredinto correspondence with the solicitors for the TrusteesIn this correspondence the solicitors for the Trustees expanded thedetail of the causes alleged. By letter dated 29th of March 1977 theyinformed the plaintiffs” solicitors that Dr. McGrath’s letter hadbeen considered at a meeting of the Trustees on the 15th of March 1977,that a further meeting would be held on the 15th of April 1977, that anyfurther statement or defence or reply by or on behalf of Dr. McGrathwould be taken into consideration, and that their client was free toattend and to be legally represented should he so desire. He was in factat this time being advised by senior and junior counsel who could, ofcourse, also attend on his behalf. Dr. McGrath was anxious to have histrade union representative in attendance at the meeting of the Trustees,but when this was declined he and his legal advisers did not attend.Notwithstanding the fact that the invitation to attend with his legaladvisers was declined, a very lengthy submission in writing was made onhis behalf for the consideration of the Trustees at this meeting, and,on the morning on which the meeting was to be held,he himself made some amendments to the submission by telephone. Themeeting of the 15th of April 1977 was adjourned to enable the submissionon behalf of Dr. McGrath to be circulated to all the Trustees, and atthe adjourned meeting of the Trustees on the 6th of May 1977 theTrustees dismissed him from office.

On the 16th of May 1977, these proceedings were instituted on behalf ofDr. McGrath, and it was claimed (inter alia) that the resolution of theTrustees that he be removed from his office of Professor in the Collegewas invalid and ultra vires. As stated, earlier in this judgment, theStatutes were clearly not ultra vires the powers of the Trustees, andthe question for determination is whether Dr. McGrath was properlyremoved in accordance with the Statutes. The Trustees complied carefullywith the provisions of Statute 28, so no question arises as tocompliance with procedural requirements. The causes alleged were thosefor which the Trustees purported to dismiss him.

In the High Court, the trial judge held that Dr. McGrath had not beenvalidly removed from office, not because the causes alleged had not beenmade out, but because the “real reason” why he was dismissedwas the fact that he had applied for a Rescript of Laicisation. In hiscomprehensive judgment, the trial judge made several references to thereal reason for the dismissal of Dr. McGrath being his application forlaicisation. In the course of his judgment he said:

“It was pleaded on his behalf and submitted by Counsel on hisbehalf that these were not bona fide charges but that they werepresented against him in an unlawful attempt to remove him from hisoffice in St. Patrick’s College, Maynooth. I am not prepared to holdthat these charges were not bona fide charges but am satisfied that thecharges alleged against Dr. McGrath did not include the real reason whyit was considered desirable that he should be dismissed from his post atSt. Patrick’s College, Maynooth namely the fact that he had applied forlaicisation”.

Again, later in the judgment, having quoted from a memorandum preparedby the late Cardinal Conway after a meeting with the Second-namedplaintiff on the 10th of July 1976, the trial judge said:

“In the light of this Memorandum, which was discovered by thedefendants and having regard to the fact that it would appear that thequestion of the position of both Mr. Ó Ruairc and Dr. McGrath inthe College was discussed at the same meetings of the Visitors andTrustees, a factor in the decision to remove him from his office was thefact that he had also applied for a Rescript of Laicisation.

If I am wrong in coming to this conclusion, the fault lies with thedefendants who did not adduce any evidence before me in theseproceedings”.

If there was evidence to support these findings of the trial judge, thedismissal of Dr. McGrath would clearly be invalid and the appeal of theTrustees would be unsustainable. There was no direct evidence on thisquestion, and, in my opinion, having considered all the evidence, therewas no evidence from which the trial judge could properly draw theinference that thereal reason for the dismissal of Dr. McGrath was his application forlaicisation. In drawing this inference, the trial judge relied, first,on the memorandum of the discussion between Cardinal Conway (who was Mr.Ó Ruairc’s bishop) and Mr. Ó Ruairc, which discussion wasexclusively in reference to Mr. Ó Ruairc’s laicisation after hisRescript had been received, and secondly on the fact that at a meetingof the Visitors at which Cardinal Conway informed the Visitors that Mr.Ó Ruairc’s Rescript had been received, the question of Dr.McGrath was also discussed and Dr. Lennon informed the Visitors that hewas recalling Dr. McGrath to the diocese and was requiring him to submithis resignation from his office as professor.

As the claims of both plaintiffs in the action were joined in the sameproceedings and tried together, it was vital that the evidenceadmissible in respect of each claim should be considered only in respectof the plaintiff in respect of which it was admissible. At thediscussion between the Cardinal and Mr. Ó Ruairc,the Cardinal, having gone through the Rescript with Mr. O’Ruairc,informed him that the Rescript meant that he could no longer retain hisposition in Maynooth and that the Trustees would wish to have hisresignation as soon as possible – the date being mentioned was beforethe 24th of July. He said that he very much hoped that in his owninterest, as well as in the interest of the College and the Church, Mr.Ó Ruairc would resign, that the Trustees had gone into this veryfully and that he had seldom seen them so strong or united in theirviews and that they were quite resolved to pursue the matter to the veryend. This was solely referable to Mr. Ó Ruairc. But even if thatdiscussion could be construed to include a decision in relation to Dr.McGrath, it would in my view be quite wrong, on the facts of this case,to draw the inference that the real reason for dismissal in Dr.McGrath’s case was the application for laicisation. The trial judgeaccepted that the stated causes for dismissal were bona fide, and therecord of the meeting of the Trustees at which theresolution to dismiss Dr. McGrath was passed, and which Dr. McGrath andhis legal advisers had been invited to attend, and all the documents inrelation to that meeting, demonstrate that only the two causes allegedagainst Dr. McGrath were discussed. No evidence was adduced at thehearing that anything other than the two alleged causes were taken intoconsideration by the Trustees. There was no onus on the Trustees toprove that they relied solely on the two causes alleged for hisdismissal, and the trial judge was in my view wrong in holding, as heappears to have held, that there was in fact an onus on them to adduceevidence that they had not taken into account factors otherthan those alleged. Indeed, if Dr. McGrath wished to make the case thatmatters other than the two caused alleged were taken into considerationat the meeting, the Secretary of the Trustees could have been called inevidence on behalf of Dr. McGrath.

In my opinion, therefore, the finding of the trial judge that the realreason for the dismissal of Dr. McGrath was his application forlaicisation cannotbe upheld.

The next question that arises is whether the dismissal of Dr. McGrathfor the two stated causes was valid. He accepted office subject to theStatutes, which included acceptance of the jurisdiction of the Trusteesto decide questions under Statutes 26 and 28. The Trustees are thepersons required by the Statutes to determine whether his conduct was abreach of the Statutes, and it cannot too ofter be emphasised that ifthe facts are reasonably capable of being held to be a breach of theStatutes, the decision of the Trustees cannot be reviewed by thecourts.

The first cause alleged was that despite the admonition given to him in1969, he had continued to publish writings prejudicial to ecclesiasticalauthority and to the interests of the College. The courts areillequipped to determine questions of this kind, whereas the Trustees,all of whom are Bishops, are especially qualified to do so. I do notpropose to consider the article written in 1969, in respect of which itcould be said that, as was submitted on behalf of theplaintiff,”the slate had been wiped clean” by the confirmation of hisappointment in 1971. But in respect of the other three articles, unlessit can be said that they are not reasonably capable of being held to beprejudicial to ecclesiastical authority and to the interests of theCollege, (and it must be borne in mind that the onus of proof is on theplaintiff), the Court cannot interfere with the decision of theTrustees.

These articles were published in journals which would almost certainlybe read by the seminarians in the College. The Trustees would thereforehave to consider the impact which these articles would be likely to makeon the seminarians, in particular where the articles were written by oneof their professors. The article in “The Furrow” was openlycritical of the Bishops and of the Theological Commission established bythem. The article in “Consilium” is capable of theinterpretation that the writer not only questions but may even beopposed to the teaching of the Church on Infallibility. The article in”The Maynooth Review” is capable of the interpretation thatit is an attack on the Church’s teaching on theindissolubility of marriage. In my opinion, the Trustees were entitledto come to the conclusion that these articles were prejudicial toecclesiastical authority and to the interests of the College,(notwithstanding that some of them carried the Imprimatur) and that, inconsequence, Dr. McGrath was in breach of Statute 40.

The second cause alleged was the failure to comply with the directive ofthe President of the College on the 27th of November 1975 in relation tothe wearing of clerical dress. Whatever may be the practice in othercountries, the obligation to wear clerical dress in Ireland is,according to the evidence, beyond question. Under the Code of Canon Law,(Canon 136), all clerics are required to wear becoming ecclesiasticaldress in accordance with lawful local customs and the prescription ofthe local Ordinary. In 1956 a Plenary Council of Synod of the Bishopsadopted the Statutes of Maynooth, being Canon Law Statutes applicable inIreland, and these were promulgated and published in 1960. Under decree19 of these Statutes, the Roman collar and stock are required clericaldress. Failure to observe the obligation to wear the Roman collar andstock was therefore a breach ofCanon Law on the part of Dr. McGrath. He persisted in his refusal towear the Roman collar and stock during 1976, although all the members ofthe staff except himself and Mr. Ó Ruairc did so. By November1976, the Trustees were prepared to make his refusal an issue in respectof which they called for his resignation in the letter of the 1st ofNovember 1976, but he still persisted in his refusal.

Under Statute 26 every official of the College is liable to dismissal ifguilty of grave delinquency against clerical obligations, if he be apriest. As Dr. McGrath was in breach of Canon Law in his failure, andindeed refusal, to wear the Roman collar and stock, he was clearlyguilty of delinquency against clerical obligations. Whether this was”grave” delinquency or not the Court is not equipped todetermine. However, the Trustees, all of whom are Bishops, in exercisingtheir discretion in the matter, decided that his breach was agrave delinquency against clerical obligations and the Court would notin my opinion be justified in interfering with the exercise by them oftheir discretion. Theywere entitled to take the view that not alone was Dr. McGrath in defaultin not wearing the Roman collar and stock, but that hispersistent refusal to comply with directions given by them was adeliberate and open challenge to their authority in a seminary in whichdiscipline, which need not be authoritarian in quality, was neverthelessof considerable importance in the training of seminarians and in thegeneral running of the College.

In my judgment, therefore, the Trustees were justified in dismissing Dr.McGrath by reason of the breaches by him of the Statutes of the College,and they did so in accordance with the provisions of the Statutes.

The plaintiff Mr. Malachy Ó Ruairc
Mr. Ó Ruairc was ordained a priest in 1965. He was appointedLecturer in Modern Language in the College on the 13th of October 1970and was confirmed in that position on the 9th of October 1973. Like Dr.McGrath, he was on sabbatical leave for the academic year1974/1975.While he was on leave he decided to apply for laicisation. When hereturned to the College at the beginning of October 1975, he also wasnot wearing clerical dress. On the 4th of November 1975 he was asked bythe President of the College why he was not wearing clerical attire andhe told the President of his decision to seek laicisation. He also toldhim that he had, a few days previously, written to Cardinal Conway, whowas his Bishop as well as being Chairman of the Trustees, telling him ofhis decision. A letter in similar terms to that written to Dr. McGrathwas written to Mr. Ó Ruaire by the President at the direction ofthe Trustees, giving Mr. Ó Ruaire a directive to resume wearingclerical dress. He did not comply with that directive.

In addition, Mr. Ó Ruaire had decided that as from the 1st ofJanuary 1976 he would reside outside the College, and he did so withoutobtaining the permission of the President or of the Chairman of theTrustees. This was in clear breach of Statutes 36 and 143 which requiresevery College official to reside within theCollege except during vacation periods, outside of which the permissionof the President is necessary for periods of not more than eight daysand of the Chairman of the Trustees for longer periods. There wascorrespondence between Mr. Ó Ruaire and Dr. Birch, the Secretaryof the Visitors, in which Dr. Birch pointed out that he had violatedCollege Statutes by not living in the College and doing so withoutpermission.

On the 17th of January 1976, Cardinal Conway interviewed Mr. ÓRuaire in connection with his application for laicisation, and advisedhim that he should send in his resignation to the College. He told himthat this was also the view of the Trustees, but that he was (presumablyas his Bishop) giving him his strong advice informally that this was thebest thing for him to do. His request for laicisation was granted by theHoly See on the 16th of June 1976, and on the 10th of July 1976 CardinalConway had an interview with him, when he told him that his Rescript hadbeen received. He explained the effect of the Rescript to Mr. ÓRuaire and having done so he dealt with his position in theCollege – the relevant parts of this discussion have already beenreferred to in considering Dr. McGrath’s case and it is unnecessary torepeat them.

The Rescript is granted subject to certain terms. One of these terms(6.d) is that a priest who has been returned to the lay state anddispensed from his obligations is not permitted to fill the office ofrector (or any other directive function), of spiritual director andprofessor in seminaries, theological faculties and similar institutions.The Rescript is a printed document in standard form and is issued inLatin. Although the translation supplied to the Court refers to”professor”, the relevant words in the Latin text are”munere… Docentis fungator in Seminarlis”,Facultatibus Theologicis et similibus Institutis”, and it was notcontested in argument that this is not confined to professors by thisprohibition/also extends to lecturers and other teachers in suchinstitutes.

Notwithstanding the request from Cardinal Conway at the interview inJuly 1976, Mr. Ó Ruaire did not resign from his position in theCollege, but continued to teach there. On the 1st of February 1977,thePresident, at the direction of the Trustees, wrote to Mr. ÓRuaire informing him that the question of his removal from office wouldbe considered by the Trustees at an early date. In that letter,the/causes alleged were:

1. His refusal to resign notwithstanding the terms of the Rescriptwhich forbade him from holding a teaching post in a college such asMaynooth;

2. His refusal to comply with the directive of the President, issuedon the express instructions of the Visitors, in relation to the wearingof clerical dress;

3. His breach of the rule of residence imposed by the Statutes.

He was invited to resign forthwith, with effect from the 30th June 1977,and informed that if he was still unwilling to resign he should withinfifteen days from his receipt of that letter submit in writing hisdefence or explanation, which would be considered by the Trustees. Hereplied to this letter at considerable length on the 17th of February1977, inter alia, contesting theinterpretation of the Rescript, or that he was a laicised priest, orthat he could be held to have committed a grave delinquency against”his” clerical obligations as a priest, as he was no longera priest, and that the matter of clerical dress was not mentioned in theStatutes, and contesting that Statute 36 (residence in the College) wasstill binding.

Like Dr. McGrath, he consulted his solicitors and correspondence tookplace between his solicitors and the solicitors for the Trustees. Inthis correspondence he was invited, with his legal advisers, to attendthe meeting of the Trustees to be held on the 15th of April 1977. Again,neither he nor his legal advisers attended that meeting on the groundthat, as was alleged, the Trustees would not permit the attendance ofhis trade union representative. That meeting was adjourned, and at themeeting of the Trustees on the 6th of May 1977 a resolution was passedremoving him from office.

In the High Court it was argued on Mr. Ó Ruairc’s behalf that thecauses in relation to clerical dress and residence in the College weretrivial grounds.Fortunately, the right of the courts to determine that question need notbe considered on this appeal, as the trial judge, although finding infavour of Mr. Ó Ruairc on the causes in relation to dress andresidence, dismissed his claim on the main ground argued i.e. his rightto teach in the College after the Rescript had issued. As I am satisfiedthat the trial judge was correct in dismissing the plaintiff’s claim onthis latter ground, it is not necessary to adjudicate on the other twogrounds.

The Rescript forbade Mr. Ó Ruairc from teaching in a seminary,theological faculty, or similar institute. The main arguments advancedon his behalf on this appeal were (1) that the College is not a seminarywithin the meaning of the Rescript; (2) that under the terms of theRescript he had been reduced to the lay state and that therefore therequirement of Statute 26 in relation to grave delinquency againstclerical obligations, if he be a priest, could not apply to him, and (3)that he had not a fair hearing at the meeting of the Trustees on thegrounds that the Trustees had pre-determined the questionand approached the hearing with closed minds.

Prior to 1966, the College was confined exclusively to clericalstudents. In addition to being the National Seminary, it was also aPontifical University and a Recognised College of the NationalUniversity. As a result of a decision of the Trustees to develop theCollege as an open centre of higher studies for priests, brothers, nunsand the laity, the student population of the College expandedconsiderably, and there were in the academic year 1977/1978approximately three times as many students as in 1966. The lay studentsnow out number the clerical students by about 3 to 1. It was claimed onbehalf of Mr. Ó Ruairc that in consequence of these changes thecharacter of the College had changed dramatically and that its role as aSeminary for the education of priests had become a secondary role. In myview, whatever else the College may be, it is essentially the NationalSeminary for the dioceses of Ireland. That was formerly its solepurpose, but now it is its primary purpose. In the very first Statute ofthe 1962 Statutes it isdescribed as “a major Seminary for the education of aspirants tothe priesthood for all the dioceses of Ireland”, and under Statute145 its purpose is stated to be to train students for thepriesthood.

In submitting therefore that the College is not a Seminary within themeaning of the Rescript, the plaintiff is undertaking a heavy burden.Unless he can establish that Seminary has a special meaning in theRescript, it must be interpreted as having its ordinary meaning. Theburden of establishing that it should have a special meaning was not, inmy opinion, discharged by any evidence adduced at the hearing, andaccordingly for the purpose of this case the word “Seminary”in the Rescript must be given its ordinary meaning. But even if it had aspecial meaning in the Rescript, those peculiarly qualified to interpretit were the Trustees, most, if not all, of whom must have become quitefamiliar with Rescripts in recent years.

In respect of the submission that once Mr. Ó Ruairc had beenreduced to the lay state the provisions of Statute 26 could no longerapply to him, Dr. Shanahan,the expert called on his behalf, rejected the notion that there was nosuch thing as a laicised priest and accepted the accuracy of thestatement that “once a priest always a priest”. According tohis evidence, whilst he may have lost his clerical status, he hascontinuing clerical obligations, in particular the obligation to hearconfessions in case of grave emergency. Dr. Shanahan also accepted thata priest who was granted a Rescript is bound in Canon Law to comply withthe conditions laid down by the Holy See.

In my opinion, therefore, the submission that he was not in breach ofany clerical obligation in not resigning from his teaching position inthe College, is unsustainable in view of the condition imposed in clause6(d) of the Rescript.

The submission that Mr. Ó Ruairc did not have a fair hearing atthe meeting of the Trustees was based primarily on the memorandum of thelate Cardinal Conway to which reference has already been made. This wasa memorandum of what transpired at the interviews he hadwith Mr. Ó Ruairc on the 12th of January 1976 and the 10th ofJuly 1976 and from this memorandum it was sought to show that theTrustees had already decided that Mr. Ó Ruairc could not continueto teach in the College and that accordingly they thereafter approachedthe question with closed minds. He was entitled to a hearing from anunbiased tribunal, but the hearing to which he is entitled will varyconsiderable depending on what is to be decided. It is well settled thatone cannot expect from a lay tribunal the strict impartiality of mindwhich might be expected from a judge deciding between litigants in anaction before the courts. The tribunal will generally have satisfied thelegal requirements of an unbiased hearing if it approaches its task with” a will to reach an honest conclusion after hearing what wasurged on either side and a resolve not to make up their mindsbeforehand”. But in this case the only question to be investigatedwas whether, correctly interpreted, the Rescript required Mr. ÓRuairc to resign from his teaching position in the College. TheTrustees, due to their familiarity with the terms of theseRescripts and their special knowledge of Church Law were bound to havefirm views on this question, and indeed may very well have had strongviews, as they also were bound by the terms of the Rescript and werebound to see that they were carried out in so far as the College wasaffected. This would not however, preclude them from giving a fairhearing to Mr. Ó Ruairc who could, if he had chosen to do so,have attended with his advisers, and put forward and have argued on hisbehalf the construction contended for in the High Court and in thisCourt on appeal. As he elected not to appear at the hearing either inperson or through his advisers, the default was his own if whateverdefence or submissions he might have made to the cause alleged were notconsidered by the Trustees.

In the result, the Trustees were in my opinion entitled to decide thatthe terms of the Rescript required Mr. Ó Ruairc to retire fromhis teaching post in the College and that his refusal todo so was agrave delinquency against clerical obligations under Statute 26 andwarranted his dismissal.

On behalf of both plaintiffs it was submitted that the College Statutescontravened Article 44 s. 2, subs. 3, of the Constitution. I have hadthe advantage of reading what Mr. Justice Henchy has stated in hisjudgment in relation to this submission, and I am in full agreement withit.

In my judgment, therefore, both Dr. McGrath and Mr. Ó Ruairc werevalidly dismissed from their respective offices. I would accordinglyallow the appeal of the Trustees in the case of Dr. McGrath, and dismissthe appeals of both plaintiffs.

JUDGMENT OF PARKE J.delivered the 1st day of November 1979

I agree generally with the judgments already delivered and have littleto add to them. The basic case made on behalf of both plaintiffs is thatthe ostensible reasons advanced by the defendants for their removal fromoffice was not the real ground. They say that the real reason for theTrustees” decision was that one of the plaintiffs had applied for,and the other had obtained a Rescript of Laicisation from the Holy See.They say, therefore, that their cases were prejudged against themwithout any opportunity being given to either of them to answer such acomplaint in violation of the principles of natural justice andthatthe ostensible reasons so advanced were of such a trivial or minorcharacter as could not justify dismissal.

I do not accept these submissions. I consider that each plaintiff waslawfully removed from office for good and sufficient reasons and not inany way contrary to natural justice.

I am much indebted to the diligence and research displayed by counselwho have produced such valuable historical and other material in orderto assist the Court in resolving the various issues which fall to bedetermined in this case but when all this material is sifted I thinkthat the issues which ultimately require to be decided are comparativelystraight-forward. Before the separate questions which must be consideredin the case of each plaintiff it is, however, necessary to decide onematter of paramount importance which relates to both cases; namely isMaynooth a seminary?

I have no doubt that it is. The historical background to its foundationand continued existence hasbeen very fully dealt with in the judgments already delivered and inparticular in that of Kenny J. and I do not intend to repeat it. Bearingthat background in mind one approaches the Statutes of the Collegeadopted in 1962 and one finds that Statute 1 declares that the Collegeis “a major seminary for the education of aspirants to thepriesthood for all the dioceses of Ireland” and Statute 145 inChapter X states “The purpose of St. Patrick’s College, Maynooth,is to train students for the priesthood”. A somewhat halfheartedattack has been made on the validity of these Statutes but there can beno doubt that they are valid and subsisting. A much more vigorousonslaught is made upon them upon the grounds that they are out of dateand no longer suitable for the kind of institution which Maynooth hasnow become. This may or may not be so. There may be various opinions onthe subject. But in my view such opinions are irrelevant. So long as theStatutes subsist they should be enforced and it is significant that wheneach plaintiff took up office he signed a declaration under Statute 31that theaccepted office subject to the Statutes and that he would observe theStatutes faithfully and perform the duties of his office. Of courseMaynooth has now become much more than a seminary. It is a PontificalUniversity, a Recognised College of the National University and is alarge institution of third level education catering for many more laystudents than seminarists. Indeed I would imagine that if the members ofthe Irish Hierarchy who petitioned the Crown in 1794 are able fromanother plane to observe the modern fruits of their labours they wouldbe considerably surprised. All this is irrelevant because whatever addedfunctions it may now perform Maynooth still declares itself to be, andin practice is, “a major seminary”.

The resolution of this issue is vital to considering the case of eachplaintiff which I now propose to do. The facts in each case have been sofully reviewed in the previous judgments which have been delivered thatI will only refer to such of them as I consider essential to thisjudgment. I shouldalso say that I am in complete agreement with the principles whichshould be applied by this Court in considering the decisions of domestictribunals which have already been enunciated.

PROFESSOR McGRATH
Professor McGrath had for some time before his removal indicated that hewas applying or had applied to the Holy See for laicisation. However,apart altogether from this, Professor McGrath had more than once beenrequested to resume the wearing of clerical dress which he had abandonedpreferring, to dress in a somewhat informal manner. Finally, thePresident on the instructions of the Visitors, issued a directive to himon the 27th of November, 1975 formally requiring him to resume thewearing of clerical dress. ProfessorMcGrath did not comply with this directive and, in fact, wrote to thePresident seeking to justify his continued refusal.

In November, 1976, the Secretary of Maynooth wrote to Professor McGrathmaking two complaints. The first was that despite an admonition given tohim in 1969 be continued to publish articles and writings which wereprejudicial to ecclesiastical authority and to the interests of theCollege. The second complaint referred to his continued refusal to wearclerical dress. Eventually by letter of the 6th of November, 1976 whichhas already been quoted in full, was written to Professor McGrath onbehalf of the defendants. This letter cited two grounds upon which thedefendants considered, constituted a dereliction of his duties and graveviolation of the College Statutes. The first of these was that despitean admonition administered to him in 1969, be continued to publishwritings “prejudicial to ecclesiasticalauthority and to the interests of the College”. I do not thinkthat this charge can be sustained in these proceedings because noevidence whatever was furnished that any of Professor McGrath’s writingsare so prejudicial. In the absence of such evidence I do not considerthat I would be entitled to express any opinion on the matter. If thiscomplaint against Professor McGrath was to be relied upon in theseproceedings it should, in my opinion, have been supported by evidence.It is possible that Professor McGrath may have been in breach of theStatutes or of an undertaking given by him to the President in respectof articles which he published but this is not a complaint made againsthim, I therefore disregard this aspect of the case.

The second complaint was his continued refusal to comply with thePresident’s directive regarding the wearing of clerical dress. It issaid on his behalf that in these times and in the changed character ofMaynooth that such a complaint is so trivial that the defendants couldnot have come to a bona fide decision that it constituted a sustainableground for his dismissal. I do not agree. It is not for this Court tosubstitute its own or anybody else’s opinion for that of the defendants.It is for the Court to decide whether the defendants couldreasonably and honestly come to such a conclusion. It seems to beabundantly clear that they could. They were administering the seminaryin which aspirants were being trained for the priesthood. If ordainedinto that priesthood they would become subject to the discipline of thecanon law and it is clearly established that in Ireland this codeimposes on its members an obligation to wear clerical dress. How couldthey be expected to respect such discipline if one of their professors,himself an ordained priest, not only declined to comply with it butsought to justify his open defiance on the grounds that such a ruleshould no longer be enforced. In my view, the Court could not interferewith the defendants” view that such conduct could amount to gravedelinquency against clerical obligations which is one of the groundsupon which a College official may be dismissed under Statute 26.

It was submitted that the defendants had, in effect, disabled themselvesfrom coming to any bona fide conclusion on the matter because they hadalreadydecided to remove Professor McGrath from office because of hisapplication for laicisation. I do not think that there is any evidenceupon which such a finding could be made. Counsel has argued that theCourt should make certain inferences to this effect but I cannot see howthis could be justified. Lack of bona fides, to use the least pejorativeterm possible in the circumstances, must be established in a positivemanner. When reviewing the conduct of a responsible group of people suchas the defendants it should only be found to exist where the known andestablished facts are inconsistent with honest or reasonable behaviour.For the reasons which I have stated I consider that thedefendants” conduct was wholly consistent with a bona fideexercise of their discretion. Throughout the whole and extremelyprotracted discussion and correspondence between the parties, thedefendants seemed to have acted with stringent adherence to theprinciples of allowing each plaintiff to present his case and to offerevery possible opportunity of replying to the complaintsmade against them or to accept and comply with the directions orrequests made by the Trustees in order to avoid the actual decision toremove from office under Statute 26. I accordingly reject thesesubmissions also.

MR. Ó RUAIRC
The case of the second plaintiff differs from that of Professor McGrathbecause prior to his removal from office, he had received a Rescript ofLaicisation and it was on the basis of the terms of this Rescript thatthe defendants decided to remove him from office. In the Autumn of 1975,he applied to his Bishop, the late Cardinal Conway, for laicisation. Hewas informed that in such an event he would be required to resign hisposition in Maynooth. He was also requested to resume wearing clericaldress which he had abandoned and to reside in the College in accordancewith the Statutes. He refused to comply with these requests but since aRescript for Laicisation was received in July, 1976, these matters areno longerof importance. The events which led up to the resolution of thedefendants in May 1977 removing them from office have been set out inthe judgments already delivered and I do not intend to repeat them. Thegrounds advanced in the letter to him of 1st February, 1977 was that hisrefusal to resign in accordance with the conditions of the Rescriptwould be a grave violation of the obligations imposed upon him as alaicised priest by the Norms of the Holy See and therefore amounted to agrave delinquency against his clerical obligations as a priest.

The Rescript is a formal document in Latin containing a number ofconditions which would have been well known to Cardinal Conway and thedefendants and which appear fully to justify the attitude taken up bythem as soon as Mr. Ó Ruaire applied to Cardinal Conway to belaicised. As Kenny J. has pointed out the English translation isinaccurate in that the true – meaning of the relevant conditions is thathe cannot “be teacher” in a seminary. In these circumstancesit is difficult to see upon what grounds Mr. Ó Ruairecoulddispute his obligation to resign if (as is the case) Maynooth is held tobe a seminary. Clearly the defendants could as reasonable men reach theconclusion that the defiance of such a condition imposed by the Holy Seewas grave violation of clerical obligations. The fact that thedefendants had, when his application for laicisation was first madeformed a preliminary view because of the knowledge of the terms of theRescript does not disentitle them from properly coming to such aconclusion. If they had subsequently shut out Mr. Ó Ruaire fromdefending himself or making such representations on his own behalf as hemight think proper then it might be said that they had ignored theprinciples of natural justice. However, as in the case of ProfessorMcGrath they gave him every opportunity so to do. It seems to me thathaving applied for a Rescript Mr. Ó Ruaire was bound to abide byits terms and cannot take the benefits from his new status which hedesired without accepting the disabilities which it involves.

A further argument is, however, adduced onbehalf of this plaintiff which is that his removal from of office is abreach of Art. 44.2.3 of the Constitution. This Article provides that”the State shall not impose any disabilities or make anydiscrimination on the grounds of religious profession or status”.The rather tenuous argument runs that because Maynooth now receivessubventions out of public funds under the provisions of the HigherEducation Authority Act, 1971, it must be regarded as an agent of the State and so constrained by theArticles. Accordingly, it is said that by refusing to continue Mr.Ó Ruaire in his office it is discriminating against him becauseof his religious status, that is to say, that of a laicised priest. Ireject this submission upon the grounds stated by the Chief Justice andHenchy and Kenny JJ. and also on the ground that such an interpretationwould violate the right of a religious denomination to direct and manageits own affairs granted by Article 44 .1.5.

For these reasons I would dismiss Mr. Ó Ruaire’s appeal and allowthe Defendants” cross-appeal againstso much of the order and judgment of Hamilton J. as decided thatProfessor McGrath had been wrongly removed from office.

Mulloy v. Minister for Education

[1975] IR 88

O’Higgins C.J.;

I have read the judgment of Mr. Justice Walsh and I agree with it.

Walsh J.
The plaintiff is a “registered teacher” within the definition of that expression contained in the Rules for the Payment of Incremental Salary to Secondary Teachers made by the Minister for Education in 1958. That means that he is a secondary teacher and is registered by virtue of the provisions of regulations for the registration of intermediate school teachers in a register kept for that purpose by the registration council which was constituted under the Intermediate Education (Ireland) Act, 1914, and was set up by virtue of4 the provisions of the Registration Council (Constitution and Procedure) Rules, 1926. The rules for the payment of incremental salaries to secondary teachers refers to what is called “approved teaching service” and comprises such service as is deemed by the Minister for Education to be efficient and in addition is either service as a recognised teacher or service as a teacher other than a recognised teacher which is a registerable teaching service accepted for the purpose of section 3 of regulation 2 of the Regulations for the Register of Teachers. The regulations provide that incremental salary should be calculated on the length of approved teaching service.
In a commendable exercise in attempting to provide education for people living in underdeveloped parts of the continent of Africa, the Minister for Education introduced a new scheme whereby credit in teaching service would be given for the purpose of placing on the incremental salary scales the service given by “a lay secondary school teacher” in certain underdeveloped countries in that continent. This scheme was settled in 1961 and was amended in 1966 by being enlarged to include credit for teaching service given “by a lay secondary school teacher” in Jamaica, Brazil, Colombia, Mexico, Peru and Chile. The scheme applied only to service given after December 31st, 1960.
The plaintiff, who had since 1956 been in Nigeria on the foreign missions conducted by the congregation of which he is a member, namely, the Holy Ghost Fathers, had taught there as a secondary teacher for some years. From January, 1960, to the school year of 1965 he taught as a secondary teacher at the Holy Ghost College in Owerri in Nigeria. Nigeria was one of the countries in the continent of Africa in which recognised service could be given within the terms of the schemes already mentioned. Having taught in a seminary in Nigeria from 1965 to 1967, the plaintiff returned to Ireland and since 1968 he has been a teacher in a recognised secondary school in Dublin, namely, Templeogue College, where he is a recognised teacher in receipt of incremental salary. The question which has arisen in this case is whether he is entitled to claim that he should be paid an incremental salary based on service which includes his service or some of his service as a secondary teacher in Africa.
On the 19th May, 1971, the plaintiff’s solicitor wrote to the secretary of the Department of Education claiming, in effect, to be entitled to an incremental salary which took into account his service as a secondary teacher in Africa. The letter pointed to what was claimed to be “an obvious discrimination” against the plaintiff and religious secondary teachers generally which it was claimed was contrary to the Constitution. No reply having been received to that letter, a further letter was sent on the 28th May threatening proceedings and on the 7th July, 1971, a letter was received by the plaintiff’s solicitor from the Department of Education to the effect that the first defendant did not “accept as valid” the plaintiff’s inferences and conclusions. Further correspondence with the Department of Education ensued and subsequently a letter was written on behalf of the first defendant by the Chief State Solicitor on the 2nd February, 1972, which, apart from other matters, stated baldly that “the scheme does not extend to religious missionaries.”
On the 21st November, 1972, the plaintiff issued proceedings against the defendants claiming that the exclusion of the plaintiff was in breach of his constitutional rights and, in particular, was in breach of the rights guaranteed by ss. 1 and 3 of Article 40 and by sub-s. 3 of s. 2 of Article 44 of the Constitution. Subsequently a statement of claim was delivered in which the case for the plaintiff was set out in greater detail and to that a defence was delivered on behalf of the defendants on the 28th March, 1973, which, among other matters, claimed at paragraph 5 that the scheme did not extend to the plaintiff “as a religious missionary is outside the scope of the said scheme and is not entitled to any benefits conferred thereby.” The action came on for hearing before Mr. Justice Butler in the High Court on the 25th January, 1974, and he delivered his reserved judgment in the case on the 22nd March, 1974. He declared that the scheme, in so far as it sought to confine the benefit to lay secondary teachers, was repugnant to sub-s. 3 of s. 2 of Article 44 of the Constitution. In the course of his judgment he did not make any reference to the claim which was brought by the plaintiff under Article 40 of the Constitution.
Sub-section 3 of s. 2 of Article 44 of the Constitution provides:
“3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”
The judgment of the learned High Court judge was to the effect that a discrimination had been introduced by the scheme in so far as the plaintiff was concerned on the grounds of religious “status.” It is necessary to refer to the Irish text of the Constitution which refers in that particular matter to “céim i gcúrsaíbh creidimh.” There is no doubt whatever, and it is freely admitted, that the scheme does purport to confine the benefits to lay secondary teachers to the exclusion of secondary teachers who have the status of religious, whether or not they are members of a religious order, congregation or society.
The claim brought by the plaintiff relating to Article 40 of the Constitution was not pursued in this Court and it is not necessary to refer further to it.
So far as sub-s. 3 of s. 2 of Article 44 is concerned, in my view the distinction or discrimination is not drawn on the ground of religious profession or religious belief. That sub-section, in my opinion, does not refer to “profession” in the sense that somebody is a religious in the religious life as a profession and the Irish text of the Constitution makes quite clear that what comes under the heading of “religious profession” is the particular religious faith which is professed by the person in question. The question of religious beliefs does not arise, so the question to be determined is whether a distinction has been drawn on the basis of the religious status of the plaintiff. As explained in the judgment given in this Court in Quinn’s Supermarket v. The Attorney General 5, it is not permissible to create differences between persons or bodies or to distinguish between them on the ground of religious profession, belief or status, irrespective of whether the difference is to their benefit or to their disadvantagesave where it is necessary to do so for the implementation of the constitutional right to the full and free practice of religion. That consideration does not arise at all in the present case. There may be many instances where, in order to implement or permit of the full and free exercise of the freedom of religion guaranteed by the Constitution, the law may find it necessary to distinguish between ministers of religion or other persons occupying a particular status in religion and the ordinary lay members of that religion or the rest of the population; but this is not one of those cases.
The present case concerns the disposition of public funds on a basis which, if sustainable, enables a person who is not a religious to obtain greater financial reward than a person who is a religious and is otherwise doing the same work and is of equal status and of length of service, or recognised service in the case of a teacher. If that were constitutionally possible it would enable the State to prefer religious to lay people, or vice-versa, in a matter which is in no way concerned with the safeguarding or maintenance of the constitutional right to free practice of religion or freedom of conscience or of profession of religion. In my view, the State is not permitted by the Constitution to do this. The reference to religious status, in both the Irish text and the English text of the Constitution, relates clearly to the position or rank of a person in terms of religion in relation to others either of the same religion or of another religion or to those of no religion at all. Thus it ensures that, no matter what is one’s religious profession or belief or status, the State shall not impose any disabilities upon or make any discrimination between persons because one happens to be a clergyman or a nun or a brother or a person holding rank or position in some religion which distinguishes him from other persons whether or not they hold corresponding ranks in other religions or whether or not they profess any religion or have any religious belief, save where it is necessary to do so to implement the guarantee of freedom of religion and conscience already mentioned. The sub-section must also be read in conjunction with the provisions of sub-s. 5 of the same section of Article 44 which provide that “every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.”
In my view, the learned High Court judge was correct in holding that the scheme in question was repugnant to the Constitution as being in violation of sub-s. 3 of s. 2 of Article 44 in that it created a discrimination based on religious status. I would dismiss this appeal.

O’Higgins C.J.
Mr. Justice Budd, who is unable to be present, has authorised me to say that he agrees with the judgment of Mr. Justice Walsh.

Henchy J.
I agree.

Griffin J.
I agree.

Pringle J.

M. v. An Bord Uchtala

[1975] IR 81

 

The plaintiffs, who are husband and wife, seek a declaration that the provisions of s. 12 of the Adoption Act, 1952, as amended by s. 6 of the Adoption Act, 1964, are repugnant to the Constitution of Ireland, 1937, and are invalid and of no effect. The plaintiffs also claim a declaration that the decision and order of the first defendant dated the 1st May, 1973, in relation to the application of the plaintiffs for an adoption order relating to a male child, who was born out of wedlock to the second plaintiff, were made unlawfully and without jurisdiction and in excess of jurisdiction; and that they were ultra vires and failed to have due regard to the natural and constitutional rights of the plaintiffs, and each of them, and of the said child.
The facts are not in dispute and can be shortly stated. The plaintiffs were married on the 4th July, 1970. The first plaintiff is aged 27 years and he is a Roman Catholic. The second plaintiff is 26 years old and is a member of the Church of England. The child was born to the second plaintiff on the 8th June, 1967, when she was unmarried. While originally brought up as a member of the Church of England, the child is now, and was at the time of the application for an adoption order, being brought up as a Roman Catholic and he will shortly be making his first Communion in that Church. Since the marriage he has resided with the plaintiffs, who have two young sons. The first plaintiff is not the father of the child who was born to the second plaintiff.
On the 28th March, 1973, the plaintiffs applied to the first defendants for an adoption order under s. 9 of the Act of 1952 for the adoption of the child who had been born to the second plaintiff. By letter dated the 1st May, 1973, the plaintiffs were informed by the first defendants that, having considered the application at a sitting on that date, the first defendants had decided to reject the application on the sole ground that the provisions of s. 12, sub-s. 2, of the Act of 1952 were not satisfied. That sub-section provides as follows: “(2) The applicant or applicants shall be of the same religion as the child and his parents or, if the child is illegitimate, his mother.” Under sub-section 5 of the same section it is provided that “A child’s religion shall be taken to be that in which he is being brought up.” It is quite clear that, if these sub-sections are valid, the child could not be adopted under the Act of 1952 by the plaintiffs as they are not of the same religion and, therefore, cannot be said to be of the same religion as the child or of the same religion as his mother. Similarly, the second plaintiff could not adopt her own child as she is not of the same religion as the child.
The constitutionality of the provisions of s. 12 of the Act of 1952 is contested by the plaintiffs on several grounds. Those provisions are alleged to be repugnant to the Constitution on the grounds (a) that they contravene the provisions and requirements of ss. 1 and 3 of Article 40 of the Constitution and (b) that they contravene the provisions and requirements of Articles 41 and 44 of the Constitution. I propose to deal first with the contention that sub-s. 2 of s. 12 of the Act of 1952 contravenes sub-s. 3 of s. 2 of Article 44 of the Constitution which provides as follows:”The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”
Mr. Conolly and Mr. Barrington submitted on behalf of the plaintiffs that the effect of sub-s. 2 of s. 12 of the Act of 1952 is both to impose a disability and to make a discrimination in respect of (a) the plaintiffs as a group, (b) the plaintiffs individually, and (c) the child, on the ground of religious profession or belief. In regard to the plaintiffs as a group, as husband and wife, it was contended that there is a disability imposed and a discrimination caused on the ground of their religious profession or belief between a husband and wife who are of the same religion and a husband and wife, like the plaintiffs, who are of different religions. In regard to the plaintiffs as individuals, it was submitted that each of the plaintiffs is under a disability and is discriminated against because they happen to have married a person of a different religion; in addition it was said that the second plaintiff is under a disability and is discriminated against as the mother of a child whom she cannot adopt because they are not of the same religion. As regards the child, the contention is that he is under a disability and is discriminated against because he is not of the same religion as both the plaintiffs and because he is not of the same religion as his mother.
It is conceded on behalf of the plaintiffs that the right to adopt legally and the right to be adopted legally are not natural rights but are rights which are created by the Act of 1952. However, the plaintiffs say that these rights should be equally available to all persons who satisfy the requirements of the Act in regard to residence, age, and otherwise regardless of their particular religious profession or belief.
It is quite clear that the right to apply for and obtain an adoption order pursuant to the Act of 1952 is a valuable right both for the adopters and for the child. Section 24 of the Act of 1952 provides:”Upon an adoption order being made (a) the child shall be considered with regard to the rights and duties of parents and children in relation to each other as the child of the adopter or adopters born to him, her or them in lawful wedlock . . .” By s. 26 of the Act of 1952 valuable property rights are conferred on both the adopted child and on the adopter or adopters. Under s. 11 of the Irish Nationality and Citizenship Act, 1956, upon an adoption order being made in which the adopter or, where the adoption is by a married couple, either spouse is an Irish citizen, the adopted child, if not already an Irish citizen, shall be an Irish citizen.

As regards the meaning to be given to the words “disabilities” and “discrimination” in Article 44, s. 2, sub-s. 3, of the Constitution, I was referred by Mr. Conolly to the judgment of the Supreme Court in Quinn’s Supermarket v. The Attorney General 10 in which, at p. 15 of the report, Mr. Justice Walsh said:”The plaintiffs’ case is based upon sub-s. 3 of s. 2 of Article 44. The plaintiffs have certainly suffered a disability in the sense that they are legally disqualified from, and are deprived of the power of, carrying on the business of selling meat after the hours set out in the statutory instrument. This is a deprivation but in my view, where the provision speaks of disabilities, the disability must be one which is suffered and imposed on the ground of the religious profession, belief or status of the person so disabled. That the provision was aimed at preventing the imposition of a personal, or perhaps even a corporate, disability is quite clear from the Irish text, which is:’Ní cead don Stát neach do chur fá mhíchumas ar bith. . . .’ If an imposed disability is to be examined, and the grounds upon which it is imposed are to be examined, clearly the grounds must relate to the person or body upon whom the disability is imposed.”
Later on the same page he said: “That the correct approach is that the question of disability should be examined on a subjective basis is, in my view, amply borne out by the provisions with regard to discrimination. It was submitted on behalf of the defendants here that ‘discrimination’ should be construed as if it read ‘discrimination against.’ In my view the learned High Court judge was quite correct in rejecting that submission. If the provision had read ‘discrimination against’ meaning distinguishing unfavourably on the grounds of religious profession, belief or status it would also mean that the test would have been related to the religious profession, belief or status of the person discriminated against. It is the omission of the word ‘against’ which confirms me in my view that this portion of the constitutional provision should be construed as meaning that the State shall not make any ‘distinction’ on the ground of religious profession, belief or status. This is confirmed by the Irish text which says ‘ná aon idirdhealú do dhéanamh . . .’ To discriminate, in that sense, is to create a difference between persons or bodies or to distinguish between them on the ground of religious profession, belief or status; it follows, therefore, that the religious profession, belief or status does not have to be that of the person who feels he has suffered by reason of the distinction created. Indeed it is wide enough to enable the person who might be thought to have profited from the distinction but who did not accept the validity of such distinction, to challenge it by showing that it was based upon the religious profession, belief or status of the suffering party. In such instance the suffering party could avail of the remedies open to him under the ‘disability’ provision, as well as under the ‘discrimination’ provision, if in fact he was suffering a disability.”
That judgment was relied upon by Mr. Justice Butler in Mulloy v. The Minister for Education 11 where he held that the provisions of a scheme, introduced by the Minister for Education in regard to incremental salaries for secondary teachers, infringed the provisions of Article 44, s. 2, sub-s. 3, of the Constitution because the scheme excluded clerics. The learned judge said: “It seems to me to be clear beyond argument that the terms of the scheme confining it to lay teachers do create a difference and do distinguish between them and teachers of a different religious status, namely, clerics such as the plaintiff. It is also clear that the ground of such discrimination is the difference in religious status.” Mulloy’s Case 11 is also an answer to the argument of Mr. Liston that the right infringed must be a natural right, as the right held to be infringed in that case was stated by the learned judge to be “his right to be considered for such payment on the same footing as a lay teacher in a similar position.”
Mr. Liston submitted that the legislature, in conferring the right of legal adoption, was entitled to provide reasonable restrictions on this right and that the provision that the adopter or adopters should be of the same religion as the child and his parents, or if the child is illegitimate, his mother, was a reasonable restriction. I cannot accept this submission. I do not agree that the restriction was a reasonable one, and, even if it were, it could not be valid if it infringed the Constitution, as I am satisfied it did. One of the matters decided in Quinn’s Supermarket v. The Attorney General 12 was that, as the primary object of Article 44, s. 2 (as stated in sub-s. 1) was to ensure and guarantee to every citizen freedom of conscience and the free profession and practice of religion, a discrimination within the meaning of sub-s. 3 was not invalid if the implementation of the primary object required the making of that discrimination. It has not been suggested that the primary object of Article 44 required the making of the discrimination relied on in this case.
I have approached this case, as I must, on the basis that the provisions of the Act of 1952 must be presumed to be constitutional and that, in the ordinary case, the onus would be on the plaintiffs to rebut this presumption. I agree, however, with the statement of Taft C.J. in Bailey v. Drexel
Furniture Co. 13 at p. 37 of the report where he said: “But, in the act before us, the presumption of validity cannot prevail, because proof to the contrary is found on the very face of its provisions.” I consider that that is the position here. The provisions of s. 12, sub-s. 2, of the Act of 1952 on their face are clearly in contravention of Article 44, s. 2, sub-s. 3, of the Constitution for the reasons advanced by counsel for the plaintiffs. If this is not so, I hold that the plaintiffs have discharged the onus of rebutting the presumption of their constitutionality. In my opinion, sub-s. 2 of s. 12 clearly imposes disabilities and makes a discrimination (within the meaning put upon those words by the Supreme Court) on the ground of religious profession or belief and, therefore, the sub-section is invalid.
Having regard to the opinion which I have formed as to the invalidity of sub-s. 2 of s. 12 of the Act of 1952 by reason of Article 44, s. 2, sub-s. 3, of the Constitution, I do not consider it necessary to decide whether or not it is also invalid having regard to Article 40, ss. 1 or 3, or Article 41.
Therefore, I will make an order declaring (a) that the provisions of sub-s. 2 of s. 12 of the Adoption Act, 1952, are repugnant to the Constitution and are invalid and of no effect, and (b) that the decision and order of the first defendants made on the 1st May, 1973, in relation to the application of the plaintiffs for an adoption order for the child were unlawful and invalid. I will make no order on foot of the other claims of the plaintiffs, but I will give liberty to either party to apply.

 

Campaign to Separate Church and State v Minister for Education

[1996] 2 I.L.R.M. 241
Costello P

Introduction
The issue raised by the plaintiffs in this action can be shortly stated; they say that the payment by the Department of Education of the salaries of chaplains employed in post-primary schools, known as community schools, breaches the provisions of Article 44.2.2° of the Constitution by which the State guarantees ‘not to endow any religion’, and they claim a declaration to that effect.

The point is a net one. The plaintiffs accept (a) (for reasons to be later explained) that state financial aid to religious or denominational schools does not constitute an ‘endowment of religion’ within the meaning of the article and is not prohibited by the Constitution; (b) that the payment by the department of the salaries of teachers of religion in community schools does not amount to the ‘endowment of religion’ and is constitutionally acceptable. They also accept that the payment out of public funds of salaries of chaplains attached to hospitals is not prohibited by the Constitution. It is the payment of the salaries of chaplains in community schools that is said to breach the Constitution.

The plaintiffs had joined the Minister for Education, the Attorney General and the State as defendants, but an application was made on behalf of the four metropolitan archbishops of the Roman Catholic Church in Ireland to be joined as representatives of the Roman Catholic hierarchy in the country because, it was said, substantial financial loss would be suffered by the bishops who have community schools in their dioceses should the plaintiffs succeed and this gave them a material interest in the outcome of the proceedings. By order of the Master this application was granted. At the hearing counsel representing these defendants informed the court that he was also instructed on behalf of the Church of Ireland and to advance on its behalf as well as on behalf of the added defendants submissions supporting the constitutional validity of the impugned payments.

The first named plaintiff is a body corporate, having been incorporated on 21 April 1989 as a company limited by guarantee. According to the objects clause of its memorandum of association its object (as its name would imply) is to campaign for the separation of all matters pertaining to the affairs of the various churches and of the State in order to bring about a situation where the affairs of each and every church are entirely separate from that of the State in all matters pertaining to finance, education, health and the welfare of the people of Ireland. In particular one of its objects is to secure compliance with the prohibition on the endowment of religion contained in the Constitution. The second named plaintiff is not a member of the plaintiff company but has joined with the plaintiff company as a person who wishes to bring to an end to what he sees as an objectionable constitutional breach occasioned by the impugned payments.

Both the State authorities and the added defendants have questioned the right of both plaintiffs to institute these proceedings, submitting (a) the plaintiff company as a corporate body cannot invoke the court’s jurisdiction to enforce constitutional guarantees in respect of religion and (b) the second named plaintiff is not affected in any way by the impugned payment or by the alleged endowment of religion, and that his claim to a locus standi by virtue of his status as a taxpayer lacks legal validity. The parties have requested that I should firstly determine the constitutional issue raised in the pleadings and that I should only consider the locus standi issue should I conclude that issue in the plaintiffs’ favour. This is a somewhat unusual (but in the circumstance, understandable) course to adopt and I will proceed to follow it.

There is another preliminary point with which I will deal immediately. Counsel for the State authorities has submitted that the plaintiffs’ claim is non-justiciable. It is said (correctly) that there is no express statutory authority for the establishment of community schools, that these are created by trust deeds entered into as a matter of private contract and that the court has no jurisdiction to grant constitutional declaratory relief in a legal relationship of that sort. I cannot agree that this is so. The payment of the salaries which is impugned in these proceedings is authorised by the adoption by the Dáil of the annual departmental estimates and the authority to spend the sums so voted by the annual Appropriation Acts. If the expenditure so authorised breaches a constitutional provision then the court’s jurisdiction to declare its illegality cannot be in doubt.

The facts
I propose (a) to outline the nature of community and comprehensive schools, (b) the principle features of the trust deed by which they are established and (c) the role of chaplains in the schools as established by the evidence. I will then consider the meaning of the terms ‘establishment of religion’ and ‘endowment of religion’ and then consider the provision of the Constitution relevant to the issues in this case.

 

(a) Comprehensive schools and community schools

Post-primary education of young people in this country has been in the main provided in secondary schools. These have received state financial support provided an approved curriculum is followed. Teachers are appointed by the school authorities, but their salaries are included in calculating the grant to which the school authorities are entitled. Secondary schools are, in the main owned by religious orders, or by church dioceses or by a denominational board. All such schools are commonly referred to as denominational schools.

In 1966 a new type of post-primary school was established, known as comprehensive schools, in areas where the Department of Education considered post-primary education to be inadequate. They were managed by committees representing the diocesan religious authority, the local vocational educational committee, and the minister. These schools are also commonly called denominational schools, there being Catholic comprehensive schools and Protestant comprehensive schools. Chaplains are appointed to these schools by the religious authority concerned and their salaries are paid by the State. Whilst this action relates to the constitutional validity of the payment by the State of salaries of chaplains in community schools it is accepted that should such payments be unconstitutional that the like payment of chaplains in comprehensive schools must also be unconstitutional.

15 comprehensive schools were established. A decision was taken that from 1974 no new comprehensive schools would be opened.

There was issued in October 1970 a memorandum or working document from the Department of Education headed ‘community schools’ (and reproduced in the winter 1970 edition of ‘Studies’). It indicated that the particular aspects of educational policy it wished to address were the provision of free post-primary education for all children irrespective of ability and without the use of selection procedures on transfer from primary to post-primary schooling; the elimination of barriers between secondary and vocational schools; the creation of a unified post-primary system of education; the provision of comprehensive facilities in each area of the country so as to cater for the varying aptitudes and abilities and the elimination of overlapping and duplication in the provision of services. The ‘community schools’ suggested were seen as resulting from the amalgamation of existing secondary and vocational schools or in city areas from the development of individual schools instead of the traditional development of separate secondary and vocational schools. The school would also provide adult education facilities and be governed by a board of management comprising representatives of secondary school managers, the local VEC and an independent chairman. The capital cost would be paid out of public funds (subject to an agreed local contribution) and the current costs would be funded directly by the department.

Community schools were seen as a development of the comprehensive school concept and to empower local VECs to take part in them the Vocational Education (Amendment) Act 1970 was enacted. The first community school was opened in 1972, and since then 60 have been established (some by the amalgamation of existing secondary schools and VEC schools and some by the creation of new schools). Most of the schools have more than 500 pupils and one has as many as 1,700.

There was considerable consultation and discussion by the department with interested parties as to the terms of a deed of trust by which community schools would be created, and final agreement on a model deed was not reached until about 1981. The exact terms of the agreements entered into before that date by which each community school was established need not concern us now; suffice it to say that from their inception chaplains were appointed to the schools and their salaries were paid by the State. The annual cost of chaplains’ salaries payable by the State is currently £1.2m.

It was obviously the intention that in Catholic community schools the chaplain would be a priest, but there are now a small number of lay persons and nuns appointed as chaplains. In three Protestant comprehensive schools the chaplains are lay persons. There are currently 76 chaplains in comprehensive and community schools.

(b) The trust deed

In the year 1980 a model trust deed was agreed after very considerable discussion and consultation between the department, religious bodies, union representatives and representatives of vocational education committees. A deed may be entered into in two different basic situations, one in which a community school is to be established by the amalgamation of existing secondary and vocational schools, and the other in which the school is to be established in an area in which no second-level school exists (a ‘green field’ community school). Though different in detail the essential features of the deeds are the same. I will outline the provisions of the deed by which since 1980 a new, and not an amalgamated, school is established.

Community schools are established by means of a trust deed. The parties envisaged in the model deed are on the one part the Minister for Education, and on the other, the representatives of (a) a religious congregation of brothers (b) a religious congregation of nuns and (c) a local vocational education committee, who are called the trustees. By means of the deed the minister grants a 99 year lease to the trustees who are to hold the land subject to the trusts contained in it.

The deed begins with recitals which declare the intention to build and establish a community school at the place specified, which recite the manner in which the trustees have been nominated for appointment, the estimated sums required to build, furnish and equip the new school, and which state that the two religious congregations and the VEC will contribute specified amounts towards he estimated building cost, the balance being provided by the minister out of moneys voted by the Oireachtas. Clause 1 contains a definition clause. Clause 2 demises to the trustees the land for the purposes of the school ‘upon the trust and with the powers hereinafter declared and contained and subject to the scheme’ at the rent specified. ‘The scheme’ is defined in clause 1 as the provisions set out in the first and second schedule, the first schedule being entitled ‘instrument management’ containing provisions for the establishment of a board of management, and the second schedule headed ‘articles of management’ containing provisions relating to the detailed management of the school. Thus these schedules become part of the trusts subject to which the trustees hold the trust property and the board of management is specifically required to manage the school in accordance with the articles of management set out in the second schedule.

Clause 3 makes provision for the possible transfer of the school to a new site. Clause 4 contains a provision of particular relevance to this case. It declares that the trustees are to hold the trust property upon trust for the purposes of the school and goes on to provide that the school is to be established:

With the object of providing a comprehensive system of post-primary education open to all the children of the community, combining instruction in academic and practical subjects and ongoing education for persons living at or near aforesaid and generally for the purpose of contributing towards the spiritual, moral, mental and physical well-being and development of the community.

Clause 5 provides that money however obtained and all income from trust property must be used for the objects of the scheme and clause 6 contains a covenant with the minister by which the trustees are obliged to perform the trusts declared in the deed and the terms and conditions of the scheme. Clauses 7 and 8 make provision for a situation when it is impracticable to continue the school as a community school, clause 9 deals with investment matters, and clause 10 with the appointment of new trustees. Clauses 11 and 12 deal with the exercise of powers by persons other than those on whom they are conferred by the deed and clause 13 with the manner in which the deed may be amended. The final clause is a formal provision for the protection of persons dealing with the trustees.

The first schedule makes provision for the school’s board of management. The board is to be responsible for the ‘government and direction’ of the school, but subject to the provisions of the first and second schedule. There are to be three ‘order nominees’ on the board, three nominees of the VEC, two parent nominees, and two teachers. The second schedule, entitled ‘articles of management’ contains clauses dealing with finance, premises and equipment, selection and appointment of staff, organisation and curriculum and religious worship and instruction in the school. I draw attention to those which are of particular relevance to this case.

The board is responsible for the ‘government and direction’ of the school (clause 2). The object for which the school is established (as set out in clause 4 of the main body of the deed) is repeated in the second schedule: annual estimates of receipts and expenditure and annual returns are to be submitted to the minister who is required to establish a school fund to be administered by the board into which the school’s income is to be paid and out of which necessary payments are to be effected; the minister is to pay the salaries of full time teaching staff on behalf of the board (clause 3); the minister is to be responsible for erecting the school, the board for its maintenance and upkeep (out of monies provided by the minister) (clause 4) and for repairs and alterations (subject to prior ministerial approval) (clause 6). As to the teaching staff, the board (subject to ministerial approval) shall decide the numbers and classifications and the teachers’ qualifications are to be stipulated by the minister. The board appoints staff after following specified selection procedures but provision is made for the appointment to the staff of teachers nominated by the religious orders involved in establishing the school provided they are qualified and are approved by a selection committee (clause 7). Subject to the provisions of the minister as to the general educational character of the school and its place in the educational system, ‘the board shall have the general direction of the conduct and curriculum of the school’ the principal being charged with responsibility for internal organisation, management and discipline (clause 10). But the board’s general discretionary power contained in this clause is subject to the specific provisions of clause 11 dealing with religious worship and religious education in the school, a clause of significance in these proceedings.

By this clause the board is required to ensure that ‘there is religious worship and religious instruction for the pupils in the school except for such pupils whose parents make a request in writing that those pupils should be withdrawn from religious worship and or religious instruction’. The religious instruction and religious worship are to be in accordance with rites, practice and teaching of the religious denomination to which the pupils belong and religious instruction is to be given in the order of two hours per week. The minister and the board must ensure that at all times there are sufficient teachers in the school to give religious instruction. Permanent whole time teachers of religion are required to be acceptable to the appropriate religious authority, confirmation of suitability being accorded by the ‘catechetical inspectorate’ and recognition as temporary whole-time or part-time teachers of religion may be accorded to priests or to other lay or religious persons who are suitably qualified, such appointments being made on the nomination of the appropriate religious authority (clause 11, sub-clause (i) to (ix)).

Clause 11 continues with the sub-clause which is challenged in these proceedings. Sub-clause (x) provides:

The board of management will appoint a chaplain nominated by the competent religious authority who shall be employed outside the normal school quota of the school. He shall be a full-time member of the staff and shall be paid a salary equivalent to that of a teacher in the school.

I have the following observations to make about the trust deed.

(1) Community schools are established by an administrative act of the minister and not in pursuance of any express statutory power. Authority to make payments to the school or for its benefit is derived from the annual adoption by the Dáil of departmental estimates and enactment of the annual Appropriation Act.

(2) The legal ownership of the schools vests in the trustees and their staff are appointed under contracts with the board of management. Although built by State funds (apart from a limited local contribution) and run and maintained by State funds, they are not in the legal ownership of the State or any State authority, nor in the legal ownership of a religious order or the diocese of any church.

(3) The trustees have a legal responsibility to ensure that the school is managed and organised in accordance with the trust deed. The board of management (and the principal) have a legal responsibility to manage the school. The minister in accordance with its terms also has a legal responsibility to ensure that the school is conducted in accordance with the trust. In addition the minister controls all the school’s expenditure and has a supervisory role over the school curriculum.

(4) The trustees and the board of management have a legal obligation to provide religious worship and religious education in community schools and the teacher of religion may be a priest. It is to be implied that the religious worship in the school will be that of the Roman Catholic church and that the religious teaching in the school will be in accordance with the doctrines of that church.

(5) A community school established under a deed of trust which adopts this model can therefore be regarded as (a) a denominational school, in that it provides religious worship and religious instruction according to the tenets of one of the churches which espouse the Christian faith and (b) as a Catholic community school in that the religious worship and religious instruction it provides are those of the Roman Catholic church.

(c) The chaplain

Early in the history of the development of the provision of community schools the department issued a document, G5/76 headed ‘guidelines for the chaplain in a community school’. Because it helpfully sets out the role which in 1976 the department expected chaplains to fill I should quote it fully. It reads as follows:

 

Guidelines for the chaplain in a community school
The position and authority of the chaplain in the community schools spring from the provisions of the deed of trust.

The chaplain will be a permanent full-time member of the staff. He shall be a priest nominated by the local bishop and shall remain a member of the staff until the bishop withdraws his nomination.

The chaplain is a member of the religious department of the school. The principal, together with the chaplain, shall make provision for religious worship and instruction of the pupils in the school, in accordance with the wishes of the parents and of the local bishop.

A. Students
The chaplain will exercise his pastoral role

(1) by personal contact with individual students;

(2) by class contact;

(3) through religious worship;

(4) by maintaining a lively interest in recreational, cultural and apostolic activities.

(1) Personal contact

The chaplain should know each student personally. Facilities should be made available whereby he can accomplish this.

(i) In the course of the school year, he will interview every Catholic student, except those whose parents have requested that they be withdrawn from religious instruction and worship. These interviews will take place during school hours.

(ii) Individuals or groups should, in addition, have access to the chaplain for advice or instruction during schools hours, or where convenient, outside formal school hours.

(2) Class contact

(i) The chaplain will have access to all classes during the religious instruction period, having arranged with the teacher in advance.

(ii) He will give religious instruction in class for not more than four hours per week.

(3) Religious worship

(i) The chaplain may celebrate mass with the Catholic students of a class twice a term, in accordance with diocesan regulations.

(ii) He will arrange a time when the students may avail of the sacrament of penance.

(iii) The chaplain shall arrange a retreat for every class once a year in consultation with the principal.

(4) Apostolic activity

The chaplain will see that adequate opportunities are provided for the young people to be involved in the apostolate. He should encourage them to participate in such activities in their home parish and should have information available concerning the apostolic activities organised by the parishes in the catchment area of the school.

(5) Cultural and social activities

The chaplain should take an interest in the activities of the school such as games, concerts, debates.

B. Staff
(i) As a member of the staff, the chaplain will co-operate fully with the principal and all members of the staff.

(ii) In keeping with his pastoral role, he will be available to the staff.

(iii) The chaplain will not be expected to exercise a disciplinary function in the school as this would militate against his pastoral role.

(iv) He will seek the co-operation of his fellow staff members in fulfilling his ministry in the school and will welcome their assistance.

(v) In particular, he will work in co-operation with the guidance counsellor.

C. Parents
The pastoral role of the chaplain in the community school extends to the home of the student. Such home visitation serves to forge another bond between the home and the school.

Home visitation may be done during school hours. However, of necessity, it will frequently have to be done in the evenings or at night.

The chaplain will encourage and support meetings of the parents and teachers of the students and will be present at them.

D. Adult education
The pastoral role of the chaplain extends to those who will participate in adult education courses in the community school.

The evidence suggests that there has been an evolution of the role of the chaplain in Catholic community schools in the past 20 years. Community schools are much larger than were originally contemplated and the chaplain is called upon to play an increasing role in matters relating to the welfare, other than the strictly spiritual welfare, of the pupils. The chaplain will say mass daily in the school, but because of the size of some of the schools it may not be possible to say mass once each term in each of the school’s classes as envisaged in the guidelines.

The 1976 guidelines refer obviously to Catholic chaplains in Catholic community schools. The role of Protestant chaplains in Protestant comprehensive schools was not the subject of an official guideline. The evidence establishes that in three of these schools in the Dublin area the chaplains are lay people and have been appointed by the board of management with the approval of the Protestant archbishop of Dublin. They do not conduct religious services in the school. The evidence establishes that the role of Catholic chaplains and Protestant chaplains is regarded by pupils, parents of pupils and the other staff in the school as a most important one and their help and counsel is constantly sought and given to young people in need of assistance not just in spiritual matters but in one or other of the many moral, social, educational, personal or family problems on which young people may need assistance, guidance and counselling.

‘Establishment of religion’ and ‘endowment of religion’
I come now to consider the relevant constitutional text. Article 44 of the Irish Constitution prohibits the ‘endowment of religion’ by the State. Because of the reliance placed by the plaintiffs on the judgments of the US Supreme Court on the construction of the First Amendment (which prohibits the establishment of any religion) as an aid in the construction of Article 44 and also because of the assistance to be derived from the historical background to Article 44, I should briefly outline the derivation of the guarantee against the endowment of religion which our Constitution contains, and the distinction between a prohibition against religious endowment and religious establishment.

The concept of the establishment of a religion was one with which the law of the United Kingdom was well familiar. The Acts of Union which established the United Kingdom of Great Britain and Ireland in 1800 also provided that the Churches of England and Ireland ‘as by law established’ would be united into one ‘United Church of England and Ireland’ whose doctrine, worship, discipline and government would be the same as ‘are by law established for the Church of England’. This provision was repealed by the Irish Church Act 1869 which not only provided for the dissolution of the union between the Churches of England and Ireland but also that the Church of Ireland ‘shall cease to be established by law’. The concept remained familiar to the legislators of the United Kingdom parliament as the disestablishment of the Church of England in Wales was the matter of considerable controversy as a result of the detailed discussion on Welsh Disestablishment Bills in 1894, 1895, 1909, 1912–14 and 1919.

The precise manner in which the Church of England and the Church of Ireland had been established by law need not be considered in this judgment — it resulted from a long process of statutory enactment dating from the reformation which conferred control by the State over these churches, and created special legal privileges for them. The process of establishment meant, (as stated by Phillimore J in Marshall v. Graham [1907] 2 KB 112 at p. 126):

that the State has accepted the church as the religious body in its opinion truly teaching the Christian faith, and giving it a certain legal position, and to its decrees, if rendered under certain legal conditions, certain civil sanctions.

The Commonwealth of Australia Constitution Act 1900 contained a prohibition against the establishment of any religion in the Commonwealth of Australia. In construing this clause the Chief Justice (in Attorney General for the State of Victoria v. Commonwealth of Australia (1981) 146 CLR 559 at p. 582) defined the concept of the establishment of a religion in the 1900 Act as follows:

In my opinion, as used in an instrument brought into existence at the turn of the century, establishing a religion involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth. It involves the identification of the religion with the civil authority and the obligation of, in this case the Commonwealth, to patronise, protect and promote the established religion.

When the British government proposed in 1886 to establish an Irish parliament with legislative powers but subordinate to the parliament of the United Kingdom, it was also proposed to impose express limitations on its legislative powers, including a prohibition (because of apprehensions of abuse by the Catholic majority) against making any law ‘respecting the establishment or endowment of religion’ (clause 4 of the Government of Ireland Bill 1886). Similar provisions were made in the Home Rule Bill 1893, the Government of Ireland Act 1914 and the Government of Ireland Act 1920 which restricted both parliaments to be established under it from establishing or endowing any religion (s. 5 (1)). Thus in the pre-1922 law of the United Kingdom the distinction between the establishment of religion and the endowment of religion was well known, and legislators were well aware of the distinct meaning of both concepts. It was a subject much debated.

At the time of the disestablishment of the Irish Church in 1869 the question of its disendowment was discussed. One view that was advanced (to the point of the Bill’s amendment by the House of Lords) was that the disestablishment of the church did not necessarily require its disendowment provided that financial assistance be given to other religious denominations, and that with disestablishment there could be acceptance of the principle of what was then known as ‘concurrent endowment’ (and which might today be called the endowment of religion on a non-discriminatory basis). This proposal was found to be politically unacceptable. (For the parliamentary history of the Act see Disestablishment in Ireland and Wales , by P.M.H. Bell, chapter 4). Not only was the Church of Ireland disendowed as well as disestablished by the Act, but also the limited endowments paid at the time by the State to other Christian denominations was discontinued. These endowments had taken two forms, the annual grant for the payment of Presbyterian clergy known as the regium donum (referred to in s. 38 of the Act as the ‘annual parliamentary grant for the expenses of the non-conforming, seceding and Protestant dissenting ministers in Ireland’) and the annual grant payable to the Catholic seminary at Maynooth College. The prohibition of the endowment of a religion was a phrase which would have then been understood generally as a prohibition against the State making payments for the purpose of the advancement of religion, and this would, more specifically, have included the payment of stipends or salaries to ministers of religion, and grants to seminaries.

The signatories to the Irish Treaty of 1921 (by which the Irish Free State was established) agreed in clause 16 that the parliament of the Irish Free State should make no law ‘so as either directly or indirectly to endow any religion’. The treaty, however, contained no prohibition against a law ‘establishing’ a religion and when Article 8 of the 1922 Constitution was drafted to comply with this treaty obligation it repeated this prohibition word-for-word and thus introduced into Irish constitutional law a prohibition against the endowment of religion but not against its establishment. The 1922 provision against non-endowment only was re-enacted in Article 44.2.2° of the 1937 Constitution (with the omission of the words ‘directly or indirectly’).

The US authorities
Counsel on behalf of the plaintiffs referred me to a number of decisions of the United States Supreme Court on the construction of the First Amendment to the US Constitution which enjoins congress not to make any law ‘respecting an establishment of religion…’, including McCollum v. Board of Education (1948) 333 US 203 and Abington School District v. Schempp (1963) 374 US 203. The US Supreme Court has concluded that the effect of the First Amendment was that the state authorities could not provide direct funding for church-related school buildings, nor for teachers in church-related schools, nor for textbooks in such schools and that school premises cannot be used for religious education or for religious services such as bible readings. I do not find the judgments in these cases to be of assistance in the construction of the article in the Irish Constitution with which we are concerned for the following reasons:

(a) The US courts were concerned with the construction of a prohibition against a law respecting an ‘establishment’ of religion — Article 44.2.2° of our Constitution prohibits the ‘endowment’ of religion and the two concepts are as a matter of Irish law distinct and different.

(b) The prohibition in the Irish Constitution has to be construed by reference to other constitutional provisions (in particular those relating to education in Article 42) which are not to be found in the US Constitution.

(c) The US decisions have developed a concept of the meaning of the ‘establishment of religion’ which is not that of Irish law. The Australian High Court also refused to follow the judgment of the US Supreme Court as to the meaning of a similar provision in their Constitution Act of 1900, holding that the prohibition against establishment was not infringed by a law granting state aid to church schools (see Attorney General for State of Victoria v. Commonwealth of Australia).

Northern Ireland authorities
I was also referred by counsel to the opinions of two Attorney Generals for Northern Ireland and the opinion of a British Attorney General relating to the adoption in Northern Ireland of legislation similar to the English Education Act 1944, opinions which are analysed and reproduced in an article by Edgar Graham in (1982) 33 NILQ 20. These opinions related to the possible infringement of the prohibition against the endowment of religion contained in s. 5 of the Government of Ireland Act 1920 resulting from legislation allowing religious instruction in state schools. There was a difference of opinion between the law officers as to whether the legislative proposals infringed s. 5. The assistance to be derived from those opinions is very considerably reduced by the fact of the provisions in the Irish Constitution dealing with education in Article 42 are absent from the 1920 Act which are highly relevant in considering the construction of the prohibition against endowment in the Irish 1937 Constitution. For the same reason the views of Wilson J in County Council of Londonderry v. McGlade [1929] NI 47 on the construction of s. 5 of the 1920 Act are not of assistance.

The 1937 Constitution
The prohibition against religious endowment is to be found in Article 44 entitled ‘Religion’. This article begins by an acknowledgement that the homage of public worship is due to Almighty God and (in sub-paragraph 2) provides (a) a guarantee to every citizen of freedom of conscience and the free practice of religion, (b) a guarantee (which is the subject of these proceedings) that the State will not endow any religion and (c) a declaration that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief, or status. Sub-paragraph 2 (4) contains a provision of considerable relevance:

Legislation providing state aid for schools shall not discriminate between schools under the management of different religious denominations, nor 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 following conclusions can be drawn from this sub-paragraph:

(a) This provision clearly implies that state aid to schools under the management of different religious denominations is constitutionally permissible. It follows therefore such aid is not to be regarded as an ‘endowment of religion’ within the meaning of the sub-paragraph which proceeds it.

(b) Religious instruction is given in schools managed by religious denominations and so it follows that the payment of the salaries of teachers of religion in such schools (including ministers of religion and members of religious orders) out of the public funds paid to such schools is constitutionally permissible and is not to be regarded as ‘an endowment of religion’.

(c) If the payment of salaries out of public funds of teachers of religion does not amount to an ‘endowment’ of religion then this must apply whether the teacher is in a school managed by a religious denomination or in schools, whether primary or secondary, not so managed.

It follows, therefore, that the proper construction of Article 44 means that the payment of the salaries of teachers of religion in community schools (even if such teachers are ministers of religion or members of a religious order), and the payment of the salaries of teachers of religion in comprehensive schools does not constitute an endowment of religion.

As already pointed out, the plaintiffs accept that this is so: their case is that although the payment of salaries of teachers of religion is permissible, the payment of salaries of chaplains is not. Assistance in answering the issue thus raised is to be found in Article 42.

Article 42

This article (entitled ‘Education’) firstly contains an acknowledgement that the primary and natural educator of the child is the family and a guarantee that the State will 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’. In making this acknowledgement and in recognising that the desire of parents to pass on their religious beliefs to their children is a right which is entitled to be legally protected the Irish Constitution is by no means unique. The state parties to the UN Universal Declaration of Human Rights recognise (article 10) that the family (which is declared to be the natural and fundamental group unit of society) should be protected ‘particularly while it is responsible for the care and education of dependant children’ and the state parties undertake (article 13) to respect the liberty of parents ‘to ensure the religious and moral education of their children in accordance with their own convictions’. The parties to the First Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms agreed that states when assuming functions in relation to education ‘shall respect the rights of parents to ensure such education and teaching in accordance with their own religious and philosophical convictions’ (article 2). The Irish Constitution has developed the significance of these parental rights and in addition has imposed obligations on the State in relation to them. It declares (in paragraph 2 of this article) that parents are to be free to provide for the education of their children in their homes, or in private schools or in schools recognised or established by the State, that the State shall not oblige parents in violation of their conscience to send their children to schools established or designated by the State, and that the State shall require (in view of actual conditions) that children receive a certain minimum education, moral, intellectual and social. The article contains a final paragraph (paragraph 4) as follows:

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 .

I have italicised the words ‘religious and moral formation’ to draw attention to the fact that this article recognises that parents have rights not only to provide for the religious education of their children (paragraph 1) but also rights in the matter of their religious formation (paragraph 4) and that it specifically enjoins the State when providing educational facilities to have regard to both these distinct rights. The difference between the ordinary meaning of these two concepts is not difficult to identify; broadly speaking, the religious education of a child is concerned with the teaching of religious doctrine, apologetics, religious history and comparative religions, whilst the religious formation of a child involves familiarising the child not just with religious doctrine but with religious practice (by attendance at religious services) and developing the child’s spiritual and religious life by prayer and bible reading and I think that the Constitution should be construed so as to reflect this meaning. In the case of parents who profess the Catholic faith the religious formation of their children involves ensuring that their children attend mass and that they pray and receive the sacraments on a regular basis.

Turning then to the issue in this case, it is clear that one of the important reasons why chaplains as well as teachers of religion are appointed to the staff of community schools is for the purpose of assisting the religious formation of the children attending the school (assistance which, inter alia, is given by the celebration of mass in the school). In effect, the State by paying the salaries of chaplains is having regard to the rights of parents vis-à-vis the religious formation of their children and enabling them to exercise their constitutionally recognised rights. If this is the purpose and effect of the payment how can it be said that it is unconstitutional?

A moment’s reflection will show that the payment of the salaries of ministers of religion and members of religious orders does not in itself mean that the State is endowing the religion they profess. The payment of salaries of nuns who are trained nurses and who are employed in publicly funded hospitals, or nuns who are qualified social workers employed in publicly funded welfare organisations, or religious persons on the staff of universities financed by the State cannot, for example, be said to constitute the endowment of religion, even in cases where the salaries (because of the vow of poverty of the recipient) may benefit indirectly the religion they profess.

In these cases the purpose of the payment is to recompense the recipient for the service which is rendered and not to endow religion and so is constitutionally licit. If the purpose of state financial aid is to assist in the protection of constitutionally recognised rights, or to assist in their exercise by right-holders or to fulfil the State’s obligation to respect them, it seems to me that it cannot be constitutionally invalid to give this aid. It follows that the prohibition against endowment of religion must be construed as permitting state aid to assist in the religious formation of children in accordance with their parents’ wishes, and that accordingly the payment of chaplains in schools is not unconstitutional.

The principle of constitutional construction to which I have referred is not denied by the plaintiffs. The salaries of chaplains attached to health board hospitals is authorised by s. 39 of the Health Act 1970, and the plaintiffs accept that such payments do not infringe the non-endowment clauses of the Constitution. To explain this acceptance they refer to the judgment of Brennan J in Abington School District v. Schempp. The US Supreme Court in that case had held that the practice of reading the bible in a school in Pennsylvania was unconstitutional. In the course of his concurring judgment Brennan J pointed out that certain practices might appear to violate the establishment clause of the Constitution but to invalidate them might seriously interfere with the religious liberties protected by the First Amendment and so he concluded that the provision of churches and chapels in military establishments and the provision by the government of chaplains in penal institutions, although appearing to contravene the establishment clause, would nonetheless be constitutional on the grounds that they were necessary to secure for the members of the armed forces or prisoners the right of practice of religion guaranteed by the First Amendment since the government had deprived such persons of the opportunity to practice their faith at places of their choice (see p. 231). By analogy, the plaintiffs in this case submitted that the payment of salaries to chaplains attached to hospitals, although apparently an endowment of religion, was permissible to enable patients in hospital to exercise their constitutionally guaranteed right to practise their religion and argued that not to authorise the payment could involve an unconstitutional discrimination against hospital patients. Thus they accept that the prohibition against endowment of religion must be construed by reference to the right and duty of the State to legislate to protect guaranteed rights.

Whilst agreeing that the payment to hospital chaplains under s. 39 of the 1970 Act does not infringe Article 44 I am inclined to the view that this is not for the reasons suggested by the plaintiffs but rather because the purpose of the payment is to assist in caring for the spiritual and religious needs of hospital patients (which the State acknowledges that as human persons they possess) and not for the purpose of endowing any religion and is accordingly constitutionally valid. This particular issue, of course, does not arise in this case; what we are here concerned with is the payment of chaplains attached to schools. For reasons already given because the purpose of the payment is to fulfil the State’s obligation to respect parental rights and to facilitate their exercise it does not infringe the Constitution.

In the light of these conclusions it is unnecessary for me to consider the defendants’ additional argument that the payments are not prohibited because the evidence establishes the greater part of the activities of the chaplains are of a non-religious character and that the payments made to them cannot properly be regarded as endowing the religion they profess. And it is also unnecessary to decide the locus standi issue that has been raised.

I will refuse the plaintiffs the relief they claim.

Campaign to Separate Church and State Ltd v. Minister for Education [1996] 2 I.L.R.M. 241 (HC); [1998] 2 I.L.R.M. 81

Keane J
As in many other countries throughout the world, religion plays an important part in Irish life and has done so for many centuries. That unquestionable fact is reflected in the provisions of Article 44 of the Constitution. Even were such provisions absent from the Constitution, however, courts could not disregard, at least in a context where it becomes relevant, the fact that religious beliefs and practices are interwoven through the fabric of Irish society.

It is for that reason that our law of charities, for example deriving from the statute law and common law of a former era, continues to treat trusts established for the advancement of religion as entitled to charitable status without any proof that they are for the public benefit: it is presumed that such trusts are for the public benefit. The same public policy underlies the exemption as of right of ministers of religion and others from the obligation of jury service: (see Juries Act 1976, First Schedule, Part II). Even had Article 44.1, requiring the State to ‘respect and honour religion’ never been enacted — and it had no counterpart in the Constitution of the Irish Free State — there is little reason to doubt that Irish jurisprudence would have acknowledged, as it should in a democratic society, the importance of the part played by religion in the lives of so many people.

Accordingly, if one leaves to one side for the moment the question of the ‘endowment’ of religion, there is no reason in principle why the State, through its different organs, should not confer benefits on religious denominations, provided — and it is, of course, a crucial proviso — that in doing so it remains neutral and does not discriminate in favour of particular religions. That qualification is made abundantly clear by Article 44.2.3° which provides that:

The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

In the particular case of educational establishments, with which we are here concerned, Article 42.4 provides that:

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 closing words of that sub-article suggest strongly that it was contemplated that the aid which the State was permitted, and to a limited extent even required, to give to educational institutions could properly be provided to schools controlled by religious denominations. But any doubts that there might be are removed by Article 44.2.4° which is as follows:

Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor 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.

This provision makes it clear beyond argument, not merely that the State is entitled to provide aid to schools under the management of different religious denominations, but that such schools may also include religious instruction as a subject in their curricula. It is subject to two qualifications: first, the legislation must not discriminate between schools under the management of different religious denominations and, secondly, it must respect the right of a child not to attend religious instruction in a school in receipt of public funds.

So much indeed was conceded on behalf of the plaintiffs in the present case in the hearing before Costello P and again in this Court. It was, however, claimed on their behalf that the payment by the State of the salaries of chaplains appointed by religious denominations to community schools is in breach of the guarantee by the State in Article 44.2.2°‘not to endow any religion’. Since the duties of the chaplains are, for the most part, pastoral or sacerdotal, including, for example, in the case of Catholic chaplains the celebration of mass and the hearing of confessions, and are by no means confined to religious instruction in the sense in which that phrase is used in Article 44.2.4°, the payments were not authorised, it was submitted, by that provision.

There is, of course, in this case no question of a direct subvention by the State to any religious denomination: the payment by the State does, however, relieve the churches concerned of a financial burden to which they would otherwise be subject. What had to be determined in the first instance was whether this was prima facie in breach of the guarantee under Article 44.2.2°. If it was not, then the plaintiffs’ case failed. If it was, however, the further question arose, which was resolved in favour of the defendants by the learned trial judge, as to whether, although prima facie an endowment, it was one which was sanctioned, expressly or by implication, by Article 42.4 which, as already noted, requires the State, in the provision of aid to educational establishments, to have due regard to the rights of parents ‘… especially in the matter of religious and moral formation.’

In considering the first question — as to whether the payment of the chaplains by the State constitutes an endowment of religion prohibited by Article 44.2.2° — it is appropriate to have regard, as did Costello P, to the historical background against which this particular provision of the Constitution was enacted. Before embarking on such an enquiry, however, one should first examine the ordinary meaning of the language used in Article 44.2.2°.

The word ‘endow’ is derived etymologically from the French word douer and hence originally referred to the giving of a dowry or marriage portion to a wife or the provision of ‘dower’ to a widow. It subsequently acquired, of course, a wider connotation, being defined by the Oxford English Dictionary (Vol. 4, 2nd ed., 1991) as:

To enrich with property; to provide [by bequest or gift] a permanent income for [a person, society or institution].

The same work defines the cognate word ‘endowment’ as first, the action of endowing, in various senses, and, secondly:

The property or fund with which a society, institution, etc. is endowed.

The word ‘endow’ when used in the context of religion, as it is in Article 44.2.2° is to be distinguished from the word ‘establish’ and cognate words which have also figured prominently in this case. The concept of a ‘church established by law’ in English law was explained by Phillimore J in Marshall v. Graham [1907] 2 KB 112 at p. 126 as meaning:

That the State has accepted the church as the religious body in its opinion truly teaching the Christian faith, and given to it a certain legal position, and to its decrees, if rendered under certain legal conditions, certain civil sanctions.

In this country, the Church of Ireland was an established church in this sense until the enactment of the Irish Church Act 1869. While there is no express provision in the Constitution prohibiting the establishment in that sense of a church by law, it is obvious that any such law would be impossible to reconcile with the prohibition of religious discrimination in Article 44.2.3°.

In contrast, the first amendment to the Constitution of the United States of America expressly prohibits congress making any law ‘respecting an establishment of religion ….’ The amendment was construed by Thomas Jefferson as creating ‘a wall of separation’ between church and state. The strict construction which has been placed upon it, leading to the striking down of laws sanctioning state aid to religion, was not simply, however, the product of enlightenment thinking: it also reflected the powerful Erastian current of belief in some of the post-reformation churches which regarded any state aid to religion as repugnant to the nature of Christianity. The problems posed for the Supreme Court in reconciling this strict construction of the establishment clause, as it came to be known, with the major part played by religion in American life are vividly illustrated in the decisions cited in this case, replete as they are with vigorously argued dissents. The provisions of our Constitution are, however, so markedly different that, as Costello P found, these authorities are not of assistance in the construction of Article 44.2.2° of the Constitution.

Article 44.2.2° (prohibiting the endowment of any religion) and Article 44.2.3° (prohibiting religious discrimination) reproduced almost verbatim the provisions of Article 8 of the Constitution of the Irish Free State, viz:

Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen and no law may be made either directly or indirectly to endow any religion or prohibit or restrict the free exercise thereof or give any preference or impose any disability on account of religious belief or religious status or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school or make any discrimination as respects state aid between schools under the management of different religious denominations or divert from any religious denomination or any educational institution any of its property except for the purpose of roads, railways, lighting, water or drainage or other works of public utility and on payment of compensation.

The only difference of any significance is the omission of the words ‘directly or indirectly’ from the prohibition of the endowment of any religion. The prohibition of the ‘diversion’ of the property of religious denominations or educational institutions except for works of public utility and on payment of compensation is reproduced in Article 44.2.6°.

The inclusion of these provisions in that Constitution was required by Article 16 of the Anglo-Irish Treaty of 1921. That provision, in turn, derives its parentage, so to speak, from the various Home Rule measures introduced in the Westminster Parliament between 1886 and 1920. S. 5 of the last of these measures, the Government of Ireland Act 1920, provided that:

In the exercise of their power to make laws under this Act neither the parliament of Southern Ireland nor the parliament of Northern Ireland shall make a law so as either directly or indirectly to establish or endow any religion, or prohibit or restrict the free exercise thereof, or give a preference, privilege or advantage, or impose any disability or disadvantage, on account of religious belief.

That measure was stillborn in the area referred to as ‘Southern Ireland’ as a result of the abstentionist policy pursued by the Sinn Féin members returned at the general election. Its statutory predecessor, s. 3 of the Government of Ireland Act 1914, contained, in addition to the prohibition of establishment or endowment and free exercise of religion clauses, a prohibition of the ‘diversion’ of the property of religious denominations similar to that contained in Article 44.2.6°, with one significant alteration. The clause also absolutely prohibited the ‘diversion’ from such denominations of ‘the fabric of cathedral churches’. These could not be compulsorily acquired, even for works of public utility and upon payment of compensation.

The 1914 and 1920 Acts were the statutory successors of the first and second Home Rule Bills of 1886 and 1893 which also included prohibitions on the making of any law ‘respecting the establishment or endowment of religion’.

The historical background to the disestablishment of the Church of Ireland in 1869 has been helpfully summarised by Costello P in the judgment under appeal. As he points out, the Irish Church Act of that year provided not merely for the disestablishment of the Church of Ireland, but also for its disendowment. The Church of Ireland had no corporate personality, but all the property belonging to or appropriated to the use of ‘any archbishopric, bishopric, benefice or cathedral preferment’ connected with the church was vested in the commissioners appointed under the Act. There were then elaborate provisions for the payment of compensation to those who were affected by the disendowment thus effected. The preamble to the Act also recited that the Queen had placed at the disposal of parliament her interest in the various endowments.

At the time of the passing of the Act, an annual parliamentary grant was made for the expenses of ministers described as:

The non-conforming, seceding and Protestant dissenting ministers in Ireland.

It was envisaged that this form of endowment, known as the Regium Donum and originally granted by William III (William of Orange), would be discontinued and there were provisions for the compensation of the ministers affected. There was also provision for the cesser of the payment of an annual grant to Maynooth College and again the payment of compensation in respect of its discontinuance.

The proposals to disestablish and disendow the Church of Ireland were the subject of intense controversy at the time. The House of Lords passed a number of amendments to the measure (subsequently withdrawn) intended to prevent the disendowment of the Church of Ireland and contemplating (in the preamble) the ‘concurrent’ endowment of different religious denominations in the future. (For a detailed account of the stormy passage of the measure, see A New History of Ireland , Vol. V, ed. W.E.Vaughan, (Oxford 1989) pp. 727/736).

It remains to be noted that, when the Bill providing for the enactment of the present Constitution was being debated by the Dáil, while there was little discussion of the sections carrying forward the provisions to which I have already referred in the former Constitution, the president of the executive council had this to say of them:

The other [provisions] are largely rewriting, in the form in which the whole of this Constitution has been written, of articles already in the old Constitution. It was obvious in a matter of this sort that, to allay any possible apprehensions, it was desirable to keep as far as possible along the old lines. (Dáil Reports, 4 June 1937, Col. 1891)

So much for the historical background from which Article 44.2.2° emerged in its present form. It must also be borne in mind that, at the time the Constitution was enacted, the vast majority of secondary schools in this country were under the control and management of religious denominations. The functions of those religious who were members of the staffs of such schools extended beyond the imparting of religious instruction: they were also manifestly concerned, as are the chaplains in the present case, with ensuring that the children under their care conformed to the practices of the particular religion to which they belonged, whether through attendance at mass or other religious services or in other respects.

It should also be noted that, as held by this Court in Crowley v. Ireland [1980] IR 102, the obligation imposed by the Constitution on the State in Article 42.4 to ‘provide for free primary education’ was discharged by the giving of financial assistance by the State to the national schools owned by different religious denominations so as to ensure that such primary education was freely available to all. O’Higgins CJ said (at p. 122):

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.

The motive which prompted the inclusion in the Home Rule legislation of a provision prohibiting the endowment of any religion is not in doubt. It was feared that the parliament established under that legislation (and whose powers, until 1920, were to extend to the whole island) would endow the Catholic Church in preference to the minority and that such a legislative scheme might provide for the compulsory acquisition of the cathedrals of the Church of Ireland, such as Christ Church and St Patrick’s, and their vesting in the Catholic Church. (See the speech of J.H. Campbell (subsequently Lord Glenavy) on the committee stage of the Government of Ireland Bill 1912 (42 HC Debates, series V)). It could be said without exaggeration that in 1937 such a scenario would have seemed somewhat fanciful. The retention of the prohibition of endowments in the Constitution reflected a pragmatic view that this would have no harmful effects, while its removal, in contrast, would provoke needless controversy. It was not intended to render unlawful, at a stroke, the system of aid to denominational education, including where appropriate the payment of the salaries of members of religious communities, whose duties might well extend beyond religious instruction in the narrow sense to what in Article 42.4 of the Constitution was referred to as the ‘religious and moral formation’ of children.

Article 44.2.2° was thus intended to render unlawful the vesting of property or income in a religion as such in perpetual or quasi-perpetual form. It was not designed to render unlawful the comprehensive system of aid to denominational education which had become so central a feature of the Irish schools system and the validity of which was expressly acknowledged by the Constitution. But while a provision of this nature had originally been prompted by a fear that the religion of the majority would be endowed in preference to the others, the wording of the article makes it clear that it was also intended to prohibit in any form the ‘concurrent endowment’ which had been proposed by the House of Lords during the disestablishment controversy.

It is true that in In re Article 26 of the Constitution and the Employment Equality Bill [1997] 2 IR 321 Hamilton CJ, delivering the judgment of this Court, said (at p. 354):

This system [of aid to denominational schools] does not involve the endowment of any religion. The endowment of a religion implies the selection of a favoured State religion for which permanent financial provision is made out of taxation or otherwise. This kind of endowment is outlawed by Article 44.2.2° of the Constitution.

That passage undoubtedly reflects, as I have indicated, the historical background against which Article 44.2.2° was enacted. It should not, however, be treated as authority for the proposition that the concurrent endowment of various religions is constitutionally permissible. Counsel for the plaintiffs and the defendants were, I think, in agreement that such concurrent endowment was not sanctioned by the Constitution.

It is of interest to note that some consideration was given in Northern Ireland to the question as to whether Article 8 of the treaty, as embodied in the Irish Free State (Agreement) Act 1922, was consistent with the system of state aid to denominational schools in that jurisdiction. The history of the matter is to be found in an article entitled ‘Religion and Education — The Constitutional Problem’ by Edgar Graham (33 NILQ 20). In 1944, the Attorney General, JC McDermott KC, (subsequently as Lord McDermott a Lord of Appeal in Ordinary and Lord Chief Justice of Northern Ireland) was asked to advise as to whether the provision of religious instruction in state aided schools was a violation of the prohibition on the endowment of religion. While he interpreted the provision as prohibiting the endowment of Christianity itself, or any particular Christian church, he did not consider that the use of school premises to provide religious education was such an endowment. He did, however, indicate that treating such education given by a teacher as part of his teaching hours for employment and salary purposes could amount to ‘an unconstitutional endowment’. His successor as Attorney General, William Lowry KC, was of the same view. However, a different view was taken by the English Attorney General, Sir Donald Somervell: he was of the view that the suggested construction was too narrow, and that the prohibition on endowment should not be interpreted as prohibiting a continuance, in some degree, of the educational system which had prevailed in both parts of Ireland for many years, whereby teachers in elementary schools, though paid by the State, were employed by their managers on a denominational basis and were expected to give religious instruction. The Solicitor General, Sir David Maxwell Fyfe (subsequently, as Lord Kilmuir, Lord Chancellor) agreed with that view.

I am satisfied that a similar construction should be given to Article 44.2.2° and that, in the result, the payment by the State of the salaries of chaplains in community schools does not constitute an endowment of the particular religion concerned. I am conscious that, while I have arrived at the same conclusion as Costello P, I have done so by a somewhat different route. If I am wrong, however, in the view which I take that these payments are not even prima facie an endowment within the meaning of Article 44.2.2°, I would entirely agree with his conclusion that, in any event, they are constitutionally sanctioned, having regard to the recognition in Article 42.4 of the rights of parents in relation to the religious and moral formation of their children.

I would also agree with the two caveats entered by Barrington J in the penultimate paragraph of his judgment.

I would dismiss the appeal.

Supreme Court

[1998] 3 IR 321
Mr. Justice Barrington, Keane J.

The Plaintiff submits that the matters described above amount to anunlawful “endowment” of religion contrary to theprovisions of Article 44 S.2 paragraph 2 of the Constitution.

Before analysing this submission in greater detail it may be helpful tosay something concerning the historical background to Article 44 of theConstitution and to the concepts of the “establishment” and the “endowment” of religion.

During the period of the reformation it was common for the Kings ofEurope to select one religion (be it Roman Catholicism or Protestantismin one of its forms) to be the State religion. The Church whichpractised the “State religion” was placed in afavoured position in law. It was frequently “endowed” by the gifts of lands or by provision forthe payment of tithes forthe support of its clergy. Those who opposed the State religion wereoften regarded as disloyal and placed under civil disabilities.

Ireland was no exception in this respect. Henry VIII attempted toestablish Protestantism in its Anglo-Catholic form as the religion ofState. His laws were repealed under Mary Tudor who was a Roman Catholicbut her laws were again repealed under Elizabeth I and, finally, by anAct of the Irish Parliament of 1580 the Church of Ireland was restoredto the position which it held under Henry VIII.

The Church of Ireland remained the established Church until the Act ofUnion which amalgamated it with the Church of England in “TheUnited Church of England and Ireland”.

Article 5 of the Act of Union provided as follows:-

“That it be the fifth article of union, that the churches ofEngland and Ireland, as now by law established, be united into oneprotestant episcopal church, to be called, “The united church ofEngland and Ireland”; and that the doctrine, worship, disciplineand government of the said united church shall be, and shall remain infull force for ever, as the same are now by law established for thechurch ofEngland; and that the continuance and preservation of the said unitedchurch, as the established church of England and Ireland, shall bedeemed and taken to be an essential and fundamental part ofthe union;……”

The Church of Ireland, and at a later stage, the United Church ofEngland and Ireland were both established and endowed. But Ireland alsopresented cases of Churches which were endowed without beingestablished. By an Act of 1795 (35 George III Chapter 21) entitled “An Act for the better education of persons professing thePopish or Roman Catholick religion” Parliament provided for agrant for the establishment of a seminary for the education of RomanCatholics. While it was not stated in the Act everyone knew that thepurpose of the seminary was to educate young men for the catholicpriesthood the purpose being to discourage them from going to thecontinent for their education lest they come under the influence of theprinciples of the French revolution. The seminary referred to wasMaynooth College and the grant to it was continued by the United KingdomParliament up to the time of the disestablishment of the Church ofIreland in 1869. The Roman Catholic Church was therefore receiving anendowment from the British Parliament even before the passing of theCatholic Emancipation Act in 1829.

So also were Protestants who dissented from the Elizabethan settlementin Ireland. By means of what was called the “the regiumdonum”, the British Government provided an annual grant fordefraying the expenses of Presbyterian clergymen.

All of these matters were affected by the Act for the Disestablishmentof the Irish Church of 1869. That Act begins with the recital:-

“Whereas it is expedient that the union created by Act ofParliament between the Churches of England and Ireland, as by lawestablished, should be dissolved, and that the Church of Ireland, as soseparated, should cease to be established by law, and that aftersatisfying, so far as possible, upon principles of equality as betweenthe several religious denominations in Ireland, all just and equitableclaims, the property of the said Church of Ireland, or the proceedsthereof, should be applied in such manner as Parliament shall hereafterdirect:”

The Act provided for:-

(1) The disestablishment of the Church of Ireland with appropriateprovisions for the protection of its property.

(2) The termination of the regium donum with appropriate provisionsfor compensation and

(3) The termination of the grant to Maynooth College withappropriate provisions for compensation.

The Act therefore not only disestablished the Church of Ireland butterminated the endowment of religion in Ireland.

The learned trial Judge therefore was surely correct when he stated thatthe distinction between an “established” religionand an “endowed” religion would have been wellknown to parliamentarians at the end of the nineteenth and the beginningof the twentieth century.

So far as the leaders of Irish Nationalism were concerned, the moremilitant among them took their views on civil and religious liberty fromthe principles of the French and the American revolutions.Constitutional Nationalists, like Daniel O’Connell, also believed in theseparation of Church and State and were in many ways pioneers of what wenowadays would call Christian democracy. They did not therefore objectto guarantees on this subject being written into the various Home RuleBills.

The only Home Rule Bill to reach the Statute Book was the Government ofIreland Act 1914. It expressly provided that the Irish Parliamenttherein contemplated should not have power to establish or to endow anyreligion. Section 3 of the Act reads as follows:-

“In the exercise of their power to make laws under this Actthe Irish Parliament shall not make a law so as either directly orindirectly to establish or endow any religion, or prohibit or restrictthe free exercise thereof, or give a preference, privilege, oradvantage, or impose any disability or disadvantage, on account ofreligious belief or religious or ecclesiastical status, or make anyreligious belief or religious ceremony a condition of the validity ofany marriage, or affect prejudicially the right of any child to attend aschool receiving public money without attending the religiousinstruction at that school, or alter the constitution of any religiousbody except where the alteration is approved on behalf of the religiousbody by the governing body thereof, or divert from any religiousdenomination the fabric of cathedral churches or, except for the purposeof roads, railways, lighting, water, or drainage works, or other worksof public utility upon payment of compensation, any otherproperty.”

Any law made in contravention of the restrictions imposed by thissection shall, so far as it contravenes those restrictions, bevoid”.

The Government of Ireland Act, 1914, though enacted into law, was neverbrought into force and was replaced by the Government of Ireland Act,1920 which provided for the setting up of a Parliament for SouthernIreland and a parliament for Northern Ireland. Section 5 of that Acthowever repeated the prohibition on the establishment or endowment ofany religion and was in the following terms:-

2 5.(1) “In the exercise of their power to make laws underthis Act neither the Parliament of Southern Ireland nor the Parliamentof Northern Ireland shall make a law so as either directly or indirectlyto establish or endow any religion, or prohibit or restrict the freeexercise thereof, or give a preference, privilege, or advantage, orimpose any disability or disadvantage on account of religious belief orreligious or ecclesiastical status, or make any religious belief orreligious ceremony a condition of the validity of any marriage, oraffect prejudicially the right of any child to attend a school receivingpublic money without attending the religious instruction at that school,or alter the constitution of any religious body except where thealteration is approved on behalf of the religious body by the governingbody thereof, or divert from any religious denomination the fabric ofcathedral churches, or, except for the purpose of roads, railways,lighting, water, or drainage works, or other works of publicutility upon payment of compensation, any other property, or take anyproperty without compensation.

Any law made in contravention of the restrictions imposed by thissubsection shall, so far as it contravenes those restrictions, bevoid.

(2) Any existing enactment by which any penalty, disadvantage,or disability is imposed on account of religious belief or on a memberof any religious order as such shall, as from the appointed day, ceaseto have effect in Ireland.”

The Anglo-Irish Treaty of 1921 did not contain any prohibition on theestablishment of a religion. Article 16 thereof read as follows:-

16. ldquo;Neither the Parliament of the Irish Free State nor theParliament of Northern Ireland shall make any law so as either directlyor indirectly to endow any religion or prohibit or restrict the freeexercise thereof or give any preference or impose any disability onaccount of religious belief or religious status or affect prejudiciallythe right of any child to attend a school receiving public money withoutattending the religious instruction at the school or make anydiscrimination as respects state aid between schools under themanagement of different religious denominations or divert from anyreligious denomination or any educational institution any ofitsproperty except for public utility purposes and on payment ofcompensation”.

Why the express prohibition on the establishment of any religion wasdropped is not quite clear. But presumably it was because the combinedeffect of the ban on the endowment of any religion and the prohibitionof the granting of any preference on the grounds of religious belief orstatus was to make an express ban on establishment unnecessary.

Article 16 of the Treaty is reflected in turn in Article 8 of theConstitution of the Irish Free State which reads as follows:-

Article 8. “Freedom of conscience and the free profession andpractice of religion are, subject to public order and morality,guaranteed to every citizen, and no law may be made either directly orindirectly to endow any religion, or prohibit or restrict the freeexercise thereof or give any preference, or impose any disability onaccount of religious belief or religious status, or affect prejudiciallythe right of any child to attend a school receiving public money withoutattending the religious instruction at the school, or make anydiscrimination as respects State aid between schools under themanagement of different religious denominations, or divert fromanyreligious denomination or any educational institution any of itsproperty except for the purpose of roads, railways, lighting, water ordrainage works or other works of public utility, and on payment ofcompensation”.

By the time the present Constitution came to be drafted in 1936/37 manythings had changed. Partition was now an established fact and thepopulation of the 26 county area was now 95% Roman Catholic. In thesecircumstances some Roman Catholic lay men and clerics were tempted bythe idea of establishing a model Catholic State in Southern Ireland.They did not claim to have the Roman Catholic Church established on themodel of the Church of England. But they did wish to have the RomanCatholic Church “recognised” as the one trueChurch. This is illustrated by a draft of the proposed Article 44 whichwas set before the Constitutional Drafting Committee. This document readas follows:-

1. “The state acknowledges the right of Almighty God topublic worship in that way which He has shown to be His Will.

2. Accordingly, the state shall hold in honour the name of Godand shall consider it a duty to favour and protect religion and shallnot enact any measure that may impair its credit.

3. The state acknowledges that the true religion is thatestablished by Our Divine Lord Jesus Christ Himself, which he committedto his Church to protect and propagate, as the guardian and interpreterof true morality. It acknowledges, moreover, that the Church of Christis the Catholic Church.

4. The state recognises the Church of Christ as a perfectsociety, having within itself full competence and sovereign authority,in respect of the spiritual good of man.

i 5. (i) Whatever may be ranked under the civil and politicalorder is rightly subject to the supreme authority of the perfectsociety, the state, whose function it is to procure the temporalwell-being, moral and material, of society.

(ii) The state pledges itself, therefore, in virtue of thissovereign authority conferred on it by God within its temporal sphere toenforce respect, by its just laws, for the inalienable rights of thecitizen and the family, and to preserve, as best it can, conditions ofright social and moral well-being.

(iii) In cases where the jurisdiction of Church and staterequires to be harmoniously coordinated, the state may come to a specialagreement with the Church and other religious bodies upon particularmatters, civil, political and religious.

6. The state guarantees to its citizens freedom of religiousconviction and liberty to practise their religion in private and inpublic, having due regard however to right order and morality.

7. The state pledges itself not to impose any disabilities onthe ground of religious conviction that would be contrary to naturalrights and social justice.

8. Every religious association, recognised by the state, shallhave the right to manage its own affairs, own, acquire and administerproperty, movable and immovable, and maintain institutions for religiousand charitable purposes.

9. The property of a religious denomination shall not be divertedsave for necessary works of public utility and on payment of justcompensation.

10. Legislation providing state aid for schools shall contain nodiscrimination against schools under the management of a particularreligious denomination”.

(See Dermot Keogh Twentieth-Century Ireland: Nation and State. Gill andMacmillan; 1994).

Those who put forward this draft may have had some influence on theultimate wording of Article 44 but they certainly did not get their way.Article 44 as it eventually emerged in the Constitution, and until 1972,read as follows:-

Article 44.
1. 1. “The State acknowledges that the homage ofpublic worship is due to Almighty God. It shall hold His Name inreverence, and shall respect and honour religion.

2. The State recognises the special position of the Holy CatholicApostolic and Roman Church as the guardian of the Faith professed by thegreat majority of the citizens.

3. The State also recognises the Church of Ireland, thePresbyterian Church in Ireland, the Methodist Church in Ireland, theReligious Society of Friends in Ireland, as well as the JewishCongregations and the other religious denominations existing in Irelandat the date of the coming into operation of this Constitution.

2. 1. Freedom of conscience and the free profession and practiceof religion are, subject to public order and morality, guaranteed toevery citizen.

2. The State guarantees not to endow any religion.

3. The State shall not impose any disabilities or make anydiscrimination on the ground of religious profession, belief orstatus.

4. Legislation providing State aid for school shall notdiscriminate between schools under the management of different religiousdenominations, nor be such to affect prejudicially the right of anychild to attend a school receiving public money without attendingreligious instruction at that school.

5. Every religious denomination shall have the right to manageits own affairs, own, acquire and administer property, movable andimmovable, and maintain institutions for religious or charitablepurposes.

6. The property of any religious denomination or any educationalinstitution shall not be diverted save for necessary works of publicutility and on payment of compensation”.

This wording was a compromise and it satisfied for a time. It waspluralist in the sense that all the religious denominations existing inthe State at the date of the coming into operation of the Constitutionwere “recognised”. Those which could be identifiedby name were recognised under the title by which they describedthemselves. Many of the minority denominations, including in particularthe Jewish congregations, were very pleased with the result. The betteropinion appeared to be that the recognition of the “specialposition” of the Roman Catholic Church was merely arecognition of a fact andimplied no privileged position in law. Nevertheless the term “special position” was a source ofmisunderstanding. As long as it remained there was a latent suspicionthat while all citizens were equal Roman Catholics’ might, in somesense, be more equal than others. In the aftermath of the Civil RightsMovement in Northern Ireland and in the run up to the SunningdaleAgreement ss 2 and 3 of S.I were seen as an embarrassment and in 1972they were removed by the Fifth Amendment to the Constitution.

CONCLUSION.
The result of the Fifth Amendment of the Constitution was to leave uswith a Constitution under which the State is obliged to respect andhonour religion but is prohibited from endowing any religion or fromimposing any disabilities or making any discrimination on the ground ofreligious profession, belief or status. The history of Ireland showsthat, in the absence of constitutional prohibition the State could endowmore than one religion. It is difficult, however to see how a Churchcould be “established” (in the traditional sense ofthat word) without also being endowed. In any event the effect ofArticle 44 S.2 of the Constitution is to outlaw either the establishmentor the endowment of any religion. It is in this sense that a passagewhich appears in the Judgment of the Chief Justice, delivering theJudgment of the Court, in Re Article 26 of the Constitution and theEmployment Equality Bill(unreported Judgment delivered on the 15th day of May, 1997) should beunderstood. The Chief Justice, having referred to State aid todenominational schools, went on to say (at page 46 of theJudgement):-

“This system does not involve the endowment of any religion.The endowment of a religion implies the selection of a favoured Statereligion for which permanent financial provision is made out of taxationor otherwise. This kind of endowment is outlawed by Article 40 S.2s.s.2 of the Constitution”.

This passage was not intended to convey that endowment of religionswould be acceptable if all religions were endowed. Mr. Hogan, S.C., forthe Plaintiffs, pointed out that what the Constitution prohibits is theendowment of “any religion” and that, in context,this includes the endowment of “allreligions”.

However the Courts decision on the reference of the Employment EqualityBill has a wider significance for the resolution of the problempresented in this case. As was pointed out in the Court’s Judgment onthe reference the system of denominational education was well known tothe framers of the Constitution. We know this because they refer to it.Article 44 S.2 s.s.4 prescribes that legislation providing State aid forschool shall notdiscriminate between schools under the management of different religiousdenominations nor be such as to affect prejudicially the right of anychild to attend a school receiving public money without attendingreligious instruction at that school.

These references appear to me to establish two facts. First theConstitution does not contemplate that the payment of monies to adenominational school for educational purposes is an “endowment” of religion within the meaning ofArticle 40 S.2 s.s.2 of the Constitution. Secondly, the Constitutioncontemplated that if a school was in receipt of public funds any child,no matter what his religion, would be entitled to attend it. But such achild was to have the right not to attend any course of religiousinstruction at the school. As was pointed out in the reference case eachdenominational school has its own ethos. Teachers of a particularreligious persuasion, do not convey their ideas merely through formalinstruction but tend to organise the schools in such a way as best topromote the religious values which they themselves embrace. The framersof the Constitution were clearly aware of this when they contemplatedthe provision of funds for denominational education. They cannottherefore have regarded such provision as an “endowment” of any religion or religions.

The Archbishops admit to an indirect benefit received by the Churchesthrough the payment of the salaries of school Chaplains in the sensethat they admit that if the State did not pay the salaries of schoolChaplains the Churches would feel obliged to raise the monies themselvesand would thereby be at a loss. I do not think, however, that thisargument can be decisive because the exact same argument could beadvanced concerning the payment of the salaries of teachers indenominational schools. No doubt had the State refused to subsidise thepayment of the salaries of teachers in denominational schools theChurches would have been at a very significant loss. Notwithstandingthis fact clearly the framers of the Constitution did not consider suchpayments an endowment of religion or religions.

But the matter does not end there. Article 42 of the Constitutionacknowledges that the primary and natural educator of the child is thefamily and guarantees to respect the inalienable right and duty of theparents to provide for the religious and moral, intellectual, physicaland social education of their children. Article 42 S.2 prescribes thatthe parents shall be free to provide “thiseducation” (i.e religious moral intellectualphysical and social education) in their homes or in private schools or “in schools recognised or established by theState”. In other words the Constitutioncontemplateschildren receiving religious education in schools recognised orestablished by the State but in accordance with the wishes of theparents.

It is in this context that one must read Article 44 S.2 s.s.4 whichprescribes that:-

“Legislation providing State aid for schools shall notdiscriminate between schools under the management of different religiousdenominations nor be such as to affect prejudicially the right of anychild to attend a school receiving public money without attendingreligious instruction at that school”.

The Constitution therefore distinguishes between religious “education ” and religious “instruction” – the former being the much widerterm. A child who attends a school run by a religious denominationdifferent from his own may have a constitutional right not to attendreligious instruction at that school but the Constitution cannot protecthim from being influenced, to some degree, by the religious “ethos” of the school. A religious denomination isnot obliged to change the general atmosphere of its school merely toaccommodate a child of a different religious persuasion who wishes toattend that school.

The Community and the Comprehensive Schools are an attempt to makepost-primary education available to all the children of Irelandirrespective of their means. They involve a vast increase in the numberof children receiving post-primary education and a correspondingincrease in the number of post-primary teachers most of whom are laypeople. In Community Schools it is no longer practicable to combinereligious and academic education in the way that a religious order mighthave done in the past. Nevertheless parents have the same right to havereligious education provided in the schools which their children attend.They are not obliged to settle merely for religious “instruction”. The role of the Chaplain is to helpto provide this extra dimension to the religious education of thechildren. The evidence establishes that, besides looking after thepastoral needs of the children, the Chaplain helps them with counsel andadvice about their day to day problems. It therefore appears to me thatthe present system whereby the salaries of Chaplains in CommunitySchools are paid by the State is merely a manifestation, under modernconditions, of principles which are recognised and approved by Articles44 and 42 of the Constitution.

The evidence goes to establish that the work of the Chaplains is highlyvalued by parents. Nevertheless it may worth while entering two caveats.First this Judgment proceeds upon the basis that the system ofsalariedChaplains is available to all Community Schools of whatever denominationon an equal basis in accordance with their needs. Secondly while it isobviously right and proper that a Chaplain should counsel and advise anychild who may consult him about its problems it would beconstitutionally impermissible for a Chaplain to instruct a child in areligion other than its own without the knowledge and consent of itsparents.

In these circumstances I-would dismiss the appeal and affirm the Orderof the High Court.

 

25th day of March 1998by Keane J.

As in many other countries throughout the world, religion plays animportant part in Irish life and has done so for many centuries. Thatunquestionable fact is reflected in the provisions of Article 44 of theConstitution. Even were such provisions absent from the Constitution,however, courts could not disregard, at least in a context where itbecomes relevant, the fact that religious beliefs and practices areinterwoven through the fabric of Irish society.

It is for that reason that our law of charities, for example derivingfrom the statute law and common law of a former era, continues to treattrustsestablished for the advancement of religion as entitled to charitablestatus without any proof that they are for the public benefit: it ispresumed that such trusts are for the public benefit. The same publicpolicy underlies the exemption as of right of ministers of religion andothers from the obligation of jury service: (see Juries Act 19761st Schedule, Part II). Even had Article 44.1, requiring the State to”respect and honour religion” never been enacted – and ithad no counterpart in the Constitution of the Irish Free State – thereis little reason to doubt that Irish jurisprudence would haveacknowledged, as it should in a democratic society, the importance ofthe part played by religion in the lives of so many people.

Accordingly, if one leaves to one side for the moment the question ofthe “endowment” of religion, there is no reason in principlewhy the State, through its different organs, should not confer benefitson religious denominations, provided – and it is, of course, a crucialproviso – that in doing so it remains neutral and does not discriminatein favour of particular religions. That, qualification is madeabundantly clear by Article 44.2.3 which provides that:

“The State shall not impose any disabilities or make anydiscrimination on the ground of religious profession, belief orstatus.”

In the particular case of educational establishments, with which we arehere concerned, Article 42.4 provides that:

“The State shall provide for free primary education and shallendeavour to supplement and give reasonable aid to private and corporateeducational initiative, and, when the public good requires it, provideother educational facilities or institutions with due regard, however,for the rights of parents, especially in the matter of religious andmoral formation.”

The closing words of that sub-article suggest strongly that it wascontemplated that the aid which the State was permitted, and to alimited extent even required, to give to educational institutions couldproperly be provided to schools controlled by religious denominations.But any doubts that there might be are removed by Article 44.2.4°which is as follows:

“Legislation providing State aid for schools shall notdiscriminate between schools under the management of different religiousdenominations, nor be such as to affect prejudicially the right of anychild to attend a school receiving public money without attendingreligious instruction at that school.”

This provision makes it clear beyond argument, not merely that the Stateis entitled to provide aid to schools under the management of differentreligious denominations, but that such schools may also includereligious instruction as a subject in their curricula. It is subject totwo qualifications: first, the legislation must not discriminate betweenschools under the management of different religious denominations and,secondly, it must respect the right of a child not to attend religiousinstruction in a school in receipt of public funds.

So much indeed was conceded on behalf of the plaintiffs in the presentcase in the hearing before Costello P. and again in this court. It was,however, claimed on their behalf that the payment by the State of thesalaries of chaplains appointed by religious denominations to communityschools is in breach of the guarantee by the State in Article44.2.2° “not to endow any religion”. Since theduties of the chaplains are, for the most part, pastoral or sacerdotal,including, for example, in the case of Catholic chaplains thecelebration of mass and the hearing of confessions, and are by no meansconfined to religious instruction in the sense in which that phrase isused in Article 44.2.4°, the payments were not authorised, it wassubmitted, by that provision.

There is, of course, in this case no question of a direct subvention bythe State to any religious denomination: the payment by the State does,however, relieve the churches concerned of a financial burden to whichthey would otherwise be subject. What had to be determined in the firstinstance was whether this was prima facie in breach of theguarantee under Article 44.2.2°. If it was not, then the plaintiffs’case failed. If it was, however, the further question arose, which wasresolved in favour of the defendants by the learned trial judge, as towhether, although prima facie an endowment, it was one whichwas sanctioned, expressly or by implication, by Article 42.4 which, asalready noted, requires the State, in the provision of aid toeducational establishments, to have due regard to the rights ofparents

“…especially in the matter of religious and moralformation.”

In considering the first question – as to whether the payment of thechaplains by the State constitutes an endowment of religion prohibitedby Article 44.2.2°. – it is appropriate to have regard, as didCostello P., to the historical background against which this particularprovision of the Constitution was enacted. Before embarking on such anenquiry, however, one should first examine the ordinary meaning of thelanguage used in Article 44.2.2.°

The word “endow” is derived etymologically from the Frenchword “douer” and hence originally referred to the giving ofa dowry or marriage portion to a wife or the provision of”dower” to a widow. It subsequently acquired, of course, awider connotation, being defined by the Oxford EnglishDictionary (Volume 4, 2nd Edition, 1991) as

“To enrich with property; to provide (by bequest or gift) apermanent income for (a person, society or institution).”

The same work defines the cognate word “endowment” as first,the action of endowing, in various senses, and, secondly:

“The property or fund with which a society, institution, etc.is endowed.”

The word “endow” when used in the context of religion, as itis in Article 44.2.2° is to be distinguished from the word”establish” and cognate words which have also figuredprominently in this case. The concept of a “church established bylaw” in English law was explained by Phillimore J. in Marshall-v- Graham [1907]2KB 112 at p. 126 as meaning:

“That the State has accepted the church as the religious bodyin its opinion truly teaching the Christian faith, and giving it acertain legal position, and to its decrees, if rendered under certainlegal conditions, certain civil sanctions.”

In this country, the Church of Ireland was an established church in thissense until the enactment of the Irish Church Act 1869. While there isno express provision in the Constitution prohibiting the establishmentin that sense of a church by law, it is obvious that any such law wouldbe impossible to reconcile with the prohibition of religiousdiscrimination in Article 44.2.3°.

In contrast, the first amendment to the Constitution of the UnitedStates of America expressly prohibits Congress making any law”respecting anestablishment of religion…”. The amendment was construed byThomasJefferson as creating “a wall of separation” between Churchand State. The strict construction which has been placed upon it,leading to the striking down of laws sanctioning State aid to religion,was not simply, however, the product of Enlightenment thinking: it alsoreflected the powerful Erastian current of belief in some of thepost-Reformation Churches which regarded any State aidto religion as repugnant to the nature of Christianity. The problemsposed for the Supreme Court in reconciling this strict construction ofthe Establishment Clause, as it came to be known, with the major partplayed by religion in American life are vividly illustrated in thedecisions cited in this case, replete as they are with vigorously argueddissents. The provisions of our Constitution are, however, so markedlydifferent that, as Costello P. found, these authorities are not ofassistance in the construction of Article 44.2.2° of theConstitution.

Article 44.2.2° (prohibiting the endowment of any religion) andArticle 44.2.3° (prohibiting religious discrimination) reproducedalmost verbatim the provisions of Article 8 of the Constitution of theIrish Free State viz:-

“Freedom of conscience and the free profession and practice ofreligion are, subject to public order and morality, guaranteed to everycitizen and no law may be made either directly or indirectly to endowany religion or prohibit or restrict the free exercise thereof or giveany preference or impose any disability on account of religious beliefor religious status or affect prejudicially the right of any child toattend a school receiving public money without attending the religiousinstruction at the school or make any discrimination as respects Stateaid between schools under themanagement of different religious denominations or divert from anyreligious denomination or any educational institution any of itsproperty except for the purpose of roads, railways, lighting, water ordrainage or other works of public utility and on payment ofcompensation.”

The only difference of any significance is the omission of the words”directly or indirectly” from the prohibition of theendowment of any religion. The prohibition of the”diversion” of the property of religious denominations oreducational institutions except for works of public utility and onpayment of compensation is reproduced in Article 44.2.6°.

The inclusion of these provisions in that Constitution was required byArticle 16 of the Anglo-Irish Treaty of 1921. That provision, in turn,derives its parentage, so to speak, from the various Home Rule measuresintroduced in the Westminister Parliament between 1886 and 1920. Section5 of the last of these measures, the Government of Ireland Act 1920,provided that:

“In the exercise of their power to make laws under this Actneither the Parliament of Southern Ireland nor the Parliament ofNorthern Ireland shall make a law so as either directly orindirectly to establish or endow any religion, or prohibit or restrictthe free exercise thereof, or give a preference, privilege or advantage,or impose any disability or disadvantage, on account of religiousbelief.”

That measure was stillborn in the area referred to as “SouthernIreland” as a result of the abstentionist policy pursued by theSinn Fein members returned at the General Election. Its statutorypredecessor, S.3 of the Government of Ireland Act 1914, contained, inaddition to the prohibition of establishment or endowment and freeexercise of religion clauses, a prohibition of the”diversion” of the property of religious denominationssimilar to that contained in Article 44.2.6°., with one significantalteration. The clause also absolutely prohibited the”diversion” from such denominations of “the fabric ofCathedral Churches”. These could not be compulsorily acquired,even for works of public utility and upon payment of compensation.

The 1914 and 1920 Acts were the statutory successors of the first andsecond Home Rule Bills of 1886 and 1893 which also included prohibitionsof the making of any law “respecting the establishment orendowment of religion”.

The historical background to the disestablishment of the Church ofIreland in 1869 has been helpfully summarised by Costello P in thejudgment under appeal. As he points out, the Irish Church Act of thatyear provided, not merely for the disestablishment of the Church ofIreland, but also for its disendowment. The Church of Ireland had nocorporate personality, but all the property belonging to or appropriatedto the use of “any archbishopric, bishopric, benefice or cathedralpreferment” connected with the Church was vested in theCommissioners appointed under the Act. There were then elaborateprovisions for the payment of compensation to those who were affected bythe disendowment thus effected. The preamble to the Act also recitedthat the Queen had placed at the disposal of Parliament her interest inthe various endowments.

At the time of the passing of the Act, an annual parliamentary grant wasmade for the expenses of ministers described as

“The non-conforming, seceding and Protestant dissentingMinisters in Ireland.”

It was envisaged that this form of endowment, known as the RegiumDonum and originally granted by William III (William of Orange),would be discontinued and there were provisions for the compensation ofthe ministers affected. There was also provision for the cesser of thepayment of an annual grant to Maynooth College and again the payment ofcompensation in respect of its discontinuance.

The proposals to disestablish and disendow the Church of Ireland werethe subject of intense controversy at the time. The House of Lordspassed a number of amendments to the measure (subsequently withdrawn)intended to prevent the disendowment of the Church of Ireland andcontemplating (in the preamble) the “concurrent” endowmentof different religious denominations in the future. (For a detailedaccount of the stormy passage of the measure, see A New History ofIreland, Vol. V, ed. W.E..Vaughan, (Oxford 1989) pp727/736).

It remains to be noted that, when the Bill providing for the enactmentof the present Constitution was being debated by the Dáil, whilethere was littlediscussion of the sections carrying forward the provisions to which Ihave already referred in the former Constitution, the President of theExecutive Council had this to say of them:

“The other (provisions) are largely rewriting, in the form inwhich the whole of this Constitution has been written, of Articlesalready in the old Constitution. It was obvious in a matter of this sortthat, to allay any possible apprehensions, it was desirable to keep asfar as possible along the old lines.” (Dáil Reports 4thJune 1937, Col. 1891.)

So much for the historical background from which Article 44.2.2°emerged in its present form. It must also be borne in mind that, at thetime the Constitution was enacted, the vast majority of secondaryschools in this country were under the control and management ofreligious denominations. The functions of those religious who weremembers of the staffs of such schools extended beyond the imparting ofreligious instruction: they were also manifestly concerned, as are thechaplains in the present case, with ensuring that the children undertheir care conformed to the practices of the particular religion towhich they belonged, whether through attendance at mass or otherreligious services or in other respects.

It should also be noted that, as held by this court in Crowlevv. Ireland [1980] IR 103, the obligation imposed by theConstitution on the State in Article 42.4 to “provide forfree primary education” was discharged by the giving of financialassistance by the State to the national schools owned by differentreligious denominations so as to ensure that such primary education wasfreely available to all. O’Higgins CJ said:-

“This article was intended to avoid imposing a mandatoryobligation on the State directly to provide free primary education.Such, if imposed, might have led to the provision of free primaryeducation in exclusively State schools. Rather was it intended that theState should ensure by the arrangements it made that free primaryeducation would be provided. When one remembers the long and turbulenthistory of the church schools in Ireland, and the sustained struggle forthe right to maintain such schools by the religious authorities of alldenominations in all parts of Ireland, one can well understand the carewith which the words used must have been selected.”

The motive which prompted the inclusion in the Home Rule legislation ofa provision prohibiting the endowment of any religion is not in doubt.It was feared that the parliament established under that legislation(and whose powers, until 1920, were to extend to the whole island) wouldendow the Catholic Church in preference to the minority and that such alegislative scheme might provide for the compulsory acquisition of thecathedrals of the Church of Ireland, such as Christ Church and StPatrick’s, and their vesting in the Catholic Church. (See the speech ofJ.H. Campbell (subsequently Lord Glenavy) on the Committee Stage of theGovernment of Ireland Bill 1912 (42 HC Debates, series V)).It could besaid without exaggeration that in 1937 such a scenario would have seemedsomewhat fanciful. The retention of the prohibition of endowments in theConstitution reflected a pragmatic view that this would have no harmfuleffects, while its removal, in contrast, would provoke needlesscontroversy. It was not intended to render unlawful, at a stroke, thesystem of aid to denominational education, including where appropriatethe payment of the salaries of members of religious communities, whoseduties might well extend beyond religious instruction in the narrowsense to what in Article 42.4 of the Constitution was referred to as the”religious and moral formation” of children.

Article 44.2.2° was thus intended to render unlawful the vesting ofproperty or income in a religion as such in perpetual orquasi-perpetual form. It was not designed to render unlawful thecomprehensive system of aid to denominational education which had becomeso central a feature of the Irish schools system and the validity ofwhich was expressly acknowledged by the Constitution. But while aprovision of this nature had originally been prompted by a fear that thereligion of the majority would be endowed in preference to the others,the wording of the Article makes it clear that it was also intended toprohibit in any form the “concurrent endowment” which hadbeen proposed by the House of Lords during the disestablishmentcontroversy.

It is true that In re Article 26 of the Constitution and theEmployment Equality Bill unreported judgment delivered on the 15thday of May, 1997 Hamilton CJ, delivering the judgment of this court,said:-

“This system [of aid to denominational schools] does notinvolve the endowment of any religion. The endowment of religionimplies the selection of a favoured State religion for which permanentfinancial provision is made out of taxation or otherwise. This kind ofendowment is outlawed by Article 44 s.2 subsection 2 of theConstitution.”

That passage undoubtedly reflects, as I have indicated, the historicalbackground against which Article 44.2.2° was enacted. It should not,however, be treated as authority for the proposition that the concurrentendowment of various religions is constitutionally permissible. Counselfor the plaintiffs and the defendants were, I think, in agreement thatsuch concurrent endowment was not sanctioned by the Constitution.

It is of interest to note that some consideration was given in NorthernIreland to the question as to whether Article 8 of the Treaty, asembodied in the Irish Free State (Agreement) Act, 1922, was consistentwith the system of State aid to denominational schools in thatjurisdiction. The history of the matter is to be found in an articleentitled Religion and Education – The Constitutional Problem byEdgar Graham (Northern Ireland Legal Quarterly, Volume 33 p 20). In1944, the Attorney General, JC McDermott, KC, (subsequently as LordMcDermott a Lord of Appeal in Ordinary and Lord Chief Justice ofNorthern Ireland) was asked to advise as to whether the provision ofreligious instruction in State aided schools was a violation of theprohibition on the endowment of religion. While he interpreted theprovision as prohibiting the endowment of Christianity itself, or anyparticular Christian church, he did not consider that the use of schoolpremises to provide religious education was such an endowment. He did,however, indicate that treating such education given by ateacher as part of his teaching hours for employment and salary purposescould amount to “an unconstitutional endowment”. Hissuccessor as Attorney General, William Lowry, KC, was of the same view.However, a different view was taken by the English Attorney General, SirDonald Somervell: he was of the view that the suggested construction wastoo narrow, and that the prohibition on endowment should not beinterpreted as prohibiting a continuance, in some degree, of theeducational system which had prevailed in both parts of Ireland for manyyears, whereby teachers in elementary schools, though paid by the State,were employed by their managers on a denominational basis and wereexpected to give religious instruction. The Solicitor General, Sir DavidMaxwell Fyfe (subsequently, as Lord Kilmuir, Lord Chancellor) agreedwith that view.

I am satisfied that a similar construction should be given to Article44.2.2° and that, in the result, the payment by the State of thesalaries of chaplains in community schools does not constitute anendowment of the particular religion concerned. I am conscious that,while I have arrived at the same conclusion as Costello P, I have doneso by a somewhat different route. If I am wrong, however, in the viewwhich I take that these payments are not even prima facie anendowment within the meaning of Article 44.2.2°, I would entirelyagree with his conclusion that, in any event, they are constitutionallysanctioned,having regard to the recognition in Article 42.4 of the rights ofparents in relation to the religious and moral formation of theirchildren.

I would also agree with the two caveats entered by Barrington J. in thepenultimate paragraph of his judgment.

I would dismiss the appeal.

O’Shiel v. Minister for Education

[1999] 2 IR 321
Laffoy J.

The plaintiffs
The first 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 plaintiffs, to whom I will refer as “the parent plaintiffs”, is the parent of one of the infant plaintiffs. The third 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 the 23rd April, 1919. The company is the corporate vehicle which owns and manages Cooleenbridge School.
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 £120,000per annum to run the school.
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 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
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.
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 …”
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 the 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 the 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
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.
3.1 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.
2 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.”
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] I.R. 294, having quoted Article 42.1 and Article 42.2, Ó Dálaigh C.J. defined education at p. 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.”
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 sixty years, primary education has meant the teaching and training of children from age four or five to age twelve, thirteen or fourteen.
Development of primary education after 1937
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).
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.”
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.
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 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 aper 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.
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 the 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 three years duration which includes specialised training in one or more areas of special education, for example, a three 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 passAn Scrúdú Cáilíochta sa Ghaeilge (written and oral). Finally, recognition may be gained by virtue of Council Directive No. 89/48/E.E.C., as given effect to in European Communities (General System for the Recognition of Higher Education Diplomas) Regulations, 1991 (S.I. 1 of 1991), 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 three years at a university or other establishment of higher education.
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.
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 r. 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 grantper pupil, which is currently set at £50per 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.
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
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 nine, are owned by the State and were established as model schools prior to 1922.
The evidence establishes that there are fifteen 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
The first formal approach to the Department of Education for State funding of Cooleenbridge School was made by letter dated the 7th February, 1991. The Department’s response was by letter dated the 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.
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 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 the 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 Steiner Waldorf school in the State located in Dublin. That school is not involved in these proceedings.
The documentation submitted to the Department with the application of the 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 Education Seminar Certificate.
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 e 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.”
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 the 28th February, 1995, from the Minister’s 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.
On the 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 the 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 the 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.
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
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, 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.
The current position in relation to the teaching of Irish is that classes 1 to 5 inclusive each receive 3 classes of 45 minutes durationper 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.
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.
Cooleenbridge School is one of a network of about 700 Waldorf schools world-wide.
The plaintiffs’ claim
In these proceedings, which were initiated by plenary summons which issued on the 15th November, 1996, the plaintiffs seek the following reliefs:-
(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 the 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.
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.
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
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 the 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
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 ensure 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 the 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
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.
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.
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 p. 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.”
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.”
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 p. 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 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. So s. 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.”
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, I.N.T.O., on the one hand, and the manager of the schools on the other hand, which commenced on the 1st April, 1976. On the 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.
What clearly emerges from reading Crowley v. Ireland [1980] I.R. 102, 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 .
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.
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] I.R. 289, in the following passage at pages 295 and 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.”
Article 42 is a complex provision and embodies a number of interlocking elements.
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 Art. 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 p. 346):-
“We are of opinion that the section is open to objection from a constitutional point of view in one other respect. Under sub-s. 1, not only the education, but alsothe 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.”
A more radical form of intervention is permitted and mandated under s. 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.
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.
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.
Fourthly, Article 42 inferentially recognises certain rights of children, for instance: the right identified by Kenny J. in Crowley v. Ireland [1980] I.R. 102 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.
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 fifteen denominational schools within a twelve mile radius of Cooleenbridge School – were 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.
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 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 [1980] I.R. 102, 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.
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.
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 onConstitutional Law in Ireland,2nd ed. at p. 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 p. 280) Walsh J., albeitobiter, 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.
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
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 the 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.
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.
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.
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.
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.
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 …”
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 ed. of Kelly on The Irish Constitution at p. 1060 and by Casey at p. 526, as well as judicially. Costello J., as he then was, in an unreported judgment delivered on the 20th November, 1990, in O’Callaghan v. Meath Vocational Education Committee (Unreported, High Court, Costello J., 20th November, 1990) 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 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.”
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 p. 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 the 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 [1980] I.R. 102, 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.
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.
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 the 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 [1941] I.R. 430. 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 p. 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.”
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.
The issue of the Rules in a contest with the State next arose in Crowley v. Ireland [1980] I.R. 102 There, the plaintiffs, in reliance on the decision in McEneaney v. Minister for Education [1941] I.R. 430, 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 I.N.T.O., 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 p. 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.”
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.
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. Minister for Education [1997] 1 I.L.R.M. 1. 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 p. 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.”
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. Minister for Education [1997] 1 I.L.R.M. 1, 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.
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 I.R. 17, where administrative schemes providing for payment of cattle headage payments in implementation of a European Communities 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 p. 27:-
“The ministerial schemes not being laws enacted by the Oireachtas are not invalidated by virtue of Article 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.”
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
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.
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.
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.
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.
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.
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.
Mr. Sean Ó 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 Statutory Instrument of 1991 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. Ó 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 Statutory Instrument of 1991.
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.
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 the 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 the 12th April, 1995, than they got.
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
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.”
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 at p. 194:-
“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.”
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 (1934) 69 I.L.T.R. 86 and the decision of this Court (Geoghegan J.) delivered on the 31st July, 1998, in D.P.P. v. Best [1998] 2 I.L.R.M. 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 at p. 560:-
“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.”
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.
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 (1934) 69 I.L.T.R. 86 and D.P.P. v. Best [1998] 2 I.L.R.M. 549, are of no relevance to the issue which arises in this case.
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.
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
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 the 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.
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. Ó 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.

 

McNally and Another v Ireland and Others

[2011] 4 IR 431
Neutral Citation: [2009] IEHC 573

Mr. Justice John MacMenamin

The denominational aspect of the claim
8. The purchase of Mass cards is a Roman Catholic practice, governed by canon law and the regulation of that faith. This case involves no religious denomination other than Roman Catholicism. Accordingly, references to clerical offices such as “priest” “bishop” or “provincial” should be read as referring to persons holding that status in the Roman Catholic faith. As will be seen, certain questions as to “authenticity”, which do not usually fall within the ambit of courts established under the Constitution of Ireland, have been put in issue by the plaintiff.

The plaintiff’s claims
9. At the outset, the attack on the legislation was three pronged.

a) The competition claim

The plaintiff claimed, first, that s. 99 offended against EC competition law, in particular articles 81, 82 and 86 of the EC Treaty (as then designated). This claim was not pursued either in evidence or submissions. It is dealt with briefly.

b) The “product” claim

Second, it is contended the section concerns changes to the nature and specification of Mass cards which are to be regarded under E.C. law as “industrially manufactured products”. Consequently, it is claimed, the section offends against the terms of a number of Council directives governing such products.

c) The constitutional claims

Third, Mr. McNally maintains the section is inconsistent with Articles 38, 40.3, 40.6 and 44 of the Constitution of Ireland.

10. This judgment will deal with the non-constitutional issues first. The constitutional claims are dealt with finally. (As to sequence see Carmody v. Minister for Justice and Others, (Supreme Court, Murray C.J., 23 rd October, 2009).

The evidence
11. Thomas McNally operates his business MCC from premises in New Street in Longford. He has engaged in this commercial activity for fourteen years. Nowadays, the printed messages on Mass cards cover a range of requirements, and may include messages for the sick, those undertaking examinations, and for the deceased. The focus in this case is on Mass cards for deceased persons.

Mass cards for the deceased
In general cards for deceased persons fail into two categories.

“Unsigned” cards
12. The first of these are what are called “unsigned” Mass cards. Here, the identity of the purchaser or donor, and the nature of the intention is inserted in handwriting at the time of sale. On payment of a “stipend”, generally a sum in the region of €15 to €20, the card is signed by a Roman Catholic priest identified as the celebrant. The card is then sent to the family of the deceased. The Mass is celebrated by the celebrant who has signed the card. The sale of these cards forms part of the plaintiff’s business.

“Pre-signed” cards
13. In the last two decades there has evolved another practice, the sale of what are termed “pre-signed” cards. These contain a “pre-printed” signature of an identified priest as celebrant. Some types of these cards are sold at about one quarter of the price of unsigned cards.

14. The plaintiff and other commercial distributors are not the only vendors or distributors of pre-signed cards. Religious orders and societies also engage in this practice.

15. There is no evidence that any consumer issue has arisen in relation to the cards sold by religious orders. The issues that are addressed here concern pre-signed Mass cards sold by commercial distributors. There was no evidence of any impropriety by religious orders or societies in the arrangements which they make regarding pre-signed cards.

The “market”
16. It is difficult to define the size of the market in Mass cards. It is significant in size. MCC’s unaudited profit and loss accounts for the year 2008 show its sales were in the region of €250,000 subject to certain overheads. One newspaper estimate put the total size of the Irish market as being in the region of €4 million. The plaintiff himself says that he orders and distributes between 90,000 and 120,000 Mass cards per annum. He says that there are approximately 800 customers on his books.

17. The plaintiff contended, in evidence and indeed pleaded specifically, that his business is entirely legitimate and compliant with the law of the State and Roman Catholic governance.

18. But a series of abuses have been revealed in the sale of pre-signed Mass cards. The evidence disclosed that there have been a number of instances where purchasers have been misled into buying Mass cards which were simply bogus. These cards purported to be “pre-signed”. Some contained “signatures” which were illegible; other signatures were difficult to read. It emerged that one company (-not MCC-) was selling Mass cards where the purported “pre-signed” celebrant had been dead for a number of years. In another case, the “pre-signature” which appeared on the card was said to be a “Fr. Joseph Carroll”. In fact, on investigation, it transpired that this “signatory” was a Monsignor José Carolo, an Italian priest stationed in Quito, Ecuador.

19. It became clear that, in the absence of some method of verification, the chance of a Mass being celebrated in accordance with the purchaser’s intentions was minimal or otherwise could not be ascertained. Innocent consumers who bought and sent such cards, and the bereaved who received them, were being deceived.

20. In fact, when the 2009 Act was introduced as a Bill, the plaintiff welcomed it as a legislative endeavour to address accepted abuses in the market. Mr. McNally acknowledged in evidence, and said in a press release on MCC’s website, that it was entirely legitimate for the State to seek to address the sale of bogus Mass cards through legislation. His concern however was in relation to the manner in which s. 99 was to operate.

The plaintiff’s efforts to put an “arrangement” in place
21. Mr. McNally took legal advice on the intended legislation. He says he was advised that, for statutory compliance with the forthcoming legislation, the sale of his pre-signed Mass cards would be subject to an “arrangement”. He testified that when he sought to make an arrangement with a bishop in Tanzania, such efforts proved unavailing. He claimed that members of the Irish Roman Catholic hierarchy intervened, and as a result his efforts to put an “arrangement” in place came to nothing. He contends he is thus placed in a situation where the sale of his “pre-signed” cards may be rendered unlawful.

22. To fully understand the reasons for this, it is necessary to analyse the plaintiff’s present business arrangement. Prior to doing this and in order fully to comprehend the background it is necessary to briefly outline certain historical and regulatory aspects of Mass offerings.

Historical background
23. For many centuries the issue of “simony” has been a matter of religious controversy. One who practises simony is defined as “a buyer or seller of benefices, ecclesiastical preferments, or other spiritual things” (Oxford English Dictionary, 2 nd Ed.). The derivation of the word comes from the Acts of the Apostles, Ch. 8, verses 9-24, King James Bible (Collins 1957), where Simon, a sorcerer, having been baptised a Christian, was condemned by Peter for seeking to buy knowledge from the apostles as to their spiritual powers:

At Chapter 8, verse 20, Acts of the Apostles:

“But Peter said unto him, thy money perish with thee, because thou hast thought that the gift of God may be purchased with money.”

21. Thou hast neither part nor lot in this matter; for thy heart is not right in the sight of God.”

24. Accusations of simony formed one aspect of the religious divisions at the time of the Reformation. It is unnecessary to go further than to say that by way of governance the Roman Catholic Church has sought to lay down clear guidelines as to the manner in which offerings for Masses are regulated. This takes the form both of specific provisions of canon law and also other church regulation.

The evidence as to canon law and Roman Catholic church regulation
25. Fr. Edwin Grimes is a member of the Holy Ghost Order. He is a qualified canon lawyer. He testified as to Roman Catholic Church regulation on Mass cards. He is also national director of the Pontifical Mission Society, a body which exercises an oversight role in relation to a number of Roman Catholic organisations and which acts as liaison and support to mission orders abroad. His expert evidence as to Church governance on this question was not controverted by any other expert. However there was dispute as to how such Church regulation affected the plaintiff’s business, as Mr. McNally contended his business actually complies with Roman Catholic Church law. This claim formed a central part of the plaintiff’s own case.

Canon law
26. The relevant provisions of canon law relating to Mass cards may be summarised as follows.

27. It is lawful, ( i.e. in accordance with canon law), for any priest celebrating or concelebrating Mass to receive an offering to apply the Mass according to a definite intention (canon 945 of the 1983 code of canon law.) Separate Masses are to be applied for the intentions of those for each of whom an offering, even if small, has been made and accepted (canon 948). It is not lawful for a priest to accept more stipends for Masses to be applied by himself than he can justify within a year (canon 953). A priest who is unable to celebrate Mass must transmit the entire stipend ( i.e. the donation for the Mass) to the celebrant unless it is established with certainty that the excess, over the appropriate amount, was given for personal reasons (canon 955). A priest who entrusts the celebration of Masses to a fellow priest is to note in a book without delay both the Masses received and those sent to others as well as their stipends. Every priest must accurately note Masses which he has accepted to celebrate and those which have been satisfied (also canon 955). The parish priest or rector is to maintain a special book recording the number, intention and the offering of the Masses to be celebrated and the fact of their celebration (canon 958).

28. Two specific canons deal with commercial activities. The first of these stipulates that even the ” semblance of trafficking or trading in Mass offerings is to be entirely excluded” (canon 947). Additionally a person who trafficks for profit in Mass offerings is to be punished with a censure or other just penalty (canon 1385).

Church regulation other than through canon law – Masses for “collective intentions”.
29. The Congregation for the Clergy of the Roman Catholic Church is an administrative body which governs certain day to day activities of Roman Catholic clergy. It is based in Rome. The decrees of this institution are of equivalent regulatory status to canon law and supplement its provisions.

30. One of the Congregation’s decrees, entitled Mos Iugitier Obtinuit was promulgated on 22 nd February, 1991. This statement, equally binding as canon law on Roman Catholic clergy, explicitly condemned any general “proposition” that the gathering of offerings by the faithful and their accumulation in a single offering could be satisfied by one single Mass, even if such Mass was claimed by a celebrant to be in accordance with a “collective” intention. The decree denounced any arguments in favour of such a generalised practice as “specious and pretentious”. The provisions of this decree bore out Fr. Grimes own testimony, to the effect that, if it was the intention of a priest to celebrate a Mass for collective intentions, this could be done only where the donor had already been previously “explicitly informed” and “freely consented” to the combination of their offerings in a single celebration of the Mass. A failure to inform on this issue would therefore be a contravention of Church law.

31. This information forms the backdrop for an assessment of how the plaintiff’s firm operates.

MCC’s advertising and its administration of Mass card procedure Advertising
32. By way of notices, signs and advertisements MCC makes every effort to convey the impression that their pre-signed Mass cards are “authentic”, that is, in accordance with Roman Catholic Church teaching. Its commissioned agents distribute advertisements and display signs to be placed on stands in retail shops to this effect. These convey slogans such as “MCC cards ensure your Gesture is authentic” ( sic). The commissioned agents are provided with a “Letter of Authorisation”. This document has every appearance of solemnity, having the appearance of a certificate or licence. It “authorises” retailers to engage in the sale of MCC’s Mass cards. Up to the time of this case the “letter of authorisation” identified a Fr. Bernard Latus as the celebrant whose “signature” was on MCC’s Mass cards. The letter confirms the retail outlet has been “approved” to stock and sell MCC’s signed Mass cards, and that the retailer in turn has agreed to adhere to the “correct procedures” involved. Imprinted on the letter is what is said to be MCC’s “official stamp”.

33. A consumer who actively resorted to MCC’s website would find there a “home page” where it was stated, accurately, that the organisation is not a religious order or group, and was not engaged in a charitable function. In fact, it frankly states to the contrary, acknowledging that the business is a commercial entity whose cards “carry the facility of being pre-signed”. There is reference there to a “verification” process by an “officer of the court” (presumably meaning a solicitor) who is said to confirm each part of the procedure on an “ongoing basis”. The website contains a reference to MCC’s “code of practice 566”.

34. A reasonable consumer might be forgiven for concluding that the reference to the code there is to something compendious and far-reaching. It transpired in evidence that this reference was in fact to a pricing bar code maintained for the purposes of identification in retail outlets. This reference therefore on the website and on one specification of MCC cards has nothing whatever to do with compliance with a “code of practice” in a normally understood ethical sense.

35. A user of the website could also read a press release from MCC about the legislation. In a “robust” statement released in 2009, there was recorded a welcome for the Act (now challenged), and an affirmation that MCC’s Mass cards would “continue to fulfil all legal requirements”. The release stated that the firm had for many years advocated proper statutory regulation of the sale of Mass cards. However to this there was one proviso, to the effect that while s. 99 had been intended to stamp out the selling of Mass cards by “rogue traders”, it had been unfortunately “hurriedly drafted”, and that certain “pressure groups or organisations” might possibly have had an “unhealthy influence” on the framing of the section. These groups were not identified.

Administration
36. Mr. McNally testified that each commissioned agent regularly provided retail outlets with a form. On this, the names of the purchasers of Mass cards were to be inscribed, and thereafter, this was to be forwarded to MCC either by the retailer or, alternatively, by the agent.

37. From the level of the plaintiff’s business one would infer that, at any one time, there should be a very significant numbers of these forms in existence, and many in MCC’s possession or power. The plaintiff made discovery in this case. By inference one might have expected many such forms would have been disclosed. But none was referred to in affidavit form. While MCC may temporarily have received such forms, it transpired that in any case they were routinely disposed of after a period of two or three weeks. To ensure compliance with Roman Catholic governance as outlined, one would expect that the forms would have been forwarded to the nominated celebrant, Fr. Latus.

The “stipend” paid to Fr. Latus
38. The evidence about the arrangement as regards celebration of Masses was yet more surprising.

39. Mr. McNally testified that he met Fr. Latus on the island of St. Kitts in the Caribbean while on holiday some years ago. The plaintiff testified that he had entered into an arrangement whereby the priest was paid a monthly €300 “stipend” to celebrate Masses for the intentions of purchasers of MCC cards. This was calculated on the basis of €100 contribution for each of three identified categories, the deceased, the living and the sick.

40. It will be recollected that the turnover of Mr. McNally’s business is said to be in the region of €250,000 per annum. By contrast, Fr. Latus received €3,600 yearly, the annual stipend for the period of this arrangement. This sum was predicated on the basis that the priest would celebrate just three Masses for MCC per month, being one for each of the three categories just identified. These corresponded with the three general categories of Mass cards sold by the business.

41. Mr. McNally testified that on a yearly basis he sold between 90 and 120,000 Mass cards at a wholesale price of €1.75. These retailed for approximately €4.50. To take the example of deceased persons therefore, each of the twelve Masses for the deceased celebrated by Fr. Latus in each year must have been, on behalf of literally hundreds, if not thousands of intentions. The “stipend” paid by MCC to Fr. Latus was a tiny fraction of the turnover of the business. It amounted to no more than 1 or 2%. On one occasion Mr. McNally sent Fr. Latus an extra €3,000 on account of hurricane damage in St. Kitts.

42. If one looks carefully at the website and the cards it is true that MCC disavowed being a charitable organisation. The business incurs significant overheads. But quite clearly MCC traded for profit. These arrangements were all for the purposes of commercial gain.

43. Remarkably Fr. Latus never even had the slightest information either as to the identity of the donors, or the nature of their intentions. No identifying forms were ever forwarded to him. When this matter was put to Mr. McNally in cross-examination he replied that Fr. Latus “doesn’t need to” have this information, apparently on the basis that this information was unnecessary to the celebrant as a matter of canon law or Church teaching.

44. MCC’s Mass cards generally correspond in appearance to those sold in what are termed “religious shops” attached to Roman Catholic churches. To the reasonable consumer these “pre-signed” MCC cards are almost indistinguishable from some of those produced by religious orders.

45. However there are distinctions. One such difference is in presentation. The plaintiff’s cards contain clear statements in bold type to the effect that “the holy sacrifice of the Mass will be offered for the repose of the soul of … . (the named person)”. The fact that the celebrant (Fr. Latus) might offer one Mass, but only to include the intention of the person named, is printed in significantly smaller typeface on the same page. A casual purchaser or a recipient might very well miss the small print.

46. On the bottom of the back of a more recent range of cards, there is a statement that a personal stipend is sent to the Catholic priest celebrant each month. It says, (it might be said quite accurately), “our stipend is not dependent upon or related to the sale of our cards”.

47. At the back of one range of cards, MCC claimed, in conclusive terms, that “the Provenance and Governance as to the distribution of this document is fully compliant with Canon law and The Charities Act 2009 respectively” ( sic but with emphasis in italics added). This same card was also claimed to be in conformity with the MCC “Code of practice” previously referred to. The pre-printed “signature” on all these cards, printed to resemble a facsimile of handwriting, did not in fact resemble Fr. Latus’ own true signature.

48. It emerged as a result of cross-examination that since the month of July, 2009, Fr. Latus had been endeavouring to terminate the arrangement which he had with Mr. McNally and has now done so. In fairness it may well be that Mr. McNally was unaware of this fact until the time of this hearing in October 2009.

MCC’s previous signatory, Fr. Oscar Mkondana
49. Further information also emerged as to MCC’s arrangement between the years 2003 and 2007.

50. During this period MCC’s sole signatory was a Fr. Oskar Mkondana, said to be a priest in the diocese of Mangochi in Malawi. It transpired that, during that same four years, that priest had in fact been suspended from all faculties of the priesthood by the bishop of his diocese. Yet throughout this time the plaintiff contended that the priest had been entitled to say Mass privately.

51. Relevant correspondence was admitted in evidence. It showed that, on 5 th November 2003, Bishop Assolari of Mangochi diocese wrote to Mr. McNally saying that Fr. Mkondana was a “presbyter fugitivus”, that is, a priest who had abandoned both his parish and liturgical duties. In this correspondence, Bishop Assolari very severely criticised Mr. McNally for having deceived both himself, and perhaps Fr. Mkondana, about the Mass arrangements. The bishop indicated his total lack of approval for “this sacrilegious activity”. He condemned Mr. McNally for having “taken advantage of the simplicity and need of the local clergy in order to net them”. He requested Mr. McNally not to use the name of his diocese, the name of his priests, or even his own name to advertise Mr. McNally’s business which he typified as a “dirty activity”. Bishop Assolari died in 2005. His successors maintained the same position up to the end of 2007.

52. To support the claim as to Fr. Mkondana’s status at this time, Mr. McNally engaged in a “to and fro” correspondence with Fr. Grimes in the latter’s oversight role over the Roman Catholic mission authorities in Ireland. The plaintiff wrote back and forth to the church authorities in Malawi. He procured an opinion on canon law from a Fr. John Hadley of the diocese of Nottingham in England. This document contained just four paragraphs, three of which referred to the provisions of canon law as to the possible entitlement of a priest to say Mass, even when under suspension. The final paragraph of the opinion opined, narrowly, that a bishop might prohibit a priest from administering the sacraments without specifying that this prohibition included the private celebration of the sacrifice of the Mass. On a theoretical “strict” interpretation, such decree would not deprive the priest of a right privately to celebrate Mass in the absence of members of the faithful. But there was no reference to the facts or to the broad terms of Fr. Mkondana’s suspension.

53. It was unclear if any factual background material was provided to Fr. Hadley. That canon lawyer made no reference to any correspondence between Mr. McNally and the Roman Catholic authorities in Malawi who had repeatedly affirmed that Fr. Mkondana was under suspension from all faculties. Yet in the face of authoritative views to the contrary, Mr. McNally continued to assert that Fr. Mkondana was entitled as a matter of canon law to say Mass in private and thus sign MCC’s Mass cards. There was no indication that checks were carried out through the diocese in which Mr. McNally works.

54. His stance regarding Fr. Mkondana is also to be seen in the context of evidence in this case from a member of An Garda Síochána, Detective Sergeant James McCarthy. He testified that in 2003 he had been asked to investigate the issue of bogus Mass cards. He interviewed Mr. McNally then. The investigation concerned not only MCC’s activities but other businesses. The detective indicated that in September 2003 he received a letter from the plaintiff outlining details of his business. Mr. McNally there refuted public statements which had been made questioning Fr. Mkondana’s clerical status.

55. Fr. Mkondana travelled to Ireland in 2003. He went to Longford Garda Station with the plaintiff. He showed Detective Sergeant McCarthy a valid Malawian passport. The Detective Sergeant took a written statement from him, but was not made aware that the priest had been suspended in his diocese. The Detective Sergeant testified that Fr. Mkondana merely told him he had encountered “difficulties with other priests in the parish” and had resigned the previous February. He told the detective he was still a priest, and still signing Mass cards. MCC issued press releases then and subsequently, seeking to refute what it claimed were “false” allegations which had been made against the authenticity of MCC cards and Fr. Mkondana’s status.

56. None of this evidence was seriously contested. There is no indication that Mr. McNally stepped in to correct any false or misleading impression which the priest’s statement might have created.

57. The detective subsequently furnished a file to the Director of Public Prosecutions. In response, he received a communication on 26 th May, 2004. The director’s officer dealing with the matter said that a prosecution for any offence would present significant evidential difficulties, particularly in establishing that Masses had or had not been said by the named priest, and also with regard to the status of that priest.

58. The full relevance of these concerns is now more evident in the light of what emerged in this hearing.

Consideration of the evidence
59. I make the following findings under a number of headings:

The nature of the evidential problems in a prosecution
60. This is a secular issue of public order albeit having a religious aspect. Bogus and unverifiable Mass cards have been on general sale to consumers. This is not disputed at all. To seek to prosecute an offender under common law or any statute for an alleged offence other that under s. 99 of the 2009 Act might clearly present insuperable difficulties as to onus and standard of proof and the availability of positive, and perhaps negative evidence. Fr. Grimes testified that there are approximately 250,000 priests in the world. There was no evidence as to any additional internal measure within the Roman Catholic Church itself (other than those identified) to address the manner in which the members of that faith could be misled. No civil law remedy was identified that would eliminate the “mischief”. No mode of authentication or certification for the protection of consumers has been suggested, other than an “arrangement” between a priest and a bishop or provincial. Self-evidently, on the material identified the simple presence of a priest’s “signature” is no assurance of authenticity or verification.

The potential for consumers to be misled or deceived
61. A central issue at stake here is whether consumers are potentially being misled as a result of activities such as those described.

62. The entire configuration of MCC’s Mass cards, the assurances as to “authenticity”; the references to “verification” and to the nature of the ostensible arrangements, were such as would lead a casual purchaser into believing that they were buying authentic Roman Catholic Mass cards which accorded with the precepts of that faith. The plaintiff maintained at all stages that his conduct was in accordance with canon law. This case was made both in his own pleadings, in his testimony, and by cross-examination of Fr. Grimes. However, Mr. McNally produced no expert testimony that all or any arrangements which he set up were in accordance with canon law or Church teaching. The only authoritative evidence on these matters was that of Fr. Grimes. The Court may act on that evidence as a matter of fact. In fact the authoritative evidence was only one way. While the plaintiff gave evidence as to his compliance with canon law, he is in no way qualified to do so by any expertise in the area. It follows that I accept Fr. Grime’s evidence in its entirety.

63. For the purpose of addressing issues of proportionality it is necessary only to find that there was ample material to show that certain of the activities of MCC and other businesses could mislead ordinary Roman Catholic consumers or purchasers as to the “authenticity” of their Mass cards and their compliance with canon Law and other Roman Catholic teaching. I specifically refrain from making any finding as to the plaintiff’s compliance or otherwise with the terms of s. 99 of the Act of 2009. That is not the purpose of this case which is to consider the lawfulness and constitutionality of the impugned section.

Constitutional issues
64. Article 44 of the Constitution deals with the issue of religion. It guarantees freedom of conscience and the free practice of religion (Art. 44.2.1°). It prohibits any disabilities or the making of any discrimination on the grounds of religious profession belief or status (Art. 44.2.3°). The plaintiff’s own religious beliefs did not arise in evidence at all. It was not contended that the practice of his faith or the faith of anyone else would be affected by the provisions of s. 99 of the 2009 Act.

65. The second plaintiff’s case, as pleaded, might have been based on freedom of religious practice. It apparently was to have been based on the proposition that she purchased the cards “in the conviction and belief that the provision of such cards would bring solace and spiritual comfort to the recipient”. In an affidavit sworn for the purposes of an interlocutory injunction she deposed that irrespective of whether MCC’s cards accorded with the precepts of the Roman Catholic Church or not, the cards provided solace and spiritual comfort to the recipients. I refrain from any comment only because these matters were not put in issue in the plenary proceedings.

The assertion of “equivalence”
66. I would also comment that, at the heart of the plaintiff’s case, lay an endeavour to assert a doctrinal or theological “equivalence” between the status of his arrangements and those made by certain Roman Catholic religious orders or societies in the sale of their pre-signed Mass cards for collective intentions. The assertion was advanced in his own evidence and on cross-examination of Fr. Grimes. It was made in the absence of any evidence of any misconduct on the part of these Roman Catholic religious societies in relation to the sale of pre-signed Mass cards. The claim based on “moral equivalence” is in any case simply non-justiciable.

Accordance with church law
67. The plaintiff’s own evidence as to Roman Catholic Church law was, to put it charitably, tendentious. His business arrangements plainly do not accord with canon law. He is engaged in a business of selling Mass offerings for profit, an activity specifically prohibited under canon law. His activities are neither charitable nor religious. The entire set of “arrangements” which he made do not accord with canon law or the decree of 1991. Ordinary consumers could well be misled by the configuration or “set-up” of the Mass cards into thinking what they were buying at a reduced price was an authentic “traditional” Mass card.

68. These general findings under this subheading and no more are what is necessary to identify the type of issues addressed in the legislation.

69. What is remarkable is that the plaintiff personally saw fit to actively pursue these claims of “authenticity” and “equivalence”. He implicitly invited the Court to draw inferences and make conclusions on these matters. Not only are his claims ill-founded. They were non-justiciable. Even if these points were justiciable they ran counter to the entire basis of the constitutional claim made later to the effect that the section offends against what is termed in United States constitutional law a “wall of separation” between Church and State. The paradox is remarkable and unresolved.

The plaintiff’s claims in law
70. It is necessary now to address the various headings of the plaintiff’s claim, in the light of the evidence and findings. These are: a) the case in competition law; b) the “product” claim; c) the constitutional challenges.

a) The case in competition law
71. The first claim advanced was under EC Competition law. It was contended that the section impugned was in breach of articles 81, 82 and 86 of the EC Treaty as then enumerated. There was no substantive evidence under this heading. None of the issues normally engaged in competition law challenge arose: no “market” was defined, no “distortion of competition” identified. It was not suggested that s. 99 would have an “effect on trade between Member States”: that there had been an “abuse of dominant position” by one or more undertakings; or that the section gave to any “undertaking” any “special or exclusive rights”. For these reasons the claims under Article 81, 82 and 86 will be dismissed.

b) EC Regulations 98/34 and 98/48 – the “product” claim
72. What may best be termed the “product claim” is a little more complex. It is based on the proposition that a Mass card falls within the definition of an “industrially manufactured product”, which classification is now governed by two associated Directives, that of 98/34/EC of 22 nd June, 1998; and an amending Directive, 98/48/EC of 20 th July, 1998. But it is necessary at all times to have regard to the statutory definition of a Mass card. As a result of the actions of the consumer it is adapted on each occasion to identify the intention. It is not a standardised product at all. Without the intention being identified by the consumer it is not a “Mass card” at all.

73. The purpose of the two Directives is to lay down procedures for the provision of information in the field of technical standards and regulations and rules for products for “Information Society” services.

74. The plaintiff says that a “Mass card” is an “industrially manufactured product”, in that it is produced on a mass basis by a printer. He asserts that as a matter of E.C. law, Member States are under an obligation to communicate to the Commission any draft technical regulation having the effect of changing a specification of such product, except where such regulation in fact transposes the full text of an international or European standard. In the latter case, mere information regarding the relevant standard would suffice. It is true there has been no evidence of communication to the Commission. The question is whether it was necessary at all.

75. For the reason identified earlier I reject the assertion that a Mass card as defined in the statute could be classified as an industrially manufactured product. It is the “input” of the consumer or vendor that constitutes or adapts the card so as to render it a “Mass card”. Furthermore, the section does not lay down a specification for Mass cards but for those who sell them.

76. The issue here is whether these directives could ever be applicable to s. 99 of the Act of 2009 which renders it an offence to sell Mass cards absent an arrangement. The section focuses on the seller of Mass cards. At the very outset the plaintiff poses the problem that this argument is based on an effort to “shoe horn” the issue into an area of definition where the legislative purpose of the directives is entirely different. The directives deal generally with product specification – the thing sold, and not the person selling it. It must be remembered that the E.C. provisions deal with industrially manufactured products. What is in issue here is a card which becomes a “Mass card” because of the actions of the consumer or vendor specifying an intention. This has nothing to do with “industrial production”.

77. By virtue of the two Directives taken together, it is said the term “product” is to be understood as “any industrially manufactured product and any agricultural product including fish products” (article 1 (1)) of 98/34.

78. A “technical specification” is broadly defined as a:

“Specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures. The term ‘technical specification’ also covers production methods and processes used in respect of ‘agricultural products or products intended for human and animal consumption or medicinal products’. The term ‘other requirements’ is defined as a requirement ‘other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, re-use or disposal where such conditions can significantly influence the composition or nature of the product or its marketing.” (article 1 (3)). (Emphasis added).

What is in question here can be seen broadly as changes in quality assurance measures – but of industrial products not Mass cards as defined.

79. Similar observations apply to other definitions relied on. Under article 9 “technical regulation” is defined as being understood as “technical specifications and other requirements including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States except those provided for in article 10 prohibiting the manufacture, importation, marketing or use of a product. The definition relates to the product only.

80. De facto technical regulations are said to include:

“Laws, regulations or administrative provisions of a Member State which refer either to technical specifications or other requirements or to professional codes or codes of practice which in turn refer to technical specifications or other requirements and compliance with which confers a presumption of conformity with the obligations imposed by the aforementioned laws, regulations or administrative provisions.” (Emphasis added).

Under article 2 (1), it is provided that the Commission and Standardisation bodies referred to at Annexes 1 and 2 shall be informed of the new subjects for which the national bodies referred to in Annex 2 have decided, by including them in their standards programme, to prepare or amend a standard unless it is an identical or equivalent transposition of an international or European standard. The two national standardisation bodies identified in Annex 2 are the National Standards Authority of Ireland and the Electro-Technical Council of Ireland. One can hardly see such bodies being involved in who may lawfully sell Mass cards.

81. Counsel for the plaintiff, relied on two decisions of the Court of Justice concerning the earlier version of the two 1998 Directives, that is Directive 83/189/EEC, which laid down a procedure for the provision of information in the field of technical standards and regulations.

82. The first of these decisions is that of C-317/92 Commission of the European Communities v. Federal Republic of Germany-Medicinal Products and Medical Instruments ECR [1994] I – 02039. ( “Germany”).

83. In that case the Federal Republic introduced a new administrative practice which limited to two years the expiry dates which might be indicated on the packaging of medicinal products and non-reusable sterile medical instruments. The effect of the administrative practice was to de-limit the “selling period” of such products or instruments to a two year time span. This stipulation was held to come within the definition of a technical regulation in article 1.5 of the then applicable Directive. The Court observed (at para. 25):

“The German Regulation in question constitutes a new technical specification within the meaning of Article 1 since non-usable sterile medical instruments may henceforth be marketed or used in Germany only if certain obligations are fulfilled the application of which was formerly confined to the labelling of medicinal products. The application, to given products, of a rule which previously only affected other products, constitutes, with regard to the former, a new regulation and must therefore be notified in accordance with the directive.”

84. The second decision is C-52/93 Commission v. Kingdom of the Netherlands-Failure of Member States to fulfil obligations [1994] ECR I – 103591 ( “Netherlands”); concerned an amendment to administrative rules and the quality standards for flower bulbs introduced by the government of the Netherlands. Before the Court of Justice the Dutch authorities conceded the regulation to be a “technical regulation” and therefore accepted there had been a failure of notification.

85. I am not persuaded that the Directives or these decisions are in any way relevant.

86. In my view the provisions of s. 99 are quite distinct in range from those measures held to be governed by the Directives. The points of distinction are fundamental. To reiterate what is in question in the Directives and in the two decided authorities made is an industrial alteration in the specification of an industrial product, something standardised. Section 99 does not do this.

87. Per contra Germany, there is no de-limitation on the marketing life-cycle of the product. Section 99 is not a technical regulation governing the marketing of Mass cards but those who may market them. There is no alteration as to any labelling, packaging or the condition in which the product is marketed to the public. Instead the section identified who may be a lawful seller of the card. The true question under s. 99 therefore is who may lawfully sell and who may not.

88. One further observation applies in relation to the “Germany case”. Although s. 99 can be seen as a consumer protection measure, as explained earlier there is no effect on the life cycle of the product after it is placed on the market. Rather the effect of the section pre-dates market placement. The Mass cards, the “product” here remains the same: the market is unaltered.

89. The Directives identify what can occur to a particular industrial product after it has been placed on the market. Section 99 does not affect “the product” itself but who may sell it, – and only when it is adapted or modified individually by the consumer or vendor.

90. In Netherlands there was an alteration in the quality standards for flower bulbs. But, there is no alteration in a Mass card pre, or post, the enactment of s. 99 of the Act of 2009.

91. The inapplicability of these Directives is further illustrated also by the provisions of article 1 (3), outlining a “technical specification”, (defined earlier), as being a document which lays down the characteristics required of a product, such as levels of quality, performance, safety or dimensions. None of this is applicable in the case of pre-signed Mass cards. Article 1 (3) also includes requirements applicable to the product as regards “the name under which the product is sold, terminology, symbols, testing and test methods, packing and marketing or label and conformity assessment procedures”. None of these tests or classifications could conceivably arise under the section, applying a purposive interpretation.

92. A simple illustration illuminates the fundamental flaw in the submission.

93. It is common case that pre-signed Mass cards are sold not only by commercial distributors but by religious orders. Were the plaintiff’s submission correct, both categories would be captured by the Directive, despite the fact that under s. 99 one Mass card might be lawful and the other not. Yet in each case the “product” itself would remain unaltered.

94. These points all illustrate that what is in question here is a form of licensing of a seller (See case C-267/03 Lindberg [2005] ECR 1-3247, which concerned a Swedish law which restricted the use of a certain type of gaming machine. While s. 99 identifies for the protection of consumers; it imposes a pre-condition. It does not affect the pre-qualification product itself.

95. At para. 59 of Lindberg the Court of Justice observed in relation to a licensing arrangement:

“Such a measure is therefore intended to regulate the activity of undertakings operating in the area of providing services in connection with gaming machines. Thus the Court has held that national provisions which merely lay down conditions governing the establishment of undertakings, such as provisions making the exercise of an activity subject to prior authorisation, do not constitute technical specifications. (See, to that effect, case C-194/94 CIA Security International [1996] ECR I-2201, para.25).” (Emphasis added)

The distinction made is to my mind conclusive.

96. A “prior authorisation” requirement of an “activity”, such as that involved in s. 99 is not to be viewed as a technical specification. Selling Mass cards is not a specification – it is an activity.

97. In Lindberg the court identified a critical test as being whether the scope of the prohibition at issue leaves room for any use which can reasonably be expected of the product concerned other than a purely marginal one. Section 99 does not come within this test for the same reason. It is a prior authorisation regime which relates not to the specification of the product but to the authorisation of the seller. The section does not prohibit or affect manufacture, importation marketing or use.

98. At risk of repetition, even if Mr. McNally were prohibited from selling a card pre-signed by Fr. Latus this would not mean that another seller could not lawfully sell that same card provided an arrangement was in place. Thus the card could still have a use which might reasonably be expected of it. To conclude I think the “produce claim” relies on a series of strained definitions, is inapt, and applies the wrong test in the wrong circumstance. I must reject it.

c) The constitutional challenge
99. It remains then to deal with the third, and by far the most substantive aspect of the plaintiff’s case, that is the constitutional challenge. The main emphasis here lay in the attack on s. 99 made relying on Article 44 of the Constitution. It is appropriate to deal with that first among the constitutional issues. Thereafter the judgment deals with questions raised under Article 38, and finally briefly those under Article 40.

100. By of preface it should be said at the outset that the section enjoys the presumption of constitutionality. The onus of proving otherwise lies on the plaintiff. If the provision is open to differing constructions, the Court must giver preference to the construction which is in accordance with the Constitution.

I. The challenge under article 44 of the Constitution
101. The Article 44 submission is elegant in conception. For the plaintiff, Mr. Gerard Hogan, S.C., suggests that s. 99 interferes with the plaintiff’s free profession and practice of religion as guaranteed in Article 44.2.1. He submits that the impugned provision interferes with the prohibition on discrimination on the grounds of religious profession or belief or status under Article 44.2.3; and that, in effect the provision creates what is termed a “quasi-establishment” of the Roman Catholic Church contrary to Article 44.2.3.

102. The argument relies very heavily on the assertion that the provisions of the Constitution relating to freedom of conscience and the free profession and practice of religion (Art. 44.2.1°); and Article 44.2.3° closely reflect the provisions of the First Amendment of the United States Constitution which prevents Congress from making any law respecting an “establishment of religion; (the Establishment clause proper) or prohibiting the free exercise thereof (the “free practice clause”). In this judgment the focus will be on the former. In view of this heavy reliance the judgment deals with United States law in greater detail than might otherwise be warranted.

103. Article 44 of the Constitution of Ireland is headed “Religion”. It provides then:

2 “1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2. 1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

3 2° The State guarantees not to endow any religion.

4 3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

5 4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor 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.

6 5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes… .”

104. The question the Court must determine is whether an analogy can truly be drawn between the provisions of what is termed the “Establishment Clause” of the United States Constitution and, what Counsel termed the “secular” provisions of Article 44, referring there to Article 44.2.1 and those of Article 44.2.3. The Court must decide whether these authorities are persuasive on the question.

105. It would do scant justice were the judgment to simply apply or disapply these authorities without reasons. However for both counsel and judge, submissions and observations as to foreign law should be approached with an appropriate level of diffidence and care, especially so in light of the complexity of U.S. authorities in this area. A Court must be fully apprised as to context and place which a cited foreign authority holds in its own jurisprudence by reference to texts or other decided cases. Insofar as passages are cited here from United States decisions, the objective is not to express any view on the substantive issues considered, but rather to seek to identify the extent to which statements of law, relied on in this case, can be taken as representative, well established and identifying a consensus view.

106. The citation of such authorities cannot be dispositive. Our Constitution can only be interpreted in accordance with the understandings of those who enacted it, that is the people of Ireland. Foreign authority cannot take precedence over national – the contrary is true. Reference to foreign case law (no matter how eminent the provenance) must have due regard to the institutional and contextual distinctions which exist between all states. I turn now to the Establishment clause jurisprudence.

The Establishment Clause and free practice of religion
107. The First Amendment provides:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

108. Thomas Jefferson was not in fact the author of the first clause of this provision, although he famously referred to it in an 1802 letter as creating “a wall of separation” between church and State. It ultimately led to the striking down of Federal and later State laws perceived to sanction any State aid to religion or the “establishment” of any one church. The clause has been sometimes portrayed as a symbol of the eighteenth century Enlightenment, as seen by the framers of the Constitution of the United States. It reflected a powerful Erastian current of belief in some of the post-Reformation churches which regarded any state aid to religion as repugnant to the nature of Christianity. (See Keane J. in The Campaign to Separate Church and State in Ireland v. The Minister for Education and Others [1998] 3 I.R. 321.

109. The First Amendment, and the United States Constitution as a whole, has on occasion been referred to as being “agnostic” in the sense that its Preamble and text makes no mention of a deity, still less any religious denomination. By way of contrast to the Constitution of Ireland, there is no mention of any religious denomination or a deity in any part of the United States founding document. The oath and affirmation of the President of the United States on assuming office contains no reference to a deity. The religious prohibition on State recognition of any or all established religion and any identified denomination of religion is said to extend throughout that historic document. Whether it required religious neutrality is a matter of some debate (see opinion of Rehnquist J. in Wallace v. Jaffree [1985] 472 U.S. 38.

110. The intent of the Clause was to distinguish the constitutional position of religion in the infant Federal state from that which had existed in the nations of old Europe where Church, State, and ruler were closely interconnected, and occasionally still are.

111. But the issues posed for the United States Federal Courts in reconciling a strict construction of the Clause on the one hand, with, on the other, the major part played by religion in life in the United States have been vividly illustrated in the many decisions wherein the clause has had to be interpreted and applied, replete as they often are with vigorously argued dissents. Even the meaning of the Jeffersonian term “wall of separation” has, presented challenges both with regard to the identification and categorisation of “religion”, and in the light of the broad permeation of religion in the United States.

112. By way of illustration, in a dissenting opinion in Wallace v. Jaffree Renhquist J. referred to the phrase as a “misleading metaphor”. He pointed out that the phrase was coined in a letter fourteen years after the First Amendment passed through Congress, and that Jefferson was in France at the time the amendment was adopted. Rehnquist J. observed:

“He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clause of the first Amendment.”

113. The historicist debate as to interpretation continued (see Lee v. Weissman 505 U.S. 1992, Souter J.; Rosenberger v. Rectors and Visitors of the University of Virginia 515 U.S. 19 (1995), Thomas and Souter JJ. dissenting; by way of contrast the more purposive in Abington School District v. Schempp 374 U.S. 203 (1963), Brennan J.. There is a vast range of academic literature describing schools of interpretation labelled with identifying names such as “neutralism”, “non-coercion”, “voluntarism” and “pluralism”, all applied to the clause.

114. Our jurisprudence has been enriched by the citation, where appropriate, of United States precedents of persuasive authority. (In the context of Article 44, see Quinn Supermarket v. Attorney General [1972] 1 I.R. where Walsh J. makes numerous references to United States authorities illustrative of the term “discrimination” in the context of freedom of exercise of religion). But a court considering foreign authority is entitled to enquire whether the decision is in fact “authoritative” in representing well settled law. In law context is all important. A United States authority, even if representing well settled law on a fundamental issue such as the constitutional separation of church and state may be of persuasive force and assistance only where the relevant provisions of the constitutions of the two states are akin textually and in their application in established jurisprudence. If the tests applied in the application of the First Amendment actually run counter to the provisions of the Constitution of Ireland, then clearly such decisions cannot assist an Irish Court. One must start from the fundamental premise that it is the task of judges in Ireland who make the declaration of office under the Constitution to uphold and apply the provisions of that Constitution of 1937 and no other one. This case cannot concern an “issue” of whether s. 99 of the Act of 2009 runs counter to the terms of the First Amendment clause. The task which the plaintiff takes on therefore, must be to establish that any jurisprudence sought to be “transplanted” is not to be “rejected” at the outset because it is in its terms inimical to what was enacted by the people of Ireland and the manner in which these have been interpreted.

115. In Curtin v. Dáil Éireann [2006] 2 I.R. 556 at p. 623 Murray C.J. speaking for the Supreme Court referred to decisions of the United States Supreme Court having:

“… persuasive value only to the extent that they relate to the interpretation of analogous provisions of our Constitution and are consistent with the approach of our courts to issues of interpretation.”

In The People (Director of Public Prosecutions) v. Kelly [2006] 3 I.R. 115 at 141, Fennelly J. remarked on the need to be careful that the constitutional provisions are “sufficiently comparable”.

The United States citations
116. Three U.S. Federal authorities are very specifically relied on: Larkin v. Grendel’s Den Inc., 459 U.S. 116 (1982); a decision of the United States Supreme Court; and Barghout v. Bureau of Kosher Meat 66 F.3 rd 1337 (4 th Cir. 1995); and Commack Self-Service Kosher Meats, Inc. v. Weiss 294 F. 3 rd 415 (2 nd Cir. 2002).

117. All were “Establishment clause” cases. They related to the issues of the actual or symbolic recognition of religious beliefs, and what is termed Federal “entanglement” in religious matters. Each of these applies the tri-fold test as to establishment first outlined in the case of Lemon v. Kurtzman, ( 403 U.S. 602 (1971)).

Lemon v. Kurtzman
118. In Lemon the Supreme Court of the United States held that the government violated the establishment clause of the United States Constitution: (i) if it acted for a non-secular motive – a statute must have a secular purpose; (ii) if its actions produced non-secular primary effects – the primary effect must neither advance nor inhibit religion, or (iii) if its actions would produce excessive government entanglement with religion.

Larkin and Barghout
119. For comparison here it will be sufficient to take the first two cases, Larkin and Barghout.

120. Larkin was a case where a Massachusetts statute vested in the governing bodies of schools and churches the power to prevent the issuing of liquor licenses for premises within a 500 foot radius of a church or school by objecting to the license applications. The defendant, the operator of a restaurant in Cambridge, Massachusetts challenged the decision of a church to object to such a licence, that church being situated close to the restaurant. The Massachusetts statute was found to be unconstitutional by the Supreme Court of the United States. Burger C.J. relied explicitly on the Lemon criteria, as the test to be applied

121. Barghout concerned a Baltimore ordinance rendering it a misdemeanour to, with “intent to defraud”, offer for sale any food labelled as Kosher or indicating a compliance with “orthodox Hebrew religious rules or requirements” and/or “dietary laws” when the food did not in fact comply with such laws. The ordinance provided that persons dealing with kosher meat were obliged to adhere to, and abide by the orthodox Hebrew religious rules and regulations and dietary laws or, otherwise be guilty of an offence. The impugned ordinance created a Bureau of Kosher Meat and Food Control comprising of six members, being duly ordained orthodox rabbis and three laymen selected from a list submitted from the Council of Orthodox Rabbis of Baltimore.

122. Relying on Larkin the Federal Appeals Court impugned the statute as creating an excessive entanglement of religious and secular affairs. Applying the first leg of the Lemon test, the Federal Court accepted that the purpose of the legislation was primarily to protect consumers from fraud in the sale of kosher food and thus satisfied that part of the test. However it held that the Maryland statute fell foul of the other aspects of the test identified in Lemon and also applied in Larkin.

123. Were one to engage in a free-standing exercise it is true that there are some factual resonances between Barghout and the instant case. In Barghout the issue to be determined was, in a sense, “delegated” to the Bureau of Kosher Meats and Food Control. In fact, even on its own terms, the extent of the control in Barghout was far more wide-ranging than a s. 99 “arrangement”. The Bureau was to report violators. It had an investigatory role. The inspector retained by the Bureau had the power of writing up violation warnings. The degree of engagement between religion and State therefore was significantly deeper in that case than arises in the case of section 99. The issues in Commack are similar and require no further analysis.

124. But this would be to engage in an otiose analysis. The task here is not to assess whether s. 99 is “compatible” with the Establishment clause, but with the Constitution of Ireland.

Consideration
125. A consideration of United States texts on constitutional law indicates that the Lemon test has been sharply criticised over the last three decades. Several justices of the United States Supreme Court have called for its express repudiation. In other cases it has been suggested that quite a different test should be applied ( see Lynch v. Donnelly 465 U.S. 668 [1984]; County of Allegheny v. ACLU 492 U.S. 573 [1989].

126. The case has been criticised by being vague, subjective and setting a “standardless” test. It has been criticised in one text on the grounds that:

2 “(1) the ‘purpose’ requirements taken literally would invalidate all deliberate government accommodation of religion even though such accommodation is sometimes required under the free exercise clause …

(2) the legislative purpose is difficult to identify in a multi-member body, and

(3) the ‘entanglement’ prong contradicts the previous two-some administrative ‘entanglement’ is essential to ensure that government does not excessively promote religious purposes.

Faced with these criticisms the Court has not formally renounced the Lemon test, “but has relied on it less and less in recent cases …” Sullivan and Gunter, Constitutional Law, 15 th Ed., (Foundation Press, New York, 2004, pp. 1546-1547). The criticism of the Lemon tests has not come from one scholarly source. The judicial reservations do not come from one single source either. Even accepting that his voice does not always reflect the consensus view of the Supreme Court of the United States, it is impossible to resist quoting Justice Scalia’s reference to the survival of the Lemon test as resembling:

“a ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again; frightening little children” …( Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). (See Constitutional Law, 4 th Ed.,

Stone Seidman Sunstein Tushnet, Aspen Publishers Inc. 2001, p. 1426) American scholars who do not subscribe at all to the doctrines of constitutional “textualism” or originalism acknowledge that the intermittent use of the test in Lemon has, as Justice Scalia described it illustrated:

“The strange Establishment Clause geometry of crooked lines and wavering shapes.”

Scalia J. there referred to a number of decisions of the Court when he considered the “Lemon” test had been avoided or undermined, and to opinions of six of the then members of the court which tended to repudiate the tests in ten other decisions of that court.

127. The quotations are not simply the colourful expression of a single view on this question. They illustrate a view widely held, if not by a majority of that court. At the very minimum the application or non-application of Lemon has given rise to a rather fluid and uncertain jurisprudence. I think this goes very much to the weight to be given to the United States authorities, relied on here.

Distinguishing features
128. But the issues of distinction are much more profound. I now consider (i) the differing mode of expression of freedom of religious practice as identified in decided Irish case law; (ii) the issue of non-establishment of any religion; (iii) the contrasting provisions as to the recognition of religious denominations and the Article 44 jurisprudence; (iv) the value of freedom of religious practice under Article 44.

(i) Differing modes of expression as to freedom of religion
129. The constitutional provisions of the two states as to religion, while sharing some common concepts such as the value of freedom of religious practice, differ in significant ways as to the modes of achievement of these legal objectives.

130. The associated question of religious endowment under Article 44.2.2° arose in Campaign to Separate Church and State v. Minister for Education [1998] 2 I.L.R.M. 81. There a point was reached where the Supreme Court held the explicit terms of Article 44 itself and its application in our jurisprudence differed to such a degree that United States authority on endowment was found to be of no assistance. While Church and State concerned, in particular, the Article 44.2.2 prohibition on “endowment” of religion, Keane J. extensively considered the question of “establishment” under the Irish and U.S. Constitutions. He observed at p. 361:

“… While there is no express provision in the Constitution prohibiting the establishment in that sense of a church by law, it is obvious that any such law will be impossible to reconcile with the prohibition of religious discrimination in Article 44.2.3.”

But then he added:

In contrast, the First Amendment to the Constitution of the United States of America expressly prohibits Congress making any law “respecting an establishment of religion …”

Having commented on the tension between freedom of practice and the separation of Church and State that judge concluded:

” The provisions of our Constitution are however so markedly different, that as Costello P. found these authorities are not of assistance in the construction of Article 44.2.2 of the Constitution.”

131. It will be noted that the term “provisions” was used in the plural. Keane J. was clearly referring to the entire framework of Article 44, from which Article 44.2.2 could neither be divorced nor isolated. This important and authoritative observation cannot be simply ignored or glossed over. At the minimum therefore one can conclude the provisions are “markedly different”: but the distinction goes further.

(ii) The issue of “non-establishment” of any religion
132. An underlying tenet of the United States jurisprudence in the application of the “wall of separation” jurisprudence is the prohibition not only in actual preference of one religious denomination to any other, but even the appearance of symbolic State support for any religion or denomination of religion. It is true that the drafters of the Constitution of Ireland specifically rejected a proposal that there should be an established religion. (See the judgment of Barrington J. in Campaign to Separate Church and State and the discussion therein of a proposed draft, specifically intended to bring about true establishment of the Roman Catholic Church. (See also Keogh and McCarthy, The Making of the Irish Constitution Mercier Press, 2007, Ch. 6). But this does not ipso facto render the constitutional provisions or the jurisprudence “analogous”. The absence of denominational “establishment” in the Irish Constitution does not mean it is devoid of support for denominational religion as will be explained.

133. United States Constitutional jurisprudence frequently concerns either statutes or even displays implying a symbolic state recognition of religion such as Christmas cribs in city property ( Lynch v. Donnelly). This is in contrast with the Constitution of Ireland preamble, where Article 6, and the specific terms of Article 44 acknowledge a monotheistic Christian ethos later considered in Corway v. Independent Newspapers (Ireland) Ltd. [1999] 4 I.R. 484.

(iii) Contrasting provisions as to recognition of religious denominations, and Article 44 jurisprudence.
134. Article 44 in its original form sought to reflect both eighteenth-century United Irish ideals of uniting Protestant, Catholic, and Dissenter, and also the close nineteenth century relationship which evolved between Irish nationalism and Roman Catholicism. (See: Enda McDonagh Philosophical-Theological Reflections on the Constitution; Frank Litton The Constitution of Ireland 1937-1987 (Institute of Public Administration, 1988)). Explicit constitutional recognition of certain specified denominations of faith extant in the State in 1937 was removed by the Fifth Amendment to the Constitution in 1972. But this deletion did not remove the recognition of the subsisting concept of religious denominations from the Constitution. That recognition can be found in Article 44.2.4, which prohibits discrimination between schools under the management of different religious denominations; Article 44.2.5 which vests in every religious denomination the “right to manage its own affairs…”; and the terms of Article 44.2.6 which provide that the property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility.

135. Thus where the terms of the Establishment Clause are neutral, or “blind” as to religion, the Constitution of Ireland actively recognises the existence of diverse religious denominations and guarantees them certain rights. It might be said that in United States jurisprudence there is a wall of separation; under the Constitution of Ireland there is a constitutional “domain” of religious recognition. The distinction between the two constitutional regimes; as will be seen, leads to fundamentally distinct conclusions in the context of Article 44.2.5 explained below.

136. Article 44.2.1 and Article 44.2.3 taken together, guarantee freedom of conscience, and profession and practice in religion albeit subject to public order and morality, and also prohibit disabilities or discrimination on the grounds of religious belief or status. As counsel for the defendants Mr. Donal O’Donnell, S.C., pointed out, both these provisions must be seen within the context of the terms of Article 44.1. As identified by Walsh J. in Quinn’s Supermarket, Article 44.1 contains what are acknowledgments of the monotheistic, Christian, pluralist nature of a State, which, nonetheless recognises rights which inhere in many denominations and also in those citizens who belong to no denomination.

137. The First Amendment to the United States Constitution is distinct in this regard. No recognition is given there to any faith or denomination. The State and its institutions are to refrain from any “entanglement” which would amount to the recognition that religious denominations enjoy a constitutional status.

138. The extent of religious recognition under the Constitution of Ireland has been further explained by Barrington J. who commented in Corway v. Independent Newspapers (Ireland) Ltd. [1999] 4 I.R. 484 that:

“the tenet of any one religion do not enjoy greater protection than those of any other….”.

139. In Corway Barrington J., speaking for the Supreme Court, specifically pointed out that the provisions of Article 44 as well as being interpreted harmoniously within the terms of that Article, may also be seen through the prism of the Article 40.1 guarantee of equality before the law to all citizens as human persons. He expressed himself in this way:

“The effect of these various guarantees is that the State acknowledges that the homage of public worship is due to Almighty God. It promises to hold his name in reverence and to respect and honour religion. At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, Agnostics or Atheists. But article 44 goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality.”

140. A further and even more conclusive point of distinction lies in the consequences which flow from United States jurisprudence designed to avoid any state “entanglement”, (that is to say any engagement by the State in religious matters), or, conduct by the State which might even symbolically constitute official acknowledgment or endorsement of religious values. The core rationale has been identified as being to prevent “a fusion of governmental and religious functions” ( Abington School District v. Schempp 374 U.S. 203 (1963)).

141. For the purposes of this case however, a critical distinction which separates the Establishment Clause and our Constitution is best illustrated by the terms of Article 44.2.5, and by the manner in which Henchy J. relied on that sub-Article in McGrath and Ó Ruairc v. Trustees of the College of Maynooth, [1979] I.L.R.M. 166, where it was contended that the statutes of Maynooth College discriminated between priests and laypersons on the college staff, imposing greater obligations on the former. It was claimed that these statutes offended against the Article 44.2.3 guarantee of no discrimination on the grounds of religious profession belief or status. Henchy J. found the Article as a whole was to be interpreted in terms of its constitutional purpose that is to support religion; if necessary by actually recognising or “buttressing” autonomous denominational rights, Henchy J. expressed himself in this way:

“Article 44.2.3 must be construed in terms of its purpose. In prescribing disabilities and discriminations at the hands of the State on the ground of religious profession, belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to sapping and debilitation of the freedom and independence given by the constitution to the doctrinal and organisational requirement and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discriminations do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so, the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.” (Emphasis added.)

142. The passage resonates with Hamilton C.J.’s observation in Re Article 26 and Employment Equality Bill 1996 [1997] 2 I.R. 321 where the Supreme Court found assistance in United States authority on the issue of religious discrimination in the context of such discrimination in the context of employment. ( Corporation of Presiding Bishops v. Amos 483 U.S. 327). But the Supreme Court went on to observe that it was constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status, insofar, but only insofar as this may be necessary to give life and reality to the guarantee of free profession and practice of religion contained in the Constitution (at p. 358). The resonance with McGrath is plainly discernible in the reference to the extent of the constitutional guarantee to give vitality, independence and freedom to religion. But taken together the two emphasised quotations demonstrate that in our jurisprudence there may arise circumstances which are by no means analogous, but may run entirely counter to the idea of State avoidance of any “entanglement”. The expression of priorities in Article 44.2.5 finds no reflection in the ideas of Paine, Jefferson or Madison. Subject to the proviso identified by Hamilton C.J., the State may lend its weight to disability or discriminations which derive from within a denomination but only insofar as it is necessary to give life and reality to the constitutional guarantee of freedom of religion. This support may be manifest even in recognition of religious distinctions or disabilities. Henchy J. added (at p. 187):

“Even if it be said that the statutes (of Maynooth) are, by recognition or support, an emanation of the State, the distinctions drawn in them between priest and layman, in terms of disabilities or discriminations, are no part of what is prohibited by article 44.2.3. They represent no prejudicial State intrusion where priest is advanced unjustifiably over layman, or vice versa as was the case in Molloy v. Minister for Education [1975] I.R. 88. On the contrary, they amount to an implementation of the guarantee that is to be found in subs. 5 of the same section that “every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, moveable and immovable and maintain institutions for religious or charitable purposes.”

143. The reference to Molloy v. The Minister for Education [1975] I.R. 88, is of some importance. Molloy established that, in order to implement or permit the free exercise of religion, the law may find it necessary to distinguish between ministers of religion, or other persons occupying a particular status on the one hand, and members of a particular denomination, or other members of the population as a whole, on the other. If the issue of religious distinction arises at all, such distinctions can apply here, but not in support of the plaintiff’s position but as McGrath shows, that of the defendants.

(iv) The acknowledgment of value of freedom of religious practice as a constitutional value under Article 44.
144. These authoritative identifications of the range and depth of recognition under our Constitution identifies yet further the distinction between Article 44 and the Establishment Clause. The provisions are distinct in their respective religious (and non-religious) provenances and application. The difference can be seen in the acknowledgment accorded to freedom of religious practice under Article 44.

145. In Quinn’s Supermarket v. The Attorney General [1972] 1 I.R., the plaintiff was stated to have acted in contravention of a ministerial order restricting the opening hours of butcher shops but kosher butcher shops were exempt from the prosecution. The plaintiff sought to have the order declared constitutionally invalid because it discriminated on religious grounds contrary to Article 44.2.3.

146. In the Supreme Court, this potential crux was resolved by reference to an assessment and analysis of the overall purpose of Article 44, identified as the guarantee of the free practice of religion. If a legislative distinction was necessary in order to achieve this end it would not be constitutional. But it would however be contrary to the spirit and intention of Article 44.2.3 to render its provisions a method restricting the free practice of religion.

147. Walsh J. put the matter this way:

“Our Constitution reflects a firm conviction that we are a religious people. The preamble to the Constitution acknowledges that we are a Christian people and article 44 (1)(1) acknowledges that the homage of public worship is due to Almighty God but does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith….”

148. The judge pointed out that on the facts in Quinn there existed a potential conflict between Article 44.2.1 (the guarantee of freedom of conscience and free profession and practice of religion), by contrast with Article 44.2.3 (the prohibition on the imposition of any disability or discrimination on the grounds of religious profession belief or status on the other. Having cited Article 44.1.1 as a starting point, he held that the effect of Article 44.2.3 necessitated that the State not be permitted to make any distinction between persons on the grounds of religious belief profession or status, be it either beneficial or detrimental. As the Ministerial order has the effect it was held to be prima facie unconstitutional. However as it did not make some allowance for the special circumstances of members of the Jewish faith, their religious freedom would be interfered with in contravention of Article 44.2.1. The conflict was resolved therefore by reference to the overall purpose of Article 44, that is the guarantee of free practice. A distinction for that purpose was held to be constitutional (See Brady Constitutional Law in Ireland, 3 rd Ed., Round Hall 2000 at pp. 692-693.)

149. It would be easier then to identify dissimilarities than any similarity with Larkin or Barghout, where the Lemon lines of demarcation would have prevented any detailed analysis of tenets of faith such as occurred in Quinn’s Supermarket, still less the invocation in Article 44.2.5 and reliance thereon in McGrath. The distinction between the quoted passages and the First Amendment jurisprudence requires no reiteration, or further explanation.

150. In summary therefore it is true that Article 44.2.1 guarantees freedom of conscience, profession and practice of religion but subject to public order and morality. Article 44.2.3 prohibits any disabilities or discrimination on the grounds of religious belief or status. But these provisions must be seen as being embedded within the overall constitutional framework of Article 44, informed by its pluralistic Christian values, but to be interpreted harmoniously inter alia by reference to the Article 44.2.5 guarantee of religious autonomy, which, far from eschewing internal disabilities and discriminations which flow from the tenets of a particular religion, may on occasion actually allow for support subject to other constitutional rights guarantees. In this way the State may on occasion justifiably “lend its weight” to the support of one denomination in autonomous affairs. This is entirely at variance with United States authority and the terms of that constitution. Here engagement may be permitted in the United States it is to be entirely avoided actually or symbolically. At its height what is in question here is, as pointed out below not a support or “buttress” but a mere identification for statutory purposes involving a matter of where public order and morality is concerned.

151. For the reasons outlined therefore, I do not think United States constitutional authority is of assistance on this issue.

The claim based on the provisions of Article 44 of the Constitution
152. It is now necessary to consider specific aspects of the plaintiff’s claim insofar as it arises under Article 44.2.1 and Article 44.2.3.

153. I find that even if the plaintiff had in fact established any validity of the arguments by analogy to our constitutional provisions, the case faces further insuperable obstacles. This lies in the matter of what is termed “issue-specific” locus standi.

No locus standi under Article 44.2.1
154. Article 44.2.1 guarantees freedom of conscience, profession and practice of religion subject to public order and morality. As found earlier the plaintiff did not even mention any of these constitutional values in evidence. The point did not arise.

155. In fact per contra Quinn’s Supermarket the issue of public order and morality is involved here. What is in question is a statute creating a criminal offence for the protection of members of the public. Member of the public could be misled.

156. But the evidential difficulty which the plaintiff now faces is that the entire issue of profession and practice of religion cannot now be considered. It is not engaged because the plaintiff himself did not mention either his religious profession or belief, or the question of any denominational belief. There was no evidence that, in selling pre-signed Mass cards, Mr. McNally was engaged in the profession or practice of his religion. There was, and is no identified religious group or denomination which seeks to engage in a practice which would be criminalised by the section. The sole interest that may be placed at risk is a commercial activity, albeit with a religious dimension. But this is not a religious practice or belief.

157. In Cahill v. Sutton [1980] I.R. 269 Henchy J. observes that a plaintiff in a constitutional action is not permitted to “conjure up, invoke and champion the putative constitutional rights of a hypothetical third party…”

158. The plaintiff here is not entitled therefore to seek a declaration of inconsistency with the Constitution on the basis of the rights of a constitutional jus tertii. It has not been in issue, that by reason of the business which he operates, the plaintiff has locus standi to bring the proceedings. However this is not to say that he has established evidentially a locus standi under Article 44.2.1. On its face the plaintiff’s claim cannot succeed under Article 44.2.1. Insofar as the Article is concerned it is under the rubric of public order and morality.

Article 44.2.3
159. The issues as to Article 44.2.3 go to both the application of the terms “discrimination” and, again, locus standi.

160. Counsel for the plaintiff places reliance on the fact that the Irish text of Article 44.2.3 refers to discrimination using the words “ná aon idirdhealú a dhéanamh”. In Quinn’s Supermarket Walsh J. commented on this:

“To discriminate, in that sense, is to create a difference between persons or bodies or to distinguish between them on the ground of religious profession, belief or status; it follows, therefore, that the religious profession, belief or status does not have to be that of the person who feels he has suffered by reason of the distinction created.”

A discrimination may be preferential or detrimental therefore. It is not necessary to establish a constitutional religious detriment. The plaintiff’s case is that the impugned section creates what must be a preferential distinction in favour of the Roman Catholic church in the sense identified in Quinn’s Supermarket.

Negative discrimination not established
161. There is no evidence of negative discrimination contrary to Article 44.2.3. The terms “disability” and “discrimination” identified in the Constitution are, in their negative sense to be seen to some extent in terms of their historical provenance. They are dealt with extensively by Walsh J. in Quinn’s Supermarket. But, however interpreted, it is entirely self-evident that there can be no comparison between any discrimination or disability as derived from the legislative background and what is at stake here.

162. The question which immediately arises is against whom, or what denomination does the section discriminate in a religious way? That has not been answered. The plaintiff and his business are not a religious denomination, group, or even a sect.

Is there positive discrimination contrary to Article 44.2.3?
163. The plaintiff’s case reaches its high watermark in the contention that the section constitutes a positive or “preferential” discrimination in the sense identified in Quinn’s Supermarket. It is submitted that there is here a positive discrimination as to religious status amounting to “quasi establishment in granting to the Roman Catholic Church the position of religious arbiter”. Here one must analyse the statutory role given to the bishop or the provincial of the Roman Catholic Church. This in turn must be interpreted harmoniously with the terms of Article 44.2.5

The support which may be given to religious denominations
164. Any question of preferential discrimination must be seen against the background of Article 44.2.5 pertaining to denominational autonomy, and the general free practice guarantee in Article 44.1.1°.

165. Insofar as any true religious issue exists in the case it must be seen in the context of the fact that it is the plaintiff who instructed his legal advisers to plead the case claiming “authenticity” for his cards. Insofar as that might arise, I consider that the observations of Henchy J. in McGrath would be applicable, that is to say that this may be seen as an “occasion” where the State may recognise and buttress the tenets of a particular religion, insofar as it does not in any way impinge on the beliefs of other denominations or citizens.

166. The State may thus justifiably even lend its weight to what might possibly be portrayed as a discrimination of status deriving from within Roman Catholicism. But such limited support (if there be such) does not constitute any prejudicial State intrusion or “discrimination” where the status of a priest or in organised religion is advanced justifiably over a lay person or a business.

167. A fortiori, it does not arise in a situation where a particular, secular commercial activity, albeit with a religious dimension is to be regulated by identifying, a bishop or provincial, a simple evidential proof. Such identification or differentiation do not constitute a discrimination. It was submitted that s. 99 is “unique” in its recognition in statutory form of one particular Roman Catholic denomination. In fact this is not so. (See for example, s. 49 of the Civil Registration Act 2004 which recognises a certificate furnished under s. 11 of the Registration of Marriages (Ireland) Act 1863 in relation to a marriage solemnised in accordance with the rites and ceremonies of the Roman Catholic Church). Other private statutes give recognition to religious office holders on hospital boards.

Locus standi under Article 44.2.3
168. But before the plaintiff even reaches the starting point of legal discussion of an unconstitutional discrimination, he faces a locus standi issue. There has been no answer, implicit to questions one must pose, as to whether there is evidence as to a difference or distinction made, as a result of the section, between persons, or any evidence of status which is preferentially discriminatory on the grounds of religious profession or belief? The plaintiff fails in the preliminary issue of evidential standing.

169. Even if some evidential locus standi were shown, mere description in the legislation of a particular religious denomination or identification of religious office does not ex facie amount to an unconstitutional discrimination. To designate the evidential route by which it is proved that a medical doctor is registered with the Medical Council is not to discriminate in favour of the Medical Council, or of doctors. Insofar as the matter is characterised as a religious issue, in order to permit the free exercise of religion the law may find it necessary to distinguish between ministers of religion or persons holding a religious status and other members of the population. ( Molloy v. Minister for Education; McGrath and Anor. v. Trustees of Maynooth College.) This would be a permissible distinction.

170. Characterising the issue as a religious question, even if Mass cards were not part of what Henchy J. called the “essence” of one denomination, they are part of its “texture” and thus may permissibly come with Article 44.2.5.

171. In fact the concession made by the plaintiff that the entire question of Mass cards requires statutory regulation undermines these contentions. In what other form could these be statutory regulation? In fact it is impossible to envisage a regulation dealing with the authenticity issue of Mass cards without specific reference to the Roman Catholic Church, in same form. No less intrusive mode of proof has been identified.

172. I do not think that what is in question here is a form of “quasi establishment”. The State need not always be entirely neutral and these are matters in which it may engage to the limited degree permissible, provided such process does not discriminate or impose a religious disability.

173. When one considers of the issue at stake, the means deployed, and the statutory objective, I conclude that the manner which is identified in s. 99, is that which is most consistent with the ethos of Article 44, as a whole, and complies with the principle of harmonious interpretation.

174. I find the plaintiff’s submissions under Article 44 fail on all the grounds identified.

II. The challenge under Article 38 of the Constitution
175. The challenge raised by the plaintiff under this article has three facets. The plaintiff objects that the section containing a) the reversal of onus of proof; b) alleged vagueness or arbitrariness in standard, and c) (as advanced in oral argument) a claimed disproportionality in penalty.

a) The reverse onus of proof
176. It is well established that the presumption of innocence is a constitutionally enshrined value implicit in the requirements of article 38 ( O’Leary v. Attorney General [1993] 1 I.R. 102.

177. In O’Leary the plaintiff sought a declaration that the provisions of s. 24 of the 1939 Offences Against the State Act (the Act of 1939) infringed his constitutional right to a trial in due course of law and, in particular, put in peril the presumption of innocence by placing upon an accused the burden of disproving his guilt.

178. Under s. 21 of the Offences Against the State Act 1939 (as amended) membership of an unlawful organisation was constituted as a criminal offence. Section 12 of the Act of 1939 created the offence of possession of an incriminating document. Section 24 of the Act of 1939 provided that if an incriminating document was found on a person or in his possession, such possession should be evidence until the contrary was proved that the person was a member of an illegal organisation at the time of the charge.

179. The Supreme Court (O’Flaherty J.) held that, construing this section constitutionally, possession of an incriminating document amounted to evidence rather than proof of membership of an unlawful organisation, so that the probative value of such possession might be shaken by cross-examination or, evidence of the mental capacity of the accused or, of the circumstances in which he came to be in such possession. Thus, while the evidentiary burden was undoubtedly shifted to an accused; the legal or persuasive burden was not, nor was the presumption of innocence displaced (see the judgment of O’Flaherty J. at p. 265 of the report).

180. Furthermore, it has been held that rights under article 38.1 are not absolute and a proportionality analysis may be applied to asses the legitimacy of restrictions on such rights.

Proportionality
181. The well established framework of the proportionality tests was most recently summarised in Montemuino v. Minister for Communications & Ors. [2008] IEHC 157 (High Court, Feeney J., 30 th May, 2008). That court referred to the consideration of proportionality by the Supreme Court in The Employment Equality Bill 1996 (1997) 2 I.R. 321). There Hamilton C.J. stated:

“In effect a form of proportionality test must be applied to the proposed section.”

(a) Is it rationally designed to meet the objective of the legislation?

(b) Does it intrude into constitutional rights as little as reasonably possible?

(c) Is there a proportionality between the Section and the right to trial in due course of law and the objective of the legislation …..?”

182. This same issue was also discussed by Irvine J. in Whelan v. Minister for Justice, Equality and Law Reform & Ors. [2007] IEHC 374, (Irvine J.)

183. I would identify the following principles as being applicable to the applicable test of proportionality: (a) the necessity to establish whether the means it employs to achieve its aim correspond to the importance of the aim; (b) whether the means adopted are necessary for the achievement of the objective; (c) whether the means actually becomes the end in itself; (d) whether the objective can be attained by other methods which may be more conveniently applied; (e) whether the method chosen is the least restrictive and the disadvantage caused is least disproportionate to the aim; (f) whether the means may be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations.

Application of proportionality criteria
184. In the context of the present case it is not disputed that reasonable consumers could be deluded by misrepresentations and by bogus Mass cards. Furthermore as is evident, the existence of an arrangement whereby Mass cards may be validated or authenticated by a priest alone has proved unsatisfactory. Such a process is not susceptible to verification and would not be in the number of cases identified earlier. The evidence before the Court was that there are approximately 250,000 members of the clergy in the Roman Catholic Church who might potentially sign a Mass card. It has been demonstrated that there are circumstances in which a signature or a purported signature provides no assurance whatever to consumers or purchasers that the intention which they have identified in a pre-signed Mass card would be necessarily reflected in a Mass.

185. Moreover there is the additional difficulty as to potential misapprehensions as to whether a Mass card purchased is for a dedicated Mass, for a specified intention or, alternatively for collective intentions. No other mode of authenticity or verification has been proposed in the course of the case. Such a process of authentication or verification is one designed to ensure for the consumer that the relationship between that consumer as purchaser, the intention contained in the Mass card, the celebrant, and the dedication of the Mass is preserved. For Roman Catholic believers, qua consumers of Mass cards, the overall issue of authenticity, verification and charitable object of the donation, are fundamental. Whether or not an arrangement to ensure these requisites is in existence is a matter which would, in the event of a prosecution, be peculiarly in the knowledge of an accused person. It would be easily provable for an accused.

186. By contrast an onus placed upon a prosecutor to demonstrate the non-existence of such an arrangement with any one of more than 7,000 bishops or provincials would be an impossibility.

The reverse onus as a proportionate response
187. Accordingly, it may be seen that there is a rational connection between the means and the objective of the legislation. It is minimally intrusive into the constitutional rights of a potential accused. It is an attenuated intrusion into the right to trial in due course of law. No other means have been suggested to attain the object. The subsection does not “create” guilt. It provides a framework within which the existence of the offence may be proved or disproved. Absent such a legislative framework the existence of an offence would be simply not susceptible to proof in any practical sense, as an onus would lie on the prosecution to negative literally thousands of possible avenues which might be called in aid as constituting “validation” or “authentication”.

188. Insofar as the plaintiff also claims that s. 99 is, in its terms, vague, I do not think this is so. In fact, on consideration, the section contains no more ambiguity than would arise in the normal use of language in a provision of that type. Were ambiguities shown to exist they would require to be construed in favour of the accused.

Prematurity on the issue of penalty
189. The third aspect of the plaintiff’s claim under article 38 relates to the question of penalty. The issue of penalties is dealt with under s. 10 of the Act of 2009. As a matter of fact the constitutionality of that section was not impugned in these proceedings. However, quite properly, no point is taken on this issue. Furthermore, s. 10 does not necessarily provide for trial on indictment. In fact it specifically provides that (on summary conviction) an accused person will be liable to a fine not exceeding €5,000 or to imprisonment for a term not exceeding twelve months. True, on conviction on indictment an accused person may be liable to a fine not exceeding €300,000 or to imprisonment for a term not exceeding ten years – but the plaintiff is not in that position. No prosecution has been taken against him at all. Whether or not he would be prosecuted lies in the hands of others. Were he prosecuted it would be entirely premature to speculate that such prosecution would be on indictment. Nor for the same reason should it be assumed that on conviction a court would necessarily impose the maximum penalty purely ipso facto by virtue of a breach of s. 99 being demonstrated. In the event of a prosecution being brought against the plaintiff on indictment for breach of the section and such a high penalty being then imposed it might then, but only then, be open to the plaintiff to advance these arguments. But that is not the case here. By way of contrast were he prosecuted summarily the argument would not be open to him. In circumstances where there is no prosecution in existence the argument is simply premature.

190. Furthermore the nature of offences under the Act may well vary. It is the maximum penalty which is provided for under section 10. One can well imagine that penalties of that type should or ought to be available in certain cases of the operation of bogus charities. The operation of a bogus charity or the misrepresentation of a service as being charitable is one which, it may be thought, is particularly reprehensible and where on proof significant penalties might well be appropriate. I find the challenge fails.

The plaintiff’s challenges under Articles 40.3 and 40.6
191. In the pleadings the plaintiff sought to rely on the constitutional right to earn a livelihood and the right to freedom of expression. (Article 40.3 and 40.6 of the Constitution). Invocation or reliance on these provisions was touched on only in the context of the discussion of Article 44 rights. These questions were not otherwise part of the written submissions made. The issues were not pursued during the course of oral argument. It is unnecessary to deal with these further.

Conclusion
192. I should express my thanks to counsel – the presentation of the case on both sides illustrated the art and craft of advocacy, and legal exposition, to a very high degree. However both on the facts and law, I find the plaintiff’s challenge must fail under all headings.

Temple Street (Children’s University Hospital Temple Street) v D

[2011] IEHC 1

JUDGMENT of Mr. Justice Hogan delivered on the 12th January, 2011

1. In the early hours of the morning of 27th December, 2010, following a hearing in my house I made an order sanctioning the administration of a blood transfusion to a three month old baby who was desperately ill and who, I was told, urgently required that transfusion within a matter of hours. Although for the reasons I shall now shortly outline, a public hearing of the matter was perforce impossible in the circumstances and even though I also made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 (“the 2008 Act”) prohibiting the publication or broadcast of any matter that would be likely to identify the baby in question, at the conclusion of the hearing, I nonetheless indicated that I proposed to deliver a judgment in open court. The purpose of this judgment, therefore, is not only to give written reasons for my decision , but also to fulfil insofar as it is possible to do so, the requirement of Article 34.1 of the Constitution that justice be administered in public “save in such special and limited cases as may be prescribed by law.” While it was not possible to hold the hearing in open court, the delivery of this judgment will perhaps mitigate the effect of this somewhat by providing a record of what transpired.

2. In line with the order which I made under s. 27 of the 2008 Act, I propose to use random letters to describe the baby (“Baby AB”) and the parents (“CD and EF”) to ensure that his identity is not thereby disclosed.

3. AB was born in September 2010, but his twin sister sadly did not survive. The baby was very unwell by reason of acute bronchiolitis on 25th December, 2010, and his condition deteriorated further during the course of the day. At one point AB stopped breathing and had to be resuscitated. He also had a hypoxemic episode (i.e., a period of low oxygenation), an incident with potentially ominous implications,

4. AB was transferred from another hospital to the plaintiff hospital in the early hours of 26th December. By the early evening of 26th December the situation had become critical. While AB suffers in any event from low haemoglobin, this level was dropping further by reason of his illness and by reason of necessary blood testing that was deemed clinically essential for treatment optimisation. The fact that the haemoglobin was dropping further significantly hindered the capacity of his body to deliver oxygen to his vital organs and to maintain normal neurological functions. In that regard, evidence was given to the effect that AB’s liver was somewhat distended .

5. The usual trigger for a blood transfusion is where the haemoglobin levels drop below 8.0 g/dl. By 9pm on 26th December, it was clear that the haemoglobin level was on a downward spiral and had reached the point where a transfusion was now absolutely necessary. While AB’s parents, CD and EF, were clearly anxious for his welfare and sought the very best medical care, as committed Jehovah Witnesses, they were steadfast in their opposition to this procedure. They had, however, consented to the use of certain blood products earlier that day which had been administered to AB. By this point, however, it was clear that this in itself would not be sufficient and that a transfusion was now necessary.

6. Faced with this objection from the parents, the Hospital resolved that it should then apply to this Court for an order which sanctioned the transfusion. Contact was made with the Duty Registrar who in turn made contact with me shortly after 10pm on 26th December. It was agreed that an emergency hearing would be held in my own house at midnight or as soon thereafter as the parties could assemble.

7. In the event, the hearing commenced shortly before 1am on the morning of 27th December and concluded at about 2.30am. The Hospital was legally represented by solicitors and counsel and the parents appeared in person.

8. At the hearing counsel for the Hospital, Mr. McEnroy S.C., stressed the urgency of the matter and why a transfusion was absolutely necessary in the circumstances. While the parents were present, it was simply not possible in the circumstances for them to be legally represented or to have members of Hospital Liaison Committee of the Jehovah Witnesses present. The treating consultant, Dr. Kevin Carson, who is Clinical Director of Intensive Care at the plaintiff hospital, was sworn and gave evidence detailing the medical history to date. He confirmed that AB’s life was in danger . He specifically confirmed in answer to a direct question from me that there were no medical alternatives to a transfusion and that the issue had to be dealt with immediately within a matter of hours.

9. As already indicated, the parents, CD and EF, were also present. They said that it had not been possible to obtain professional representation given the time constraints. They are the parents of a large family and it appears that this Court has also sanctioned a blood transfusion in respect of another child of theirs, so that they were to some extent familiar with the issues which would arise in such an application. While they wanted the best for their child and were delighted with the quality of the medical care which he had received, they explained that given the tenets of their religious faith they could not possibly consent to a blood transfusion. They also said that they understood their religious objections would be overridden by this Court and they seemed resigned to this fact.

10. There is no doubt as to the sincerity of the religious beliefs of the parents. They struck me as wholesome and upright parents who were most anxious for the welfare of their child, yet steadfast in their own religious beliefs. An abhorrence of the administration of a blood transfusion is integral to those beliefs. Mr. McEnroy S.C. for the Hospital very fairly acknowledged that it would be unreasonable to ask the parents to compromise their strongly held religious beliefs and it was for this reason that this application was thus made.

11. At the conclusion of the hearing I indicated that I would grant the orders sought and deliver my reasons in open court.

12. Before addressing the questions dealing with religious freedom and the welfare of AB, I propose first to address the reasons why it was not possible to have the hearing in open court, together with the circumstances in which I came to make an order under s. 27 of the 2008 Act.
Section 45 of the Courts (Supplemental Provisions) Act 1961 – hearing otherwise the in public
13. While Article 34.1 of the Constitution requires that justice “shall be administered in public”, save “in such special and limited cases as may be prescribed by law”, one such exception is provided by s. 45(1) of the Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”) which provides that:-

“45.—(1) Justice may be administered otherwise than in public in any of the following cases:
(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;
(b) matrimonial causes and matters;

(c) lunacy and minor matters;

(d) proceedings involving the disclosure of a secret manufacturing process.”

14. This application was undoubtedly urgent and relief by way of injunction was sought, so that the matter came within s. 45(1)(a) of the 1961 Act. Since the issue concerned a minor, it also came within s. 45(1)(c). Given the time constraints, the time of year and the fact that the application had to be heard in the early hours of the morning, I concluded that the most practicable venue for the hearing was in my own private residence. In passing, I should also add that a further consideration in that regard was that heavy snowfalls had blanketed the Dublin region, making travel at that time very difficult.
15. The hearing which took place in the early morning of 27th December was perforce heard otherwise than in public, since as Walsh J. put it in Re R Ltd. [1989] I.R. 126 at 134, “the doors of the court” were not open to the public. While the hearing was otherwise then in public, this was authorised by s. 45(1)(a) and s. 45(1)(c) of the 1961 Act. But while this was necessary and unavoidable, I believe that – not least given the importance of the matter – it is desirable in the public interest that the primary command of Article 34.1 regarding the public administration of justice be nonetheless observed insofar as it is now possible to do so and that by delivering a judgment in open court the public can at least thereby become aware of the existence of these proceedings and their outcome.
Section 27 of the Civil Law (Miscellaneous Provisions) Act 2008
16. Section 27(1) of the 2008 Act provides that:-

“27.— (1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.”
17. Section 27(2) states that an application for an order under this section may be made at any stage of the proceedings. However, s. 27(3) provides:-
“(3) The court shall grant an order under this section only if it is satisfied that—
(a) the relevant person concerned has a medical condition,
(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and

(c) the order would not be prejudicial to the interests of justice.”

18. The phrase “relevant person” is defined by s. 27(11) as meaning:
“(a) a party to the proceedings, or
(b) a person called or proposed to be called to give evidence in the proceedings.”

19. An order under s. 27 (1) of the 2008 Act was sought by the Hospital, since, of course, the non-identification of patients is a key feature of the confidentiality which is integral to the medical profession. CD and EF are, of course, parties to the proceedings and at the hearing before me indicated that they were – understandably – most anxious that neither they nor their family would be personally identified. Baby AB plainly had a “medical condition” and I was satisfied that his non- identification would not be prejudicial to the interests of justice.
20. It was on that basis that I made the order under s. 27(1). This presents one potentially difficult issue of interpretation which would have benefited from further argument had the time and opportunity been available which, however, was simply not the case. While this is not completely satisfactory, I must nonetheless now perforce address this question.

21. As we have seen, s. 27(3) provides that the relevant person must have the medical condition and that “his or her identification as a person with that condition would be likely to cause undue stress to him or her”. In the present case, if one views s. 27(3) literally, then the only relevant person for present purposes is Baby AB. It is true that his parents are “relevant persons” within the meaning of s. 27(11) insofar as they were potential witnesses, but, of course, they did not have the medical condition which would justify the making of the order. And while Baby AB did have the relevant medical condition, given that his very young age he naturally did not have any consciousness or capacity in relation to the proceedings. He thus remained mercifully oblivious to the unfolding medical emergency. Again, viewed literally, it could not be said that even if Baby AB’s identity were to be revealed, this would cause “undue stress” to him within the meaning of s. 27(3)(b), precisely because he could not have had any consciousness of this fact.

22. If this is correct, then it would mean that the court would be powerless to make an order under s. 27 of the 2008 Act where – as here – the subject-matter of the application was a baby or a very young child, even though the identification of the child might cause immense distress to the parents or other close relatives. It would likewise mean that no order could be made under s. 27 where the proceedings concerned a patient who was unconscious or in a coma. I find it difficult to believe that the Oireachtas intended to create such an anomalous state of affairs.

23. It is clear that the literal rule remains the primary rule of interpretation: see, e.g., But given that s. 27 is essentially a remedial provision designed to complement the traditional concepts of medical confidentiality in a legal setting, it can be interpreted “as widely and liberally as can fairly be done”: see Bank of Ireland v. Purcell [1989] I.R. 327 at 333, per Walsh J.

24. In these circumstances, it is, I think, legitimate to have regard to the provisions of s. 5(1) of the Interpretation Act 2005. This provides:-

“5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
25. In my view, the present case comes squarely within the provisions of s. 5(1)(b) of the 2005 Act, since the literal interpretation “would fail to reflect the plain intention” of the Oireachtas. In these circumstances, I believe that it is permissible to adopt a teleological approach to s. 27 by interpreting it broadly and without doing too much violence to the statutory language so as to permit the making of an order in a case such as the present, even though the child in question who has the medical condition will not by reason of its very young age suffer the stress which the language of s. 27(3)(a) would otherwise appear to require. Even if I am wrong in this, it is clear that as the present proceedings come within the ambit of s. 45(1)(c) of the 1961 Act, it is permissible to hold the proceedings in camera, while circulating the judgment and making its contents public in such a way as will preserve the anonymity of Baby AB: see, e.g., Attorney General v. X. [1992] 1 IR 1 at 46, per Finlay C.J. Either way, the identity of Baby AB – and, hence, his family – will thus be protected from disclosure. At the same time, I respectfully suggest that the Oireachtas might usefully wish to re-examine the actual language of s.27 of the 2008 Act in the light of the facts of this case.
Freedom of Religion
26. If we turn now to the substantive questions at issue, the starting point is, of course, Article 44.2.1 of the Constitution which provides:

“Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”
27. Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees freedom of conscience and the free practice of religion. Taken together, these constitutional provisions ensure that, subject to limited exceptions, all citizens have complete freedom of philosophical and religious thought, along with the freedom to speak their mind and to say what they please in all such matters. Article 44.2.1 protects not only the traditional and popular religions and religious denominations – such as, for example, Roman Catholicism, the Church of Ireland and the Presbyterian Church – but perhaps just as importantly, it provides a vital safeguard for minority religions and religious denominations whose tenets are regarded by many as unconventional.
28. If one may be permitted to speak bluntly, the antipathy of the Jehovah Witnesses to the taking of blood products may well come within the latter category. Most Irish people would, I suspect, express unease and even disdain for a religious belief which required its faithful to abjure what is often a life saving and essential medical treatment. The Witnesses, on the other hand, regard the blood prohibition as one which is not only scripturally ordained in view of the admonition in Acts 15:29 requiring Christians to “abstain from meats offered to idols, and from blood, and from things strangled, and from fornication”, but is one which also poses – when it arises – a practical test of faith.

29. A secular court cannot possibly choose in matters of this kind and, of course, a diversity of religious views is of the essence of the religious freedom and tolerance which Article 44.2.1 pre-supposes. Nor can the State be prescriptive as to what shall be orthodox or conventional in such matters, for, as Jackson J. put it in a noted US decision concerning the Witnesses, West Virginia Board of Education v. Barnette 319 U.S. 624 (1943):

“…if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”
30. It probably suffices for present purposes simply to say that the right of a properly informed adult with full capacity to refuse medical treatment – whether for religious or other reasons – is constitutionally protected: see, e.g., Fitzpatrick v. FK (No.2) [2008] IEHC 104, [2009] 2 IR 7.
Article 42: Family Autonomy and the Position of Children
31. Of course, the present case concerns not an adult, but a very young baby. In this regard, Article 41 and Article 42 of the Constitution come squarely into play.

32. Article 41.1 provides:

“1º The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2º The State, therefore, guarantees to protect the Family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”

33. Article 42.1 provides:
“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.”
34. Finally, Article 42.5 provides:
“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.”
35. There is thus no doubt at all but that parents have the constitutional right to raise their children by reference to their own religious and philosophical views. But, as Article 42.5 makes clear, that right is not absolute. The State has a vital interest in ensuring that children are protected, so that a new cohort of well-rounded, healthy and educated citizens can come to maturity and are thus given every opportunity to develop in life. This interest can prevail even in the face of express and fundamental constitutional rights. No one would suggest, for example, that the right of the State to protect children against possible exploitation and abuse would not, for example, enable the Oireachtas to enact legislation prohibiting the involvement of children in street preaching and the distribution of religious literature on the street at night, even if such activities were thought by some to be scripturally mandated or that the children were being directed in such religious activities for religious reasons by their parents: see, e.g., the judgment of Ruttledge J. for the US Supreme Court on this very point in another noted decision concerning the Witnesses, Prince v. Massachusetts 321 US 158 (1944).
36. Of course, the right of the State to intervene and thus to override the constitutional right of the parents is expressly circumscribed by the language of Article 42.5. The circumstances must be “exceptional” and the intervention proportionate (“…..with due regard”) to the circumstances. There must also have been a “failure” of duty on the part of parents. But there is absolutely no doubt but that the court can intervene in a case such as this where the child’s life, general welfare and other vital interests are at stake. As Denham J. said in North Western Health Board v. HW [2001] 3 IR 622 at 727:-

“The courts will only intervene and make an order contrary to the parents’ decisions and consent to procedures for the child in exceptional circumstances. An example of such circumstances in relation to medical matters may be a surgical or medical procedure in relation to an imminent threat to life or serious injury.”
37. Of course, in one sense – as Birmingham J. pointed out in a case with very similar facts, Re Baby B, High Court, 28th December, 2007 – the use of the term “failure” in this context is perhaps a somewhat unhappy one, since there is no doubt but that CD and EF, acting by the lights of their own deeply held religious views, behaved in a conscientious fashion vis-à-vis Baby AB. The test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.
38. Given that Article 40.3.2 commits the State to protecting by its laws as best it may the life and person of every citizen, it is incontestable but that this Court is given a jurisdiction (and, indeed, a duty) to override the religious objections of the parents where adherence to these beliefs this would threaten the life and general welfare of their child.

39. It was for these reasons that I granted a declaration to the effect that it would be lawful in these particular circumstances for the Hospital to administer a blood transfusion (along with other associated blood products) in the case of Baby AB. As Dr. Carson made clear in his evidence to me, such a course of action was clinically necessary and urgent and all possible alternatives had been exhausted. This declaration is, of course, limited to these clinical events and is not to be construed as conferring on clinicians an open ended entitlement into the future to administer such treatment to Baby AB irrespective of the wishes and beliefs of the parents.