Campaign to Separate Church and State v Minister for Education

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington,Keane J.
• Judgment Date: 25 March 1998
• Neutral Citation: 1998 WJSC-SC 4336
• Court: Supreme Court
• Docket Number: Appeal No. 36/96,[1991 No. 6641P and S.C. No. 36 of 1996]
• Date: 25 March 1998

1998 WJSC-SC 4336

THE SUPREME COURT

Hamilton, C.J.

O'Flaherty, J.

Denham, J.

Barrington, J.

Keane, J.

Appeal No. 36/96

CAMPAIGN TO SEPARATE CHURCH & STATE LTD v. MURPHY

Between/:

CAMPAIGN TO SEPARATE CHURCH AND STATELTD.

and

JEREMIAH NOEL MURPHY

Appellants/Plaintiffs

and

THE MINISTER FOR EDUCATION, THE ATTORNEY GENERAL, THEMOST REVEREND CAHILL DALY, THE MOST REVEREND DESMOND CONNELL, THE MOSTREVEREND DERMOT CLIFFORD

and

THE MOST REVEREND JOSEPH CASSIDY

Respondents

Citations:

CONSTITUTION ART 44.2.2

ACT OF UNION ART 5

CATHOLIC EMANCIPATION ACT 1829

GOVT OF IRELAND ACT 1914 S3

GOVT OF IRELAND ACT 1920 S5

ANGLO-IRISH TREATY 1921 ART 16

CONSTITUTION SAORSTAT EIREANN ART 8

CONSTITUTION ART 44.1.2

CONSTITUTION ART 44.1.3

CONSTITUTION ART 44.2

EMPLOYMENT EQUALITY BILL 1996, IN RE UNREP SUPREME 15.5.1997

CONSTITUTION ART 44.2.4

CONSTITUTION ART 40.2.2

CONSTITUTION ART 42

CONSTITUTION ART 42.2

JURIES ACT 1976 SCHED 1 PART II

CONSTITUTION ART 44.2.3

CONSTITUTION ART 42.4

CONSTITUTION ART 44.2.4

CONSTITUTION ART 44.2.2

"DOWER" OXFORD ENGLISH DICTIONARY 2ED V4

MARSHALL V GRAHAM 1907 2 KB 112

IRISH CHURCH ACT 1869

CONSTITUTION ART 44.2.6

VAUGHAN A NEW HISTORY OF IRELAND (1989) V5 727–736

CROWLEY V IRELAND 1980 IR 103

GOVT OF IRELAND BILL (COMMITTEE STAGE) 42 HC DEBATES SERIES V

GRAHAM RELIGION & EDUCATION - THE CONSTITUTIONAL PROBLEM 33 NILQ 20

IRISH FREE STATE (AGREEMENT) ACT 1922

Synopsis:

Constitutional Law

Constitutional rights; breach; endowment of religion; state aid to religious schools; whether payment by state of salaries of chaplains appointed by religious denominations to community schools is in breach of constitutional guarantee not to endow any religion; whether such endowment sanctioned expressly or impliedly by Constitution; interpretation of "endow";Art. 44.2.2 of the Constitution

Held: Payment by State of Chaplains" salaries does not constitute an endowment of religion

Campaign to Separate Church and State Ltd. v. Minister for Education - Supreme Court: Hamilton C.J., O'Flaherty J., Denham J., Barrington J., Keane J. - 25/03/1998 - [1998] 3 IR 343 - [1998] 2 ILRM 81

1 Mr. Justice Barringtondelivered on the 25th day of March, 1998. [HAMILTON, O'FLAHERTY & DENHAM CONC]

2 This case raises the question of the constitutional propriety of the State paying the salaries of Chaplains in Community Schools.

3 The first-named Plaintiff is a body corporate having been incorporated on the 21st April, 1989 as a Company Limited by guarantee. Its main object (as it name implies) is to separate the affairs of the State from those of the various churches. The second-named Plaintiff is not a member of the Plaintiff Company but has joined in these proceedings to put an end to what he sees as a breach of the constitution.

4 The original Defendants named by the Plaintiffs are the Minister for Education and the Attorney General. The third, fourth, fifth and sixth Defendants are the four metropolitan Archbishops of the Roman Catholic Church in Ireland and were joined as Defendants at their own request as representatives of the Roman Catholic hierarchy in Ireland and because they alleged that if the State ceased to pay the salaries of Chaplains in community schools the various dioceses would feel obliged to pay these salaries thereby suffering financial loss. At the hearing in the High Court Counsel appearing on behalf of the added Defendants informed the Court that he was also instructed on behalf of the Church of Ireland to make submissions supporting the constitutional validity of the impugned payments.

5 The Defendants in the High Court raised an issue as to the locus standi of each of the Plaintiffs but by agreement between the parties, and with the consent of the trial Judge, it was decided to defer this issue until after the trial of the substantive issue as to the constitutional validity of the payments.

6 A further issue was raised in the High Court as to whether the Plaintiffs' claim was a justiciable one on the basis that there was no express statutory authority for the establishment of community schools. The learned trial Judge decided this issue against the Defendants on the basis that while the community schools were set up under Trust Deeds the payment of the chaplains' salaries was authorised by the Dail adopting the departmental estimate for the Department of Education. If therefore a provision of funds for the payment of chaplain's salaries violated the Constitution, the jurisdiction of the Court to declare such provision illegal could not be in doubt. The High Court therefore accepted that the dispute was a justiciable one and the Defendants did not pursue their appeal on this point. In the circumstances this Court was concerned only with the substantive issue.

FACTUAL BACKGROUND.

7 The factual background to the case is set out in some detail in the Judgment of the learned trial Judge and it is sufficient here to restate some of the salient points.

8 Prior to 1966 young people in Ireland received their post primary education in Secondary Schools or in Vocational Schools. Secondary Schools were for the most part controlled by religious orders or by Church dioceses or by a denominational board. Such schools are usually referred to as denominational schools. Teachers in these schools are appointed by the various school authorities but their salaries are, for the greater part, derived from grants made to the schools by theState.

9 In 1966 a new type of post primary school was established known as a comprehensive school. These schools were established in areas where the Department of Education considered that the provision for post primary education was 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 thereligious authority concerned and their salaries are paid by the State. While the present action questions only the constitutional validity of the payment by the State of the salaries of Chaplains in community schools it is accepted that the same principles must govern the payment of the salaries of Chaplains in comprehensive schools.

10 In all, fifteen comprehensive schools were established. But it was decided that no new comprehensive school would be established after1974.

11 Instead a scheme was introduced for the establishment of community schools. The purpose of these schools was to provide free post-primary education for all children irrespective of means or ability and without the use of any selection procedures; the elimination of barriers between Secondary and Vocational Schools; the creation of a unified post-primary system of education; and the establishment of local systems of adult education.

12 The first community school was opened in 1972, and since then, sixty have been established (some by the amalgamation of existing Secondary Schools and Vocational Schools and some by the creation of new schools). Most of the schools have more than five-hundred pupils and one has as many as one thousand seven hundred.

13 There is no distinctive statutory regime governing community schools. They are supposed to be governed by the terms of a Model Trust Deed but many of the community schools were established before the terms of the Model Trust Deed had been agreed between the various interested parties. From the beginning, however, Chaplains were appointed to the various schools and their salaries were paid by the State out of monies provided by the Oireachtas.

14 At the time of the High Court hearing there were 76 Chaplains in comprehensive and community schools and the annual cost to the State for their salaries was £1.2 millions. Originally it had been the intention that the Chaplains in Catholic community schools should be Priests but there are now some Nuns and some lay people acting as Chaplains in community schools, while the Chaplains in three Protestant comprehensive schools in the Dublin area are lay persons. There are currently 76 Chaplains in all.

15 The Chaplain is a member of the religious department of the school and it was contemplated that the Principal of the school, together with the Chaplain, would make provision for religious worship and instruction of the pupils in the school, in accordance with the wishes of the parents and the local Bishop. It was contemplated also that the Chaplain would exercise his pastoral role:-

16 (1) By personal contact with individual students,

17 (2) By class contact;

18 (3) Through religious worship;

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

20 The evidence suggests that the role of the Chaplain in Catholic community schools has evolved over the past twenty years. Community schools are much larger than was originally contemplated and the Chaplain is called upon to play an increasing role in relation to the welfare, other than the strictly spiritual welfare, of the pupils.

21 In three of the Protestant comprehensive schools in the Dublin area the Chaplains are lay people and were appointed by the Board of Management with the approval of the Protestant Archbishop of Dublin. Unlike their Catholic counterparts they do not actually conduct religious services in the school.

22 However the evidence before the learned trial Judge established that the role of the Chaplains - Catholic and Protestant - is regarded by pupils, parents and 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 inspiritual 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...