Campaign to Separate Church and State v Minister for Education

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello.
• Judgment Date: 17 January 1996
• Neutral Citation: 1996 WJSC-HC 306
• Court: High Court
• Date: 17 January 1996

1996 WJSC-HC 306

THE HIGH COURT

No. 6641P/1991.

CAMPAIGN TO SEPARATE CHURCH & STATE LTD v. MIN EDUCATION

CAMPAIGN TO SEPARATE CHURCH AND STATE LIMITED AND JEREMIAH NOEL MURPHY

PLAINTIFFS

AND

THE MINISTER FOR EDUCATION AND OTHERS

DEFENDANTS

Citations:

CONSTITUTION ART 44.2.2

VOCATIONAL EDUCATION (AMDT) ACT 1970

US CONSTITUTION FIRST AMENDMENT

IRISH CHURCH ACT 1869

WELSH DISESTABLISHMENT BILL 1894

WELSH DISESTABLISHMENT BILL 1895

WELSH DISESTABLISHMENT BILL 1909

WELSH DISESTABLISHMENT BILL 1912

WELSH DISESTABLISHMENT BILL 1913

WELSH DISESTABLISHMENT BILL 1914

WELSH DISESTABLISHMENT BILL 1919

MARSHALL V GRAHAM 1907 2 KB 112

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900

AG FOR THE STATE OF VICTORIA V COMMONWEALTH OF AUSTRALIA 146 CLR 559

GOVT OF IRELAND BILL 1886 CLAUSE 4

HOME RULE BILL 1893

GOVT OF IRELAND ACT 1914

GOVT OF IRELAND ACT 1920 S5(1)

BELL DISESTABLISHMENT IN IRELAND & WALES CH 4

IRISH TREATY 1921

CONSTITUTION SAORSTAT EIREANN ART 8

ILLINOIS EX REL MCCOLLUM V BOARD OF EDUCATION 333 US 203

ABINGTON SCHOOL DISTRICT V SCHEMP (1963) 374 US 203

EDUCATION ACT 1944 UK

GRAHAM RELIGION & EDUCATION - THE CONSTITUTIONAL PROBLEM 33 NILQ 20

CO COUNCIL OF LONDONDERRY V MCGLADE 1928 NI 47

UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS ART 10

UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS ART 13

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

HEALTH ACT 1970 S39

ACT OF UNION 1800

GOVT OF IRELAND ACT 1920

IRISH CHURCH ACT 1869 S38

CONSTITUTION ART 42

GOVT OF IRELAND ACT 1920 S5

CONSTITUTION ART 44

CONSTITUTION ART 44.2.4

CONSTITUTION ART 42.2

CONSTITUTION ART 42.4

CONSTITUTION ART 42.1

Synopsis:

CONSTITUTION

Religion

Endowment - State - Prohibition - Education - Community schools - Salaries of chaplains paid by the State - No breach of prohibition - Constitution of Ireland, 1937, Articles 42, 44 - (1991/6641 P - Costello P. - 17/1/96) - [1998] 3 IR 321- [1996] 2 ILRM 241

Campaign to Separate Church and State Ltd. v. Minister for Education

EDUCATION

School

Chaplain - Salary - Payment - Source - Public purse - Constitutional prohibition against endowment of religion - No contravention of prohibition by payment of salaries of chaplains in Community Schools from the public purse - Constitution of Ireland, 1937, Articles 42, 44 - (1991/6641 P - Costello P. 17/1/96) - [1998] 3 IR 321- [1996] 2 ILRM 241

|Campaign to Separate Church and State Ltd. v. Minister for Education|

1 Judgment of Mr. Justice Costello. Delivered the 17 January 1996.

Introduction.

2 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.

3 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.

4 The plaintiff 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 should the plaintiffs succeed dioceses 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.

5 The first named plaintiff is a body corporate, having been incorporated on the 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 what he sees as an objectionable constitutional breach occasioned by the impugned payments.

6 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 courts jurisdiction to enforce constitutional guarantees in respect of religion and (b) the second named plaintiff is not effected 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.

7 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 Dail 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

8 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.

9 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.

10 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.

11 15 Comprehensive Schools were established. A decision was taken that from 1974 that no new comprehensive schools would be opened.

12 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 was 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...