Crowley v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 21 July 1978
• Neutral Citation: 1978 WJSC-HC 2209
• Docket Number: No. 1945P/1977
• Court: High Court
• Date: 21 July 1978

1978 WJSC-HC 2209

THE HIGH COURT

No. 1945P/1977

CROWLEY v. IRELAND

BETWEEN

EILISH CROWLEY AND OTHERS

Plaintiffs

and

IRELAND THE MINISTER FOR EDUCATION AND OTHERS

Defendants

Mr. Justice McMahon

1 Until the dispute which gave rise to this action there were seven National Schools in the parish of Drimoleague in west Cork in which free primary education was provided in accordance with the Rules for National Schools made by the Minister for Education and under the supervision of the Department of Education. It was in this manner that in Drimoleague as throughout the State the constitutional obligation of the State under Article 42 (4) to provide for free primary education was discharged. Since the month of March 1976 three of these schools, namely Drimoleague, Castledonovan and Knock Buidhe, have been deprived of the services of their teachers as a result of a dispute between the Irish National Teachers Organisation ("the IMTO") and the parish priest, Fr. Crowley, and since the new system of school management came into effect the Boards of Management of these three schools. The six infant plaintiffs are school children residing in the parish of Drimoleague and attending the affected schools. They bring this action to assert as against Ireland and the Minister for Education a constitutional right to free primary education within the parish of Drimoleague and claiming as against the INTO and the defendants who are members of the Central Executive Committee of the INTO damages for interference with their constitutional right to free primary education.

2 The post of Principal Teacher at Drimoleague National School became vacant at the end of June 1975. The management and conduct of National Schools under the Department of Education is regulated by rules made by the Minister for Education and under these rules it was the duty of Fr. Crowley, the parish priest of Drimoleague who was then the Manager of the school, to appoint a new Principal Teacher. The appointment required the approval of the Minister for Education and the procedure as prescribed by Department of education circular number 7/69 was that the Manager should advertise the vacancy and submit the names of the applicants to the Department which would then assess the general suitability of the applicants and send the names of those considered most suitable to the Manager in alphabetical order. Fr. Crowley advertised the vacancy in June 1975 and there were six applicants. One of these was Mr. Nicholas McCarthy but he was not eligible for the appointment under Rule 76 (2) of the Rules for National Schools because he had less than five years service as a National teacher. Mr. James Cotter was also an applicant for the vacancy. He was the Principal Teacher of Dromore National School in West Cork and had twelve years service." He was also a member of the Executive Committee of the INTO and represented on it the 1,600 National teachers in Cork City and County.

3 On the 13th June 1975 Fr. Crowley wrote to the department stating that His Lordship the Bishop of Cork and Ross had directed that Mr. Nicholas McCarthy be appointed Principal of Drimoleague National School and he also set out the names of the other applicants. The Department replied on the 11th June 1975 stating

4 "None of the eligible applicants is regarded by the Department as possessing the standard of general suitability considered desirable for the post".

5 The Department therefore suggested that Fr. Crowley re-advertise the post and this was done on the 1st August 1975. Fr. Crowley again sent the applicants' names to the Department and they again included Mr. McCarthy and Mr. Cotter. Fr. Crowley again tried to appoint Mr. McCarthy to the vacancy but the Department declined to sanction the appointment pointing out that Mr. McCarthy was not eligible since he had not given five years service as a National teacher. The Department stated that the circumstances relating to the appointment were under consideration and it would recognise as temporary Principal a suitable person nominated by Fr. Crowley from the opening of the school after the summer vacation until a permanent appointment could be made "On the clear understanding that the person concerned will have no claim to appointment in a permanent capacity by virtue of his having been given temporary recognition".

6 Fr. Crowley then nominated Mr. McCarthy as temporary Principal stating to the Department that Mr. McCarthy was aware of the conditions and had consented to the arrangement made.

7 On the 13th October 1976 new regulations came into force for the management of the school and under these Fr. Crowley was superseded as by a Board of management consisting of four representatives of the Bishop of and Rose as patron of the school, two representatives of parents and the Principal Teacher.Fr. Crowley was a Member of the Board and continued to conduct the correspondence with the Department and on the 30th October 1975 the Department recognised Mr. McCarthy's temporary appointment and told Fr. Crowley that he should now, once more by public advertisement, seek applications from eligible and suitable candidates. It is not necessary to trace the stages by which Fr, Crowley and the Board of Management fended off the Department's attempts to have the position re-advertised and a permanent appointment made. It is clear that both Fr. Crowley and the Board were determined to retain Mr. McCarthy in a temporary position until he was eligible for a permanent appointment and that is what happened. On the 1st July 1976 Mr. McCarthy completed five years teaching and became eligible for a permanent appointment and was promptly appointed by the Board and the Department gave its approval to that appointment on the 23rd July 1976.

8 The Irish National Teachers' Organisation is a registered Trade Union representing the vast majority of primary teachers employed in primary schools in the system of National education. From the outset the INTO regarded Fr. Crowley's failure to make a permanent appointment as a blatant attempt to give the post to one who was not eligible at the expense of INTO members who were eligible and suitable. From September 1975 to March 1976 the INTO had a number of meetings with the Bishop of Cork and Ross and Fr. Crowley to try to resolve the dispute over Mr, McCarthy's appointment but to no avail. The INTO then in accordance with its own rules balloted the teachers in the Drimoleague area who would be involved in a proposed strike and the teachers, except Mr. McCarthy, were unanimously in favour of taking strike action. On the 16th March 1976 strike notice was sent to Fr. Crowley the reason given being the failure to make a permanent appointment and on the 1st April 1976 the teachers in the seven Drimoleague schools (except Mr. McCarthy) withdrew their services. The teachers subsequently returned to work in the four schools which had not been under Fr. Crowley's management. .The teachers have never returned to work in the three affected schools so that the only teaching now available in Drimoleague under the system of Primary Education is that provided for classes 4, 5 and 6 in Drimoleague school by Mr. McCarthy. In the other affected schools the parents attempted to provide a kind of school system. Some unqualified teachers, mainly girls who had obtained their Leaving Certificate, were employed out of the parents own money and some parents attended to help to supervise the pupils. On this basis a number of pupils continued to attend the affected schools and this system was continued until January 1978 when the Department provided school buses to bring children from the affected schools to other National schools in adjoining parishes. The provision of these buses had been ordered by Mr. Justice McWilliam on the 1st December 1977 as a temporary solution and while an appeal was taken from that order to the Supreme Court a compromise was arranged at that stage under which the buses were, and continue to be, provided. Children who are deprived of schooling by the teachers' strike are taken to schools outside the parish by these buses.

9 The only other development in the dispute which it is relevant to mention is that on the 20th August 1976 the INTO sent a circular to teachers in schools adjoining Drimoleague Parish instructing them not to enroll Drimoleague pupils. This circular was withdrawn on the 13th June 1977.

Article 42 (4) of the Constitution provides

10 "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".

11 It is not seriously disputed that the constitutional duty of the State to provide for free primary education creates a corresponding right to receive primary education on the part of those for whom it is designed. The claim of the plaintiffs against the INTO is...