Elijah Burke v The Minister for Education and Skills

• Jurisdiction: Ireland
• Judge: Donnelly J,Faherty J.,Ní Ralfeartaigh J.
• Judgment Date: 09 March 2021
• Neutral Citation: [2021] IECA 67
• Date: 09 March 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2020/197

Between:

Elijah Burke

Respondent

and

The Minister for Education and Skills

Appellant

Between/

N.P. (A Minor) Suing by her Mother and Next Friend B.P.

Respondent

and

The Minister for Education and Skills

Appellant

[2021] IECA 67

Donnelly J

Faherty J.

Ní Ralfeartaigh J.

Record No.: 2020/197

Record No.: 2020/207

THE COURT OF APPEAL

Constitutional rights – Executive power – Judicial review – Appellant contending that the High Court fell into error – Whether there had been an exercise of executive power

Facts: The Government, in May 2020, announced a non-statutory scheme known as the Calculated Grade Scheme. Central to the Scheme were features such as assessment by professional and registered in-school teachers, alignment of grades within the school and oversight by principal teachers. The respondents were excluded from the Scheme. In the case of the first respondent, this was because he had been home-schooled by his mother (a registered teacher), the consequence of which was that she had a conflict of interest in awarding him a calculated grade. The second respondent had been home-schooled with the assistance of teachers who were not registered. Both respondents were successful in persuading the High Court that their exclusion from the Scheme was unreasonable and irrational in the sense in which those terms are used in judicial review proceedings. The appellant, the Minister for Education and Skills, appealed to the Court of Appeal, contending that the High Court judge fell into error on a number of fronts. The appeals raised many questions, including whether the factual matrix presented in the case engaged any constitutional rights on the part of the respondents, whether or not there had been an exercise of executive power pursuant to Article 28.2 of the Constitution, and the appropriate judicial review test to be applied in the event that both constitutional rights and the executive power were both engaged.

Held by the Court that the Government was exercising the executive power of the State under Article 28.2 of the Constitution when it devised an alternative to the Leaving Certificate examinations by way of the Scheme. The Court held that while the Minister’s implementation of the Scheme could be considered an administrative exercise, the close interconnection between the essentials of the Scheme as announced by the Government and the administrative implementation (including the exclusion of the respondents) was such that the same level of deference should be adopted by the Court to both. While accepting that the presumption of constitutionality applies to exercises of such executive power and that there is a high judicial deference to such action, the Court decided, having reviewed the authorities, that it must accommodate both that deference and appropriate consideration of individual constitutional rights as far as possible. The Court held that the “clear disregard” test is not appropriate in every case even in a case involving a policy decision of the Executive, where constitutional rights have been affected by executive decision/action. The Court held that the respondents possessed constitutional rights to have reasonable account taken of their situation when education policies were being implemented by the State. The Court held that the respondents suffered a real and significant impact by their exclusion from the Scheme and that it was unreasonable and disproportionate (in the Keegan-Meadows sense) to exclude the respondents entirely from the Scheme.

The Court dismissed the appeals and proposed varying the declarations granted by the trial judge to reflect the substance of its judgment, and that of the trial judge’s judgments, more precisely. Instead of a declaration that the refusal to provide a calculated grade was unreasonable and unlawful, the Court granted declarations in each case in the following terms: a declaration that it was unreasonable and disproportionate and therefore an unlawful breach of the respondent’s constitutional rights for the Minister to refuse to consider the respondent for calculated grates in respect of his/her work without having in place any system by which it could be determined whether his/her work was from a satisfactory, credible source; and for the Minister to fail to provide a means by which the respondent could receive a calculated grade in the event that it was determined that his/her work was from a source meeting this standard.

Appeals dismissed.

UNAPPROVED

JUDGMENT of the Court delivered on the 9 ^th day of March, 2021

Contents

PART 1: PROCEDURAL HISTORY AND RELEVANT FACTS	5
Procedural History	5
The Chronology of Events	5
The Government Decision	5
The Minister's Implementation	7
PART 2: THE CALCULATED GRADES SYSTEM	8
The CGS for in-school students	8
The CGS for out-of-school students	10
The Four Routes	12
The application process for an out-of-school student	14
Alternatives Considered	15
Conflicts of interest in the out-of-school setting	19
Evidence concerning the numbers and categories of student	19
PART 3: THE RESPONDENTS' UNSUCCESSFUL APPLICATIONS FOR A CALCULATED GRADE AND THEIR JUDICIAL REVIEW PROCEEDINGS	20
The first respondent's application	20
The first respondent's judicial review	22
The High Court judgment in the first respondent's case	23
The Second Respondent's Application For A Calculated Grade	25
The second respondent's judicial review	25
The High Court judgment in the second respondent's case	26
PART 4: THE APPEALS	27
Issues Arising	27
PART 5: ARE THE CLAIMS MOOT?	28
PART 6: THE CGS — AN EXERCISE OF EXECUTIVE POWER?	31
The arguments as to the nature of the decisions and the appropriate judicial review test	31
The Minister's position on the nature of the decisions and appropriate judicial review test	32
The respondents' position on the nature of the decisions and the appropriate judicial review test	33
Discussion of the texts and authorities concerning executive power	34
Judicial oversight of the exercise of executive power at the level of “high policy”	36
Executive power in the socio-economic sphere	39
Non-statutory schemes as an exercise of executive power	40
The relevance, if any, of the existence of legislation establishing the State Examinations Committee	43
The Court's conclusion as to whether the executive power of the State was invoked in May 2020	44
Exercise of executive power and presumption of constitutionality	45
PART 7: ARE FUNDAMENTAL RIGHTS AT ISSUE?	46
The Core Claims	46
Education, Family and the position of the home-schooled child under the Constitution	49
Decision on whether the constitutional rights of the Home-Schooled Child are engaged	58
PART 8: THE APPLICABLE JUDICIAL REVIEW TEST AND ITS APPLICATION TO THE FACTS	60
The issue for the Court	60
Judicial restraint v. vindicating constitutional rights	62
Conclusion on the applicable judicial review test	70
Application to The Facts	71
An Alternative Option?	71
Distinction between being considered for a grade and receiving a grade; two stages in the “independent teacher assessment mechanism”	72
The reasons put forward by the Minister	73
The Court's conclusion on the application of the reasonableness test	76
PART 9: THE CLAIM ON EQUALITY GROUNDS	82
PART 10: CONCLUSIONS	82

Introduction

1 . The COVID-19 pandemic arrived in Ireland in the Spring of 2020. From mid-March onwards, the country went into a cycle of lockdown and restriction-easing which continued throughout 2020 and into 2021. Of the many severe challenges posed by the public health crisis, one of them was in the sphere of secondary education. It soon became apparent that the holding of the usual Leaving Certificate examination in the Summer of 2020 would be impossible because of the risks posed to public health from large numbers of students congregating in confined spaces. Some method had to be devised to assess the work of the Leaving Certificate class of 2020 in order to enable them to move on with their lives, be it on to further third-level education or into the world of work.

2 . In May 2020, the Government announced a non-statutory scheme known as the Calculated Grade Scheme (“CGS” or “the Scheme”). It operated from a very different model to the usual independent examination format, but it enabled approximately 60,000 students to receive grades at the conclusion of their secondary schooling. Central to the Scheme were features such as assessment by professional and registered in-school teachers; alignment of grades within the school; and oversight by principal teachers.

3 . The two respondents, both of whom had been “home-schooled”, were excluded from the Scheme. In the case of the first respondent, this was because he had been home-schooled by his mother (a registered teacher), the consequence of which was that she had a conflict of interest in awarding him a calculated grade. The second respondent had been home-schooled with the assistance of teachers who were not registered. These proceedings concern their exclusion from the Scheme. Both respondents were successful in persuading the High Court that their exclusion from the Scheme was unreasonable and irrational in the sense in which those terms are used injudicial review proceedings. The Minister appeals and contends that the High Court judge fell into error on a number of fronts.

4 . The appeals raise many questions, including whether the factual matrix presented in this case engages any constitutional rights on the part of the respondents, whether or not there has been an exercise of executive power pursuant to Article 28.2 of the Constitution, and the appropriate judicial review test to be applied...