Elijah Burke v The Minister for Education and Skills

JudgeMr. Justice O'Donnell,Mr Justice Peter Charleton
Judgment Date24 January 2022
Neutral Citation[2022] IESC 1,[2020] IEHC 479,[2020] IEHC 418
CourtSupreme Court
Docket NumberSupreme Court appeal numbers: S:AP:IE:2021:000035 and S:AP:IE:2021:000036 High Court record numbers 2020/533 JR and 2020/595 JR
Elijah Burke
The Minister for Education and Skills
Naomi Power (a minor suing by her mother and next friend Breda Power)
The Minister for Education and Skills

[2022] IESC 1

[2021] IESC NN

[2019] IECA 67

[2020] IEHC 418 and 479

O'Donnell CJ

MacMenamin J

Dunne J

Charleton J

O'Malley J

Supreme Court appeal numbers: S:AP:IE:2021:000035 and S:AP:IE:2021:000036

Court of Appeal record number: 2020/197

High Court record numbers 2020/533 JR and 2020/595 JR

An Chúirt Uachtarach

The Supreme Court

Executive power – Constitution – Equality – Appellant challenging the reasoning of the High Court and the Court of Appeal – Whether the Calculated Grades Scheme was an exercise of the executive power of the State

Facts: The High Court found for the applicants/respondents, Mr Burke and Ms Power, on the ground that the refusal to provide calculated grades was irrational. The Court of Appeal found that the Calculated Grades Scheme was the exercise of executive power under Article 28 of the Constitution. The Court considered that the “clear disregard” test was not applicable to the type of scheme established and in issue. The Court considered that there was a right derived from Article 42.4 of the Constitution which was breached in these cases. In considering whether the right of the home-schooled student had been breached, the Court considered that it was necessary to refine the relief granted by the High Court. The respondent/appellant, the Minister for Education and Skills, sought leave to appeal to the Supreme Court. The Minister challenged the reasoning of both the High Court and the Court of Appeal. The following issues arose for determination on the appeal: (i) whether the scheme was an exercise of the executive power of the State; (ii) whether, if so, in considering the applicants’ challenge to the scheme and the Minister’s decisions made under it, a Court could only determine that the scheme was flawed or set aside the decision if it considered that the scheme or decision amounted to a clear disregard of the Constitution; (iii) whether there was a right derived from Article 42.4 or otherwise for a home-schooled student to have their interests reasonably taken into account when educational policy was being devised and implemented by the State; (iv) whether that right, or any right of the applicants under Article 42 was interfered with by the scheme; (v) whether, in the alternative, the applicants were not held equal before the law contrary to Article 40.1; and (vi) whether, and in the light of the conclusions to the questions posed above on the correct application of the legal test, the Minister’s decision to refuse to provide calculated grades to the applicants was invalid.

Held by O’Donnell CJ that the establishment of an alternative route to obtaining a Leaving Certificate in the context of a public health emergency, authorised by Cabinet decision, the details of which were provided for by a formal departmental circular, was undoubtedly the exercise of the executive power of government. O’Donnell CJ noted that the applicants contended that the operation of the scheme breached the constitutional right of the applicants in each case, identified as an unenumerated or derived right of the home-schooled child to have reasonable account taken of his/her situation when education policies are being implemented by the State, or alternatively a duty on the State not to disadvantage a child who is home-schooled where it is reasonably possible to avoid that outcome. O’Donnell CJ noted that the State denied that any such right was guaranteed by the Constitution, and that any constitutionally protected right of the applicants had been infringed by the terms of the scheme. O’Donnell CJ held that there was no justification for applying a clear disregard test to that question. O’Donnell CJ held that once it is accepted that the express provisions of Article 42 implies corresponding rights and interests on the part of the child, then the applicants’ case could be put more simply as a contention that the operation of the scheme in excluding certain home-schooled students is an impermissible interference with the express right of parents to provide education in the home, and the derived right of children to receive it. O’Donnell CJ considered that the prospect of a challenge from a complaining student had been demonstrated to be of sufficient weight or reality to justify the undoubted burden imposed on the applicants by being excluded from the possibility of progress to third-level education in 2020. O’Donnell CJ held that the claim already succeeded on the basis of an interference with a constitutionally protected right, freedom or value, and considerations of equality were superfluous.

O’Donnell CJ dismissed the appeal.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Monday 24 January 2022


For consideration in this judgment, concurring with the majority in the result, is whether the 8 May 2020 decision of the Government, in the face of the Covid 19 pandemic, to postpone the Leaving Certificate Examination “until such time as it is safe for State examinations to be held” and to substitute teacher assessed calculated grades, constitutes merely an administrative step or is, instead, the exercise of the executive power of the State under Article 28.2 of the Constitution and the consequences thereof.


The difference in the tests lies in the standard of review by the courts and in the consequences. The first, judicial review of administrative action, triggers the everyday test of reasonableness, perhaps assessed as to the proportionality of the decision, or the reasons behind it, or excess of jurisdiction or unfairness of procedures. The second, the very rare exercise of judicial control over the execution of executive power, properly construed, requires an applicant seeking to overturn an executive decision to demonstrate a clear disregard of the Constitution. An alternative, and on the existing decisions, a more stringent test is to require an applicant to demonstrate that constitutional rights have been or are being invaded by those activities of the executive or that activities of the executive threaten an invasion of such rights.


Both Elijah Burke and Naomi Power were among a tiny minority of students at second level hoping to try for success in the Leaving Certificate in 2020 who were caused a detriment by reason of its cancellation. They were home-schooled. By reason of having their parents teaching them, objectivity and fairness ruled out the possibility of those teachers assessing their own children. It can happen in a school that a parent has a child in his or her class but the Government scheme made provision for a different teacher to step in. With home-schooling, that was impossible. When predicted grades came in as the State examinations approached in 2020, it was uncertain if the Leaving Certificate could be held given the restrictions put on public interaction due to the Covid-19 pandemic. Would it happen at all was uncertain. The exams are run in June, in normal years, with applications for university and third level courses put in before that to the Central Applications Office and offers being made to students in mid-August. That could not happen in 2020. As the pressure from numbers infected eased towards the summer, candidates were given the option of a later run of the examination. They could, hence, have chosen to sit the Leaving Certificate in November 2020 but with the inescapable result that progress into a third level course would be delayed by a year to 2021 and in circumstances where delay, coupled with the competition for places, might have undermined the standing of their results due to the danger of possible ongoing grade inflation. These decisions were made by the Government as a matter of high policy. It is unimaginable that the Department of Education could have gone beyond administering governmental decisions and made this policy themselves. The civil service runs the State in consequence of governmental decisions but is not answerable to Dáil Éireann, save where there is an Oireachtas committee of inquiry. Such a manoeuvre would have left the Department running policy but leaving the Government of the day to suffer the consequences.


It is clear that a right inures to the family under Article 42.1 of the Constitution to be the “primary and natural educator of the child” and the State is required “to respect the inalienable right and duty of parents to provide … for the religious and moral, intellectual, physical and social education of their children.” Hence, under Article 42.2, the mother and father of Elijah Burke and Naomi Power were “free to provide this education in their homes or in private schools or in schools recognised or established by the State.” But, while under Article 42.3 the State may require, “as guardian of the common good”, that “children receive a certain minimum education, moral, intellectual and social” (physical is not mentioned, and the minimum standard required is currently set at school leaver-standard for a 16 year old), the State cannot “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.” Article 42.4, in requiring the State to provide for “free primary education”, also places an endeavour, but only that, before the State “to supplement and give reasonable aid to private and corporate educational initiative” and “when the public good requires it” towards “other educational facilities or institutions”. An overall saver in the constitutional text is that the State, in providing for free primary education and in endeavouring to assist...

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