Freddy Sherry v The Minister for Education and Skills, The Minister for Further Education and Higher Education, Research, Innovation and Science, Ireland, and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 02 March 2021
• Neutral Citation: [2021] IEHC 128
• Docket Number: [2020 No. 655 JR]
• Date: 2021
• Court: High Court

Between

Freddy Sherry

Applicant

and

The Minister for Education and Skills, The Minister for Further Education and Higher Education, Research, Innovation and Science, Ireland, and The Attorney General

Respondents

[2021] IEHC 128

[2020 No. 655 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Legitimate expectation – Public interest – Applicant seeking judicial review – Whether the respondents’ decisions were arbitrary, unfair, unreasonable, irrational and unlawful and in breach of the applicant’s legitimate expectations

Facts: The cancellation of the traditional Leaving Certificate for 2020 required the first respondent, the Minister for Education and Skills, to put in place an alternative system for grading students and awarding Leaving Certificates. In the lead up to 27 July 2020, the date for candidates, including the applicant, Mr Sherry, to opt into the calculated grades system all the documentation and information that came from the Department of Education and Skills stated that the data that would be used in the standardisation model for the award of calculated grades would include school historical data (SHD). In August, 2020, a controversy arose in the United Kingdom (UK) concerning the awarding of calculated grades. There then followed a controversy, similar to that in the UK, centred on the use of SHD. Having considered a number of iterations of the standardisation model on the use of SHD to varying degrees, a decision was taken by the Minister and the other respondents, the Minister for Further Education and Higher Education, Research, Innovation and Science, Ireland and the Attorney General, to remove it completely from the model. Given the potential number of downgrades from teacher/school estimated marks it was further decided to minimise the effects of national historical data (NHD) by not applying the “mapping tool” in the model. This led to significant “grade inflation” in the results of Leaving Certificate 2020 with consequent effects on the points requirements for certain third level courses. The decision to remove SHD and minimise the effects of NHD were breaches of the commitments that had been given to the applicant and other candidates for Leaving Certificate 2020. This formed the basis of the issue which the High Court had to decide namely whether those decisions were “arbitrary, unfair, unreasonable, irrational and unlawful and in breach of the applicant’s legitimate expectations”.

Held by Meenan J that the decisions to remove SHD and minimise the effects of NHD were an exercise of executive power under Article 28.2 of the Constitution; further, the decisions involved an area of policy, namely how to maintain public acceptance of the calculated grades system. He was of the view that the Court, given the Constitutional provisions on the separation of powers, did not have the jurisdiction to review those decisions. Further, he was satisfied that the Court did not have the competence to make a finding as to which was the appropriate course for the Minister and the other respondents to take when faced with the public controversy. Meenan J found that though the applicant had met some of the conditions necessary to establish a breach of his legitimate expectation, he had not satisfied others. Meenan J found that even if the applicant had satisfied the conditions necessary to maintain a claim for breach of his legitimate expectations he would still be met with the defence of “public interest”. Meenan J was satisfied that the respondents were entitled to maintain that the decisions to remove SHD and minimise the effects of NHD (not using the “mapping tool”) were ones taken in the public interest to maintain public acceptance of the calculated grades system.

Meenan J held that the removal of SHD and the minimising of NHD in the standardisation model for the awarding of calculated grades was not “arbitrary, unfair, unreasonable, irrational and unlawful and in breach of the applicant’s legitimate expectations”, as claimed by the applicant.

Reliefs refused.

Judgment of Mr. Justice Charles Meenan delivered on the day of 2 ^nd March, 2021 .

Contents

Introduction	2
Calculated grades	4
School historical data (SHD)	5
National historical data (NHD)	5
Government decision of 1 September 2020	6
Leaving Certificate results of 2020	6
The issue	8
Evolution of the standardisation model	9
Justiciability	24
Submissions	24
Evidence	30
Consideration of submissions	32
Legitimate expectation	35
Fairness	38
Public interest	46
Conclusion	49
Summary	49
Consequential orders:	53
Appendix A:	54

Introduction

1 . The fight to contain the spread of the Covid-19 virus has involved the imposition by the State of restrictions on almost every aspect of our lives. The young, the old, those with disabilities, and those without have all been affected, some to a greater degree than others. To halt the spread of the virus, it is necessary to limit, if not restrict entirely, the circumstances under which people meet and congregate.

2 . In excess of 62,000 students were due to sit the Leaving Certificate in 2020. This obviously involved the congregation of significant numbers of people in close proximity in an indoor setting for prolonged periods of time. As the date for the commencement of the Leaving Certificate 2020 approached, it was apparent that, though the spread of the virus had at that stage been significantly reduced, for reasons of public health, the examination could not take place. For the first time in the history of the State, by a decision of the Government of 8 May 2020, the Leaving Certificate due to start the following month was cancelled.

3 . The Leaving Certificate has a central role in the Irish education system. For those who wish to advance to third level education, the results of the Leaving Certificate are, for the most part, a basis for entry to a particular course and a subsequent career. For others, who do not wish to pursue third level education, the Leaving Certificate is a qualification that may be necessary to obtain employment. The importance of the results of the Leaving Certificate cannot be overstated for young people who wish to pursue a particular career or, indeed, for more mature people who may wish to embark on a new and different career. Without a Leaving Certificate, the class of 2020 would have been left stranded, so it was imperative that an alternative system be devised to give an accurate assessment, as far as possible, of the standards that would have been achieved had the exam proceeded in the normal way. The first named respondent (the Minister) did not have the option to simply defer Leaving Certificate 2020 to 2021.

4 . The whole Leaving Certificate system has been the subject of comment and criticism over many years. However, it is difficult, if not impossible, to replicate by an alternative system the fairness of the Leaving Certificate exam. Students doing the Leaving Certificate exam come from various and diverse backgrounds. Families of some students have the financial means to send their children to “fee-paying” schools and to provide additional education by way of grinds. Other families who do not have such financial means may, with great sacrifice, enrol their children in “fee-paying” schools. Very many other families simply cannot afford this but want their children to do a good Leaving Certificate and, notwithstanding the inequalities in the system, have equality of opportunity. However, at the end of the day, all students do the same exam. The correction of each subject in the Leaving Certificate is done entirely anonymously and according to guidelines which, prior to their adoption, have been considered in detail by the relevant experts.

5 . The task facing the Minister in devising a system that would give to a student a grade that he or she would have obtained had the Leaving Certificate exam been sat in the normal way cannot be underestimated. Further, this task had to be completed to the satisfaction of students, teachers and the wider public in a narrow timeframe. The system devised was the awarding of “calculated grades”.

6 . The basis used for the award of a calculated grade raises fundamental issues, not all of which are legal. It is a fact that certain schools, in particular “fee-paying” schools, have historically achieved stronger Leaving Certificate results than other schools. Should the calculated grades being awarded in 2020 reflect this? Also, grades achieved in the Leaving Certificate may vary depending upon the gender and socio-economic background of the candidates. Should this also be reflected in the awarding of calculated grades? It would not be acceptable to many to factor into the system for the awarding of calculated grades inequality, since it must be a basic principle of any for education system to achieve equality of opportunity. Thus, a system that may, statistically, give an accurate result would not be acceptable to the public at large. It was the requirement for public acceptance that was central to the decisions taken by the Minister and the Government that are the subject of these proceedings.

Calculated grades

7 . There were two phases to the system for the awarding of calculated grades. Firstly, a schools phase; and, secondly, a phase overseen by the Department of Education and Skills (the Department).

8 . The school phase involved the award by the relevant teacher(s) of an estimation of the percentage mark in each subject that each candidate is likely to have achieved if they had sat the Leaving Certificate examination in 2020 under normal conditions. The school then carried out a “class ranking” for each student in each subject, i.e.: a list of all the students in each individual class group for a particular subject in order of their...