School Attendance Bill, 1942, and Art. 26 of the Constitution

• Jurisdiction: Ireland
• Judgment Date: 15 April 1943
• Date: 15 April 1943
• Court: Supreme Court

In re Art. 26 of the Constitution and the School Attendance Bill, 1942.

In the Matter of ARTICLE 26 of the Constitution and in the Matter of the SCHOOL ATTENDANCE BILL, 1942 (1)

Supreme Court.

Constitution - Bill passed by both Houses of Oireachtas - Validity - Repugnancy to the Constitution - Education - Right of parents as to the education of their children - State entitled to require that children shall receive a certain minimum education - Extent of State's obligation - Suitable education - Certificate of Minister as to - Exercise of powers by Minister - Unreasonable results of Bill.

The President referred to the Supreme Court, under Art. 26 of the Constitution, a Bill entitled "An Act to make further and better provision for ensuring school attendance by children to whom the School Attendance Act, 1926, applies, and for that and other purposes to amend the said School Attendance Act, 1926" for a decision on the question whether s. 4 of the said Bill was repugnant to the Constitution or to any provision thereof.

Sect. 4, sub-s. 1 of the Bill provided:—"A child shall not be deemed for the purposes of this Act to be receiving suitable education in a manner other than by attending a national school, a suitable school, or a recognised school unless such education and the manner in which such child is receiving it, have been certified under this section by the Minister to be suitable."

The section also contained provisions dealing with the granting and withholding of the Minister's certificate. The said Act of 1926 applies to all children between the age of 6 and 14.

Article 42, clause 3, par. 2, of the Constitution provides:—

"The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social."

The Court was of opinion that s. 4 of the Bill was repugnant to the Constitution because:—

1. The Minister, construing the section in a reasonable manner, might require a higher standard of education than could properly be prescribed as a minimum standard under Art. 42, clause 3, par. 2, of the Constitution.

2. The standard contemplated by the section might vary from child to child and accordingly was not such a standard of general application as the Constitution contemplated.

3. In the case of a child who had reached the prescribed age of six years and was being educated at home or in a private school, a certain time must necessarily elapse before the Minister could give his certificate under s. 4, and the parent would be in default in the interval and liable to the prescribed penalties.

4. Under sub-s. 1 of the section not only the education but also the manner in which such child is receiving it must be certified by the Minister, and this was not warranted by the Constitution.

The Court accordingly advised the President that the said section was repugnant to the Constitution.

Reference, in pursuance of Art. 26 of the Constitution, of a Bill—the School Attendance Bill, 1942—passed by both Houses of the Oireachtas, to the Supreme Court for a decision on the question as to whether s. 4 of the Bill was repugnant to the Constitution or to any provision thereof. The material sections of the Bill as well as those of the School Attendance Act, 1926 are set out in the judgment of the Court.

The Court, in accordance with Art. 26, clause 2, par. 1 of the Constitution, heard arguments on behalf of the Attorney-General and by counsel assigned by the Court.

Cur. adv. vult.

The decision of the Court was delivered by Sullivan C.J.

Sullivan C.J.:—

In this case the President, in pursuance of Art. 26 of the Constitution and after consultation with the Council of State, referred to this Court a certain Bill, entitled the School Attendance Bill, 1942, for decision on the question

whether s. 4 of the said Bill is repugnant to the Constitution or to any provision thereof.

In accordance with the said Article this Court assigned counsel, and subsequently heard arguments by counsel on behalf of the Attorney-General and by counsel so assigned, and, having considered such arguments, has arrived at the following decision.

The Bill is entitled "An Act to make further and better provision for ensuring school attendance by children to whom the School Attendance Act, 1926, applies, and for that and other purposes to amend the said School Attendance Act, 1926."

By s. 1 it is provided that the expression "the Principal Act" means the said Act of 1926, and the Bill, if, and when, passed, is to be read and construed as one with the Principal Act.

The Act of 1926 is expressed to be an Act to make provision for ensuring the attendance of children at elementary schools.

By s. 2 the expression "child to whom this Act applies means and includes a child who has attained the age of six years and has not attained the age of fourteen years, and every other child to whom this Act is for the time being applied by virtue of an Order made by the Minister under the power in that behalf hereinafter conferred on him."

By s. 24 the Minister is authorised by Order from time to time to apply the provisions of the Act to children or any class of children who have attained the age of fourteen years and have not attained the age of sixteen years. Up to the present the Minister has not exercised the power so conferred on him.

By s. 17 it is provided that whenever a parent fails or neglects to cause his child to whom the Act applies to attend school in accordance with the Act and, so far as is known to the...