Secular Schools Ireland Ltd v Minister for Education and Skills

JurisdictionIreland
CourtCourt of Appeal (Ireland)
Judgethe President
Judgment Date02 Mar 2017
Neutral Citation[2017] IECA 57
Docket NumberNeutral Citation Number: [2017] IECA 57 [2015 No. 561]

[2017] IECA 57

THE COURT OF APPEAL

Ryan P.

The President

Finlay Geoghegan J.

Irvine J.

Neutral Citation Number: [2017] IECA 57

[2015 No. 561]

BETWEEN
SECULAR SCHOOLS IRELAND LIMITED
APPELLANT
AND
THE MINISTER FOR EDUCATION AND SKILLS, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

Judicial review – Patronage – Invalid application – Appellant seeking review of a decision to exclude the appellant from consideration for patronage of a new primary school – Whether appellant’s application to act as patron was invalid

Facts: The appellant, Secular Schools Ireland Ltd, appealed to the Court of Appeal against the order and judgment of the High Court (Hedigan J) of 4th September 2015, refusing reliefs sought by way of judicial review of a decision to exclude the appellant from consideration for patronage of a new primary school at Carrigtwohill, County Cork. The central issue in the appeal was whether the application made by Secular Schools was valid, in the sense of being in accordance with the terms and conditions and information provided by the Department to intending applicants including the appellant. The appellant did not seek to have the patronage appointment made in respect of the Carrigtwohill school set aside, but rather claimed declaratory relief to establish the allegedly erroneous decision by the Department to exclude in limine its application from consideration.

Held by Ryan P that the Department was in error in considering that the application submitted by Secular Schools was invalid. Ryan P held that the Department made a serious error of administration in rejecting the application on the basis of invalidity and wrongly excluded the appellant from the choice of school patron evaluation process. Contrary to the submissions and argument made on behalf of the first respondent, the Minister for Education and Skills, it was not made clear to Secular Schools that they had to express commitment to a list of stipulations in their application for patronage of the school.

Ryan P held that the Court would allow the appeal and grant a declaration that the application made by Secular Schools on 20th March 2015 to act as patron of the primary school at Carrigtwohill was not invalid.

Appeal allowed.

JUDGMENT of the President delivered on 2nd March 2017
Introduction
1

This is an appeal brought by Secular Schools Ireland Ltd. against the order and judgment of the High Court (Hedigan J) of 4th September 2015, refusing reliefs sought by way of judicial review of a decision to exclude the appellant from consideration for patronage of a new primary school at Carrigtwohill, County Cork. The appellant is a company limited by guarantee which aims to promote and provide secular education for children. The company applied to the Minister on 20th March 2015, to be appointed patron of the new primary school that was scheduled to commence on 1st September 2015. By letter of 10th June 2015, Ms. Jacky Hynes, Assistant Principal Officer in the Forward Planning Section of the Department, notified the appellant's representative that patronage of the school was to be awarded to another named applicant and that ‘your application was not successful on this occasion’. The letter also said that the Minister had accepted the recommendation of the New Schools Establishment Group in making the patronage appointment, explaining that all of the relevant information in relation to the decision was available on the Department's website. Access to these materials revealed that Secular Schools' application had not actually been the subject of substantive evaluation but had been excluded at a preliminary stage because it was considered to be deficient as not containing appropriate declarations of compliance with Departmental requirements, more particularly discussed below. The appellant applied to the High Court for judicial review of the decision and consequential and ancillary relief. The matter was heard by Hedigan J. on 21st August 2015. The High Court delivered judgment on 4th September 2015, refusing the relief sought. Secular Schools appeals the order and judgment of the High Court.

2

In his judgment, Hedigan J. held that the application for judicial review was misconceived. There was no dispute between the parties as to the nature and extent of constitutional rights concerning education and the argument focused on the exercise of such rights. The Minister had to ensure that patronage of schools was awarded to those who would guarantee to meet the established criteria, which was the purpose of s. 10(2)(f) of the Education Act 1998. The Minister did just that by providing a mode of application that included seven criteria that an applicant had to meet. It was not suggested that any of them was unreasonable or unfair and, indeed, they appeared to be eminently sensible and practical. The applicant, Secular Schools Ireland Ltd., was made fully aware of the need to commit to those criteria. The judge said that it was ‘somewhat puzzling that the applicant has not even to date done so’. The officials in the Department were not required to go back to applicants who had not made valid applications. Secular Schools had simply failed to meet the requirements notwithstanding that they had been made fully aware of them. The appellant had been the author of its own misfortune.

3

The appellant's notice of appeal is couched in traditional judicial review terms which will be considered in due course. The written submissions also include more erudite argument about parental rights in constitutional law and in international obligations that the State has undertaken, some of which have not been implemented in national law. It is, however, unnecessary to embark on an exploration of these issues. The Minister submits that Secular Schools did not make a valid application, notwithstanding that it was notified of the necessary terms and conditions on a number of occasions:

‘The issue is respectfully considered by the Respondent to be simply whether or not the Applicant/Appellant failed to follow the published requirements for the terms of its application, and not the matter of statutory interpretation or constitutional rights of the Applicant/Appellant or others raised in these proceedings.’

4

I agree with the Minister's position. The central issue in the appeal is indeed whether the application made by Secular Schools was valid, in the sense of being in accordance with the terms and conditions and information provided by the Department to intending applicants including the appellant. Other possible questions fall away in light of the decision on this point and of the position properly adopted by the respondent in regard to availability of judicial review in the particular circumstances of the case. The decision of this Court in respect of validity of the application disposes of the appeal accordingly. The appellant, Secular Schools, does not seek to have the patronage appointment made in respect of the Carrigtwohill school set aside, but rather claims declaratory relief to establish the allegedly erroneous decision by the Department to exclude in limine its application from consideration.

The Relevant Facts
5

On 5th February 2015, the Minister for Education and Skills made an announcement that seven new primary schools were to be established over the next two years. The press release containing the announcement quoted the Minister as follows:

‘The establishment of new schools provides an opportunity for patrons to apply to run the schools. The criteria to be used in deciding on patronage of the new schools place a particular emphasis on parental demand for plurality and diversity of patronage. Parental preferences should be at the centre of considerations about the type of school to be recognised. The patronage arrangements in place provide that patron bodies proposing schools at either primary or second level will be asked to provide evidence of demand.’

6

On 17th February 2015, the Department responded to a request for information sent on behalf of Secular Schools with a copy invitation to patrons to apply to operate the new school at Carrigtwohill, County Cork together with Guidelines that would apply in determining the application. The email also sent a link to the Guidelines on the Department's website. The Guidelines document is crucial to the decision on the appeal and it is accordingly reproduced in full hereunder. Before citing that document, reference must also be made to the invitation for applications for patronage of two primary schools including Carrigtwohill which were to open in September 2015. The letter dated 12th February 2015, said that there would be a meeting in the Tullamore office of the Department on Tuesday 24th February 2015, ‘for patrons/prospective patrons to discuss the areas where the new schools are required and to discuss the criteria and procedures for deciding on the patronage of these new schools’. The letter gave the deadline for applications. The penultimate paragraph said [emphasis as in original]:

‘Please find attached for your information a copy of the criteria and revised arrangements which will be applicable in deciding on patronage of the new schools. In making your application you must confirm that you will comply with the criteria as outlined, and you must provide evidence of parental demand from the area to be served, for the school type proposed by you. A template for submission of parental demand will be emailed to you for this purpose, and all information must be presented in this format only.’

The Guidelines Document
7

‘New Arrangements for Patronage of New Schools

Primary

‘The following key elements will apply to the establishment of a new primary school:

• The demographics of the area must support the need for the establishment of a new school (or where meeting the demographics through the...

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1 cases
  • S v Minister for Justice and Equality
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    • Court of Appeal
    • 11 March 2020
    ...or omitted from non-statutory guidelines was considered by this Court in Secular Schools Ireland Ltd v Minister for Education and Skills [2017] IECA 57. The appellant submitted that a decision by the Minister for Education to exclude it from consideration for patronage of a new primary scho......

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