O'Shiel v Minister for Education

JurisdictionIreland
JudgeMs. Justice Laffoy
Judgment Date16 April 1999
Neutral Citation[1999] IEHC 146
CourtHigh Court
Docket NumberNo. 9998 P/1996,[1996 No. 9998P]
Date16 April 1999
O'SHIEL & ORS v. MINISTER FOR EDUCATION & ORS

Between

NORA O'SHIEL
AND NEXT FRIEND
MARGARET BOYLE O'SHIEL AND ALL THOSE NAMED
IN THE FIRST SCHEDULE HERETO
FIRST NAMED PLAINTIFFS

AND

MARGARET BOYLE O'SHIEL AND ALL THOSE NAMED
IN THE SECOND SCHEDULE HERETO
SECOND NAMED PLAINTIFFS

AND

COOLEENBRIDGE LIMITED
THIRD NAMED PLAINTIFF

AND

THE MINISTER FOR EDUCATION AMD SCIENCE IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

[1999] IEHC 146

No. 9998 P/1996

THE HIGH COURT

Synopsis

Constitutional Law

Education; duty of the State to provide free primary education; teacher qualifications; Irish language; Department of Education refused to recognise a Steiner School as a primary school and refused the school State funding; whether the constitutional obligation of the State to provide free primary education is subject to parental freedom of choice in relation to the type of primary education; whether the criteria under the Rules for National Schools for recognition of a primary school - in relation to teacher qualifications and the place of the Irish language in the curriculum - infringed the plaintiffs" constitutional rights; Arts. 8 and 42, Constitution; Rules for National Schools under the Department of Education, 1965

Held: The State must take account of the parental freedom of choice guaranteed by Art. 42 of the Constitution; the criteria for recognition of primary schools did not infringe the plaintiffs" constitutional rights; relief refused

O'Shiel v. The Minister for Education - High Court: Laffoy J. 16/04/99 - [1999] 2 IR 321 - [1999] 2 ILRM 241

In order to fully discharge its constitutional obligation to provide for free primary education the State had to have regard to conscientious parental choice and therefore, the argument that the State's obligations were discharged by the provision of funding for other schools in the area could not be accepted. However, while the Rules for National Schools introduced in 1965, and amended thereafter, would be invalid to the extent that they encroached on constitutional rights the requirement that teachers in recognised schools have qualifications recognised by the Minister for Education and Science and the further requirement that Irish be compulsorily taught in recognised schools to an acceptable standard did not unlawfully encroach on the plaintiff's constitutional rights. The High Court so held in refusing the relief sought.

Citations:

CONSTITUTION ART 42

MCENEANEY V MIN FOR EDUCATION 1941 IR 430

CONSTITUTION SAORSTAT EIREANN ART 10

MINISTERS & SECRETARIES ACT 1924 S1

RYAN V AG 1965 IR 294

CONSTITUTION ART 42.2.4

EEC DIR 89/48

EUROPEAN COMMUNITIES (GENERAL SYSTEM FOR THE RECOGNITION OF HIGHER EDUCATION DIPLOMAS) REGS 1991 SI 1/1991

EDUCATION ACT 1998

SCHOOL ATTENDANCE ACT 1926

CONSTITUTION ART 15.2

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 41.1

CONSTITUTION ART 42.3

CONSTITUTION ART 42.4

CONSTITUTION ART 42.3.2

CROWLEY V IRELAND 1980 IR 102

TORMEY V IRELAND 1985 IR 289

ART 26 OF THE CONSTITUTION & SCHOOL ATTENDANCE BILL 1942, IN RE 1943 IR 334

CASEY CONSTITUTIONAL LAW IN IRELAND 2ED 526

BYRNE V IRELAND 1972 IR 241

CONSTITUTION ART 44.2.4

KELLY ON CONSTITUTION 1060

O'CALLAGHAN V MEATH VOCATIONAL EDUCATION COMMITTEE & CO UNREP COSTELLO 20.11.1990 1991/5/1037

MCCANN V MIN FOR EDUCATION 1997 1 ILRM 1

GREENE V MIN FOR AGRICULTURE 1990 2 IR 17

CONSTITUTION ART 8

CUSSEN, STATE V BRENNAN 1981 IR 181

CARBERRY V YATES 1935 69 ILTR 86

DPP V BEST 1998 2 ILRM 549

GROENER V MIN FOR EDUCATION 1990 ILRM 335

1

Ms. Justice Laffoy delivered on the 16th day of April, 1999

THE PLAINTIFFS
2

The first named Plaintiffs, to whom I will refer as "the Infant Plaintiffs", are infants and they are pupils at the school known as Cooleenbridge School in Tuamgraney, Co. Clare. Each of the second named Plaintiffs, to whom I will refer as "the Parent Plaintiffs", is the parent of one of the Infant Plaintiffs. The Third named Plaintiff, which I will refer to as "the Company", is a company limited by guarantee and incorporated in the State under the Companies Acts, 1963to 1990.Cooleenbridge School was established and is run by a group of parents, now represented by the Parent Plaintiffs, who wish their children to be educated in accordance with the ideology and pedagogy enunciated by Rudolph Steiner, who established a school in Stuttgart in 1919. Schools which are based on the Steiner principles have come to be known as "Waldorf Schools" because the impetus for the establishment of the first school came from a lecture given by Steiner in the Waldorf-Astoria cigarette factory in Stuttgart on 23rd April, 1919. The Company is the corporate vehicle which owns and manages Cooleenbridge School.

3

Since its establishment Cooleenbridge School has been funded by the parents of the children who have attended it either by direct contributions or by fund-raising activities. Currently, it costs approximately £120,000 per annum to run the school.

4

In these proceedings the Plaintiffs" claim, in broad terms, is that the Defendants have infringed the Infant Plaintiffs" constitutional right to free primary education under Article 42 of the Constitution in that the first named Defendant (the Minister) rejected an application by the Plaintiffs for recognition of Cooleenbridge School, which recognition would have entitled Cooleenbridge School to receive funding from the State.

THE HISTORY OF PRIMARY EDUCATION IN IRELAND PRIOR TO 1937
5

For about 80 years prior to 1922, the provision of primary education in Ireland was entrusted to the Commissioners of National Education in Ireland, a body corporate created by Royal Charter in 1845. The system which operated prior to 1922 is outlined in the judgment of Murnaghan J. in McEneaney -v- Minister for Education [1941] I.R. 430. The funds necessary for the purpose of primary education were provided by Parliament and handed over to the Commissioners to be administered. In administering the funds, the Commissioners devised a mode of application known as the "managerial system". The system was adopted to obviate difficulties connected chiefly with religious belief. In most cases the schools were not the property of the Commissioners, but they were recognised as national schools. A manager, usually the parish priest, or rector of the Church of Ireland, was nominated by an outside authority and the nomination was sanctioned by the Commissioners. When sanctioned, the duties and function of the manager were minutely provided for in Rules and Regulations made by the Commissioners.

6

Following the establishment of Saorstát Éireann in 1922, a number of changes occurred. Article 10 of the Constitution of Saorstát Éireann provided that all citizens of Saorstát Éireann should have "the right to free elementary education". Section 1 of the Ministers and Secretaries Act, 1924(the Act of 1924) provided for the establishment of the Department of Education which should -

"...comprise the administration and business generally of public services in connection with Education, including primary, secondary and university education...and all powers, duties and functions connected with the same, and .... include in particular the business, powers, duties and functions of the branches and officers of the public services specified in the Fourth Part of the Schedule to this Act...".

7

Among the branches of administration which were assigned to the Department of Education was the Commissioners of National Education in Ireland. By order of the Executive Council dated 16th August, 1923 all the jurisdictions, powers and duties of the Commissioners of National Education in Ireland were transferred to a new board called the National Education Commissioners. That new board, in turn, was dissolved by order of the Executive Council dated 2nd August, 1935, whereupon all the jurisdictions, powers, duties and functions formerly exercised by it were expressly transferred to the Minister. A revised code of "Rules and Regulations for National Schools under the Department of Education" was issued in 1932. The position, accordingly, when the Constitution of Ireland came into force in December, 1937 was that primary education was directly regulated by the Minister by the revised regulatory code introduced in 1932.

ARTICLE 42 OF THE CONSTITUTION OF IRELAND
8

Article 42 provides as follows:-

9

2 "1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

10

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

11

3 1° The State shall not 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.

12

3 2° The State shall, however, as guardian of the common good, require in view of actual conditions that children receive a certain minimum education, moral, intellectual and social.

13

4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

14

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible...

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