The Department of Education, school Patron bodies, TDs, the ETBs, and others often refer to ‘faith formation’ in schools, by which they typically mean religious instruction according to the rites of a particular religion.
A consequence of this is that the Constitutional right of children to not attend religious instruction under Article 44.2.4 is often discussed in the context of the words ‘faith formation’. Atheist Ireland does not agree with this analysis.
We are seeking much more than protection from ‘faith formation’ for our children.
- Most importantly, we are seeking an education for our children that is objective, critical and pluralistic, and in accordance with human rights law. This is the positive foundation of our relevant rights.
- We are also seeking non-discriminatory exemptions in relation to any education and teaching that is not objective, critical and pluralistic. This includes ‘faith formation’ but is not confined to ‘faith formation’.
The Constitution
The Constitution does not mention ‘faith formation’. It speaks of the right to not attend religious instruction (44.2.4), and having due regard to the rights of parents in relation to religious and moral formation when funding schools (Article 42.4).
This means the rights of all parents, not just religious parents.
The Oireachtas
Instruction in schools simply means teaching in the classroom. When putting in place legislation to reflect Article 44.2.4, the Oireachtas said that students have a right to not attend any instruction that is against the conscience of their parents (Section 30-2(e) Education Act 1998).
So the Oireachtas has never said that the right to not attend religious instruction under Article 44.2.4 is confined to not attending ‘faith formation’. Any education and teaching that is not objective, critical and pluralistic is against our conscience, and therefore engages Article 44.2.4 of the Constitution.
The Irish Courts
The Supreme Court has never said that Article 44.2.4 is confined to not attending instruction according to the rites of a particular religion, or ‘faith formation’. They held that Article 42 (the inalienable rights of parents) in relation to the religious education of their children must be read in the context of Article 44.2.4.
The High Court in the Campaign case in 1996 has held that the Irish Constitution has developed the significance of parental rights over and above Article 2 of Protocol 1 of the European Convention, and in addition has imposed obligations on the State in relation to them.
The Court of Appeal in the Burke case in 2022 held that, “Thus in interpreting the obligations of the Board pursuant to the Education Act 1998 (as amended) regard must be had to the terms of the Convention.”
In summary, the courts have found that parents have inalienable rights under Article 42 in relation to the religious education of their children, that Article 42 must be read in the context of Article 44.2.4, and that regard for the terms of the European Convention must be taken into account when interpreting the obligations of Boards of Management under the Education Act 1998.
The European Court
The European Court has held that any education and teaching must be objective, critical and pluralistic. They have never held that the right to respect all parents convictions in schools is confined to not attending ‘faith formation’ classes. This right to respect is not just a negative right but imposes some positive obligation on behalf of the state.
No Irish school asserts that the education and teaching on offer is objective, critical and pluralistic. The state does not legally oblige schools to ensure that any education and teaching is objective, critical and pluralistic. Instead, it legally obliges them to uphold the ethos of the Patron (Section 15.2(b) Education Act 1998).
The Department of Education
The Department of Education (not the Oireachtas) has narrowed the Constitutional right to not attend religious instruction under Article 44.2.4 to not attending ‘faith formation’, or instruction according to the rites of a particular religion.
But the policies of the Department of Education and the views of various other bodies do not reflect or take precedence over the Constitution or national and European law.
Policy issued by the Department cannot interfere in our Constitutionally protected rights. Unfortunately that Constitutional principle is ignored.
Where are we now?
- The European court has held that any education and teaching must be objective, critical and pluralistic, and if any course is not objective, critical and pluralistic, then arrangements must be made for non-discriminatory exemptions.
- The Irish Courts say that parental rights in the Irish Constitution goes beyond the European Convention, and that when the courts are interpreting the obligations of the Board pursuant to the Education Act 1998 (as amended), regard must be had to the terms of the Convention.
- Yet the Department and the Minister claim that the right to not attend religious instruction under Article 44.2.4 is confined to not attending ‘faith formation’, which it defines as religious instruction in accordance with the rites of a particular religion.
The key words are ‘objective, critical and pluralistic’ (which we should focus on, as it is the foundation of vindicating our rights), and not ‘faith formation’ (which we should not focus on, as it is only part of the breach of our rights).
Obviously ‘faith formation’ is not objective, critical and pluralistic. And that would be true regardless of whether it focused on faith in one religion or faith generally as a religious principle.
But schools under various patron bodies also teach other courses and content, in relation to religion, beliefs and ethics, that they do not describe as ‘faith formation’, but that are not objective, critical and pluralistic, and they do not provide for non-discriminatory exemptions.
Given what the courts have said, it is reasonable to believe that the interpretation of the Department of Education in relation to Art 44.2.4 (faith formation) is simply wrong, and that the Department have gone beyond their powers by interpreting and narrowing a Constitutional right.
Atheist Ireland will continue to campaign for our Constitutional and Human right to an objective, critical and pluralistic education for our children, and we are not confining ourselves to what is termed ‘opting out of faith formation’.