The Irish government has a duty under the Good Friday Agreement to take “comparable steps” to strengthen human-rights protection in Ireland, in line with developments in Northern Ireland.
A recent UK Supreme Court case found that religious education arrangements in Northern Ireland schools breached the European Convention on Human Rights. Similar concerns arise in publicly funded Irish schools.
In light of this development, Atheist Ireland has made the following submission to the Oireachtas Committee on the Implementation of the Good Friday Agreement.
Comparable steps on human rights in education: Freedom of conscience and respect for parents’ convictions (ECHR Article 2 of Protocol 1 & Article 9)
1. Executive Summary
2. Recommendations
3. Overview of the issue
4. Why this matters under the Agreement
5. Relevant rights under the European Convention
6. Constitutional Review Group 1995 Report
7. Government responsibility and lack of effective remedy
8. Gaps in Irish law and practice
9. International Obligations
10. Other relevant Atheist Ireland submissions
11. Appendix: Extract from Louise O’Keeffe judgment
1. Executive Summary
Atheist Ireland is a voluntary advocacy organisation that promotes an ethical, secular State grounded in human rights. We have special consultative status at the United Nations, and we are partners in the Lisbon Treaty dialogue process between the Irish Government and Irish religious and philosophical bodies.
This Submission aims to assist the Committee in assessing whether Ireland is meeting its commitment under the Good Friday Agreement to take “comparable steps” to strengthen human-rights protection, in line with developments in Northern Ireland.
A recent UK Supreme Court judgment (JR87) found that arrangements in Northern Ireland schools breached the European Convention on Human Rights: specifically Article 2 of Protocol 1 (respect for parents’ religious and philosophical convictions in education) in conjunction with Article 9 (freedom of thought, conscience and religion).
The court found that the child in the case did not have access to an objective, critical and pluralistic education and there were no non-discriminatory exemptions from religion classes. This amounted to indoctrination under the Convention. Materially comparable concerns arise in Ireland’s school system, which we outline in this submission, along with recommendations on how to address them.
2. Recommendations
This submission asks the Committee to examine whether Ireland is meeting its Good Friday Agreement commitment to take “comparable steps” to strengthen human-rights protection, in publicly funded primary and post-primary schools, particularly in light of a recent UK Supreme Court judgment on Northern Ireland schools and the European Convention on Human Rights.
Specifically, this submission asks the Committee to invite evidence from relevant parties, including the Irish Human Rights and Equality Commission and Atheist Ireland, on compliance with Article 2 of Protocol 1 and Article 9 in publicly funded schools, and, in its next report to both Houses of the Oireachtas, to:
- Recommend statutory guidelines defining what “respect for convictions” requires in practice.
- Recommend a uniform, enforceable, non-discriminatory right to not attend religious instruction, with safe supervision or another subject of educational value, and no stigma, monitored by inspection.
- Recommend an effective complaints and remedy pathway with timelines and escalation.
- Recommend curriculum and inspection reform to ensure objective, critical and pluralistic content and delivery is available as a right to every child.
- Management duties regarding upholding the ethos of the Patron can’t override Convention-compliant delivery in publicly funded schools.
These steps would create a minimum, enforceable rights foundation that does not depend on individual school ethos, resources, or goodwill.
3. Overview of the issue
In a recent case the UK Supreme Court held that a Northern Ireland school’s provision of religious education and collective worship breached the rights protected by Article 2 of Protocol 1 (children’s right to education in conformity with their parents’ religious or philosophical convictions) read with Article 9 (freedom of thought, conscience and religion).
The court found that the child in the case was being indoctrinated because they did not have access to an objective, critical and pluralistic education and there were no non-discriminatory exemptions from religion classes. This amounted to disrespect for the parents’ philosophical convictions under Article 2 of Protocol 1, and withdrawal mechanisms did not cure the breach.
Specifically, the court found that: “138. In relation to JR87’s rights, the judge was correct to be guided by the finding of a breach of G’s rights under the second sentence of Article 2 of Protocol 1 and was correct to find a breach of Article 2 of Protocol 1 read with article 9 ECHR in relation to both JR87 and G.”
4. Why this matters under the Good Friday Agreement
Under the Agreement, the Irish Government has committed to further strengthening human-rights protection in its jurisdiction, taking account of the Report of the Constitutional Review Group, in a manner comparable to measures in Northern Ireland.
“9. The Irish Government will also take steps to further strengthen the protection of human rights in its jurisdiction. The Government will, taking account of the work of the All-Party Oireachtas Committee on the Constitution and the Report of the Constitution Review Group, bring forward measures to strengthen and underpin the constitutional protection of human rights.
These proposals will draw on the European Convention on Human Rights and other international legal instruments in the field of human rights and the question of the incorporation of the ECHR will be further examined in this context. The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.”
This Committee is therefore the appropriate forum to examine whether Ireland is providing at least an equivalent level of protection in this area.
In Ireland’s publicly funded education system, many parents and pupils face materially comparable issues that raise concerns under Article 2 of Protocol 1 read with Article 9:
- Failure to respect parents’ philosophical convictions, including because:
- Religion/worldview instruction and practices are not objective, critical and pluralistic.
- Supposed arrangements for not attending religious instruction that are inconsistent, potentially stigmatising, and ineffective where religion is integrated across school life and other curriculum subjects.
Also, the European Court of Human Rights has made clear that the Irish State cannot absolve itself of Convention obligations by delegating these to private bodies and institutions. In the absence of statutory guidance and enforceable standards, families have no practical route to secure Convention-compliant education or an effective remedy (Louise O’Keeffe case).
5. Relevant rights under the European Convention
Article 2 of Protocol 1 states that:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
Article 9, on freedom of thought, conscience and religion, states that:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
6. Constitutional Review Group 1995 Report
The Good Friday Agreement states that the Government will take account of the work of the All-Party Oireachtas Committee on the Constitution and the Report of the 1995 Constitution Review Group. No Government has taken account of what this Report said about these issues:
“[Article 44.2.4 states:] ‘…nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school’… As already noted, this proviso is capable of giving rise to a number of difficulties stemming mainly from the fact that it was designed for a system of education which was supposed to be non-denominational, but with provision for separate religious instruction. As the Review Group has already noted, the reality is otherwise. The educational system is de facto denominational in character…”
“ii) if Article 44.2.4 did not provide these safeguards, the State might well be in breach of its international obligations, inasmuch as it might mean that a significant number of children of minority religions (or those with no religion) might be coerced by force of circumstances to attend a school which did not cater for their particular religious views or their conscientious objections. If this were to occur, it would also mean that the State would be in breach of its obligations under Article 42.3.1.
iii) this aspect of Article 44.2.4 reflects an earlier commitment given on behalf of the State contained in the Treaty of 1921 and Article 8 of the 1922 Constitution which was designed to safeguard the rights of religious minorities. Any amendment at this stage would be a retrograde step −especially in the context of Northern Ireland and would send the wrong signal concerning pluralism in this State.
Recommendation: No change is proposed.”
7. Government responsibility and lack of effective remedy
The European Court, in the Louise O’Keeffe v Ireland judgment in 2014, held that the Irish state could not absolve itself of Convention obligations by delegating them to private bodies and institutions. The relevant extract from the ruling is in the appendix to this submission.
Eamon Gilmore, who was Tánaiste in 2014 when the judgment was delivered, told the Dáil:
“The judgment of the European Court of Human Rights has very serious implications for the relationship between the State and the patronage of our schools. As the Deputy knows, the Minister for Education and Skills has already undertaken a process of considering the whole issue of patronage of our schools. That issue will now be given an added significance by the judgment in this case. That is one of the issues.”
But in practice, the judgment has changed nothing in relation to other school-related rights under the European Convention, notwithstanding the fact that the state cannot absolve itself of Convention obligations in this area.
There is no realistic way of holding schools accountable for these human rights and consequently there is no access to an effective remedy for families.
8. Gaps in Irish law and practice
The Irish Human Rights and Equality Commission published a Report in 2011 on Religion and Education; A Human Rights Perspective. This Report deals with the issue of access to an objective, critical and pluralistic education (page 82 onward).
There are no statutory guidelines in place that define what respecting all parents’ convictions means on the ground in schools (Section 15-2-e Education Act 1998). In addition there are no statutory guidelines on giving practical application to the right to not attend religious instruction (Section 30.2(e) Education Act 1998).
The Education Act 1998 (Section 15-2-b) obliges Boards of Management to uphold the Characteristic spirit (ethos) of the Patron. It doesn’t oblige schools to ensure access of children to an objective, critical and pluralistic education in accordance with Article 2 of Protocol 1 of the European Convention.
Section 15.2(e) of the Education Act 1998 obliges Boards of Management to respect all beliefs and the ways of life in a democratic society. There is no definition of what ‘respect’ means in the Education Act 1998 and schools simply define this according to their own ethos. Under the Convention, respect for parents’ convictions requires that education be delivered in an objective, critical and pluralistic manner. The state is forbidden to pursue an aim of indoctrination by not respecting parents’ convictions be they religious or philosophical.
In practice, the Minister for Education leaves it up to each individual school to implement the exemption process according to their own circumstances (Section 30.2(e) Education Act 1998). This is not sufficient to ensure that the exemption process works in practice and in accordance with the European Convention.
In addition, where religious practice/teaching is integrated into daily school life, even allowing students to not attend a discrete ‘religion class’ cannot deliver a meaningful exemption.
9. International obligations
There are now eighteen UN and Council of Europe concluding observations/recommendations on the Irish education system. They mainly refer to lack of effective protection of human rights in practice in the education system. The following links list each by body, year, and reference.
10. Other relevant Atheist Ireland submissions
In addition to the above Atheist Ireland has three submissions with different Oireachtas Committees that raise related relevant issues:
11. Appendix: Extract from Louise O’Keeffe case judgment
The European Court held in the Louise O’Keeffe case that:
“150. It is indeed the case, as emphasised by the applicant, that a State cannot absolve itself from its obligations to minors in primary schools by delegating those duties to private bodies or individuals (see Costello-Roberts, cited above, § 27; see also, mutatis mutandis, Storck v. Germany, no. 61603/00, § 103, ECHR 2005‑V). However, that does not mean that the present case challenges, as the Government suggested, the maintenance of the non-State management model of primary education and the ideological choices underlying it. Rather, the question raised by the present case is whether the system so preserved contained sufficient mechanisms of child protection.
151. Finally, the Government appeared to suggest that the State was released from its Convention obligations since the applicant chose to go to Dunderrow National School. However, the Court considers that the applicant had no “realistic and acceptable alternative” other than attendance, along with the vast majority of children of primary-school-going age, at her local national school (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 8, Series A no. 48). Primary education was obligatory (sections 4 and 17 of the School Attendance Act 1926) and few parents had the resources to use the two other schooling options (home schooling or travelling to attend the rare fee-paying primary schools), whereas national schools were free and the national-school network was extensive.
There were four national schools in the applicant’s parish and no information was submitted as to the distance to the nearest fee-paying school. In any event, the State cannot be released from its positive obligation to protect simply because a child selects one of the State-approved education options, whether a national school, a fee-paying school or, indeed, home schooling (see Costello-Roberts, cited above, § 27).
152. In sum, the question for current purposes is therefore whether the State’s framework of laws, and notably its mechanisms of detection and reporting, provided effective protection for children attending a national school against the risk of sexual abuse, of which risk it could be said that the authorities had, or ought to have had, knowledge in 1973.”