Dr. Eoin Daly:

Earlier this summer, along with Dr. Conor O'Mahony from UCC and Dr. David Kenny from Trinity College, we published a constitutional opinion which shows how the Oireachtas can amend 7(3)(c) of the Equal Status Act 2000 without the need for constitutional change and a referendum. There is a perception that it is impossible constitutionally for section 7(3)(c) to be amended. Our legal opinion demonstrates that there is no such constitutional barrier to amending it. The Oireachtas has the power to impose reasonable conditions on the provision of public funding to educational institutions. Crucially, this power includes requiring that all publicly funded schools must accept children of all religions and none on an equal basis. Examining the case law of the Supreme Court, we concluded that an amendment to section 7(3)(c) would have the effect of striking a fairer balance between the constitutional rights of families from various religious groups by moving to a situation where all families have their rights protected to some degree.

The decisive point is that the Oireachtas, as the national Parliament, enjoys a wide discretion in balancing competing constitutional rights or claimed constitutional rights and that balance is not primarily a matter for the courts but for the Oireachtas. Any legislation enacted balancing constitutional rights enjoys a very strong presumption of constitutionality in the courts. Recent case law shows that the courts have been extremely reluctant to substitute their own view over that of the Oireachtas as to the correct balance of constitutional rights.

The current imbalance in the protection of religious freedom in schools is well documented. Section 7(3)(c) of the Equal Status Act 2000 is at the heart of that imbalance. Amending this section in order that it cannot be relied on by school specifically in receipt of public funding would strike a significantly fairer balance for all families. The UN Committee on the Rights of the Child, the Ombudsman for Children, the Irish Human Rights and Equality Commission, the special rapporteur on child protection and the majority of political parties have all called for the baptism barrier to be removed. That is an opportunity to make real, lasting and substantial changes to children's and families' lives.