Dr. Eoin Daly:

I will first speak to Senator Aodhán Ó Ríordáin's point about the supposed or perceived constitutional barrier. Of course, an argument can be made against the constitutionality of the reform we advocate. I am sure everyone appreciates that the Constitution is a very vague document or charter. There are all kinds of legislative measure against which a constitutional argument can be made. It is very easy to make a constitutional argument at face value, but what has happened in recent years, in particular, is that there has been a tendency to use the Constitution as a pretext to avoid making legislative changes that may in some way be controversial, sensitive or difficult. It can be used as a pretext to avoid reform, even where there may be parliamentary consensus. Many citizens find this deeply frustrating. I am sure many Deputies and Senators are equally frustrated by the way the Constitution is used and distorted.

The point is that primary responsibility for arriving at a conclusion on the appropriate balance between competing social claims on constitutional values rests primarily with the Oireachtas, the national parliament. From as far back as the 1960s the Supreme Court has always been at pains to emphasise that the task of doing this is for the Legislature, the Oireachtas, and that the only role of the Supreme Court is to police the outer boundaries of constitutional interpretation and indicate where a balance of rights is disproportionate or manifestly unreasonable, or however it may be phrased.

With all due respect to the Office of the Attorney General and the Attorney General herself, the Oireachtas cannot proceed based on secret or confidential advice from a Government legal officer. That is not a correct interpretation of the role of the Oireachtas. The Oireachtas must sometimes make a choice on the appropriate balance between competing constitutional rights or claims. When it comes to the substance of the basis for a secretive, unpublished Government opinion on the alleged impossibility of this reform, the idea is really one of freedom of religion. The assumption at large, I believe, is that if section 7(3)(c) were to be amended, if the baptism barrier were to be taken away, it would undermine the freedom of religion of the relevant denominations because they would not be able to maintain the religious environment of their schools which is regarded as integral to the free practise of religion.

First, there is a very vague and abstract connection between discrimination in enrolment and the right to practise a religion or uphold a school environment. There is no evidence whatsoever to suggest it is actually necessary to deny access to minority faith children to uphold the religious values of a school. An ethos is ultimately a set of values. It seems incredible to suggest that, in order to uphold these values, it is required to view four and five year old children as somehow posing a threat to their being honoured and enshrined, be they Christian values or values of another kind. It has been assumed that religious freedom under the Constitution entails a right to discriminate. What about the other side of the equation? The other side is a right not to be discriminated against. The right not to be discriminated against based on one's religion is itself a part of religious freedom. It is not a case of religious freedom versus equality but of religious freedom itself being undermined, as Ms Jane Donnelly said. Who are we to judge them, but where parents effectively feel obliged to have their children baptised against their own beliefs in order to gain access to a public service on the same terms as others, it is in itself an assault on freedom of religion constitutionally. That is an intuitive and common-sense position. It is equally a constitutional argument that can be and has been made by bodies other than mine and it is a very strong one. That is not the view taken historically by the Government or its predecessor, but it is one the Oireachtas is free to adopt. It is free to adopt it as striking the correct balance between competing constitutional rights.

What about minority faith schools? We considered this issue extensively when we drafted the opinion with Equate Ireland. There is a great difficulty with any legislative attempt to define what a minority faith school might be. It would have to be on a local or contextualised basis. We are confident that it would not be feasible to pin down in legislation exactly what a minority school is. The alternative is to somehow designate minority schools on a case by case basis, be it by the Minister or another party. For obvious reasons, that also seems to be untenable.

Might minority denominational schools be affected disproportionately? That brings us back to our previous point about the lack of any firm evidence for the link between enrolment policy and ethos. Nowhere is there a clear exposition of the reasons maintaining a set of values in a school environment actually requires selectivity based, on the one hand, on baptismal certificates and, on the other, on how good someone is as a Catholic, Protestant, Muslim, Jew or subscriber to any other religion. That seems to be completely untenable. It is well within the power of the Oireachtas to decide that any effect on faith schools of whatever kind in terms of control of their own admissions policies is ultimately less important than ensuring parents do not have to suffer pressure or face the fear of being refused access to a public service, a fear that leads them to act against their beliefs by seeking baptismal certificates as a condition of enrolment.

The Acting Chairman, Senator Lynn Ruane, asked what form the reform we propose would actually take. We believe it would be quite simple. It would entail a simple amendment to section 7(3)(c) of the Equal Status Act 2000 to set out that it was not permissible to discriminate on religious grounds for schools in receipt of public funding or which were State aided. This, of course, includes the vast majority of schools.