Joe O'Toole (Independent)

I welcome the Minister of State and congratulate him on the important work he has done. I have some reservations with regard not to what is contained in the joint committee's report but rather in respect of what is missing from it. I wish, therefore, to make two significant points - I know the Minister of State will take them on board - and ask two questions.

It is stated in the report that under the Constitution children have a right to free primary education. That is factually incorrect. If such a right exists, it is certainly not stated in the Constitution. Appendix 5 to the report refers to the UN Convention on the Rights of the Child, one of the articles of which refers to making primary education compulsory and freely available to all. We have a responsibility to ensure that the substance of that article is reflected in our Constitution.

One of the most important items of case law relating to primary education is that involving Crowley v. Ireland, which arose in 1980. As it happens, I had a great deal to do with that case. Judge Kenny's judgment in the case reflected the contents of the Constitution, which says that "the State shall provide for free primary education". The Irish version of the Constitution is equally unclear in this regard. It states, "Ní foláir don Stát socrú a dhéanamh chun bunoideachas a bheith ar fáil in aisce". The Constitution does not in any way impose upon the State responsibility to provide free primary education. We are being presented with an opportunity to change Article 42.4 in order that it might state "The State shall ensure that all children have compulsory and free primary education".

I wish to comment on the issue of the State and the family. I asked a simple question of three members of the joint committee but I could not obtain a straight answer. The Constitution states:

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.

It also states:

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

If they choose to educate their children, parents are, therefore, responsible for their physical education. Parents may decide not to educate their children and send them to school. The latter is what most parents choose to do.

Why is physical education excluded from what the State must provide? There is a school on the South Circular Road, which was opened amid great hoo-hah and which was supposed to reflect the fact that ours is a great pluralist society, where girls are not allowed to pursue the full programme relating to physical education. When the Constitution was being drafted, Archbishop John Charles McQuaid and Eamon de Valera, one of the founders of the Minister of State's party, were of the view that the word "physical" related to how women's bodies worked and that it would be terrible if they were given information relating to their bodies during lessons at school. They also held that girls might be exposed to the odd fact relating to birth control, which would be even worse.

This is still the position with regard to our Constitution. I asked three members of the joint committee why the word "physical" was dropped from the report. I presume the joint committee obtained all sorts of legal advice. I do not believe the church would even argue that physical education is an important aspect of children's overall education. I am concerned about this matter because the clause was often used to argue against the introduction of sex education to primary schools in the 1980s and 1990s. People stated at that time that sex education should not be taught in such schools.

I do not wish to take away from the work of the joint committee, which is extremely good and important. I welcome what the joint committee has done and I congratulate its members, particularly those from this House who have made a solid contribution to its work, its Chairman, Deputy O'Rourke, and the Minister of State. However, the UN Convention on the Rights of the Child is not properly reflected in the joint committee's report. In that context, we should once and for all include in written form in the Constitution the State's responsibility to provide children with compulsory and free primary education. We must also ensure that where the State is educating a child and is responsible for exposing him or her to certain minimum levels of education, this should also include exposure to physical education.