255 / 270
GAZETTE
JULY-AUGUST
1
RECENT IRISH CASES
CONSTITUTIONAL LAW —
EDUCATION
The effect of Article 42.4 of the
Constitution, which prescribes that
the State shall provide
for
free
primary education and the extent of
constitutional duty of the State
acting through the Minister for
Education to provide buildings,
teachers, means of transport for
pupils and minimum standards.
In the parish of Drimoleague, Co.
Cork, in 1975, there was a mixed
four-teacher
school
called
Drimoleague National School which
had 133 pupils on its roll, and two
other national schools called Knock
Bui
and
Castledonovan.
The
principal teacher at the Drimoleague
National School was due to retire on
30 June 1975. Rule 15(1) of the
Rules of the National Schools
provided that the Manager, who had
the duty of appointing the principal
teacher, had to comply with Rule 76
in making the appointment, which
latter Rule provided that in schools
which had from 80 to 199 pupils, the
person appointed had to have the
qualifications, that his last three
years of service had been satisfactory
and that he had given in all not less
than five years service as a teacher.
In June 1975, Father Crowley, the
Manager wrote to the Minister for
Education ("the Minister") that he
had been directed by the patron of
the school (the Bishop of Cork, Dr.
Lucey) to appoint Mr. Nicholas
McCarthy as principal teacher. Mr.
McCarthy, who had been highly
recommended by the divisional
inspector of schools as the most
suitable candidate, had not on the
30th of June 1975 five years service
as a teacher; he would not have this
until 1st July 1976. When Fr.
Crowley
appointed
Nicholas
McCarthy as principal teacher, the
Minister refused to sanction his
appointment as permanent principal
teacher and Father Crowley then
appointed him to act as temporary
principal teacher, a step which the
Minister approved. The Minister
directed Fr. Crowley to re-advertise
the post and the same persons
applied again, and Mr. McCarthy
was so appointed as temporary
principal teacher.
The Irish National Teachers
Organisation ("the I.N.T.O."), a
registered trade union, was pressing
the claims of Mr. James Collins, and
organiser of the I.N.T.O. and a
member of its national executive,
whom the Minister regarded as
unsuitable. The I.N.T.O. suspected
that Fr. Crowley, acting under the
orders of the Bishop, was going to
retain Mr. McCarthy as a temporary
teacher until 1 July 1976 and then,
when he was eligible, to appoint him
as permanent principal teacher. In
October
1975,
a
board
of
management of which Fr. Crowley
was chairman took over the duties
which he had previously performed.
In 1976, the I.N.T.O. threatened
strike action against the Minister
because he had
allowed
the
appointment of an ineligible person
as principal teacher in a temporary
capacity while eligible applicants
were available. On 16 March 1976,
the I.N.T.O. wrote to Fr. Crowley to
inform him that unless he re-
advertised the position and undertook
to appoint a qualified person, the
teachers in the three schools in the
parish of Drimoleague would be
withdrawn on 29 March 1976. As
Fr. Crowley did not give this
undertaking, the I.N.T.O. placed
pickets on the three schools on 29
March 1976 and all the teachers at
the three schools, except Mr.
McCarthy, did not pass them. These
pickets were continued until 5 May
1976 when they were withdrawn but
the teachers at the three schools
continued the strike and did not
attend at the schools.
The parents of the children
attending these three schools tried to
get their children into other schools
but, on 20 August 1976, the
I.N.T.O. sent a circular to all their
members in the areas adjoining
Drimoleague directing them not to
enrol pupils from Drimoleague. The
instruction in this circular remained
in force until 13 June 1977 when it
was withdrawn. This circular is the
foundation of the proceedings against
the I.N.T.O. and the members of its
Central Executive Committee.
When the parents could not get
their children into adjoining schools,
they tried to recruit teachers. Mr.
McCarthy, who had been appointed
permanent principal teacher in July
1976 on the recommendation of a
board of assessors, continued to
teach, and a retired lady teacher
volunteered to do so, and a number
of girls who had got their Leaving
Certificates but were not qualified as
teachers tried to do so. Fr. Crowley
tried to persuade the Minister to pay
these temporary teachers but he
refused to do so and they were paid
by contributions made by the parents
to a fund. The education received by
the younger children who were not
taught by Mr. McCarthy was
seriously deficient.
On 21 April 1977, the parents,
suing in the names of their children,
brought proceedings against Ireland,
the Minister, the Attorney General,
the I.N.T.O. and the members of
the I.N.T.O. Central Executive
Committee claiming against the first
three defendants the provision of free
primary education within the parish
of Drimoleague and claiming against
the other defendants (i.e. the
I.N.T.O. and its Central Executive
Committee), damages for conspiracy.
Whe interlocutory relief was sought,
a compromise was reached under
which, from 1 January 1978, the
children were to be brought to
adjoining schools by buses provided
and paid for by the Minister and
taught there.
The High Court (McMahon J.)
had found that the circular of 20
August 1976 was an unlawful
interference
with
the
infants'
constitutional rights and that the
Minister had failed to carry out his
constitutional duty to provide for free
primary education for the infant
plaintiffs from 1 April 1976 to 31
December 1977.
In the High Court, the plaintiffs'
main case was that they had a right
to be educated in their own parish
and that their transport to and from
schools in adjoining parishes was not
a performance by the Minister of the
State's constitutional duty. They also
said that the mode of transport was
unsatisfactory and imposed great
hardship on them. The High Court
had rejected all these contentions and
the Plaintiffs did not appeal to the
Supreme Court against this part of
the High Court judgment.
Held:
(per Kenny J. with Henchy
and Griffin JJ.; and with O'Higgins