Article 44.2.4 states that:
“Legislation providing State aid for schools shall not […] 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.”
Article 44.2.1 states that:
“Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”
Article 15.2.1 of the Constitution states that:
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
It is the Oireachtas that is responsible for ensuring that state aid to schools does not affect prejudicially the right to attend any school in receipt of state aid and not attend religious instruction.
However, the Department of Education tells parents that it is the school that must uphold the right. That is delegating the right, even when the parent has contacted the Department because the school will not supervise their child outside the religion class or offer their child another subject.
In 2013 the Supreme Court found that if any piece of regulation amounted to truly delegated legislation, it would offend Article 15, since the function of legislation is one that cannot be delegated by the Oireachtas to any other body. (McGowan and Ors v Labour Court – Supreme Court 2013)
