Wednesday, 13 January 1943
Seanad Éireann Debate
The object of the amendment is to raise the age for compulsory attendance at school from six to eight years. The age of six is too early to apply the compulsory attendance clause which was inserted in the previous Act without due consideration of all the relevant points of view. Those who have experience of children know that the first consideration should be to provide for the health and well-being of the children before the Minister insists on their attending school. The early life of our children should be one of joyousness and freedom. They should be free to run about and play and, above all, their little minds should be free from care and worry as far as possible. Instead of that, people nowadays send young children even long distances to school in bad weather. The result is that at the end of the day the little child is generally weary in body and oppressed with burdens that are foreign to its nature. I believe that it would be much better that at that early age children should be required to attend school only on two or three days per week and for only a few hours on each of these days. I do not believe that this amendment will have very much effect in reducing the school attendance, at any rate to any considerable extent, because, no matter whether it is compulsory or not, the general run of parents will see that their children are sent to school when they are six years of age and even earlier. I think that it is not right to force them by a compulsory Act to send their children to school earlier than eight years of age. If they wish to keep them at home, the Government should at least leave them free in that respect.
Mr. M. Hayes: I hope the Minister will not agree to this amendment to raise the minimum age for attendance from six to eight years. I do not know what precise argument Senator O'Dwyer would advance, but with the modern method of treating infants in  schools there is absolutely no hardship involved on a child of six who attends school. I do not understand why we should go up to the age of eight years. Certain preparatory work can be done and, more particularly, it can be done if you want to impart a second language. I think there is very little argument for it at all except perhaps where children have to go very long distances to school. In that case I think the administration can remove whatever difficulty there may be.
(d) that there is not a national school, a suitable school, or a recognised school accessible to the child other than a school carried on in a building which has been declared by the county medical officer of health to be insanitary or dangerous to the health of children attending it.
The Seanad will remember, I hope, that on the Second Reading of this Bill I raised a point, which I wish to press further now, that many of the primary schools in this country are structurally, or because of the condition in which they are kept, unsuitable, and that it is putting too much of a strain on a conscientious parent to ask him to send his child to a school which, to the best of his knowledge and belief, and in the opinion of competent people, the child cannot attend without danger to the child's health. In the course  of the debate on a motion by Senator O'Connell, evidence was produced to show that many of the schools in this country are unsuitable from the point of view of the health of the children attending them—that many of these schools are ill-heated, ill-ventilated, ill-lighted, and suffering from a lack of suitable sanitary conveniences, and that many of these schools, or a certain number of them at any rate, are actually in a ruinous condition.
Senator O'Connell brought forward a motion asking the Seanad to request the Government to deal with this matter in a particular way by providing that funds should be made available— for some purposes by the State, and for other purposes by the local authority—to make sure that the schools were kept in a sanitary and healthy condition. Senator O'Connell's motion received a considerable amount of support from individual Senators from all sides of the House, but it did not receive, I thought, adequate attention from the Minister, who, in his speech, dealt with the question of the managerial system, which was not in question at all in the resolution, rather than with the question of the healthy or sanitary condition of the schools. I could quite understand the Minister, dealing with a particular method, such as that called for by Senator O'Connell, giving reasons why that should not be adopted, for that is quite an arguable position, but it seemed to me that the Minister's attitude with regard to this matter of the unsuitable condition of schools was that it was greatly exaggerated, and he used what, I think, was a very unfortunate expression, when he referred to such cases as being “isolated cases”. Now, there was ample evidence by the competent authorities, namely, the county medical officers of health, to show that these were not isolated cases, but that there was quite a considerable number of such cases. In the memorandum supplied to the House by Senator O'Connell, I think it was shown that some 30 per cent. of the schools examined by the county medical officers of health in counties with which it dealt were regarded by  them as unsatisfactory. Now, a school might, undoubtedly, be unsatisfactory and far from perfect without being dangerous to the health of the children, but in many cases, according to the reports of the medical officers of health, the schools are actually dangerous to the health of the children.
I protested, on the Second Reading of this Bill, that that was a matter which the Oireachtas should take very seriously into consideration, and that they should very seriously consider whether they should make the law with regard to school attendance more strict when it might mean insisting on children attending schools which are dangerous to their health. I think it was Senator Cummins who called attention to a very important clause of the Constitution, and from his point of view it seems to me that the Bill before us now, unless the Seanad consents to adopt the amendment I am now putting before them, is likely to raise a considerable question, if nothing further, as to whether or not it conflicts with the Constitution. In Article 42 of the Constitution there are several paragraphs dealing with education, and amongst these I find that the first sub-clause of Clause 3 says:—
“The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.”
Surely, it would be against the conscience and lawful preference of a parent if he were compelled by law, under penalties, to send his children to schools in which their health was liable to be damaged. I cannot conceive any point on which the conscience of the parent should be more sensitive than the health of his children, and that point was emphasised very strongly by Senator Baxter on the last occasion on which we discussed the question. Without being a constitutional lawyer, it seems to me that this Bill, in so far as it penalises parents for not sending their children to such schools, which exist in large numbers  in this country at the present moment, is trenching on this Article of the Constitution, which says that
“the state shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.”
It is quite likely, of course, that when that clause in the Constitution was drafted and accepted by the Oireachtas other things were in mind, but we are bound to take the clause as it stands and not to take into consideration whatever arguments or thoughts the Oireachtas had in mind at that time. I appeal strongly to the Minister to accept this amendment, or, if it is not satisfactorily worded, to bring in an amendment of his own to cover the same point.
We had a considerable discussion at a recent meeting of the Seanad on this question of the condition of the schools, and I do not want to trouble the minds of Senators by going over that matter again, but I want to put this question quite straight before the Minister: Are we justified in sending children to schools which are likely to damage their health? We have first-rate evidence from the people in this country who are best qualified to give such evidence—given on official authority in their annual reports—that many of these schools are dangerous or unhealthy. Are we justified in passing over that evidence and saying to the parents: “We do not care whether they are unhealthy or unsatisfactory, you must send your children to school”? Are we to treat the education of the children as more important than their health? Where the condition of the schools is capable of easy adjustment, if we take that line I think we are doing a grave injustice to the parents of the country who will come under the operation of this Act. The condition of the schools could be rendered safe, or even more than safe, if the State were willing to apply its mind to finding a method of doing so.
I am not prepared to say whether or not the method suggested by Senator O'Connell is the right one, but I would  welcome any serious step by the State in the matter of improving the condition of the schools. I hope the Minister will meet this question fully to-day, and give us some encouragement in the matter. I do not believe that his attitude here the last day, his public attitude, was at all consonant with the Minister's personal, human feelings in the matter. I am sure he is as anxious as any of us that the schools should be put in proper condition. My amendment to-day brings the matter to a definite point: are we going to accept as an excuse for keeping children from school the conscientious view of the parent that he cannot send his children to that particular school—the only one available in most cases—without danger to their health? If we are to accept that view, I think the Seanad is bound to accept my amendment to-day, unless we get a definite statement from the Minister—a much more definite statement than anything we heard in the last debate—as to what steps the Department intends to take in the matter.
Mr. O'Connell: Naturally, I have very great sympathy with the point raised in Senator Rowlette's amendment, and he has put forward strong arguments in favour of his point of view. At the same time, I doubt the wisdom of writing this amendment into our permanent legislation. I should not like it to be thought by anybody reading our School Attendance Act that there is in this country any school which is insanitary or dangerous to health. I do not think there should be any such school; I have already made it plain enough that that is my opinion. From the point of view of practical application, I think that this amendment, if accepted, would cause very considerable difficulty. It would be necessary to have a definite standard for each county medical officer of health. Otherwise, you might have one medical officer condemning a school, while another would be prepared to come forward and say that it should not be condemned. Then, of course, if this were put into operation, we would immediately be up against  the problem that there are 300 schools to which the Act could not apply at all, because the Minister told us on a previous occasion that there were at least 300 schools which were in urgent need of reconstruction or replacement. We have to remember that the court has the final decision in these matters. If a parent refuses to send his child to a school because that school is insanitary or in a dangerous condition, and if he is brought before the court and is able to establish that case to the satisfaction of the district justice, I have no doubt whatever—knowing the attitude of the district justices in those cases—that no penalty will be inflicted on him. I should like to support Senator Rowlette in regard to this matter; I am strongly in favour of the principle which he has in mind, and of most of his arguments, but at the same time I am not in favour of writing this amendment into our permanent legislation. I believe it would cause considerable difficulty in administration, and might lead to parents adopting this excuse when it is not really a genuine one.
Professor Magennis: Like the last speaker, I have complete sympathy with the end which Senator Rowlette has in view, but I submit that his amendment to this Bill is unnecessary. It is already provided for. If Senator Rowlette will look at the sub-section which specifies the various reasons that will be regarded as sufficient for exemption, he will see that there is one, indicated by the letter (d), which says:—
That brings into operation an important piece of legislation already in existence, the Probation of Offenders Act, 1907. With your permission, I will read the first section of that very important and useful Act:—
—under this Bill the charge that the  child was not sent to school because, as alleged by the parent, the school was insanitary, and, out of his anxiety for the child's health, he did not send him—
the person charged should not be convicted, the court may dismiss the charge. There, I submit, is the remedy. If the court regards the offence as trivial, it has power to dismiss the case, and I think we may rely on the humanity and sympathetic feelings of the court. In practice, I think that meets all the requirements of Senator Rowlette's amendment.
Mrs. Concannon: I think most of us feel, when we adopt the principle of compulsory attendance at school, that we must accept the implication that the attendance of children at school should not injure their health. The amendment proposed by Senator Rowlette, although in the spirit of carrying out that principle, does not seem to be necessary, because the section refers to “a suitable school”—“a national school, a suitable school or a recognised school.” There is no definition of “a suitable school,” but common sense will indicate that “a suitable school” could not possibly be one that has been condemned as insanitary by a competent medical authority. Therefore, I do not think that this amendment is necessary, and, as Senator O'Connell has pointed out, it would be a great blot on our legislation if we permanently accepted the position that there would be insanitary schools here. As far as we can, we must all help the Minister to put those schools in a proper condition, and remedy that defect in our educational system.
Mr. Douglas: I am in favour of the principle of the amendment moved by Senator Dr. Rowlette. With regard to the last argument by Senator Mrs. Concannon, it seems inconceivable to me, if a school which is a recognised school has been condemned by the local medical officer of health, that it could be argued before a court that although it was recognised by the State, it was not a suitable school. I do not believe you could possibly get out of it on that argument. I think we had better face up to the principle involved. It is a matter for legitimate difference of opinion. Is the State justified in using the power of the State to order a parent, and to use law to force a parent, to send a child to a school which, in the opinion of that parent, may endanger the health of the child? We had evidence given to us here that a certain number of such schools exist. We know they are recognised or national schools. They come into that category. I hope, when the Minister speaks, that he will be a little more definite in regard to the word “suitable”. I confess I am rather hazy in regard to its meaning.
Mr. Douglas: I am very much obliged to the Senator. I was under the impression that it was something of the kind. That, of course, completely answers Senator Mrs. Concannon's point, but to my mind it is not a matter of subtleties or points; it is a matter of principle. If we accept the principle, then it is a question of finding out the best way of doing it. Senator Rowlette's amendment may or may not be the best way of doing it. I believe there is a principle involved and that we ought to face up to it. I generally sympathise with most of the remarks of Senator O'Connell, but I must say that I could not follow him.  He demonstrated to my mind in the most convincing manner that there are schools that might be a danger to the health of the children. While that position exists—and I know he is not satisfied that it will be immediately remedied—he does not like to see it in our legislation that parents shall not be forced to send their children to such schools. I think we should deal with the position as we find it at the present time. As soon as there are no such schools or as soon as the number of such schools is so small as to be negligible, it will be very easy indeed to pass an amending Act. It would probably be passed by agreement. It would probably be a one-clause Act and would not be a matter of any serious difficulty. For my part, I believe this House ought to insist on the principle that a parent will not be forced, and that the arm of the law will not be operated to force a parent, to send a child to school if there is no school available which would not endanger the health of the child or which medical opinion does not consider would endanger the health of the child.
With very great respect to Senator Magennis, I do not think the Probation of Offenders Act would meet the case. If a parent does not send a child to school and if the district justice is convinced that the parent had good reason for keeping the child from school, the district justice must have regard to the law. I can well believe that on the first occasion most district justices would say: “This seems to me a case where I ought not to impose a fine or take any steps.” But would it not be far more ridiculous, instead of facing up to it now and embodying it in the Act, to have repeated decisions by district justices in different parts of the country? Presumably, if a parent on the first occasion, as a matter of conscience, and what he believes to be right for the child, keeps the child from school, he will continue to keep the child from school and surely he will be summoned again. If he then sends the child to school it means that probably he did not really believe it to be a matter of conscience. At any rate, that is a relatively  small point, as to whether that is the way we should meet it or not. If the facts are as stated here by Senator O'Connell and by Senator Dr. Rowlette, who quoted reports, that there are schools which the medical officers of health have condemned, then I do not think the State has a right to go so far as to force parents to send their children to such schools. It may go so far as to recommend parents to send them but to go so far as to force them to send them is exceeding the proper rights of the State over the parents in a vital matter of education and health.
The McGillycuddy of the Reeks: I should like to support that principle in the amendment which Senator Dr. Rowlette has put down. The Minister on the Second Reading, I think, is reported to have said that he thought the standard of the medical officers was too high. I personally think that the Minister's standards are extremely low. I added up the number of schools which Senator O'Connell put down in his memorandum to the House and they amount to 370. Of those, 110 schools were certified by the medical officer of health as unsuitable places for pupils to receive their education. That is a very, very large proportion indeed. I do not believe that parents have the slightest idea as to how low the standard is. One point made by Senator Magennis was that in the Principal Act the expression “suitable school” means a school for the time being certified by the Minister to be a suitable school. Surely it should not be possible under the law for the Minister to certify as a suitable school a school which has been condemned in one way or another by the medical officer of health. I think that, whether this amendment is the right way of doing it or not, we should stand for the principle that if children are to be educated then the schools in which they are to be educated ought to be suitable for the purpose.
If this amendment were passed I think probably, with proper organisation, in certain districts, it would have an immediate effect on the Ministry and on the management because, if  parents, one and all, found that the schools had been certified by the medical officer of health as being unsuitable they would chance withdrawing their children; the schools would be empty and some action would be taken to put them into a proper state instead of leaving them in their present condition. We are doing a thing which is entirely wrong. We are spending, I gather from the Estimates, £250,000 on new buildings, instead of getting these 110 schools plus other unsuitable schools into some sort of reasonable condition, setting only part of that money aside for new buildings. I must say I thoroughly agree with the principle of Senator Rowlette's amendment.
Mr. Baxter: This question was debated at considerable length in the House. It is a question on which, I think, all sane people should have the same view. It is difficult to understand why members of the Seanad should divide on this point. When I find myself up against a question like this and when I have to determine what side I must support, I ask myself what I should like to do with my own children and I say that how I want to behave with my own children is how I ought to behave with the children of other parents. In this matter I have no hesitation at all in saying that if I were being compelled to send my children to a school regarded by the Minister as suitable, whether it was a national school or in whatever other way it was designated, if it were a school which the county medical officer of health of my county had reported as insanitary and unsuitable, I think I would refuse to send them. I would keep them at home and I would take a chance of their getting some sort of education from their mother. I would go into court and tell the justice that the children were my children first, that I had first claim before the State, and that if the State wanted to intervene between me and my children, the State was doing something which it had no right to do.
As I have said here before, the first thing about which I would be concerned would be my children's health.  If my children on a winter's day such as yesterday had to walk a mile and a half to school, go into a ramshackle building where there were slates missing off the roof, panes missing out of the windows and draughts blowing through the place, I would have such consideration for my children's health and their future well-being, that I would break any law, if there were such a law, compelling me to send my children to such a school, because I would regard that law as unjust to parents, to their children and to the nation of the future. That is how I would face the situation. These are conditions which we should not tolerate at all. While I know that it is regrettable that it is necessary to pass legislation to compel parents to have their children educated, on the other hand, even though we have parents against whom the strong arm of the law must be operated in order that justice be done to their children, it must be remembered that that arm of the law is sometimes operated against sensible parents as well as against negligent parents. When you come up against a situation in which you are compelling parents to send children to schools which the parents regard as being very unsatisfactory and dangerous to the health of their children, you are bringing the law of the State into contempt and you are breeding a disregard for State institutions that is not healthy for our future national life.
I can appreciate Senator O'Connell's point of view as to the difficulties you are going to create by inserting such a section as this in the Bill. I think the reaction would be this. Curiously enough, I think you would get just as high an attendance at national schools, which are not regarded as satisfactory from the health point of view, if the parents were at liberty to keep their children away from such schools as you would get if you compelled parents to send children to schools which they regard as unsatisfactory. I have no doubt at all that in the case of a number of these schools, the attendance must be very unsatisfactory. Very probably the officers of the law wink at this unsatisfactory attendance because  they know there are these extenuating circumstances. I do not think that this amendment would alter to any extent at all the number of pupils attending such schools because if there is a school which is unsatisfactory and if the parents are not compelled to send their children there, they would probably ask themselves: “What is the better thing to do?” If the weather is favourable, they may decide to take a risk and send their children to the school, but they would do it much more readily than when they are compelled by the State to do it. I think the fundamental question in this whole section is whether the predominant responsibility rests with the parents or the State. If the State intervenes between the parents and the children and says that, whether the parents like it or not, out the children must go in all weathers and conditions to these unsatisfactory schools, then I say the State is doing something fundamentally wrong. Apart from the question whether it is possible to include the amendment as drafted in the Bill, I think the principle of it at least should be accepted by the Minister.
I do not believe that generally speaking the attendance at schools would suffer to any considerable extent at all by the adoption of this amendment. By compelling conscientious parents to act in a manner which they believe is to the detriment of the health of their children, you are not creating the atmosphere, from the point of view of citizenship, which it is essential to cultivate amongst our people. I think the Seanad will have no difficulty in making up its mind as to which line of conduct is the better. I know that we cannot bring about any great change in a month or two by the insertion of this section in the Bill, but I agree with Senator The McGillycuddy that it would hurry matters up. I think if the Ministry, the management and the people who are responsible generally were brought up against a situation like that, it would accelerate the pace at which these schools buildings would be reconstructed and put in a sanitary condition.
Dr. Barniville: I think the Oireachtas and the country generally should be very grateful to Senator O'Connell for raising this question of insanitary and unsuitable school buildings, at a recent meeting of this House. I regret that I was unable to be present at that meeting to give my support to the Senator. I merely rise on this occasion to lend my wholehearted support to Senator Rowlette's amendment. As Senator Baxter has said, the case scarcely needs argument and, as far as I am concerned, I do not propose to take up the time of the House by discussing the matter further. The only objection I see either to the principle or the wording of the amendment is that raised by Senator O'Connell, that is, that he feels rather nervous that our legislation should be besmirched by the suggestion that everything is not 100 per cent. perfect in our national schools. As against that there are such things as Factory Acts and Acts providing for the inspection of workshops and abattoirs. Surely that is not to suggest that everything is not 100 per cent. perfect in the case of our factories and workshops? I support the amendment both in its wording and in its principle.
Mr. Derrig: I, like Senators who have spoken, have the greatest sympathy with the ideas Senator Rowlette had in mind when putting this amendment before the Seanad. I agree with him that parents should not be penalised for refusing to send their children to schools which are not in a sanitary condition. I doubt, however, if the object that Senators have in mind will be achieved by the acceptance of the amendment. It would merely mean that immediately this Bill became law, with the amendment suggested, 300 schools or possibly more than 300 schools, would become schools to which parents would not be obliged to send their children. No matter whether that is the law or not, as I explained to the Seanad when we were discussing this question of school buildings on a former occasion, there are certain physical factors which have to be overcome. These physical obstacles are very great at the present time but, in spite of their existence,  we are doing everything possible, short of replacing the actual insanitary and unsuitable buildings, to try to make them suitable for use for a period of time. That is to say, until normal conditions and the availability of building materials make it possible for us to deal with bad school buildings as they ought to be dealt with.
Senator O'Connell has pointed out— and I thoroughly agree with him—that the acceptance of the amendment in a situation which, I admit, is serious, so far as the number of bad schools is concerned, would make matters worse by giving parents permission to keep their children away from school in these cases. In passing, I might mention that it is not the medical officer of health who is the statutory authority for dealing with this matter. He is in the position of an observer or reporter for the sanitary authority. He makes his report to the sanitary authority and it is for that authority to issue a statutory notice to the manager of the school directing him to abolish the nuisance or take steps to put the building in a proper state. If the notice is not obeyed, the board of health can institute proceedings against the manager. I, for my part, will do everything I can, even under present conditions, when buildings are condemned in a proper legal way, to secure the cooperation of my Department with the managers and assist them to remedy the defects. That is, of course, my duty.
It is not at all clear whether all the schools which figure in the medical officers' reports are in the category in which it might be said of them that they are so dilapidated or unhygienic that they are unfit for use as schools or that they are so unfit for a combination of these reasons. Medical officers of health do not, unfortunately, specify in all cases the reasons why they consider the school buildings unsatisfactory. It is not easy for me to have these matters attended to, under emergency conditions, as expeditiously as I would wish, but, when the medical officer states the reasons for his report, I do what I can in spite of emergency conditions. It is the Board of Works  which is the technical body which deals with this aspect of the work. I am not directly responsible for the erection of school buildings nor have I to do officially with the question of the condemnation of school buildings. In one case I have to refer to the Board of Works and in the other case to the Local Government Department. In some cases, the question of making a building suitable might be entirely a structural one and not a hygienic one. On the other hand, there is the question whether the statutory authority should not take action. Where a medical officer of health has definitely condemned a school as unsuitable for use, the statutory authority should take action. In a great number of cases, that has not been done. I am hopeful that, under the new managerial system of administration, problems of this kind will be gone into in more thoroughgoing spirit and that the action that the law demands will be taken in relation to buildings definitely condemned on sanitary grounds.
If a building is condemned as a school, the position of the court is quite simple. It will not compel parents to send their children to that school, nor do I think that an enforcing authority would prosecute a parent for refusing to send his child to such a school. Leaving out of consideration the condition of the school building, I have no doubt that if a parent, prosecuted for not sending his children to school, pleaded that the weather was extremely severe, the court would be unlikely to impose a penalty. As Senator Magennis has pointed out, there is an omnibus clause in the Bill which enables a parent to plead that the child has been prevented from attending school by some “other unavoidable cause.” I think that extremely bad weather, bad clothing or epidemics, would be recognised by the court as an “unavoidable cause.” I have already informed the Seanad that the whole question of school buildings is under consideration. We are restricted in the work we can do by emergency conditions, but we are not restricted in the planning we can do for the future. That is under very active consideration. I am in constant  touch with the ecclesiastical authorities and the managers regarding the whole question. Anything I can do I shall be only too pleased to do to see that bad school buildings are replaced at the earliest possible date.
On the last occasion on which this matter was under discussion, Senator The McGillycuddy seemed to agree with me that, perhaps, the medical officers of health had, in some cases, rather high standards. It is interesting to find him assuming to-day that I have necessarily a lower standard than that of the medical officers of health. If the Senator would visit the schools built in Dublin or elsewhere during my period as Minister, he would find that they compare favourably with the schools built in any other country. I want to make clear that when I refer to the standards of the medical officers of health I have in mind rural conditions. The Senator, if my recollection serves me, was inclined to agree that we could not apply the same standard in this matter to rural and urban areas. The schools which have been condemned and about which there has been so much discussion are nearly all in rural areas. I have referred previously to the difficulty of providing these schools with water supplies. If we could provide our rural schools with water supplies—in time, I hope we shall be able to do so—our difficulties about sanitation would largely disappear. We are not able at present to do so. Even in normal conditions, it would not be at all easy to do so. My officers tell me—and they have gone into the question—that septic tanks cannot be built in every case. If there is a proper water supply in the vicinity, the matter is simple enough. If a special water supply has to be laid on, the work is very costly, though I do not think that cost should be the sole criterion. If we can get the work done, it should be done. We have had this legacy from the days of the British Government. There is no use in pretending that this is a matter for which Irish Governments are responsible.
The Irish Government was faced with a long arrear of bad schools, and of neglect over a long period of years.  It was only during the past 20 years that the matter was tackled properly. We have had this historical legacy, like a great many other historical legacies, and we have persons who try to impute to the present Government and to its predecessor something that was there when they came in, and for which they were not responsible. I have said that we were limited by physical facts. I have said that we have had a very extensive building programme of houses carried out through the country over a period of years, and that even if we were to provide twice, or even three times the amount of money, there is still a limit to what you can do. There is that problem about rural schools: the difficulty of providing the same facilities that we would all like to have in all our schools. I hope it will be possible to do it. We are planning towards that end. We are in touch with the managers and with the ecclesiastical authorities, but it will take some time. All that we can do at present is to plan for the future. I think that I have, perhaps, explained the attitude, so far as I am concerned, with respect to this amendment. I do not think its acceptance would improve the situation from the standpoint that the Senator has in mind.
The McGillycuddy: Is the Minister in a position to give the House some more definite statement with regard to the building programme? In the Estimate for the Department of Education provision to the extent of £250,000 is, I think, made for new buildings. I would like to have it made clear whether that money is to be applied purely for the construction of new schools or whether any portion of it is to be used for the reconditioning of schools reported to be unsuitable. I take it that a great number of those schools which are said to be unsuitable could, at any rate, be put into a better condition at not very great expense. We all know that £250,000 is not going to go very far in building new schools. We would be obliged if the Minister could give us something more concrete to go on than the statement he has just made. For instance, can he tell us the number of new schools that are  to be built, and what steps are being taken during the next two or three years to recondition the schools which we are now told are unsuitable for children to be educated in? I realise that the Minister may not have these figures with him, but if he could give us some general idea on the matter I think it would be helpful.
Mr. Derrig: I can let the Senator have the figures later. I may say, however, that a great proportion of the £250,000 will go towards the reconditioning of schools. If the Senator will be good enough to read the statement which I made when the question of school buildings was under discussion here, he will find that, whereas the number of new schools built only ran into hundreds over a period of years, the number of schools which have been repaired or reconditioned or in which smaller works have been carried out ran, I think, into 1,200 or even a larger figure. I remember making it clear that a very large proportion of the schools had, in fact, been improved or reconditioned, under our grants from year to year. Normally, we would prefer to build a new school where an old school is definitely unsuitable. Even though it means that you will not get as much work done, at any rate, you will have the satisfaction of knowing that you are making definite progress—that for every new school built an old one is being wiped out. But, in present circumstances, we have to be guided by what is best under existing conditions.
We are trying to do what the Senator has mentioned, namely, to see that those schools which can, for a reasonable expenditure, be put into such a condition that they will pass the medical test or the architect's test will be made suitable for carrying on school work in them over a period of years. We shall concentrate on that aspect of our work. That is what we are doing at present. I will send the Senator further particulars of it. I should like to explain that a very great percentage of this annual expenditure goes to the reconstruction and repair of existing buildings, though, as I have said, in normal circumstances we would  naturally prefer to build new schools where possible. At the same time, we cannot build all the schools as quickly as we would like, and, therefore, we find that it is not possible to go ahead with new buildings. Where a new building is necessary, we ask the Board of Works to prepare an estimate for the repairs which they think will be necessary to enable the work in the school to be carried on. That is the line that we are going on at present.
Mr. Foran: Perhaps the Minister would answer the question that was put by Senator Rowlette, namely, the period at which he thinks all the insanitary schools that we have in the country will be wiped out? He must have some idea of the time it will take to do that and must, I suggest, be working towards that end. What progress has been made in doing away with these insanitary schools, and to what extent has the number been reduced?
Mr. Derrig: Again, I must refer the Senator to the statement I made here on a former occasion in which I gave particulars of the numbers of schools that have been built in recent years. It will take at least ten years to replace all the bad schools which are condemned, or are likely to be condemned in the survey that is now going on. The problem is one that changes every few years, and has to be examined from time to time. We are examining it at the moment. The position may be worse than I indicated in my previous statement. Even by doubling the expenditure that we are making at present, it will, in my opinion, take ten years to replace all the existing bad schools by good ones.
Mr. Fitzgerald: I do not think the Minister has made any case at all against the amendment. He has just pre-supposed a certain number of things. For instance, he said that the schools built during his period in office are equal to those built in any other country in Europe. I think there is a false analogy there. What the Minister was trying to do was to select from amongst the schools in this country those built in the last ten years and compare them with the  average totality of schools in another country. Personally, I am prepared to say that the schools built here during his period are not the equal architecturally, sanitarily or otherwise of the average of the schools built in the same period in half a dozen other countries that I know of. To try to establish a comparison between the schools built here during the past ten years and the schools built in other countries in the last 70 years may be due more to slovenliness of thought than anything else.
It is only with regard to that particular conditioning clause that the State has any function here at all. How does the Minister approach this? The State, in relation to the common good, has the right to make this insistence and, when it does so, it must provide the means towards the attainment of the end in view, but the Minister, in all his speeches, assumes that the norm—the basic condition—is that the State shall insist that parents send their children to be taught by specific teachers a specific programme in specific schools. That is lying in the Minister's mind and in the minds of his officials, but that is not what is allowed for by the Constitution.
The Minister is assuming that the only rights and functions given to the State under the Constitution are to insist that this certain minimum of moral, intellectual and social education shall be given to the children; and he now says that, at the present time, owing to the emergency, sewage pipes, bricks, mortar and various other building materials are unobtainable. If the State is not able to fulfil its share of the contract equitably, it has no right  to insist that other people shall do so. If the State cannot provide schools which are not detrimental to the children's health, the State, instead of bringing in this exaggerated interference, should forego its requirements. The Minister said that the State would not be able to provide sanitary schools for the next ten years, but the State's right—overwhelming and obliterating all the rights of the children and their parents—will insist that children shall go to “suitable schools”—that is, schools which the State has decided are suitable. It is admitted in the Constitution that the parents have the first responsibility and the first rights in this matter—the State comes in by a sort of side-wind, in relation to the common good—but the State says that, though suitable schools cannot be provided, the children must fulfil their part of the bargain.
All the discussion of this Bill has taken place on the assumption that the State has all-powerful rights and that Article 42 of the Constitution is so much “eyewash.” I hope that some parents will come together and be sufficiently interested to contest in the High Courts the right which we purport to give to the State by legislation. Having put that clause into the Constitution, in order to give a sort of pious tone to this amendment of the Constitution, we are now carrying on with the same all-powerful State control over the children and parents that we inherited from the British Government.
To go back to false analogies, the Minister says that we inherited the bad condition of schools from the British Government. The British Government, during the 19th century, might say that they inherited a bad condition of affairs which existed prior to the Act of Union, in the dearth of schools in the country, and that they were suffering also from a historical embarrassment. I wish to insist that what the Constitution says in regard to this position is right in natural justice and is the basic law in this country. This Bill is an attempt to overcome the limitations put upon the  State by the Constitution and to disregard them. Every argument from the Minister is made on the assumption that the norm is that the State will tell A.B. that his child must go to such a school. There might be a dozen reasons against it—the father may have a personal dislike of the teacher or the mother may find that her children are in contact with verminous children at that school and are becoming verminous—but the State will insist that they must attend it.
Mr. Fitzgerald: The other amendment deals more or less with a general principle and this is a particular application of it. Even though I referred to vermin, I think that condition has a certain effect upon health. It is about time the Minister cleared his mind of the existing practice of his Department and came down to natural justice as provided in the Constitution. As far as the Constitution is concerned, he can pass this clause, but I think any parent would have a right to contest it and have it declared of no effect, as being contrary to the Constitution.
Mr. Crosbie: I trust that the House will accept Senator Rowlette's amendment and that, if the Minister will not accept it, it will be pressed to a division. I consider the Minister's suggestion of leaving this matter to the discretion of the district justice or, alternatively, the employment by the district justice of the Probation of Offenders Act, is a very slip-shod method of dealing with this problem— which, the Minister confesses, will last for at least a period of ten years.
It would be far better for the Minister to adopt Senator Douglas's suggestion and accept the principle of this amendment now and embody it in the Bill. At a subsequent date, when he or his successor can come into this House and announce that there are no insanitary schools, he can bring in an amending Bill to repeal that clause  of this Bill. That would be the most businesslike way to do it. The discretion of a district justice in such a matter as this is limited. While he may apply the Probation of Offenders Act on the first occasion, if a parent is conscientious and consistently refuses to send his child to a certain school, the district justice must take action and eventually deal drastically with him, and injustice will be done to both parent and child.
Sir John Keane: There is one point that occurs to me. Which is preferable—to send children to an insanitary school or to keep them in a more insanitary home? I can say that those conditions frequently apply, from my knowledge of some of the homes of the country.
Professor Magennis: In this discussion there appears to be complete forgetfulness that this Bill is an addition to a Principal Act. I suggest to Senator Fitzgerald that he should read the last portion of this Bill, which says:
A great deal of what has been said— including even what Senator Crosbie has just contributed—ignores the Principal Act. Those who have spoken should turn to the Principal Act, Section 4, and then consider the present Bill. I had better substantiate what I am saying by actual quotation.
Section 25 of this Bill repeals portions of the Principal Act, including Section 4. It happens that Section 4, which is technically being repealed, is, with a slight alteration of the wording, Section 3 in this Bill. Since the Principal Act was passed, all this has been in operation, but it has been discussed by some speakers here as if it were a new thing. The only difference between Section 4 of the Principal Act and this Section 3—what the Minister has appropriately called an omnibus clause—is that the words in the Principal Act are:—
I wish to draw attention to section 5 of the Principal Act before I return to this point about unavoidable cause. In Section 5 of the Principal Act the Minister is not obliged to sit down and look on placidly at the fact that a parent gives, as an excuse for the non-attendance of his child at school, that in his opinion the attendance of the child at the school would be injurious to the health of the child. The Minister may order an inquiry into that.
“(1) The Minister may if and when he so thinks fit by a certificate in the prescribed form certify any particular school to be a suitable school within the meaning of this Act for the attendance of children to whom this Act applies for the purpose of receiving elementary education, and the Minister may at any time as and when he thinks fit revoke any such certificate.
(2) The Minister may make or cause to be made such reasonable inquiries, investigations, and inspections as he shall think proper for the purpose of satisfying himself whether any particular school is or is not, or does or does not continue to be fit to be certified as a suitable school.
(3) For the purpose aforesaid, any officer of the Minister duly authorised by him in that behalf may at all reasonable times enter any suitable school or any school in respect of which an application to be certified as a suitable school has been made to the Minister and there make such inquiries, investigations, and inspections as he shall think proper.
(4) Every manager and conductor of and every teacher in any such school as aforesaid and every parent of a child attending such school shall  to the best of his ability answer such questions and furnish such information as shall be reasonably asked or required of him for the purpose aforesaid by an officer of the Minister duly authorised in that behalf by the Minister.”
That continues to be the law regulative of school attendance, even after this Bill has become law. It is clear from that that any district justice would treat the excuse of a parent, that he considered the school insanitary and on that ground held his child away from attending, as something to be inquired into. If the district justice were to exercise his own discretion, he might conclude that, while technically an offence has been committed—that the parent has not sent his child to school—yet the circumstances are extenuating circumstances and he dismisses the case. That has, amongst other results, the effect of having the attention of the Department of Education drawn to the matter and the Minister, in accordance with Section 5, can order an inspection of the school. But to say that it leaves us absolutely helpless or, in effect, that it creates an impasse, is not at all correct.
—that includes ever so many grounds upon which a parent might claim that he is entitled to keep a child away from school. Amongst others there is this, that in his opinion the child suffers in health from attendance at the school, or that there is something in regard to the sanitary conditions inimical to the health of the child. That is the opinion of the parent and surely, while psychologically this subjective state of mind of the parent would make any observer hold that he was not doing anything criminal, that he was not really doing anything wrong, still he might be wrong objectively. In all cases where there is a  conflict of the individual's opinion with the strict observance of a code of law, there must be some competent authority to decide the matter, and the district justice has to decide here. I think the social ends are better served by the fact that, if the case has been dealt with, and it turns out, on investigation, that the parent was right, then the matter has been ventilated effectively, because it can be attended to by the Department of Education.
Mr. Douglas: I listened carefully to the speech of the Minister and I was very much disappointed, because, in his opening remarks, I though that he accepted the principle. He did not say he accepted the principle; he said that he did not wish to see any parent forced to send his or her child to an insanitary school. Having stated that, he then went on to say that nothing should be done in the matter, that the Bill should be left with a provision that parents could be forced in law for a period up to ten years. He did not say ten years, but he said that the whole plan would be over a period of ten years, and that it would be a very considerable time before he could say that there would be no schools to which that could apply. That just leaves us where we were.
I still believe there is a principle as to what should be the right of the parent. In the matter of the health of the child, I believe it is fundamental, even if the parent's judgment be wrong, that the parent has the responsibility, and the State should not interfere with it. It is, with very great respect to Senator Magennis, no substitute to tell a parent that he has no responsibility in the matter. I am dealing merely with what seems to me to be the position. I do not want to put words into the Senator's mouth and I am merely criticising what seems to me would be the effect. If it is a matter for the parent, as I contend it is—and as I believe our Constitution rightly provides—it does not seem to me to be a matter which should be left to district justices to remedy. If a parent believes a school to be insanitary and dangerous, it is no remedy to say that the Minister could have an inquiry into it. I hope the  amendment will be put as a test of the principle.
Professor Magennis: Might I ask the Senator whether he suggests that if A.B. pleads in his defence that he considers a school insanitary, that settles the matter and that the district justice must say: “You leave the court without any further stain upon your character”?
Mr. Fitzgerald: I should say, in answer to that, that as the right is primarily in the parent, it is up to the particular authority to prove that, on the contrary, the place is sanitary. As it is, what would happen would be that the district justice would arbitrarily say that it is sanitary, but I think that the onus of proof should lie upon the authority to prove that it is sanitary, because the first right is in the parent.
Mr. Fitzgerald: I still maintain that the primary right is in the parent and not in the Minister. The Senator's argument is that while I may be perfectly satisfied that the health or life of my child is being jeopardised, I have no right in the matter because the Minister has the right of an inquiry and can come to any conclusion he likes. It is up to authority in defence of that right safeguarded for the State in sub-section (2) of Article 42 of the Constitution to prove that the school is suitable, but to say that all the right is vested in the Minister is the one point I am contesting.
Professor Magennis: The Senator forgets that there is another clause in the Constitution which points out the right of the organised State, of the community, to see that every member of it has received, as an individual's  right, a sufficient elementary education and, of course, the primary duty of providing that education rests on the parent. If it is alleged by the school attendance authority that this parent A.B. is not discharging that duty, a summons is issued against him for nonattendance of the child. Senator Fitzgerald, so far as I understand or misunderstand him—he is always very difficult to understand—alleges always that there is an absolute individual. That is a pure abstraction. There is no such thing.
Every individual who is a citizen of the State is in relation—almost in myriad relations—to every other member of the State. The State has the right to see that this man's child receives a sufficient amount of elementary education. How is anyone to know that this is not an arbitrary excuse invented by the parent? Is that not to be investigated? I have asked the Senator before if the contention of the parent is to be final. Surely it raises investigation? The rest of the social milieu has to be protected from parents who invent arbitrary excuses for keeping a child at home. Children in fact have been kept at home on arbitrary excuses as we all know, because the child's service on the farm was useful on a particular day, so that it is not at all with these high academic principles that we are concerned here. It is with how to meet the proper end that Senator Rowlette has in view, namely, to make sure that there shall be no injustice done to a parent through the operation of a law intended to protect the community from the growing up among them of individuals who have not received a proper school training.
The McGillycuddy of the Reeks: Would the Minister undertake to circulate before Report Stage some figures showing his general programme, the estimated cost and the time by which he thinks it will be finally completed?
Mr. Derrig: I do not think I can do that because this programme is not one entirely for me. It is one for the Government as a whole and also for  the managerial authorities outside. I have already indicated in my speech on Senator O'Connell's motion what my intentions were, and I think I have given broadly the figures for which Senator The McGillycuddy asks. Anything I might circulate now would be only in the nature of a Ministerial opinion or suggestion. It would not be in the nature of a definite policy accepted by the Government because I have not yet reached the stage at which I could say it is Government policy, but I hope to reach that stage soon.
Liam O Buachalla: Ar an gcéad dul síos ba mhaith liom a rá go bhfuil mé ar aon aigne le moltóir an leasuighthe seo agus leis na cainteóirí eile nuair adeir siad go mba chóir go bhfeabhasóchthaí gach sgoil sa tír an oiread agus is féidir sin a dhéanamh. Tá mise ar an tuairim nach bhféadfadh sgoil ar bith sa tír bheith ro-mhaith do na daoine óga a chaithfeas freasdal ortha.
Thar éis an méid sin bheith ráidhte agam ba mhaith liom tagairt a dhéanamh do phoinnte nó dhó a luadhadh le linn na díosbóireachta. Sé'n chéad phuinnte acu sin ceart na dtuismitheóirí maidir le iallach bheith ortha na páistí a chur ag an sgoil go féilteamhail. Dubhradh cuid mhaith indiu atá díthchéillidhe i dtaobh na ceiste.
Is cuimhneach liom nuair a bhí an Bane-Bhille á phléidhe tamall ó shoin dubhairt mé gurb é an rud is fearr a thuit amach le fada gur pléidheadh sgéal an airgid an oiread agus a pléidheadh é go poiblidhe. Fuair an pobal oideachas an-mhaith ar an gceist sin de bharr na ndíosbóireacht poiblidhe sin.
Ar an gcaoi chéanna, bhféidir nar mhisde go mbéadh díosbóireacht mhaith iomlán ar an sgéal seo faoi cheart tuismitheoirí a gclann a choinneál ón sgoil. Tá a gcearta go cinnte ag  tuismitheoirí, ach tá a gcuid dualgaisí ortha cho mhaith. Tá dualgaisí ortha dá gclainn agus tá dualgaisí ortha don phobal. Cuimhnighthear ar an sórt saoil a bhéadh ann dá mbéadh sé de cheart ag tuismitheoirí, am ar bith a bhuailfeadh an smaoineadh iad, a gclann a choinneál ón sgoil. Nach gcaithfe údarás a bheith ann i n-áit eicínt le socrú a dhéanamh faoi chéard é dualgas na dtuismitheoirí. Má bhíonn “cead a raise” ag daoine an socrú a dhéanamh iad fhéin dóibh fhéin faoi chéard iad a ndualgaisí, cén sórt saoil a bhéadh ann? Tá mise i n-aghaidh stát-smachta agus i n-aghaidh go láidir ach tá fhios agam go maith go gcaithfear tórainn eicínt d'aithin le haghaigh saoirse—an tsaoirse phearsanta féin. Má fágtar ag daoine na tórainneacha seo a shocrú, do réir mar cheapas siad féin, ar cheist, bheadh an saol bun os cionn, bheadh chuile shórt “tromachtramach”. Tá a gcearta, cinnte, agus a saoirse ag na tuismitheoirí ach mar dubhairt an Seanadóir Mac Aonghusa agus an Seanadóir Bean Ní Choincheanainn tá a ndualgaisí acu cho maith.
Bhí trácht ann faoi scoltacha na tíre seo agus cuireadh i gcomparáid iad le scoltacha thar sáile. Níl an oiread sin staidéir déanta agam agus tá ag daoine eile—an Seanadóir Mac Gearailt, mar shompla—ar na sgoltacha thar sáile, ach chonaic mé scoltacha thar sáile in Albain agus i Sasana a bhí cho dona le cuid de na scoltacha is measa annso. Ní abraim go bhfuil caighdeán feabhais na scoltacha sa tír seo ró-árd ach deirim go bhfuil caighdeán árd ag an Aire agus ag a Roinn. Más féidir linn feabhas a chur ar na scoltacha, thaithneochadh linn é, ach tá déanamh agus feabhas na scoltacha náisiúnta, na scoltacha idirmhéanacha agus na scoltacha gairme beatha an-tsásúil dar liom. Tá obair mhaith ar siubhal ag an Roinn maidir le feabhas a chur ar na scoltacha mí-fheileamhacha. Ní ceart bheith i gcomhnaí ag fail lochta toisc go bhfuil cuid bheag de na scoltacha go dona. Tá fhios againn go bhfuil cuid de na sgoltacha go dona ach isí an chuid sin an chuid is lugha díobh.
Nuair a bhios an chomparáid á  dhéanamh idir an tír seo agus tíortha eile ní foláir cuimhniú ar an méid seo: go raibh saoirse le fada an lá ag na tíortha eile agus deis acu féachaint chuige go mbeadh gach rud mar ba chóir maidir le neithe den tsórt seo, sé sin, sgoltacha, tighthe, uisge, camraí agus mar san de. Mar adubhairt an tAire fuairmuide droch-oighreacht ó na Sasanaigh agus nuair a cuimhnighthear ar an méid atá déanta sa tír le fiche bliain le feabhas a chur ar na rudaí seo, níl call náire a bheith orainn.
Bhíos sásta go maith go ndubhairt an tAire gur cheap sé go bhfeadfaí sgéal seo na sgoltacha lochtacha a leigheas taoibh istigh de dheich mbliana. B'fhearr liom go n-abróchadh sé chúig bhliana; ach, ar an taobh eile dhe, níor cabhair ar bith chúig bhliana a luadh más doigh leis, do réir an eolais atá aige, nach mbéadh an obair indéanta taobh istigh den chúig bhliana. Mar adeirim, is mór an sásamh gur luaidh sé deich mbliana fhéin.
Ní dhéanfadh sé mórán difríochta maidir le feabhasú na sgoltacha a luathú an leasú seo a chur isteach sa mBille. Ní feidir mórán a dhéanamh thar mar tá ar bun leis an sgéal a leigheas go dtí go mbí an cogadh thart agus fagháil againn ar na hábhair atá riachtanach leis na sgoltacha a thóigeál.
Dá nglactaí leis an leasú seo is dóigh liom go mbeadh tuitim mhór ar an líon sgoltacha a fuagruightear a bheith míoireamhnach. Cho luath agus a thuigfeadh na dochtúirí condae gur bhraith sé ar a gcomhairle siadsan i dtaoibh oireamhnacht sgoltacha cé acu a gcuirfí na páistí ar na sgoltacha sin nó nach gcuirfí bheidís níos cúramaighe agus is lugha an líon sgol a cláróchthaí a bheith mí-fheileamhnach le haghaidh úsáide.
Anois go bhfuaireamar an deis a fhuagairt don tsaol go mba mhaith linn go gcuirfí feabhas gach sgoile  naisiúnta sa tír i gcrích cho luath agus is féidir, tá súil agam go dtarraingeóchthar an leasú seo siar. Ní chuideócha mise leis ar chaoi ar bith.
Mr. Cummins: It is clear from the discussion that has taken place to-day that it would be impossible to implement this Bill if there are some 300 schools which are not considered suitable for use, in the wide sense of the word, and I take it that applies to the sanitary and structural condition of the buildings. I do not see the use of passing legislation if parents take it into their heads that they can take steps against its enforcement. Unless authority is more directly in the hands of the Department controlled by the Government we will not have a satisfactory state of affairs in educational matters. We should do nothing here that would encourage parents to take advantage of any loopholes. In a previous Act there were many loopholes, and while any fundamental weakness of that kind exists there is little use in passing Acts of Parliament. State action will be necessary, and for that reason the sooner steps are taken by those in control of the schools, and by the managers, to see that the buildings are put into proper condition the better. I would be the last to suggest that there should be any alternation in the system of management, or any interference with the management authorities as far as the appointment of teachers is concerned, or in the control of the syllabus, but we have examples of what has been done in connection with other schools—the technical schools—where the local religious authorities co-operate to enforce the programme and have ample opportunities for doing so. In the national schools those responsible are not only concerned with the secular programme, but with the religious programme. That position could be maintained without in any way interfering with the management of these schools. I cannot visualise any Government passing an Act that would take control out of the hands of those who now enjoy that power. I urge the Minister to get into consultation again with those concerned to see if our legislation  could not be enforced. While there is nothing embodied in our legislation that would enable the Minister to interfere with the fundamental rights of the parents of children, if there are 300 unsuitable schools throughout the State, attention should be given to their reconditioning.
Mrs. Concannon: A vital part of the inspectors' work concerns the condition of schools, so that the question is always before the Minister. If the condition of schools is very bad I expect he recognises that before expecting that children should be asked to attend them, and that the attention of the managers would be drawn to those where work of reconditioning should be taken in hands. It is all very well to have a big programme of school building but, being a poor nation, we have to cut our cloth according to our measure. In the meantime we might get on with the work of reconditioning schools, no matter what the difficulties may be, in order to safeguard the health of the children. It should not be impossible to have steps taken to remedy obvious defects.
Mr. Derrig: I should like to say that if the intention of the mover of the amendment was to put pressure on me, on the Government, or on the managers to expedite the work of reconditioning these schools, frankly, I think that is not necessary. I can assure the House that everything possible is being done at the present time. As I mentioned, I am in constant touch with other authorities about this whole question. If Senators think that the rights of parents are being interfered with or being restricted in some way in this measure perhaps they would pay attention to the observations of Senator Magennis. This is a Bill to amend an Act which was passed 16 years ago. In that Act the Oireachtas made school attendance compulsory. It has been in operation since, and, in the meantime, the Irish people have given themselves a Constitution. Here  again I ask the House to consider the clause in the Constitution to which Senator Magennis called attention, in which it is specifically laid down that the State shall
The position then under the Constitution is that the State has a duty laid upon it, and the scheme of this Bill is that that duty should be carried out through procedure laid down by the Oireachtas for the guidance and assistance of the Minister for Education. I take it that he should be the authority who would be primarily responsible for the fulfilment of this duty—that all our children should receive a certain minimum education. That duty, I take it, should be entrusted to the Minister who would be responsible for carrying it out. It is in accordance with that principle that the scheme of the present Bill has been arranged. The main principle of compulsory school attendance was agreed upon years ago, and I suggest that it is not helpful at this stage for Senators to suggest that something new is being introduced or that we are interfering in some way with parents and taking rights away from them, when we are only implementing a clause of the Constitution which lays upon the State, definitely and specifically, the duty of seeing that all children receive a certain minimum education.
Mr. Foran: But the Minister is ignoring the fact that we have a duty to the children as well as to the parents. If there are 300 schools in an insanitary condition, or that have been condemned by the local authorities as unfit to be used as buildings in which to impart education without endangering health, surely that is a matter of primary importance to the community. If some people are uneasy about undue delay in remedying that state of affairs, the amendment, if passed, will speed up matters and be of service to the whole community. The Minister need not feel offended and go back on the old idea of blaming an alien Government  for this unfortunate condition of things. Surely we have been long enough in control of our own affairs to remedy it. If we have not been long enough in control, is there the possibility that we can ever clap ourselves on the back and say that such a state of affairs does not exist in this country? Where is our pride? I think it is a sad commentary on our system of education to say that there are 300 schools which have been condemned by the sanitary authorities.
Mr. Derrig: I do not think that is correct. I dislike imposing again on the House, but I am very anxious to explain to the Senator and the House that there are 300 schools, probably 400 schools, that, in the opinion of both my inspectors and the medical officers, should be replaced by new schools. I should like to go into the question further, but I do not believe, as I have indicated already, that the medical officers' reports in themselves would enable anybody to say that all of these 300 or 400 schools are insanitary. My belief is that a proportion of them, at any rate, are buildings which can be reconditioned and that the question of sanitation is not the primary ground—it may be one of the grounds—upon which the doctor condemned the school. Each individual case would have to be examined.
Mr. Derrig: The Senator might as well say that it is due to the dwelling-houses. As Senator Sir John Keane suggested, why forget the dwelling-houses in which the children are living? We should ask ourselves: are we going to serve any useful purpose by confining the children to the dwelling-houses rather than allowing them to go to the schools, even if the schools are not by any means perfect, until we can get better?
Mr. Baxter: Senator Mrs. Concannon made a point or two to which I should like to advert. She left the impression on my mind that her conception of how this Act would be administered would be something like this: that it would be obvious to the Minister that there were certain schools which could not be regarded, at the best at any rate, as very satisfactory buildings to which children would be compelled to go and that that fact in itself would make for a certain laxity in the demand for compliance with the law; that in fact the Minister could not conscientiously press for the compulsory attendance of the children at certain schools in the country. Probably that is correct; probably that would be the general view and would probably be the policy of the Department of Education. But it is because we believe that that is so that we think this section demands amendment. We cannot see the necessity for including in this Bill a compulsory clause which in fact will be ignored because of the conditions. It is because we feel that offences against the law actually will be winked at, and that that is not good for the State or the administration of the law generally, that we think the Bill demands amendment.
Mr. Derrig: The point is that in a good many counties there were up to 20 per cent. of the children absent from school, and possibly the statistics for 1942 will show a larger percentage. I am suggesting to the Senator that this is giving a further excuse to the parents to keep their children away from school in a good many cases.
Mr. Baxter: The Minister's statement is just an indication of a lack of that clarity which ought to come from  the head of the Department of Education. He says that 20 per cent. of the children are absent from the schools and that this amendment, if inserted, would give an opportunity to a further percentage to absent themselves. He does not tell the House whether or not those absentees are from the schools which have been condemned by the county medical officers of health. Are they from some of the magnificent new schools in the municipal and urban centres? From what schools are they absentees? I suggest that that statement of the Minister is thoroughly misleading, and that it is a statement which ought not to be made, or certainly accepted as having reference to this amendment. There are absentees from all the schools all over the country, schools which are good, bad and indifferent. That is the truth, I think.
Senator Mrs. Concannon made an other point; that we are a poor State, and have to cut our coat according to our cloth. If we are poor, I think we are poor in spirit. Surely we are not poor in the things which are necessary to build new schools, and were not poor in them in the last ten years. We have the men to do the work. The men play a big part in the job of building new schools. We have the material. Still we have this residue left which have been condemned by the county medical officers of health. I do not like the point made by the Minister in reference to that. He has frequently intervened to say—at least I gathered that that is his point of view—that the condemnation of our schools does not coincide with the statements from our county medical officers of health.
Mr. Baxter: I got the impression that the Minister's view is that, while we have reports from the county medical officers of health as to the number of schools which are unsuitable, he does not accept that as being representative of the position. I should like to ask the Minister who is to be the authority who will determine for the parents and the Department whether a building is sanitary or not?
Mr. Baxter: We do not live in watertight compartments in this country. The Minister, unless he forgets what the country is like, knows quite well that the sanitary authority in a county makes its decision—at least it did in the past—on the report of the county medical officer of health. The county medical officer of health made his report to the board of health and they made their decision. So that we may accept it that the report of the county medical officer of health was in fact the decision of the county board of health. I presume the county manager now will accept the report of his county medical officer of health and make his decision accordingly. The county manager is not a technical man in the sense that he can pronounce on the sanitary condition of any building. The county medical officer of health is the person to do that. He is the man whose opinion must be accepted. I submit that his opinion must be accepted not alone by the sanitary authority, who is now the county manager, but by the Minister and his Department. I think it will be very bad for the whole policy of building new schools if, when a county medical officer of health reports that a school is unfit to receive children to be educated, somebody up here is to determine that that medical officer's opinion is not a sound opinion.
Senator Foran made reference to what the Minister said when he quoted the section of the Constitution which states that the State shall, as guardian of the common good, require, in view of the actual conditions, that the children receive a certain minimum of education, moral, intellectual and social. The State is the guardian of the common good. I wonder whether the State will, in its position as guardian of the common good, decide, as I have put it before, whether it is not better for the State, in guarding the common good, that the people should have good health and a certain literacy, some kind of education,  or such poor health and broken bodies that, in the future, the State and the people who are able to work will have to maintain citizens who can never be brought into a proper condition of health to enable them to work because of the condition of the schools in which they were educated. If the State has a conscience in this matter, I suggest that it should be in the direction of making sure of the health of these children, and, in speaking of the actual conditions, I suggest that Senator Mrs. Concannon rather hit the nail on the head there because, if the State is going to decide “in view of the actual conditions”, it must have a conscience in the matter of putting up proper and sanitary school buildings. I say, further, that to make such a demand on parents will only mean that the Act is going to be winked at, and I think that it is all wrong and pure humbug to pass legislation, knowing that that legislation is going to be winked at. No matter what insistence the Minister and his Department want to have embodied in such legislation as this, I think that the first right is the right of the parent, and, in my opinion, sensible parents in this country will not obey the commands of the State to send their children to a school if the school building is insanitary or in a bad condition. I think that intelligent and sensible parents will rebel against such conditions.
The Minister tells us that he has had discussions with ecclesiastical authorities and that he is in constant touch with the managers. Now, that is all right, but I remember a prosecution against a manager in my part of the country, where the poor manager had to pay something like £200 damages to the parents of a child who was injured in a school where the conditions were obviously impossible conditions. In view of the condition of many of these schools, I do not think we are justified in taking the line which the Minister urges the House to take, and I believe that wise Senators will decide that in the wider interests of education, and in order to set a good example from the Ministry of Education, there ought to be no obligation whatever on the parents of this State to send children to schools where the buildings are  such, as I have stated here before, that some of these parents would not house their cattle in them.
Dr. Rowlette: I have been very pleased, so far, that the debate on this amendment has attracted the attention of the Seanad for what must be admitted to be a long period, and I am grateful to the Senators who have paid attention to it for such a long period. In dealing with some of the points that were made, I hope to be very brief, and I shall try to take them in the order in which they were made. Senator O'Connell raised what seemed to me to be a very curious point. He said that we ought to be slow to put on our legislative records the fact that we found it necessary to legislate against insanitary or dangerous conditions in our schools. Senator Barniville replied to that by saying that although we ought to be slow to put on our legislative records any laws dealing with such things and, perhaps, should not allow the world to know that everything was not perfect in this country of ours, still we had certain other Acts, dealing with the inspection of factories, and so on. I was surprised particularly to find that hush-hush attitude, with which we are all familiar, coming from Senator O'Connell who, I think, usually takes a broad view of matters. The same point, however, seemed to be behind the speeches of other Senators, and I think it is a thoroughly unhealthy view. It practically amounts to saying that we should not have a law against murder in this country because it would mean informing the outside world that such a crime as murder occurs in this country. I think that that is a very unhealthy point of view: that we should not put on our legislative records laws which the majority of both Houses of the Oireachtas think to be proper and advisable, because it might lead to misapprehension outside the country.
We have had a certain amount of confusion, I think, in the minds of some Senators, and certainly in my own mind, as to the meaning of some of the clauses of Acts that were quoted. Senator Magennis, who gave  us much useful information and reminded us tacitly that he had practised law in his youth, as he told us on other occasions, thought that the term “unavoidable”, among the excuses which a parent might put forward for not sending his child to school, would cover such cases as these. To begin with, the cause in this case for which a child is kept from school is not unavoidable, because, through the activity of the Government or the managers—wherever the responsibility lies—the cause is avoidable in the cases referred to in this amendment. Again, I doubt that behind that argument of Senator Magennis, although he does not state it or, probably, does not accept it, is the view that a district justice would take a very lenient or sympathetic attitude in such cases and would not apply the law, and I am sure the Senator is quite accurate in that, but are Senators going to pass a law which is inapplicable and which they know will not be applied?
That view, I think, was put forward by the Minister, and I think it is a thoroughly bad attitude for any legislative body to take—to pass laws which it knows are impracticable and will not be enforced and which the magistrates will not enforce. If we think it is dangerous to send children to dangerous or insanitary schools, then we ought not to shut our eyes to that unpleasant fact. In that connection, I think that the word “suitable” has led to a good deal of misunderstanding. It has been applied by many speakers here as if it were an adjective descriptive of the national schools, but according to the technical wording of the Principal Act, the national schools are not suitable schools at all. That is made quite clear in the very first section of that Act, which says:—
Quite clearly, there is the question  there of an alternative to the national school. Also, in the Bill that is now before us, the same distinction is made clear, if punctuation means anything, because Section 3 of the Bill before us says:—
So that, when we talk about a national school being recognised by the Minister, we are certainly not using the term “suitable” properly so far as one can judge from the Principal Act and the Bill with which we are now dealing. The Principal Act says that the expression “suitable school” means a school for the time being certified by the Minister to be a suitable school within the meaning of the Act. I am sure that Senator Magennis, from his reading, will be familiar with the authority who said: “When I say a thing three times, then it is so,” but, apparently, the Minister has only to say a thing once, and then it must be so.
Dr. Rowlette: I quite agree, but “suitable schools” are not our business to-day. The whole discussion centred around national schools. We have been talking about national schools, and I have no reason to criticise the Minister's Department as to what is a “suitable school”. The definition, when we got it, does not appear to be very helpful. I have no doubt the Minister will use his discretion when he declares a school to be suitable or otherwise. Like some other Senators, I was disappointed with the Minister's speech on this occasion. He was not quite as determined, I think, in his criticism of the speeches made to-day as he was in his  criticism of those made on Senator O'Connell's motion a few weeks ago, but some of his points were the same and seem to me to need answering. He has spoken—and, I think, spoken accurately—of the high standard demanded by county medical officers of health in their reports. It is right that it should be high, but I think he does not at all distinguish between what they put forward as desirable and what they declare to be essential. In my wording of this amendment, I tried to bring it down to something precise, pointing out a real danger; I referred to a school “which has been declared by the county medical officer of health to be insanitary or dangerous to the health of children attending it.” I have not said anything as to what one might think desirable. When it comes down to a direct statement that a school is dangerous to the health of the children, it is quite a different matter from something which is not the ideal or is not of as high a standard as would be desirable. I take it, if this amendment is accepted and becomes part of the law, that a county medical officer of health who gives a decision that a school is dangerous to the health of the children will do it with the knowledge clear in his mind that that decision will render it a matter of conscience for the parents in the district to send their children there or to keep them at home. It may be, as the Minister pointed out, that the medical officer of health has not the last word; he is the advisory officer to the board of health. I would be quite willing to accept an amendment of the law which would leave it to the local board of health, on the advice of the county medical officer of health who has declared a school to be insanitary or dangerous——
Dr. Rowlette: That is another point with which I will deal later. The Minister has suggested—I do not know whether he made it quite plain— that some of us who spoke in support of this amendment were suggesting that it was a new thing. Senator Magennis pointed out that the laws  with regard to school attendance are not new. Quite, but that is no reason why they should not be improved. The fact is that the School Attendance Act goes back for several years, but this evil persists; the children are, by law, compelled to attend dangerous schools. The fact that the Act has been operating for 16 years—I think that was the period mentioned by Senator Magennis—does not exonerate us from looking at it now and seeing if there are dangers in it which were not suspected 16 years ago. That is the object of an amendment of the law—to improve the law.
Dr. Rowlette: That may be. I have not studied the records of the district courts, and cannot judge on that, but the schools remain bad. If it has been pleaded in the law courts, as is quite likely, apparently it has not got any further. Some one told us to-night that the records of the law courts would no doubt be studied by the Department. Where is the activity of the Department in the last 20 years to improve conditions and render the schools safe? The Minister suggested, I think, that some of us were making use of this amendment to attack the policy of an Irish Government. Certainly, that was not in my mind, and I think it was not in the mind of anyone who spoke in favour of the amendment, but the Minister seemed to think that it was being used as a stick to beat either the present Government or their predecessors. I am as well aware as anybody in this House of the enormous improvement in public health work that has taken place in the last 20 years. Both the Parties who held the government of the country in their hands in those 20 years have shown considerable activity in the advancement of public health. But here is a matter in which we are behind—a matter which arises out of one of the activities of that Government, namely, the establishment of county medical officers of health, which makes it possible to discuss  the subject to-day with some knowledge.
In my speech here some weeks ago I expressed my regret that I found the attitude of the Department, as voiced by the Minister here, differed very little from what was the attitude of the Department of Education 30 odd years ago, when it was in the hands of alien officials. It has hardly changed at all. I have not made any suggestion that the present Government has not attempted to improve public health. I know well it has; I know it has done a great deal for it, and so did its predecessor. It is quite true, as the Minister said, that this evil is a legacy from the past. It is a legacy from the past, but it is time we got rid of that legacy. As I have said, I was disappointed by the Minister's attitude to-day. I do not at all doubt his anxiety to put this matter right, but, when he tells us it would take ten years, when he tells us of the enormous delays and difficulties and so on, all I can say in reply is “that is not good enough”. He has been in office for ten years, and matters have not been improving appreciably. He has made reforms during his term of office, and has caused great improvements in some parts, particularly in the City of Dublin, but the unsatisfactory conditions persist, and they are not of to-day or yesterday or ten or 20 years ago; they have been in existence for a considerable time, and they have not been dealt with. The object of my amendment—the Minister suggested various reasons—is to try to get something done to remove the unhealthy conditions of the schools. The Minister has suggested that the amendment as it stands is impracticable. He suggested that the word “insanitary” was too comprehensive. If the Minister would accept an amendment which would leave out the word “insanitary” and simply refer to “dangerous schools”, I would be content to leave it at that, if the Seanad would allow me to make that amendment. If the Minister would give me an answer on that point now I should be very much obliged.
Mr. Derrig: I cannot recommend the House to accept this amendment— I think I have indicated that—and I do  not propose to introduce an amendment. I think, as Senator O'Connell has pointed out—he is au fait with this matter, and sees it from a different point of view—that this is not the place to deal with this particular matter.
Mr. Derrig: Because it is a question of public health. If the Senator wishes to deal with school buildings and to follow a certain procedure he will realise that it is the local sanitary authority that should take up the matter. Then, if they cannot get satisfaction, they bring it to the court. I submit that one might as well put down half a dozen other reasons in a School Attendance Bill why children should not attend school as this particular one.
Mr. Derrig: I do not think the Senator was quite fair to me. I am beginning to think that perhaps it is too much to expect that, but when he suggests that practically nothing has been done to try to remedy this situation I think he is really misleading the House and misleading the country. Everything possible has been done and is being done. I want again to say with regard to the 400 schools, or whatever number it may be found the medical officers of health have considered to be unsuitable, that a further examination would be necessary before it could be definitely established what number of these schools cannot be rendered fit for use for a further period of time. That is a rather important matter. When I say a ten years' programme, I mean the entire work of putting all our schools in the position that we would have no arrears except the wastage from year to year. I do not mean that it may take the full ten years to deal with the schools that are so obviously bad from the sanitary point of view, or from the point of view of dilapidation that the sooner they are got rid of the better. I do not want the statements that I make here to be used as arguments to suggest that my Department  is not doing everything it can to deal with this situation as expenditiously as possible or that there is any lack of goodwill on our part or on the part of the managers to deal with the problem as quickly as possible.
Dr. Rowlette: I am sorry that the Minister should think I was unfair to him. I do not think I was unfair to him. Certainly I had no intention of being unfair to him. Certainly there is no justification for his suspicion that I am determined to be unfair or hostile to him. I have no hostility whatever towards him, and never had. I think it is the duty of the Seanad to consider the work of his Department and Bills that come before the House. What amazed me most was the suggestion, within the last two or three minutes, that the Seanad was not the place to discuss a matter concerning the health of the country. This is not the place to discuss Bills that come before us! I hardly think the Minister was really serious when he made the observation to that effect. I have not quoted him quite accurately, but that seems to me the meaning of that observation. I can assure the Minister that I have no wish to be unfair to him.
Mr. Derrig: I do not want to be unfair to Senator Rowlette either, but I suggest to the House that this is a matter which seems to come under the code dealing with matters of public health, where the State has laid down certain provisions for the maintenance of premises in a sanitary condition. I understand that it is a highly doubtful question legally when or whether a building is sanitary or insanitary. Even the public health authorities in this country consider that it is a matter that has not been at all settled, and I was suggesting to the Senator that this did not seem the appropriate way to deal with the matter, as he is proposing to put the medical officers of health, who are, as I have said, merely officers of the local authority, in the position which, as I understand it, the sanitary authority holds at present under the law. They are the enforcing authority, and it is for them, when they receive the reports of their  officers, to take action on these reports. That is what I wanted to make clear.
|Alton, Ernest H.
Barniville, Henry L.
Baxter, Patrick F.
Counihan, John J.
Douglas, James G.
McGillycuddy of the Reeks, The
Rowlette, Robert J.
Byrne, Christopher M.
Farnan, Robert P.
Healy, Denis D.
Honan, Thomas V.
Keane, Sir John.
Kennedy, Margaret L.
|Lynch, Peter T.
O Buachalla, Liam.
O Máille, Pádraic.
Nic Phiarais, Maighréad M.
Robinson, David L.
Tellers:—Tá: Senators Baxter and Rowlette; Níl: Senators Goulding and O'Donovan.
Amendment declared lost.
Section 3 put and agreed to.
Business suspended at 5.45 p.m. and resumed at 7 p.m.
Professor Johnston: I move amendment No. 3, which stands in my name and the name of Senator Douglas:—
In sub-section (2), paragraph (a), after the word “child” in line 28 to add the words:—
“but the Minister shall not refuse to give a certificate in respect of a child sent by his parent in the exercise of his constitutional right under Article 42 to a school outside the jurisdiction of the Oireachtas.”
This amendment raises in a somewhat different from a question about which there has been quite a good deal of discussion—the respective rights of the individual and of the State. I believe that parents should be the ultimate authority and that they should have the last word in deciding what is a fit and proper education to give their children. This amendment suggests that it should be recognised to be within the constitutional right of parents to educate their children in  schools outside the jurisdiction of the Oireachtas, if they feel disposed to do so. My own feeling is that there are, perhaps, too many people who, quite unnecessarily, and inadvisedly, from their own point of view and, perhaps, from the national point of view, have their children educated abroad. That is not the point. I think that the ultimate right of the individual includes the right to do what I think wrong and to do what, perhaps, the Minister may think wrong. If the matter must be regarded from a more objective point of view, it may be argued that there are circumstances in which it is objectively right that parents should have their children educated in schools outside the jurisdiction of the Oireachtas. It is altogether inappropriate that the State should claim the right to forbid the exercise of that right, even it claims the right in the form of being prepared, in certain circumstances, to grant a certificate allowing the exercise of the right. This is a matter which touches the constitutional rights of all citizens, especially under Article 42, and is of special interest to members of minority groups. That aspect of the matter will, probably, be dealt with more adequately by Senator Douglas.
There are other aspects of the question with which I should like to deal. In the form in which the Bill has been drafted, a parent would require a certificate from the Minister to have his children educated in Northern Ireland, Britain, or any other part of Europe or the world. I think that there are circumstances in which it would be perfectly natural and legitimate that a parent should want to have his boys or girls sent to a school in England. The parent should be the final judge, and not the Minister, as to whether that is a right and proper thing for him to do. With regard to the education of children in Northern Ireland, a special case arises. It is altogether desirable that whatever social contacts are possible should still be maintained between the respective sections of the community in this area and their opposite numbers in the northern Six Counties. It would be most improper that the Minister should take upon  himself to say whether or not a Protestant parent should send his boy to be educated at Campbell College, Belfast, or whether a Roman Catholic parent should send his boy to be educated at St. Malachy's College, in the same city. The argument has been voiced, especially by Senator O Buachalla, that this claim to dictate the form in which all citizens shall receive their education is a necessary element in the creation of what I might call a Gaelic soul for the nation and for all individuals composing the nation, especially those whose traditions are not in the main stream of Gaelic culture. Even from that point of view, I doubt whether it is a good policy to interfere in any way with the tendency of certain parents to send their children to schools, say, in England, to be educated. Some people only find their Gaelic sould when they are thoroughly immersed in the atmosphere of the English public-schoolboy system. Some of the most enthusiastic Gaels I know received their education, in their formative years, in English public schools, and I do not think that you will go far wrong if you leave the individual to decide, in the particular circumstances, whether it is right and proper to have his children educated at home or outside the jurisdiction of the Oireachtas.
Mr. Douglas: I agree in substance with what has been said by Senator Johnston, but I want to put the case for this amendment from a somewhat different point of view, not because I disagree with Senator Johnston but because there is no use repeating the arguments which he used with which I agree. To my mind, the case for altering the Bill stands on far more important and far more vital grounds than those stated by him. The House has decided by what, in this House, is a relatively small majority that, so far as the question of health is concerned, the State should have the right, if it thinks fit, to interfere in the matter of the judgment of the parent with regard to sending his child to school. That may or may not be right. We are now dealing with a different matter for which a very strong case can, to my mind, be made.  We have heard a great deal about Article 42 of the Constitution. I want to draw the attention of the House to Article 44 before dealing with the matters which this amendment endeavours to remedy, as affected by Article 42. If Senators turn to Article 44, they will find that freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. To a very large number of persons in this country, I would say to the overwhelming majority, the practice of religion means, as far as the parent is concerned, taking steps to see that his children are taught the religious faith which he believes in. If the State takes any step which makes it depend on a Minister's consent that the individual shall be able to provide for that education, then it seems to me that that is not only unconstitutional, but is raising a vital principle. As most of you know, I belong to a religious denomination which is exceedingly small. It is one that is recognised by the Constitution. Its membership, particularly as far as this part of Ireland is concerned, is very small indeed. It is possibly for that reason that I see this from the point of view of the small religious minority. There are smaller religious bodies than that to which I belong. In many cases, certainly as far as secondary education is concerned, they cannot all have schools within the borders of the State which will satisfy parents in the teaching of the faith to which they belong.
It may be said that the Minister will, of course, agree. That is not the point I am raising. My point is that the State has no right to purport to give power in law so that a Minister can refuse. What we are proposing in this amendment is that the Minister shall not refuse where the parent is exercising his right under Article 42. Now, you are all familiar with the terms of Article 42 of the Constitution.
“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.”
Lower down, you will find that
“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.”
Religion is not included in the duty of the State, but religious education is, according to our Constitution, the responsibility of the family and of the parent. Therefore, I contend that you have no right to put in a Bill a proviso that, where a parent is satisfied that to provide the religious education which he believes to be right, it is necessary to go outside the State—in quite a number of cases that would be so in view of Partition—he shall first have to obtain the consent of a Minister.
That, I suggest, is a breach of the Constitution, and what is far more important from my point of view than even a breach of the Constitution, it means this: that for the first time you are bringing in a Bill which actually removes certain fundamental freedom rights from minorities. I have been a member of the Seanad for 20 years, and this is the first time that I have had to raise a matter of this kind. I do not believe for one second that any Minister is ever likely, under this or under any other Government here, to refuse permission under this condition. What I do say is that many parents will consider it wrong to have to ask the permission. In order to make the position reasonably clear, may I put the matter in the reverse way? Perhaps before doing so I should say that I myself am the product of what to-day would be impossible under this Bill without the Minister's permission. My father believed, certainly as far as secondary education is concerned, that denominational education was of value, and was something that he had to provide for. Accordingly, I was sent outside of the 26 Counties, but not outside Ireland, to a school under the control of the denomination to which I belong.  Some people may think it was calamitous. Personally, I do not think it was, but, at any rate, one thing is certain, that my father, in doing so, was undoubtedly exercising his right. The school is within the country, but not within this State. To my mind, it is a fundamental mistake for us, on this side of the Border, to take a step which is emphasising and which is creating a specific barrier over and above the political purposes of the barrier.
In order to make that point clear, let me put the reverse position. How would Senators here, if they were living in the Six Counties, those of them who are Catholics and thought it would be good for their children to send them to Castleknock or Clongowes, view the position if they had to go to the Minister for Education in Northern Ireland and ask for his permission before they could do so? Would they not consider it absolutely unfair? Now, it may be said that no Minister would refuse permission. Personally, I think it would be wrong to have to ask it. I think it would be something that would be humiliating as well. Personally, I do not like the section even if it were amended on the lines proposed by Senator Johnston and myself. The amendment, if accepted, would, at any rate, provide —I presume the Minister would still have to be asked—that he could not refuse permission if the claim was based on the rights laid down in Article 42 of the Constitution.
I suggest to the House that this principle goes far deeper than anything that could have been raised on the question of health, and that, from the point of view, not only of our own tolerance but of our own absolute convictions in the matter of religious freedom, we ought not allow it to remain in a Bill of this kind. It might be argued, and no doubt could be argued, that, even if the Minister refused, no magistrate would ever give a conviction in a case of the kind, and would probably apply the Probation of Offenders Act. Possibly, no Government would ever dare prosecute in these cases. That, however, is not my point. My point is that we here in this State are proud of the fact that we  have a guarantee of religious freedom. We are proud, most of all, of the emphasis that has been laid in the Constitution on the right and the duty of the family, and particularly in the matter of religious education. In view of that, I say that we have no right to allow this Bill to go in its present form without some amendment that at any rate will make provision for minorities.
I do not want it to appear that I am speaking as one who has some particular grievance. When I realised what the position would be under this section, I was not alarmed in the sense that any individual was going to be refused permission, but I was alarmed that we should put into a Bill what might be a matter of very considerable criticism, what, in the minds of people, particularly of those on the other side of the Border, might be used to show that there was religious intolerance here, something which I have always testified does not exist. Therefore, I suggest to the Minister, whether he is prepared to accept the amendment or not, that he ought to consider carefully the case I have put, and introduce an amendment himself which will not make it necessary for an individual to apply for permission to carry out, in the matter of religious education, what he believes to be his duty, a duty which is guaranteed to him under the Constitution.
Mr. M. Hayes: I should like to put this matter on a rather different basis. Section 4 is a very elaborate section, the meaning of which I find some difficulty in determining, particularly when you consider it in connection with Section 20, which gives other powers to the Minister. The debate in the Dáil revealed that the section gave power to the Minister to take action against people who sent their children outside the jurisdiction. The natural tendency in legislation seems to be, when you get a certain distance, to bring in an amending Act to tighten up every conceivable thing, to try to stop every hole and every bit of leakage that was in the original scheme. I do not speak at all for the minorities, and would like to make it clear that, not only people who belong to minority  religious bodies are possibly hurt by this section and particular power of the Minister, but the people who belong to the majority religious body in the country have also great reason to object.
I was not sent outside Ireland for my education and I have not sent my children outside. I have no desire to do so, and I know very few people who do it; but the right of a parent to choose his school for his child seems to be greater than the right of the State in the matter. I doubt if the Minister has the moral right to provide that one cannot send a child outside the State to be educated. The right of the parent morally does include the right to send children out of the jurisdiction. That right is not confined to the minority. For example, I know a man, who took part in the 1916 Rising, who sent three sons, when they came to the age of nine, to Belgium to be educated. If we are interpreting this particular section correctly, he was leaving himself open to prosecution, if the Minister should take a particular view of that action. Whatever view the Minister might take, a man who determines to do that seems to be exercising a right, and the law of the land should not give the Minister any power to interfere with him.
Similarly, there are some Catholics in the same position. Even if there were but one Catholic parent, who wanted to send his child to a Benedictine school in England, for example, he should not have any difficulty. I know I will be told that the Minister would not object, but—whether he objects or not—the Minister should not have the right to object. That is what seems to be wrong with the powers included in this very elaborate section. The same thing will apply in Northern Ireland. I gave an example of that on the Second Stage and other cases have been brought to my notice since then. Bank officials, moving from Northern Ireland into the Twenty-Six Counties and vice versa, may have children under 14 going to schools in Northern Ireland and may opt to leave them there. I know the  Minister would not object and would not interfere, but there should not be a law in existence which is not enforced, or which is enforced on particular bases which are not provided in the law itself. I take it that the Minister's answer would be that he would not object to a Quaker sending his child to school in Northern Ireland or England, or to anyone sending a child to a convent or other such school in Northern Ireland; but I do not think he should have any such right preserved to himself in the Bill.
It is not a religious discrimination at all that is at issue: it is the fundamental rights of the parent. That may hit the majority as well as the minority. There are other points in Section 4 which I would like to deal with, but in the case of this particular point I hope the Minister will prove amenable to the arguments put forward here this evening. The present amendment may not be satisfactory, but I sympathise with the idea behind it. I have no sympathy at all with people who want to send children outside the jurisdiction of the State, but that does not prevent me from realising that they have the right to do so and that we should not deprive them of that right by legislation.
Mr. O'Connell: I am proposing to delete the whole of Section 4, and I wonder if it would be appropriate for me to state my reasons now.
Leas-Chathaoirleach: It would be better to deal with these afterwards, on the section.
Mr. Baxter: If we could get from the Minister a statement as to the magnitude of this problem, we would be clearer as to the Minister's wishes. As one who lives close to the Border, with a fair knowledge of the conditions there, I do not think the problem is of such extent as to justify the introduction of this section at all. There may be a certain number of parents along the Border who prefer to send their children outside the State, but that will not detrimentally affect the vitality of this nation and the effort which is necessary for it to retain its status as a State. I would not worry  about what these parents would do with a few children who may cross the Border for their education: it does not matter one way or another in the life of this State. Their example will not be followed to any extent. From the point of view of strengthening the national forces within the State and compelling parents to have their children educated within the State, so that the State may be stronger in the future, the Minister's argument for the inclusion of this section does not hold water, as the problem is too small to be worthy of consideration.
If there are some parents who want to send their children outside the State for their education, I would let them do so, as they are few in number. They have certain prejudices which are understandable. We can only understand them and help to make the State stronger in the future, when we understand those prejudices. The more we do to make our State a worthy place in which to live and make a living, the more attractive will it become for those parents and their children. We cannot conquer those prejudices by compelling them to adopt a certain type of education within the State which, in their judgment, will not provide openings for the children in the future. We can eradicate those prejudices in a better way—we can prove ourselves capable of employing that better way and of tackling the problem in a manner that will bring more fruitful results.
The inclusion of such a section as this will be held against us. Whatever may be said with justification about the attitude of people on the other side of the Border—intolerance and preparedness to proclaim intolerance—all of us, and particularly the nationalists, in this part of Ireland have always respected and, please God, will continue to respect, the rights of the minority. In fact, greater freedom and greater facilities in education have been given to them than they have been accorded by their own people on the other side of the Border. It would be a great thing to stand over a policy of that kind, and it is not worthy of us to leave ourselves open to the charge that there is any desire on the part of the Minister for Education to marshal  children and drive them into schools where they will get the kind of education which would be of no benefit to them in the future.
Quite recently, I travelled with a professional man in the northern end of this State, whose children were sent to a convent across the Border. Some of our citizens are doing that, and will be restricted by this section. They have certain reasons; some of the religious communities recognise no Border, are drawn from all over the country, and relatives of members of those communities are on the other side of the Border. There is, therefore, that attractiveness about children going to school where their relatives are.
I do not see why we should bother building these borders high. The truth is that there is not half enough contact. While some people may be prepared to build borders high and believe that it is to their advantage to keep those borders high, I believe, taking the broad view, that, looking to the future, it ought to be our aim to keep these restrictions down to the minimum. The future of our children is not going to be endangered in any way by permitting people within our State to send their children outside for their education. From what we know of Senator Douglas's patriotism, his spirit of tolerance and his capacity, these things have been in no way worsened by the fact that he received his education outside the territory of the Twenty-Six Counties. I think some of the people with whom we have to differ might have benefited by having received a little of their education outside this State. I am afraid that instead of growing broader in our views we have grown more intolerant, more narrow, as our territory was restricted.
I dislike the Minister for Education, above any other Minister, making that narrow approach to our problems. If there is anything in education, if it is what we preach and believe it to be, if it is going to shape men's minds so as to enable them to make life better than it is, then it should be the aim of our educationists to take a broader view and to make a more tolerant approach to all our problems. Speaking  as an individual who resides close to the Border and who crosses it occasionally, I think our present methods are all wrong. I believe the Minister is doing the State a disservice and he is certainly not helping education.
Professor Alton: I have considerable sympathy with the principle underlying this amendment, and I hope the Minister will consider it sympathetically. I do not think he is the type of person who regards parents as an intolerable nuisance. Senators may be aware of the story of the schoolmaster who, when asked what type of child he would like to get for his school, replied “orphans”. Nor is the Minister, I think, like the philosopher who, when he was framing his ideal State, his perfect State, suggested that the best way was to take the children away from their parents and start the new State in a desert.
We are not legislating for an educational system in “Cloud-cuckoo-land”; we are living amongst real things, in a world where feelings are strong. The feeling on which the whole State is built is the feeling, the relation, that exists between the parent and the child and, far from desiring to divorce the attention of the parent from the child, I think everything should be done to encourage it. Parents do not take enough care with the education of their children. Theirs is the prime responsibility, and very often they are wiser in the treatment of the children than any so-called professional educationists. They know the qualities and the nature of the children, whom they have watched from birth, and they are likely to make a better shot at what type of education the children should receive. It is, as Senator Hayes said, the natural, inalienable right, as the Constitution has it, of the parent, and I hope the Minister is not going to interfere with that in any way. I appeal strongly to him to consider this amendment sympathetically. If its wording is not acceptable, perhaps he could introduce at a later stage an amendment more suitably worded, but still embodying the same principle.
Professor Magennis: On a point of order. Might I ask Senator Douglas to refer me to the pasages in the Bill of which he complains? I have searched the Bill repeatedly and I cannot find them. Perhaps it is my stupidity, but I cannot find anything to the effect that there is a certificate to be issued by the Minister permitting a parent to send his son or his daughter to an outside school.
Mr. Douglas: If it would be of any assistance to the Senator, I could read to him sub-section (1) of Section 4, but that, of course, has to be read in connection with the previous section. In the previous section it was provided, to the best of my recollection of the previous Act, that a reasonable excuse for not attending one of the three types of school set out in Section 3 (1) would be that the child was getting a proper education elsewhere. We find in Section 4:—
(1) A child shall not be deemed for the purposes of this Act to be receiving suitable education in a manner other than by attending a national school, a suitable school, or a recognised school....
A child shall not be deemed to be receiving suitable education in a manner other than by attending a national school, a suitable school or a recognised school—
...unless such education and the manner in which such child is receiving it have been certified under this section by the Minister to be suitable.
Then it goes on to say:—
“The following provisions shall apply and have effect in relation to every certificate under this section by the Minister.”
That clearly implies that a child cannot be deemed to be receiving suitable education unless it is certified as suitable by the Minister.
Professor Magennis: The Senator stops there. Has he not observed that—
(a) the Minister may, before giving such certificate in respect of a child, require such child to be submitted  by his parent to such educational test at such time and place as the Minister shall direct, and the Minister may refuse to give such certificate if such parent fails or refuses to submit such child?
Obviously it is the refusal of a parent to allow his child to be submitted to a test of efficiency that is in question. In the arguments put forward here the negative is transformed into a positive and made to appear as an attack upon the religious liberties of a minority.
Mr. Douglas: Could we not solve this matter by asking the Minister whether, under this Act, a parent can send his child to be educated in England or Northern Ireland and whether he will be in exactly the same position as previously? If the Minister will assure us on that point, then I could withdraw the amendment until the Report Stage. If the Minister says the position is exactly the same as before, and that it is a reasonable excuse to send a child to a school in England or Northern Ireland, then I could say that possibly I misread this section and I could postpone the amendment to the next stage.
Professor Magennis: Is not this refusal of the parent to submit the child to a test the operative part of the injunction in sub-sections (1) and (2) of Section 4?
Mr. Douglas: I do not think so at all. I think that is only one portion of it. It goes on to say in sub-section (2) (b): “The Minister shall not refuse (otherwise than under the next preceding paragraph of this sub-section) to give such certificate in respect of a child, etc.” We want to ensure that he shall not refuse it if it is claimed and if he is satisfied that they are acting under Article 42 of the Constitution.
Sir John Keane: I rise in order to clear my mind as I do not quite understand the position. Could the Minister in his reply deal with the matter on the lines of saying whether (1) he has power under this legislation to refuse to allow a parent to send his child abroad for purposes of education,  and (2) under what circumstances would he refuse such permission? I can only conceive the refusal of such permission if a parent was deliberately trying to avoid educating his child, and is it conceivable that, in order to avoid educating his child, he would take the trouble to send him abroad for that purpose?
Mr. Fitzgerald: I do not like this business of asking a Minister if he will say what he would do under certain circumstances, or what a district justice would do under certain circumstances. Neither do I agree with the general point of view of Senator Magennis——
Professor Magennis: I only asked a question. I expressed no view yet.
Mr. Fitzgerald: From his remarks, I took it that it seemed to him quite all right that the Minister should lay down the conditions absolutely, as does seem to be the case here. Article 42, sub-section (1) of the Constitution says:—
“The State shall not oblige parents in violation of their conscience and lawful preference...”
—I stress the word “lawful”—
“...to send their children to schools established by the State or to any particular type of school designated by the State.”
The insertion of that word “lawful” in the Constitution—I am speaking now almost interrogatively—seems to me to put it in the Government's power to distinctly thwart the main frame of that Article by a change of law, because if we have the law as it is proposed in this Bill, or in any other Bill the Government may bring in, the positive law enacted does actually affirm what is the lawful preference of the parents. Consequently, it seems to me—I am not purporting to affirm it— that the Government can at any time make the law such that the lawful preference of the parents will not exist at all.
Section 4, sub-section (2) (a) of the Bill says:—
The Minister may, before giving such certificate in respect of a child,  require such child to be submitted by his parent to such educational test at such time and place as the Minister shall direct....
An individual Minister getting up and saying he would not dream of doing something or other, or a Minister or Senator getting up and telling us he knows that every district justice would apply the Probation of Offenders Act seems to me to be an absurd way of discussing any Bill. Who in this country will undertake to say what a district justice will or will not do, after the things we have read in the papers during the last few years? First of all, we legislate in such a way as to condition and to put limitations upon what is implicit in sub-section (1) of Article 42 of the Constitution, which speaks of “lawful preference”. We are now going to determine what the Minister or Government at the moment thinks it would like to be the limit of that lawful preference.
Sub-section 2 (a) of the Bill sets out that the Minister may require a child to be submitted to such educational test as he shall direct. That purports to lay down, as it is stated there, that the Minister may impose any educational test. Article 42 of the Constitution says, in sub-section (2), that “The State shall, however...”—the previous part having affirmed that the right exists in the parents, it now affirms a certain right of the State which has the effect of conditioning and limiting the rights of the parents—“as guardian of the common good require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social”. It is based solely on the common good.
The section in the Bill says “such educational test as the Minister shall direct”. A child can have not merely the minimum but very much more than the minimum education, moral, intellectual and social, without knowing any Irish. The Minister may send along one of his inspectors and it is possible for an inspector of his Department to have an unbalanced attitude with regard to the heinousness of not having a spoken knowledge of  Irish, and what he determines shall be the test. A parent may have got for a child a better intellectual, moral and social education than could have been got in our own schools, because it must be remembered it is a Department controlled by the Minister which lays down the law as to what the programme, the whole schedule of work and standard of education in the schools shall be. Although I think Senator O'Connell disagreed with me when I suggested that he had implied that anybody who was not quite satisfied with a national school had no other motivation than snobbery——
Mr. O'Connell: No such thing.
Mr. Fitzgerald: I am accepting the Senator's correction in relation to that occasion. It is possible that a parent might not be satisfied with the intellectual, moral and social standard of education in this country, and it is possible, although it sounds almost horrifying to say it, that a better standard would be got in an institution outside this country, but here the Minister comes along and determines that he will set such educational test. I do not know what then has become of the right of the parents set out so flamboyantly in the Constitution.
As I said in relation to the previous matter, so far as parents are concerned in their relationship to the State, the State has set out its claim in sub-section (2) of that Article of the Constitution. If a child is at school outside the jurisdiction and the Minister is to set the time, the place and the type of educational standard, the Minister, in the middle of a term, may send word to a parent that he will have an inspector at such a place at 3 o'clock the following afternoon. The parent cannot possibly bring his child back from Austria, Switzerland, France or America for the purpose and the Minister then acquires a right to act in a way directly against the letter and spirit of what is set out in the Constitution. My reading of the Constitution is that such educational test as the Minister may determine can scarcely be allowed at all. There must be some sort of agreement as to what is that minimum intellectual, moral  and social education, but once a child fulfils that requirement, I do not think the Minister has any other claim whatever.
The whole world is now moving into this condition where the human person is merely a cog in the State—the officials in the Department and the Minister at the head sit down and determine exactly what framework, what pattern, what design the people must be formed in. Senator Magennis seemed to think that one could object to things in the Bill only on the grounds that they were new. I do not agree with that at all. I think it was an Irish saint who, when it was pointed out to him that a certain thing could claim antiquity, remarked that an error might claim antiquity, but it remained an error, and the fact that the Act has been in operation some time does not of itself make it perfect. If it did, it would mean there was no need ever to bring in new Bills to change the law.
Professor Magennis: Queen Anne is dead.
Mr. Fitzgerald: So is the Irish saint to whom I referred.
Professor Magennis: That is equally irrelevant.
Mr. Fitzgerald: I think the analogy there is between the statement that was made on the last amendment and Queen Anne. I am not so interested as to whether or not certain people send children out of the country, or whether any individuals are affected by this legislation, but I feel I must put up what little fight I can against embodying in an Act the claim of a Minister or a Department to override the natural right of families. I agree that the State as guardian of the common good has a right to require that a certain minimum education, moral, intellectual and social shall be provided. Once that is laid down I have no reverence for a Department that thinks it is the final pundit in these matters. I remember reading some years ago a copy of suggestions sent out by the Department to heads of secondary schools, and what they proposed  seemed to be a most disastrous and distorted conception of education. I am glad to say that most of the headmasters shared the same view, and the proposals were dropped. What I want to protest against is basing acceptance or rejection on the mere statement by a Minister, as to what he would do in certain circumstances.
We have no right, when legislating here, to allow the Minister or to give him authority to do something which we think is wrong merely on the assumption that he is such a decent fellow he will not do it. Neither should we put it in the power of district justices to act in their interpretation of the law in such a way as to impose a penalty on parents who have done something which in conscience they felt bound to do and which was eminently in accord with the rights the Constitution purports to give parents but which belonged to them before the Constitution was ever thought of.
Professor Magennis: The amendment reads:—
“but the Minister shall not refuse to give a certificate in respect of a child sent by his parent in the exercise of his constitutional right under Article 42 to a school outside the jurisdiction of the Oireachtas.”
We are to read that amendment with Section 4 (2) (a) of this Bill:—
“The Minister may, before giving such certificate in respect of a child, require such child to be submitted by his parent to such educational test at such time and place as the Minister shall direct, and the Minister may refuse to give such certificate if such parent fails or refuses so to submit such child; ...”
We have to read this Bill continuously. But the Minister shall not refuse to give such certificate in respect of a child sent by parents to a school outside the jurisdiction of the Oireachtas.
Mr. Douglas: Perhaps it would help if I admit that it was intended that the amendment should go after sub-section  (1), and apply to any kind of certificate. The point the Senator has made is a perfectly good one. I did not notice it previously and I apologise to the House.
Professor Magennis: Notwithstanding the clotted mass of irrelevancy inflicted on us by Senator Fitzgerald, what is being done here simply amounts to this, that a citizen of Éire, who does not send a child to any of three types of school, must submit the child to an educational test in order to be exempt from prosecution for violation of the law. But if the citizen can afford to send a daughter or a son outside Éire that very fact exempts such child from being subject to an educational test. That being the amendment there was reference to illiberality and narrowness. If the Chair now permits Senator Douglas to correct his amendment, I should like to speak on it.
Mr. Douglas: It might clear matters if I say that my argument and also Senator Johnston's was on the assumption I indicated. It is quite plain that there is a drafting mistake, in which case I will be obliged to withdraw the amendment and to put it down for the Report Stage. It might save time if the correction were made now.
Cathaoirleach: Is the House agreeable to the alteration?
Professor Magennis: I do not think anyone in this House would have more sympathy than I would claim with the case put forward by Senator Douglas as regards illiberality in the interpretation of this Bill. That would undoubtedly be a flagrant violation of the Constitution and would ipso facto become null and void, even if passed by both Houses.
Mr. Douglas: Only if the courts say so.
Professor Magennis: There is a clause in the Constitution which declares that any legislation, in so far as  it is in conflict with anything in the Constitution, is null and void.
Mr. Douglas: In practice that only means when the courts have so said. There is really no difference between us.
Professor Magennis: Only the difference between Tweedledum and Tweedledee.
Mr. Douglas: Perhaps there is a little difference. My point is that a matter of this kind would involve administration. If the Act was passed it could be operated unless somebody could afford to take the matter to the High Courts. It would be the law as far as practice is concerned. That is what I mean.
Professor Magennis: It would not operate.
Mr. Douglas: It could until the High Courts so decided. The matter might never get to the High Courts.
Professor Magennis: It comes to the same thing. If Senator Douglas and Senator Johnson could establish what they are saying, with the aid of Article 42 of the Constitution, then we are simply beating the air and wasting time discussing this matter. Undoubtedly the High Courts would be bound to declare that it would be a restriction on religious liberty. Am I misrepresenting the Senator?
Professor Johnston: No, but I think it worth while to avoid this unconstitutional legislation.
Professor Magennis: We might pass unconstitutional legislation or purport to pass it, but, it is not passed according to the Constitution, inasmuch as anything we pass that is repugnant to any Article of the Constitution is to that extent inoperative.
Professor Johnston: It is to that extent voidable if brought to the High Court.
Professor Magennis: It is to that extent operative.
Professor Johnston: It will operate only if some aggrieved person takes a case to the High Court.
Professor Magennis: That is not so. I asked for information and Senator Douglas, as he always is, was candid and courteous, and his reply to what I asked amounted to this: that by argument, by deduction, by piecing together sections of the Bill he could arrive at this conclusion. I draw his attention once again to the point. According to the Constitution, the State, that is to say, the community as an organised body, is entitled in its own protection, for its own well-being and betterment, to see to it that every citizen growing up has received the minimum of education necessary to be a good citizen and to discharge his duties to the State as a good citizen. Now the choice is left to the parent as between these different types of school within the State, but always subject to this, that the State never waives its right to determine the sufficiency as a minimum of the education imparted to any child within its boundaries. I do not think that will be contested by anyone.
To change over from this demand, this rightful and legitimate demand of the organised community, that no one shall go without a sufficiency of education, to the other argument which deals with the family and the parents and their rights in regard to the bringing up of their children, Senator Douglas drew our attention to a word missing from one Article that is present in the other Article of the Constitution, and that is the reference to religion. Now I am quite sure that if I draw his attention to the significance of that, he will agree with me that it is for the family to decide as regards the inadequacy or otherwise of the training in the religion of which the parents approve. It is left to them. There is no test applied or applicable on the part of the State to the religious education. The test is confined to their education on the ordinary lines of what is called education and moral instruction.
Sir John Keane: Including the national language.
Professor Magennis: That is not in it. I refuse to be side-tracked by the wiles of the Senator. I have become  accustomed to his ways of late and I am not so easy a victim.
Mr. Douglas: I am not raising the question of the national language. Might I point out that the point I made was that Article 42 (1) provided not for the question of judging the adequacy, but the duty of the parents to provide for religious education; not the duty of the State to provide for religious education.
Professor Magennis: It has the inescapable duty, and if the parent is a delinquent in that respect, the State must come to the aid of the child to secure for the child at the expense of the State what he is not getting by the parent's discharge of his duty to him. Is not that correct?
Mr. Douglas: Only in so far as moral, intellectual and social education is concerned. So far as religious education is concerned, the duty is on the parent.
Professor Magennis: That is the point I am making. In other words, the State does not busy itself with the religious upbringing of the child; that is left to the family. The very point that Senator Douglas made as an attack on the Bill, suggesting intolerance in what is in the Bill, was just the opposite of what he is now quoting.
Mr. Douglas: I think the Senator misunderstood. What I said was, that it was the duty of the family—I did say that the Constitution said it was the duty of the family—to provide within their means for the religious and moral education. My point simply was that, if they could not provide in a secondary school for religious education within the State or had not a reasonable choice, say, only one school, then it would not be right to deprive them of their right to provide that elsewhere. It is not a question of giving it themselves, but of providing it.
Professor Magennis: I am not using the word “giving” in the sense that Senator Douglas is putting it. I see there was an ambiguity in my phrase. I did not mean that the parents are the educating instrument; I meant  that they were the providers in the sense in which the Senator puts that word. Is that satisfactory?
Mr. Douglas: Yes.
Professor Magennis: The Senator claims that if, in the case of a small religious denomination here, there is no satisfactory school to which a parent can send his son or daughter, and if he is satisfied that, within the religious tenets of the parent, the child was not receiving an adequate training, he should be at liberty to send that child beyond the boundaries of the State where there is a school of the right character.
Mr. Douglas: Who is to judge that?
Professor Magennis: The parent is to judge that. Observe that when that boy or girl returns to the State all the Department of Education requires is that the boy or girl in question can satisfy the educational authorities as to having received an adequate minimum education, not in his or her religion, but in the narrower sense of education as it is ordinarily understood. Surely there is no intolerance in that; quite the reverse. Now if the parent refuses to submit his child I say this is operative. If the parent says: “My boy was at one of the most expensive schools in Great Britain and I am satisfied that his presence for two or three years in that school indicates that he has received a proper education and I will not submit him”, surely the unreasonableness is on the part of the parent, because the parent demands to be exempt from what a citizen is not exempted who keeps his son or daughter for training at home; I mean in the sense of being under the rule of the parent or in a private school. So that really, with all respect to my friends, the two Senators on the other side, they have discovered a mare's nest. There is no illiberality in this.
Mr. Fitzgerald: I wonder is the Senator not still basing his argument on the assumption that this amendment comes in where it is placed on the Order Paper? I do not think that the Senator's argument holds in just  the same way as if the amendment is placed where Senator Douglas has now suggested after the word “suitable”. I think the Senator's argument is sound if it is placed as a limitation on sub-section (2) in the place where it was originally put. But, so far as I can notice from a hurried reading, I do not think that his argument holds just now as it did before.
Professor Magennis: Section 4 as a totality is a unit and the inter-relation of the various sub-sections has therefore to be read with that governing consideration. This section deals with a certification by the Minister and the suitability of the education received in certain circumstances.
Mr. Douglas: I think the real point where we differ, and which can be cleared up, is as to whether Senator Magennis's interpretation of the meaning of the section is or is not correct or whether my interpretation is or is not correct. He believes that there is nothing in this Bill to allow a parent to be prosecuted under the School Attendance Act if he sends his child to England—he says that the question could only arise when the child came home. I believe that a parent who sends his child to a school in England could, if it was thought fit, be prosecuted because he has not complied with the Act. If what he says is right there would be no barrier, and my case goes to pieces. It is merely a matter of finding out what the position is.
Professor Magennis: How is that to be discovered except by argument? There is a difference of interpretation no doubt, because I do not question the sincerity of Senator Douglas in any statement that he makes. I believe, however, that the Senator was misled in declaring that there was illiberality, or something which could be viewed as in the nature of religious persecution which we were exhibiting here. As the House will recollect, he said that this was the first time in all these years— I am paraphrasing him now—that he found himself in the painful position of having to allege anything against the majority religion of this country.
Mr. Douglas: I never said anything  about the majority religion of this country.
Professor Magennis: If I were to attempt to give a word-for-word quotation of what the Senator said, I would not be accurate, and I would have Senator Fitzgerald taking up about 15 minutes pointing out the inaccuracies, and therefore I am paraphrasing what Senator Douglas said. Undoubtedly, it is within the recollection of the House that Senator Douglas was pointed out by Senator Johnston as that one of the two framers of the amendment who would deal with the religious aspect or the religious bearing of this amendment. I think I am correct in that, and Senator Douglas immediately, with praiseworthy directness, went to that point at once, and I was amazed when I thought I heard him say that the Minister refused permission to have a child sent out of the country to school in another place.
Mr. Douglas: That the Minister had refused?
Professor Magennis: I could not find, anywhere in the Bill, any ground for such a suggestion.
Professor Johnston: Surely, under the Bill, the Minister would have power to refuse permission in such a case?
Professor Magennis: Where is that laid down?
Professor Johnston: It is laid down specially in Section 4.
Professor Magennis: Section 4 deals with the application of a test as preliminary to the issue of a certificate by the Minister that the requirements of the Constitution had been met.
Professor Tierney: Is not the Senator rather mistaking the time question in this? Surely, what is at issue here is the question of what time the Minister will apply the test. I think the Senator is of opinion that the Minister will only apply the test after the child's education has been completed.
Professor Magennis: Surely, it should be applied only when the  parent purports to state that the child has been educated sufficiently.
Professor Tierney: If that is so, what sanction is applied to the test? Suppose that a child is submitted to the test and fails to pass it, what sanction has the Minister there?
Professor Magennis: The educational authority applies the same sort of test, as regards character, ability, and so on, as is applied by the same authority to those in similar, if not identical, circumstances inside the State.
Professor Tierney: I think the Senator does not grasp what I am driving at.
Professor Magennis: Yes, I do.
Professor Tierney: I am not quite clear about it myself.
Professor Magennis: What Senator Tierney means is that I am under the illusion that the test is applied after the particular student has returned from schooling abroad.
Professor Johnston: I take it that we are dealing here with the education of children between the ages of six and 14?
Professor Magennis: Yes.
Professor Johnston: Well, as I read the Bill, sub-sections 1 and 2 (a) of Section 4 provide that the Minister has power, during the currency of that age—in other words, at the age of six, seven, eight, or any other age under 14—to interfere and say: “You must submit your child to a test, which my Department will give, before I will give you a certificate empowering you to have that child educated outside the jurisdiction.” That is my reading of it.
Professor Tierney rose.
Cathaoirleach: I suggest that Senator Magennis should be allowed to proceed without further interruption. Any Senator desiring to reply to him can speak when he has concluded.
Professor Magennis: It is no part of my purpose to score at the expense of accuracy.
Professor Tierney: It is no part of my purpose to score at anybody's expense. I am only anxious to have this matter cleared up, because I think it is very important, and my belief is that the Minister has power to interfere at any time during the course of the child's education.
Professor Magennis: Where is that stated in the Bill?
Professor Tierney: Sub-section (1) of Section 4 says that a child
shall not be deemed to be receiving suitable education in a manner other than by attending a national school, a suitable school or a recognised school unless such education and the manner in which such child is receiving it have been certified under the section by the Minister to be suitable.
Surely, that means that within a certain very limited time after the child has begun to receive such education, the Minister has power to come in and say: “I will examine that child.”
Professor Magennis: With all respect to Senator Tierney, is it not clear that the child has been sent to a school outside? There is nothing in the Bill which purports to give power to the Minister to refuse to allow a parent in Éire to send his child to school outside of Éire. I contend that there is nothing to that effect in the Bill, and I am absolutely point-blank contradicting Senator Douglas's opening statement. Now, we cannot get away from that.
Mr. Douglas: That is the whole point, and I think we can agree on that. If that is so, then my point was a bad one, but if it is not so, I contend that my point was good. I am respectfully suggesting that if the Senator would show, through his interpretation, that I am wrong, then I can deal with the matter when I am replying.
Professor Magennis: Surely, I am doing what the Senator asks me to do. I am showing the Senator where he is wrong. There is nothing in this Bill that justifies one iota of what he alleged about religious illiberality— not one word. On the contrary, what he quoted to me since I began is a corroboration of what I said, for the test that is to be applied is in no way a test applied to religious education. That whole matter is left with the family. It is left with the parents of the child, and that is in accordance with the Constitution.
Professor Johnston: May I draw the Senator's attention to sub-section (2) (c), which says that “where a child is receiving in a school, other than a national school, a suitable school, or a recognised school, and the Minister refuses to give a certificate under this section in respect of such child, the Minister may so refuse to give such certificate on the ground that such school is not appropriate for that particular child.” Is not that usurping the right of the parent to determine what is the best school for the child?
Professor Magennis: That applies equally to a school inside the State. I am still on this point of the Minister, as has been alleged, being in a position, or claiming to be in a position, to refuse to allow a child to be sent outside the State for his education, and what Senator Johnston has quoted is equally applicable to a child receiving education, in a special way, inside the State as outside the State.
Professor Johnston: But is it not more correct to say that the Minister is usurping that function?
Professor Magennis: That is another point, but I only want to chase one hare at a time. Are we satisfied that the hare of religious intolerance has been sufficiently scotched?
Mr. Douglas: No, certainly not.
Professor Magennis: Whether or not the Minister is to be at liberty, as chief of the Department of Education of this State, to insist that the doctrine of the Constitution shall be carried out, to wit, as I put it in my own fashion, that no citizen shall grow up without adequate schooling to enable him to be a good citizen, who is to set out those tests and who is to direct the machinery of their application? There must be someone. There is no automatic  education tester. There must be some one, and who but the educational authority? If the Minister abuses those powers, there are two Houses of Parliament to challenge the abuses, and make all the mountains of the land ring in echo with denunciation of them. It is a peculiar claim to make that the educational authority is to be superseded by the cranky parent—that the parent has only to say: “I do not like your national schools. I do not like the class of people who attend those schools. I do not like the type of teacher who is appointed to give education in those schools.” If that be his superior attitude, then he is exempt from the provisions of the Constitution. What a farcical fundamental organic law it would be that makes exceptions of that fantastic kind. I am speaking at greater length than I should, but it is because I feel so keenly the necessity to repudiate any desire on our part to do what Senator Douglas thought was being done to his religious denomination.
Mr. Douglas: I do not like to interrupt again, but I did not say: “to my religious denomination.” I referred to minorities. I do not think it is fair to say that I was making a case for one only. I was not doing so.
Professor Magennis: Then I will repudiate any such statement made even by myself, and say that I am referring to minorities.
Mr. O'Donovan: This debate has certainly been very interesting even though prolonged. As Article 42 of the Constitution has been quoted so often, to my mind the matter is fairly clear now. Article 42 (1) asserts that 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 for the education of their children. Sub-section (2) provides that the parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State. Under this Bill, as amending the 1926 Act, we are dealing entirely with  schools recognised and established by the State, but parents can have the education provided for in Article 42 (1) imparted to their children in their own homes or in private schools. Sub-section (3), (2) provides that:—
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.
Therefore, to my mind, what we are dealing with here is supervision to ensure that the parents are providing, in their own homes or in private schools, that this minimum education is given to the children. The question of whether it is within or without our jurisdiction does not come into it at all. Some Senator mentioned that he could not picture anybody sending his children to schools outside the State, and expending that money, except for the purpose of getting proper education. I think it is possible that a certain individual of a peculiar turn of mind and a peculiar outlook on humanity and on governments—a person who favours agnosticism and Communism, which I cannot see functioning under our democratic Constitution—might send his child to be educated outside the State, where he would be free from the trammels of the social and intellectual and moral training which he would receive in a school at home. I think we should not lose sight of that point of view, which has not occurred to any Senator who has spoken so far, that a parent might send a child outside the State not for a better education on those lines than he would receive at home, but for the purpose of ensuring that the child would avoid it altogether. Unfortunately, from discussions which we have had in this House already, I think there are such people with agnostic and Communistic tendencies who may possibly send their children to be educated outside the State. I think it is quite right that, if the child is sent outside our jurisdiction, our Constitution specifies that we have power, exercisable naturally through the Ministry of Education, to supervise the education which the child is to receive. The discussion seems to  me to have clarified a good many points, and cleared up a few errors. I think, possibly, at this stage that we would find ourselves in greater agreement as to the necessity for this system of certification.
Sir John Keane: Arising out of what Senator O'Donovan has said, surely there is nothing in the Constitution to prevent a parent from bringing up a child in any atmosphere or any ideology he thinks fit? If a parent wishes to surround his child with Communistic influences, I think he is entitled to do so. Personally, I would not approve of it, but that is another matter. Equally, if he wishes to surround his child with agnostic influences, he is entitled to do so. There is one other point on which I am not clear. It is proposed to test the suitability of the school by the response of the child to a test. I think it would not be impossible to find a child so mentally deficient that he would not respond to any test, and it would be incorrect to assume that such a child would reach the necessary standard of education in a national school. I am not trying to make fun of this, but I think it is wrong to judge the suitability of the school merely by the manner in which a given pupil, perhaps very dense and lacking in intelligence, would answer to any educational test.
Mr. Derrig: I am rather astonished that the question of penalisation of parents for their religious opinions should be raised in this debate. I hope that the contribution which Senator Magennis has made to the debate has allayed any fears which Senator Douglas may have had on that score, but I should like again to repeat my denial—perhaps I should call it a repudiation—of the suggestion that there is any intention whatever of interfering with the constitutional right of the parents to have their children educated outside the jurisdiction of the State.
Mr. Douglas: Could they do it without applying to the Minister?
Mr. Derrig: They can do it, of course.
Mr. Douglas: Without applying to the Minister?
Mr. Derrig: Yes. If the Minister for any reason feels—if it is evident to him, I would say—that the children are not receiving the minimum of education, then he may take steps to have this test, to which Senator Magennis has devoted some attention, that is laid down in Section 4, applied to them. Perhaps, if I explain to the Seanad the origin of this provision, matters might be somewhat clearer. Under the original School Attendance Act, the question of private schools arose and, ultimately, provision was made in that Act for the certification of these schools where they were considered by the Minister to be suitable. The provision was contained in Section 5 (1):
The Minister may if and when he so thinks fit by a certificate in the prescribed form certify any particular school to be a suitable school within the meaning of this Act for the attendance of children to whom this Act applies for the purpose of receiving elementary education, and the Minister may at any time as and when he thinks fit revoke any such certificate.
There was a definite provision for dealing with these private schools. I think the feeling at the time—and I think it would not be confined to, let us say, the teachers' organisation—was that you had a type of private school in the country—I do not think there was a very great number of them—in which children were receiving private tuition where the teachers had very little, if any, qualifications. There arose; naturally, the question whether in fact parents were not being deceived by such teachers into a belief that they were capable and qualified to give instruction to children and to prepare them for their further education when, in fact, they were not able, and could not be in a position, to give such instruction. It might have been said, for example, and still is contended by the teachers' organisation, that any person may open a private school in this country. Certain other professions have been regulated by the State— medicine, dentistry, and so on.
 In the case of education, there is nothing to stop an individual from opening a school and, if he complies with certain regulations, for example, under the secondary code, if he shows that the school is necessary, fills a certain need in the locality and has a reasonable prospect of success, I take it that the organiser or conductor of such school is entitled to State aid.
That would not seem to be in accord with the view that in some way or other I am prejudiced against private schools. I have no prejudice whatever against them. I believe that excellent work is done in a number of private schools but, as I said, I think possibly the origin of this particular provision was the feeling that there existed the other type of private school where parents were—let us put it plainly—being badly treated, being deceived into believing that their children were getting an education which the conductors of these schools could not provide. Therefore, it was, I think, in an effort to establish some supervision over such schools that this provision was inserted in the Principal Act. In any case, it was there and under it the inspectors from time to time visited these schools.
It was then found that the Minister, apparently, was not the authority to determine whether the children were receiving suitable education or not and, in that connection, I think I should perhaps refer to another clause —Clause (2) (b) of Section 4—where reasonable excuses for failure to comply with the section, that is to say, failure to send children to school, were set out. One of the reasons which parents might give as a reasonable excuse was “that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school.” There was a question as to what was “suitable elementary education.” The fact that a court decision was given in a particular case and that the matter of Irish arose in it did not affect my judgment.
When this measure was being prepared, the matter was examined closely from the legal and from the  constitutional point of view. Different interpretations may be taken as to how far one may go in providing, through legislation, for the implementation of principles laid down in the Constitution but I think it is not reasonable that it should be sought to be argued that a Minister, and particularly a Minister for Education, would go out of his way deliberately to take an extreme interpretation from a particular sanction that the Oireachtas has given him, that he would go out of his way—let us put it plainly—to create trouble for himself, cast all kinds of trouble into the educational machine and, above all, attempt to walk through the Constitutional principles which have been laid down so clearly by the Government of which he is a member, adumbrating in the clearest and most unmistakable way that the right of parents to send their children to the schools of their choice may not be interfered with.
I approached the question from the position that under the Constitution there is cast upon the State the duty of seeing that each child is provided with that minimum education which will enable him to have the foundation of what we may call a good citizen. Under the existing legislation and; of course, under the Constitution, there is no provision—as Senator Magennis has pointed out—as to the manner in which that shall be dealt with. Obviously, there must be some way of determining whether in fact children are receiving such education or not. The Minister for Education is the appropriate authority. He represents the State, and the State, in coming in this fashion into the educational arena and taking upon itself certain responsibilities can only do so, I think, through the Minister for Education and the machinery at his disposal.
I do not know why it should be assumed that there was an intention of interfering with the religious beliefs of any section of our people when the Constitution, which safeguards these rights, has placed the chief religious denominations of the country under a special protection and has mentioned them specifically. That is an entirely different position from the position  that arose before that Constitution was enacted. There were certain general principles, but I suggest that they were not specifically laid down and that they had not the same virtue or the same intrinsic value as the principles which are here stated for safeguarding parents in these rights which I and the Government recognise to be of the greatest importance. It may be that when legislation of this kind— amending legislation; the principle was admitted years ago—is being brought in, Senators who feel uneasy about certain matters may raise them either to get repudiation of them or information on them from the Minister, or to strengthen themselves against a position which they fear may arise—some arbitrary action of the Minister.
There are ample safeguards in the deliberations of the House and in public opinion outside the House to protect the citizens. We are not to assume, as some Senators would have us believe, that when legislation is passed here, that is the last word. The Minister himself no more than any Senator, is not entitled to assume that his particular interpretation will be the one that will be upheld if the matter should reach the courts. The very fact that there would be likely to be any trouble, particularly in connection with education, would, I suggest, mean that the Minister would, if he were a wise man and attentive to his responsibilities, take every precaution to ensure that no action would be taken that would create trouble or make people feel that their rights were being interfered with, religious rights or personal rights. The Senator will notice that there is no reference whatever to the family; we simply maintain the existing position and try to clarify the situation so far as private schools are concerned. The situation in that respect was not satisfactory. There was no final determining standard in the hands of the educational authority to enable it to decide whether a school was suitable or not. I think the situation demands that the Minister for Education should undertake that responsibility. Hence the proposals here.
 I must confess that what I am really afraid of is that perhaps some schools and people outside, without having read these proposals carefully and without realising the full meaning of them until they heard Senator Magennis, would jump to the conclusion because they read it in some newspaper or heard it from some outside source that I had quite arbitrarily introduced some legislation to deprive people of their rights to send their children outside the State for their education if they wished to do so. That is not so. The position is that every type of legislation that is introduced here, unfortunately so long as the Partition issue remains, must have reference to that question. Senators could quote any particular type of legislation and suggest that it reacted in one way or another on the Partition issue. But when Senators suggest that we had some ulterior motive at the back of our minds in introducing these provisions, I want to assure them that a Minister feels he has some responsibility. According to some Senators one would imagine that Ministers have no feeling as to their responsibilities, and that there is the intention to change the position that has existed for a period of years. During my period of, roughly, ten years as Minister for Education, we have had no trouble whatever about the Northern situation. There has been no interference at any time, legal or official, with the right of parents to send their children from this State to schools across the Border or to send them across the Border in here. There are about 500 children going both ways. That particular situation had no reference whatever to this legislation.
This Section 4 is a clarification, I want to say again, of Sections 4 and 5 in the Principal Act dealing with the position—the reasonable cause that a parent may give for failure to send his child to a school here, to the national school or other suitable school, namely, that he is receiving suitable elementary education in some other manner. Secondly there is the question of the determination of whether that education reaches the minimum standard required by the Constitution. No provision had been made for that  Actually, if it may interest those Senators who are so distrustful of Ministers—although it seems they have ample safeguards against them, particularly when there is talk of an election, if Ministers choose to do something which they should not do—we sought to get a definition of “elementary education” so that the Minister would not come into the question at all, so that there would be an objective test laid down in black and white by which it could be said: “It does not matter what the school is, whether it is in his own home or with relatives that the child is being educated; he has reached that objective standard which we consider we could recommend to the Oireachtas as the minimum standard contemplated in the Constitution.” We, however, found it impossible to arrive at that definition, there were so many different circumstances to be considered. A child who is obviously highly educated in certain subjects, a youthful Mozart or a youthful mathematician, the Minister is scarcely likely to condemn, even though he may not come up to standard in other respects. I want to say here that it was found impossible to get a formula which would be suitable and which could be fairly applied in all cases.
The only alternative then, and no other reasonable suggestion has been put up by way of alternative, is to leave it to the Minister to determine whether the education received by the child is suitable or not. The Minister, I repeat, will only interfere in cases where he has reason to believe that children are not receiving that education, and that the community is losing thereby. To those who have stressed the points about the rights and liberties of parents, I would say what Senator Magennis has already said, that we have community rights to consider. We have the question of the needs of organised society; we have the law. We have already done far more under other Acts dealing with children, such as the Children Act, under which we take the child away completely from the custody of the parents in certain cases and send him for a period of years to an approved school, than we are attempting to do  here. What we are doing here is implementing the principle in the Constitution that the State shall satisfy itself that children are receiving a certain minimum education. The Minister will not interfere where children are receiving such minimum education. If he feels that they are not receiving that minimum education, that they are being neglected, then he will take such steps as are necessary. It is not a matter of whether the children are outside his jurisdiction or within his jurisdiction; certainly there never was any intention of differentiating between one class and another in the arbitrary way suggested.
Professor Johnston: Does the Minister accept the amendment them?
Mr. Derrig: I do not think the amendment is necessary. I feel if you put down an amendment to every piece of legislation dealing with the particular position in the Six Counties, it merely means, as Senator Magennis suggested, that you have to make special provision for dealing with people with whom, as far as I know, there was never any intention of interfering, nor do I believe that there is any intention of interfering with them in the future. Senators want to pick out the parents of these children and put them in a special position. What is the justification? If the Minister is to have the right to impose these tests to satisfy himself that all children in the State are receiving suitable elementary education, where is the need, and what is the argument, for suggesting that these few particular children should be excluded? I think that, from the point of view of numbers and importance, it might be suggested that all these children who are attending private schools within our State, might be excluded as the number is so small, but as Senator Baxter said, from the point of view of numbers or the point of view of Irish, it is not a position of exceeding importance. There is a principle in the Constitution which I and my advisers feel should be implemented in suitable legislation and this is the best machinery we have been able to devise to ensure that it is carried into law.
Mr. Baxter: I should like to put the Minister a question for the purpose of securing further clarification. There is a village in my county, on the Border, called Blacklion. As a continuation of that village, there is the village of Belcoo, in County Fermanagh. In Blacklion there is no school, but one and a half miles off there is a national school. If I am a parent in Blacklion, can I send my child across to the school in the village of Belcoo?
Mr. Derrig: Yes.
Mr. Baxter: May I be obliged to present my child for a test and, if my child does not come up to the required standard, will I be open to prosecution?
Mr. Derrig: If the Minister receives information which leads him to believe that your children are not being educated, he may take steps against you or any other parent, and I suggest that he should be entitled to do that.
Sir John Keane: I suggest that the method proposed, of examining the child in order to form an opinion of the character of the education which he has received, is completely inadequate. Would it not be much more realistic for the Minister to make inquiries about the status of the establishment in question? We are not at arm's length from Northern Ireland, or even from England, so that we could not find out the status of the school in question. That would be the rational way of dealing with the matter. I suggest to the Minister that he should not rule out a method which seems to be much more satisfactory and commonsense than examining the child, whose standard may give no indication of the status of the establishment in question.
Mrs. Concannon: That question occurred to me. If a child is subjected to a test under sub-section (2) (a), and if the child does not satisfy the requirements, what happens? I agree with Senator Sir John Keane that that method might not afford a very good test of the educational opportunities afforded by the school in question. It might happen that the child would be deficient in intelligence and I think  that there should be some other test. The school might be providing proper education but the child might not, by reason of its deficiencies, be able to do justice to that education.
Mr. Derrig: I think I may assure the House that, in such a case, the Minister would make all reasonable inquiries. I have emphasised that there is no intention of trespassing on the home or on the domestic affairs of parents, that this is merely an endeavour to carry on the supervision of these private schools and to see that parents who send their children to these schools get value for their money. The inspector will not proceed entirely on the basis of a test in arithmetic or handwriting or any other subject. He will report to the Minister on the tone of the school, generally, the general atmosphere, the training of the children in character as distinct altogether from their educational attainments, the training of the children in good habits and good conduct and the influence of the teacher.
All these matters will be taken into consideration by the inspector. Where the Minister is satisfied that the teachers are making reasonable efforts, they will be allowed to continue. If the inspector found in a private school that there was a teacher who was only partially literate or had but a poor standard of national education, he would report such a school as being unsuitable. That would be really the only type of case in which he would so report—where the teachers were clearly below the standard at which it might be expected they would be able to give reasonable preparatory education to the children.
Mr. Douglas: Senator Johnston and I would be prepared to withdraw this amendment until we look into the matter further but, before asking the House to allow us to do that, I should like to make the position quite clear. Senator Magennis seemed to be under the impression that I made what could be regarded as a charge against the majority church. Exactly the contrary. The views I expressed with regard to the right of the family were what I always believed to be the views  accepted and carried out by the majority church. Therefore, nothing I said could be construed as such an attack. In the next place, I was not attacking anybody. I formed the opinion, and still hold that opinion, having re-read all the sections, that the position was changed by what the Minister calls the implementing of the old Section 4.
My attention was first drawn to this matter not by a representative of a minority church but by a friend of mine outside who had read the Act and who had come to the conclusion that, at present, if a man sent his child to a school outside this State and was summoned under the School Attendance Act, all he had to do was to satisfy the magistrate that the child was receiving suitable education within the meaning of the Act in a manner other than by attending a national school, whereas, in future, he could not be deemed to be receiving such education until he got a certificate from the Minister. The Minister could refuse to grant the certificate on certain grounds. The grounds that impressed me most were those in Section 4 (c):—
The Minister may so refuse to give such certificate on the ground that such school is not appropriate for that particular child or that such school is not appropriate for children to whom the Principal Act applies.
The Minister could say that a school outside the State was not a suitable school. Furthermore, under paragraph (d) because a parent or a manager of a school—I am emphasising the case of the manager—refuses to give the information the Minister requires, he may refuse a certificate. I can conceive a manager in Northern Ireland or a manager in England refusing to give the required information to the Department of Education. The Minister can then refuse to grant a certificate.
If I implied any intention on the part of the Department or the present Minister to act in a way that would be intolerant, I certainly withdraw it. But if my speech is read, I think it will be found that I emphasised that  there was no suggestion that there was any such intention or that any such action would be taken. What I did say was that there is in this proposed legislation a provision which might be used to prevent parents sending their children to outside schools. I would not have raised the matter if I had not found that that view was held by many outside. It was even referred to in a leading newspaper but that was later. When this amendment was put down, the matter had not been referred to in any newspaper. The position is that a considerable number of people believe that the position is changed. The Minister says it is so changed by the definition in Section 4. He gave us reasons, which I accept, as to why he wanted Section 4. His object was to deal with certain private schools. I appreciate his difficulty in finding a suitable definition of “elementary education.” What I am not sure is that, in doing as he is in the Bill he is not taking power to prevent a child going to an outside school.
Mr. Baxter: That is the point.
Mr. Douglas: That is the whole point. I wanted to be sure that the form of our amendment would prevent the Minister from doing so when a parent wanted to exercise his rights under Section 42 of the Constitution. I want to make it clear that there is no question of intention involved at all. I, personally, greatly dislike a Minister coming here and talking about his intentions when we are dealing with an Act. We know perfectly well—in this I am not suggesting anything about the possibility of a general election—that the present Minister will not live for ever, even if his Party and Government do, which is also doubtful. The Seanad has no right to insert provisions in an Act based entirely on the intentions of a Minister. If it were so that we were giving power to prevent a child going to a school outside the State, then I would say definitely that we ought not to give such power, because I believe myself that if a parent who was refused permission to  send his child out could afford to take the matter into the courts it would be held there to be unconstitutional.
If we have any reasonable doubt about it, I do not think it would be right for us to leave the provision as it is but should deal with it. I think that when speaking on the amendment I made myself perfectly clear. I simply said that the State was claiming the right for the Minister to refuse a parent this permission. As the Bill stands, I think the Minister has still got that legal right, though not moral right, and that under the section he could prevent a child going outside this State. If that is so, it would mean taking away minority freedom rights.
May I say that I did not accuse anyone of intolerance? What I did say was that there was a danger in the section. I want to emphasise that quite a number of people, a number by no means confined to the minority but including a very considerable number of the majority, believe that the Minister has power under the Bill to prevent parents sending their children to schools outside the State, leaving out entirely the question of minorities and religious denominations. The person who first raised this with me was a Catholic friend of mine who told me that he thought there was that power in the Bill. He said that to me three weeks or a month ago. At first this did not occur to me at all from the point of view of religious minorities. I read the section again, and came to the same conclusion as my friend, and, therefore, I thought it was my duty to put forward something that would have the effect of meeting it.
I have not been approached by any religious denominations in the matter at all, and when I gave an instance of my own case I simply did so to illustrate the point I was making since it is so much easier to do so when telling something out of one's own experience. I am particularly happy to find, although it does not fully satisfy me as regards the future, that at no time had the Minister any intention of preventing a parent from sending his child outside the State. It seems to me that  anything that would interfere with the relations between the peoples on both sides of the Border, particularly in the matter of education, would be the height of folly, apart altogether from the principles involved. I would ask the Minister between this and the Report Stage to examine the section carefully and see whether it would not be possible to introduce something which would make it quite clear that the grounds for the refusal of a certificate could not be the grounds that the child was being educated in a school outside the State. The belief that the section gives such power prevails amongst a great many people, and it would be well to have the position made clear, especially in present circumstances when this debate may not get a very long report in the newspapers. The Minister, I suggest, should take steps to make it clear that permission cannot be refused solely on the grounds that the school is outside the State. If that were done it would get over the difficulty.
Professor Johnston: I would like to emphasise that when I first read the Bill through I was not unduly alarmed about the section, but then my attention was called to the possible use of the machinery in Section 4 to penalise parents who wished to have their children educated outside the State. On a careful re-reading of Section 3 and 4 I came to the conclusion, rightly or wrongly, that the Minister could, if he liked, use that machinery in such a way as to penalise that kind of action on the part of citizens in the exercise of their constitutional rights. I seem to remember that under the penal laws there was a law which forbade the education of Catholic children abroad. It would be a sad day if we in this country should enact a similar kind of law and apply it in different circumstances. If, inadvertently, the Minister has taken power which might be abused by some unscrupulous successor, then I think the Bill should be amended in such a way as to make it clear that the Act did not contemplate any violation or diminution of the constitutional rights of any citizen.
Cathaoirleach: Is the amendment being withdrawn?
Professor Johnston: The amendment is being withdrawn on this stage, Sir. It may be retabled on the Report Stage.
Amendment, by leave, withdrawn.
Cathaoirleach: When the Committee Stage of this Bill is taken again, the debate will be resumed on Section 4. The first business to-morrow will be the Intoxicating Liquor Bill.
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