Power of courts to scrutinise government extended in homeschooling ruling

The power of the courts to scrutinise government decisions affecting fundamental rights has been extended by the Supreme Court’s judgment concerning the rights of home-schooled students.

"That could be significant because, as the Covid-19 pandemic has shown, many consequential government decisions are taken by the executive rather than put into law," according to constitutional law expert David Kenny.

The Associate Professor of Law at Trinity College Dublin said he would "tentatively" suggest the Supreme Court's decision could open up the possibility of the court revisiting executive decisions which impacted on socio-economic rights.

Delivered by the Chief Justice, Mr Justice Donal O’Donnell, the court’s main judgment makes clear the courts must apply the same standards to the scrutiny of executive decisions affecting guaranteed rights of individual as to their examination of claims that individual rights have been infringed by actions of the legislative branch of government.

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The Chief Justice disagreed with the Minister for Education that “clear disregard” on the part of the executive had to be shown to allow the review proceed.

However, the judgment also appears to reaffirm that the courts cannot be relied upon to protect socio-economic rights that are not explicitly referred to in the Constitution or legislation.

Welcome clarification

Lawyers are likely to welcome the clarification of the test to be applied when it is alleged an exercise of executive power has infringed a person’s fundamental rights.

That "very significant" finding has cleared up a lot of uncertainty in constitutional law here concerning why a lesser standard of scrutiny applied to decisions of the executive affecting fundamental rights than to decisions of the legislature, Dr Kenny said.

The clear disregard test dates back to the 1970s and has been applied in several high profile cases, including by the Supreme Court in its 2001 landmark judgment, TD v the Minister for Education, which overturned a High Court decision directing the State to adhere to its own timescales for the building of high support units for vulnerable out of control children.

The test was also applied when the Supreme Court rejected a case over the right to education of an autistic man, Jamie Sinnott.

In contrast, in the home schooling case, the Chief Justice has said, if it is established that the actions of the Government have breached the rights of the citizen, “then the courts must uphold the Constitution, and defend the rights of the citizen, in the same way and applying the same standards, as if those rights had been infringed by the actions of the legislative branch of government”.

There is some comfort for the Minister for Education because the judgment also makes clear that, while the exclusion of these two students from the calculated grades scheme breached their rights, some interference with home schooling is permissible.

Administrative decisions concerning examinations or alternatives schemes may affect arrangements made by parents to provide education in an out-of school setting without contravening the Constitution, the court stressed.

To accept there could be no interference would create “a significant constraint on educational policy and, in particular, the State education and examination system”.