In the Matter of ARTICLE 26 of the Constitution and in the Matter of the SCHOOL ATTENDANCE BILL, 1942 (1)

Supreme Court.

25th,26,29th, th 30th March, 1943.  15th April 1943 .  

Constitution - Bill passed by both Houses of Oireachtas - Validity - Repugnancy to the Constitution - Education - Right of parents as to the education of their children - State entitled to require that children shall receive a certain minimum education - Extent of State's obligation - Suitable education - Certificate of Minister as to - Exercise of powers by Minister - Unreasonable results of Bill.

The President referred to the Supreme Court, under Art. 26 of the Constitution, a Bill entitled "An Act to make further and better provision for ensuring school attendance by children to whom the School Attendance Act, 1926, applies, and for that and other purposes to amend the said School Attendance Act, 1926" for a decision on the question whether s. 4 of the said Bill was repugnant to the Constitution or to any provision thereof.

Sect. 4, sub-s. 1 of the Bill provided:—"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 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."

The section also contained provisions dealing with the granting and withholding of the Minister's certificate. The said Act of 1926 applies to all children between the age of 6 and 14.

Article 42, clause 3, par. 2, of the Constitution provides:—

"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."

The Court was of opinion that s. 4 of the Bill was repugnant to the Constitution because:—

1. The Minister, construing the section in a reasonable manner, might require a higher standard of education than could properly be prescribed as a minimum standard under Art. 42, clause 3, par. 2, of the Constitution.

2. The standard contemplated by the section might vary from child to child and accordingly was not such a standard of general application as the Constitution contemplated.

3. In the case of a child who had reached the prescribed age of six years and was being educated at home or in a private school, a certain time must necessarily elapse before the Minister could give his certificate under s. 4, and the parent would be in default in the interval and liable to the prescribed penalties.

4. Under sub-s. 1 of the section not only the education but also the manner in which such child is receiving it must be certified by the Minister, and this was not warranted by the Constitution.

The Court accordingly advised the President that the said section was repugnant to the Constitution.

Reference, in pursuance of Art. 26 of the Constitution, of a Bill—the School Attendance Bill, 1942—passed by both Houses of the Oireachtas, to the Supreme Court for a decision on the question as to whether s. 4 of the Bill was repugnant to the Constitution or to any provision thereof. The material sections of the Bill as well as those of the School Attendance Act, 1926 are set out in the judgment of the Court.

The Court, in accordance with Art. 26, clause 2, par. 1 of the Constitution, heard arguments on behalf of the Attorney-General and by counsel assigned by the Court.

(1) Before Sullivan C.J., Murnaghan, Geoghegan, O'Byrne, and Black JJ.


R. McLoughlin K.C. and R. McGonigal K.C. (with them C. O'Daly for the Attorney-General:—

Article 42 of the Constitution must be read as a whole: clause 3 of this Article introduces a qualification of the parents' rights contained in clauses 1 and 2. The parents' rights are not absolute, they are subject to the right of the State to require that the children of all citizens of Eire should attain to a certain degree of education. The State is entitled to require that all children shall attain a certainminimum of education; this minimum is incapable of exact definition, but it may be regarded as the lowest standard appropriate to the attainment of the common good. The Bill before the Court is a means of carrying into effect the obligation of the State to secure that all children attain to this minimum education. Similar legislation to this Bill—the School Attendance Act, 1926— existed when the Constitution was passed.

Paragraph 2 of clause 3 is the dominant provision of clause 3. The "certain minimum" is a certain standard, but it cannot be regarded as a prescribed syllabus. The suitable education referred to in s. 4 of the Bill is the education necessary to ensure that the child shall have obtained the certain minimum when leaving school. The State is entitled to insist on the education necessary to reach this standard, and the Legislature is entitled to authorise a Minister to determine what the minimum is and the means suitable for attaining it. It is not unconstitutional for the Legislature to delegate to a Minister the function of determining the certain minimum and the means suitable to attain it, for, as the Legislature can define the minimum, it can indicate the means by which that minimum is to be fixed.

Art. 42 of the Constitution merely states what standard a child should attain at the end of its education: the Bill is the means adopted to attain that standard. The State cannot secure a certain minimum of education in the case of each child unless the education the child is receiving is supervised. The methods of achieving the aims in the preamble (1) must vary according to the capacity of each child. The Bill has not the effect of driving children, directly or indirectly, into any school selected by the State, or into any particular type of school. The penalty imposed for a breach of any of the provisions of the Bill does not oblige a parent to send his child to any particular school, for the word "oblige" means that there is no other possible alternative.

(1) The preamble is set out in the headnote ante.


At any particular time the Legislature must have a discretion as to what the minimum is to be. It is submitted that the Court could declare the minimum defined by the Oireachtas as unconstitutional if it were a defined minimum which no reasonable man could contemplate.

The words "conscience and lawful preference" in Art. 42, clause 3, par. 1, are to be read disjunctively. Lawful preference refers to the preference allowed by existing legislation or by subsequent legislation.

In deciding whether a Bill is repugnant to the Constitution, the Court should, it is submitted, apply two principles:—

First, if any of the words of a statute are ambiguous, a meaning should be given to the words which would enable the Court to uphold the validity of the Bill. The Court can declare that on one particular interpretation the Bill is not repugnant to the Constitution and that interpretation would then be authoritative. This principle has been applied in construing the Constitution of Canada and the Constitution of the United States of America. [They cited  MacLeod v. Attorney-General for New South Wales (1); United States v. Delaware and Hudson Railway Co. (2);Willoughby's "The Constitutional Law of the United States," 2nd Ed., p. 35.] The meaning of the word"suitable" in s. 4, sub-s. 1, of the Bill is ambiguous; it is submitted that it can be given a meaning which will not cause the section to be repugnant to the Constitution and that this meaning should be given to it.

Second, until the contrary be clearly shown the Court should presume that a Bill referred to the Court under Art. 26 of the Constitution is consistent with the Constitution. [They cited  McCulloch v. Maryland (3); and The Legal Tender Cases (4). They also cited  Pigs Marketing Board v. Donnelly (5);  In the Matter of Art. 26 of the Constitution and in the Matter of the Offences against the State (Amendment) Bill , 1940 (6).]

J. A. Costello K.C. and F. Fitzgibbon K.C. (with them R. Hogan ) (counsel assigned by the Court):—

It is submitted that the Bill comes before the Court without any presumption in its favour. The President has referred the Bill to the Court because he has a doubt whether the Bill is repugnant to the Constitution. The provisions

  1. (1) [1891] A. C. 455.

  1. (2) 213 U. S. 366.

  1. (3) 4 Wheaton, 316

  1. (4) 12 Wallace, 457.

  1. (5) [1939] I. R. 413.

  1. (6) [1940] I. R. 470.


of Art. 15, clause 4, of the Constitution show that no presumption of constitutionality exists in favour of a Bill referred to the Court. In  The State (Ryan) v. Lennon (1)it was argued that such a presumption exists, but the Court did not accept the argument, though it seems to have been accepted by Hanna J. in  The Pigs Marketing Board v.Donnelly (2).

The primary right enunciated in Art. 42 is the right of the parents to provide education in private schools or in the home, but the parents have a duty to provide an education conforming to the minimum standard prescribed by the State when acting in its legislative capacity. The right of the State to require this standard must be exercised with consideration for the rights of the parents, which are the dominant rights in the Article. The right of the parents is to provide such education as they think fit, subject to a minimum standard, if and when prescribed by statute. The right of the State specified in Art. 42, clause 3, par. 2, is not to be exercised in a way which will prevent parents providing education in their homes.

The Bill does not prescribe a minimum standard of education. It is submitted that the Constitution imposes on the Legislature the duty of defining the minimum standard. The correct view of clause 3, par. 2, of Art. 42 is that a certain amount of education must be provided for the child at all stages. As to the meaning of the phrase "a certain minimum," it is submitted that the minimum must be certain and precise. There is nothing in s. 4 of the Bill to show that the minimum is certain, nor that it is precise,i.e., such that parents can know what they must provide if they educate their children at home. It is clear that under the Bill the Minister could prescribe a standard which the parents could not provide at home. This certain minimum must be an ascertained minimum—a definite quantum of education in essentials which cannot vary for each child or for each area. The State is not entitled to require that the certain minimum education shall be given in any particular manner. Under s. 4, sub-s. 1, of the Bill unless a child attend a national school, a suitable school or a recognised school, the child is not to be deemed to be receiving suitable education "unless such education and the manner in which such child is receiving it" has been certified by the Minister to be suitable. In this respect the Bill is repugnant to the Constitution. The minimum prescribed by the Legislature must not infringe on the conscience

  1. (1) [1935] I. R. 170.

  1. (2) [1939] I. R. 413.


and lawful preference of parents as to where their children shall be educated. The minimum prescribed must be such as can be provided by parents according to their means. Under s. 4 of the Bill the Minister can prescribe any standard of education: there is no restriction on his powers, and there is nothing to relate the standard so prescribed by him to the certain minimum which the State can require under the Constitution, nor is the Minister under a duty to have regard to the lawful preference of the parents as to the schools which their children shall attend. If a Minister be given a power which he may exercise in a constitutional manner and also in an unconstitutional manner, it is submitted that the section conferring such a power is repugnant to the Constitution. Moreover, the Minister is not entitled to prescribe the certain minimum: this is the duty of the Legislature.

Sect. 4, sub-s. 2, clause (c) of the Bill is repugnant to the Constitution since the Constitution requires that a certain uniform minimum shall be prescribed and the section authorises the Minister to prescribe various standards for different children.

Under the School Attendance Act, 1926, every child who reaches the age of six must receive education. The Bill requires the education to be suitable. If a child be sent to any school other than those specified in the Bill a certain time must elapse before the Minister can certify that the education which the child is receiving is suitable. The certificate cannot have a retrospective effect and hence, whether the certificate be granted or not, the parent will have committed an offence under s. 19 of the Bill. Under the Constitution the Oireachtas is a subordinate Legislature, and it is submitted that any law made by a subordinate Legislature which creates such an absurd position cannot be authorised by the powers of such subordinate Legislature. [They cited:  The Commissioners of Public Works in Ireland and Williams v. Monaghan (1).]

R. McLoughlin K.C. in reply.

Cur. adv. vult.

The decision of the Court was delivered by Sullivan C.J.

Sullivan C.J.:—

April 15.  

In this case the President, in pursuance of Art. 26 of the Constitution and after consultation with the Council of State, referred to this Court a certain Bill, entitled the School Attendance Bill, 1942, for decision on the question

(1) [1909] 2 I. R. 718.


whether s. 4 of the said Bill is repugnant to the Constitution or to any provision thereof.

In accordance with the said Article this Court assigned counsel, and subsequently heard arguments by counsel on behalf of the Attorney-General and by counsel so assigned, and, having considered such arguments, has arrived at the following decision.

The Bill is entitled "An Act to make further and better provision for ensuring school attendance by children to whom the School Attendance Act, 1926, applies, and for that and other purposes to amend the said School Attendance Act, 1926."

By s. 1 it is provided that the expression "the Principal Act" means the said Act of 1926, and the Bill, if, and when, passed, is to be read and construed as one with the Principal Act.

The Act of 1926 is expressed to be an Act to make provision for ensuring the attendance of children at elementary schools.

By s. 2 the expression "child to whom this Act applies means and includes a child who has attained the age of six years and has not attained the age of fourteen years, and every other child to whom this Act is for the time being applied by virtue of an Order made by the Minister under the power in that behalf hereinafter conferred on him."

By s. 24 the Minister is authorised by Order from time to time to apply the provisions of the Act to children or any class of children who have attained the age of fourteen years and have not attained the age of sixteen years. Up to the present the Minister has not exercised the power so conferred on him.

By s. 17 it is provided that whenever a parent fails or neglects to cause his child to whom the Act applies to attend school in accordance with the Act and, so far as is known to the enforcing authority of the school attendance area in which the child resides, there is no reasonable excuse for such failure or neglect, such enforcing authority shall serve on such parent a warning in the prescribed form as required by the section, and it is further provided that if a parent does not comply with such warning duly served on him under the section, he shall, unless he satisfies the Court that he has used all reasonable efforts to cause the child to attend school in accordance with the Act, be guilty of an offence under the section and shall be liable in the case of a first offence to a fine not exceeding twenty shillings, and, in the case of a second or subsequent offence (whether


in relation to the same or another child) to a fine not exceeding forty shillings. The section contains other provisions to which it is unnecessary to refer in detail, including provisions under which the Court may order a child in respect of whom default has taken place, to be sent to a certified industrial school, or to be committed to the care of a relative or other fit person named by the Court.

By s. 3 of the said School Attendance Bill, 1942, it is provided (sub-s. 1) that the parent of every child, to whom the Principal Act applies, shall, unless there is a reasonable excuse for not so doing, cause such child to attend a national school, a suitable school, or a recognised school, on every day on which such school is open for secular instruction and for such time on such day as shall be prescribed or sanctioned by the Minister in respect of such day.

Sub-s. 2 of the same section provides that any of the following but no other shall be a reasonable excuse for failure to comply with the section, that is to say:—

(a) that the child has been prevented from attending school by the sickness of such child;

(b) that the child is receiving suitable education within the meaning of this Act in a manner other than by attending a national school, a suitable school or a recognised school;

(c) that there is not a national school, a suitable school, or a recognised school accessible to the child which the child can attend and to which the parent of the child does not object on religious grounds to send the child;

(d) that the child has been prevented from attending school by some other unavoidable cause.

Sub-s. 3 defines the schools that are to be deemed to be accessible to the child for the purposes of the section.

A "national school" is defined in s. 1 of the Act of 1926, as being a public elementary day school for the time being recognised by the Minister as a national school;"suitable school" is defined in the same section as a school for the time being certified by the Minister under the Act to be a suitable school within the meaning of the Act, and "recognised school" is defined in s. 2 of the Bill under consideration as a school for the benefit of which grants are for the time being made from public moneys and which is recognised by the Minister as a school at which education suitable for children to whom the Act of 1926 applies is given. The expression "the Minister"means the Minister for Education (s. 1 of the Act of 1926).

Sect. 4 of the Bill provides as follows:—

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 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.

(2) The following provisions shall apply and have effect in relation to every certificate under this section by the Minister, that is to say:—

(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 so to submit such child;

(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 until he has informed the parent of such child, and also, if such child is receiving education in a school, the manager or conductor of such school, of the ground on which he proposes to refuse such certificate and has given such parent and (where appropriate) such manager or conductor a reasonable opportunity of meeting the requirements of the Minister for the purpose of removing the said ground of refusal;

(c) where a child is receiving education 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 or that such school is not appropriate for children to whom the Principal Act applies;

(d) where an application is made to the Minister for a certificate under this section in respect of a child, the Minister may make such inquiries and investigations as he shall think proper for the purpose of determining whether to give or to refuse such certificate, and if the parent of such child or the manager or conductor of the school (if any) at which such child is receiving education fails or refuses to give to the Minister any information in his possession or procurement required by the Minister for the purpose aforesaid, such failure or refusal shall be a ground for refusing to give such certificate.

(3) The Minister may at any time as and when he thinks fit revoke a certificate given by him under this section, but the Minister shall not revoke (otherwise than under the next following sub-section of this section) any such certificate


until he has informed the parent of the child to whom such certificate relates and also, if such child is receiving education in a school, the manager or conductor of such school of the ground on which he proposes to revoke such certificate and has given such parent and (where appropriate) such manager or conductor a reasonable opportunity of meeting the requirements of the Minister for the purpose of removing the said ground of revocation.

(4) Whenever the Minister has given a certificate under this section in respect of a child, he may at any time while such certificate is in force require such child to be submitted by his parent to such educational test at such time and place as the Minister shall direct, and, if such parent fails or refuses so to submit such child, the Minister may revoke such certificate because of such failure or refusal.

(5) Whenever a child to whom the Principal Act applies is receiving education in a manner other than by attending a national school, a suitable school, or a recognised school, the parent of such child shall inform the enforcing authority for the school attendance area to which such child belongs of the fact that such child is so receiving education and of the place and manner in which he is receiving education, and, if such parent fails so to inform such enforcing authority, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.

The object of s. 3 of the Bill is to compel parents to send their children within the prescribed age limits to one or other of the schools mentioned in the section, and failure to do so can only be justified on one or other of the four grounds mentioned in sub-s. 2 of that section. One of these grounds is that the child is receiving suitable education within the meaning of the Act otherwise than by attending one of the prescribed schools, and the object of s. 4 is to prescribe and define what is meant by suitable education within the meaning of this clause. Sect. 19 of the Bill imposes penalties on parents who fail or neglect, without a reasonable excuse, to send their children to school, and contains similar provisions to those contained in s. 17 of the Act of 1926 for having such children sent to an industrial school, or committed to the care of a relative or other fit person named by the Court.

The substantial provision of s. 4 is that contained in sub-s. 1, namely, that a child shall not be deemed to be receiving suitable education in a manner other than by attending school unless such education and the manner in which such child is receiving it, have been certified by the Minister to be suitable. The remaining sub-sections of that section


contain various provisions with reference to the giving or withholding of such certificate and the manner in which such certificate may be revoked by the Minister, and they empower the Minister to require a child to be submitted to such educational test as the Minister shall direct. Sub-sect. 5 of the section provides that whenever a child is receiving education in a manner other than by attending school the parent of such child is bound to inform the enforcing authority of this fact, with particulars as to the place and manner in which he is receiving education, and failure to do so is an offence punishable by fine. Reading the Act of 1926 in conjunction with the provisions of the Bill under consideration, it appears clear that the normal method of education contemplated is to be obtained by attending school, and that parents failing to send their children to school are subjected to penalties unless they can justify such failure under one or other of the clearly defined and restricted excuses prescribed by the Acts.

In support of the proposition that the said section is repugnant to the Constitution, the preamble and various Articles of the Constitution were referred to and relied upon. We propose to refer only to such provisions as appear to us to be material.

Article 41 deals with the Family. Clause 1, par. 1 of that Article provides that the State recognises the Family as the natural, primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. And clause 1, par. 2 of the same Article provides that the State guarantees to protect the Family, in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 42, dealing with Education, provides as follows:—

1. 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.

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3. (1) 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,

(2) 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.

4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Article 44, (2) (1) provides that freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

Speaking generally, it appears to us that these Articles contemplate that normally the right and duty of educating children is vested in parents, and that it is only in exceptional cases—where the parents neglect their duty—that the State is entitled to interfere, and then only to the limited extent mentioned in Article 42.

We adopt the principle laid down by this Court in In the Matter of Article 26 of the Constitution and in the Matter of the Offences against the State (Amendment) Bill, 1940 (1), that where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, such repugnancy must be clearly established (per Sullivan C.J. at p. 478), and it therefore becomes necessary to consider whether the provisions of s. 4 of the Bill can be said to be clearly repugnant, expressly or impliedly, to any provision of the Constitution.

Clause 5 of Article 42 is limited to exceptional cases where the failure of the parents is due to physical or moral reasons, and may be disregarded for the purpose of this opinion. Apart from that clause, the only right of the State to interfere in the education of children springs from clause 3 (2). Having declared in clause 1, that the State guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the education of their children, the Constitution, in Clause 2, expressly declares that parents shall be free to provide this education in their homes or in

(1) [1940] I. R. 470.


private schools or in schools recognised or established by the State. In clause 3 (1) the State declares that it will not oblige parents, in violation of their conscience and lawful preference, to send their children to schools established or designated by the State. So far there is nothing to indicate any right or intention on the part of the State to interfere in any way in the education of children. It must, however, have been, and clearly was, contemplated that some parents would, or might, fail to discharge their duty, and for the purpose of providing for this eventuality, Clause 3 (2) was inserted. It provides that the State shall, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social. What is the meaning and extent of this provision? What is referred to as "a certain minimum education" has not been defined by the Constitution and accordingly, we are of opinion that the State, acting in its legislative capacity through the Oireachtas, has power to define it. It should, in our opinion, be defined in such a way as to effectuate the general provisions of the clause without contravening any of the other provisions of the Constitution. Subject to these restrictions, it seems to us that the State is free to act, so long as it does not require more than a "certain minimum education" which expression, in the opinion of this Court, indicates a minimum standard of elementary education of general application.

If the standard contemplated by the section which has been referred to us exceeds these limits we do not think it can be justified under the Constitution.

Sect. 4 of the Bill deals with the granting of certificates by the Minister certifying that children are receiving suitable education otherwise than by attending school. We must construe that section as we find it and try to ascertain its meaning and effect. We assume that the powers conferred upon the Minister by the section if passed into law will be exercised in a reasonable, conscientious and temperate manner. But, making this assumption, we are nevertheless of opinion that a Minister, construing the section in a reasonable manner, might require a higher standard of education than could be properly be prescribed as a minimum standard under Article 42 (3) (2) of the Constitution. We are further of opinion that the standard contemplated by the section might vary from child to child, and, accordingly, that it is not such a standard of general application as the Constitution contemplates. In these respects we are of opinion that the proposed legislation exceeds the limits permitted by the Constitution and is repugnant to it.


Our attention has also been directed to the position of a child who has reached the prescribed age of 6 years and is being educated, and properly educated, at home or in a private school. A certain period of time must necessarily elapse before the Minister can give a certificate under the section. Before giving the certificate, the Minister may require that the child be submitted to such educational test as he may direct. If this test is to be directed, as the section would appear to contemplate, to the efficacy of the education which the child is receiving, a considerable period of time must be allowed to elapse. Eventually, the Minister may be satisfied that the child is being suitably educated and he may thereupon give the necessary certificate. Notwithstanding this, it is clear under the section that the parent would be in default in respect of the period intervening between the time when the child attained the age of six years and the time when the certificate is actually given, and might be subjected in respect of such default to penalties. Under sub-s. 1 of s. 4, a child shall not be deemed to be receiving suitable education in a manner otherwise than by attending school unless such education has been certified by the Minister to be suitable. In this respect also the section seems to us to be repugnant to the Constitution.

We are of opinion that the section is open to objection from a constitutional point of view in one other respect. Under sub-s. 1 not only the education, but also the manner in which such child is receiving it must be certified by the Minister. We do not consider that this is warranted by the Constitution. The State is entitled to require that children shall receive a certain minimum education. So long as parents supply this general standard of education we are of opinion that the manner in which it is being given and received is entirely a matter for the parents and is not a matter in respect of which the State under the Constitution is entitled to interfere.

Another point was taken in opposition to the Bill and was argued by counsel on both sides. One of the excuses under s. 3 is that there is not a national school, a suitable school or a recognised school accessible to the child which the child can attend and to which the parent of the child does not object on religious grounds to send the child. It is contended that the grounds of objection should not be restricted to religious grounds in view of the provisions of Article 42 (3) (1) of the Constitution that the State shall not oblige parents in violation of their conscience and lawful preference to send their children to the schools named therein. As this is an objection arising on s. 3, and not strictly on s. 4


which alone has been referred to us, we express no opinion upon it.

For these reasons we are of opinion that s. 4 of the Bill is repugnant to the Constitution and we shall advise the President accordingly.

Solicitor for the Attorney-General: The Chief State Solicitor.

Solicitors instructing counsel assigned by the Court:A. Cox and Co.

J. K.

[1943] I.R. 334