The Minister seems to be banking on the feeling that there is power to require compulsory attendance at school. He ought to look up the decision given by the Supreme Court when the last School Attendance Bill was declared unconstitutional. It was sent to the Supreme Court on a net point in connection with the Bill, but a judgment was given which showed that there was no power under the Constitution to require compulsory attendance at school. It was declared that the only power the Government had under the Constitution was, under Article 42 (3) 2º, to set a minimum standard of education moral, intellectual and social, that these were the only compulsory powers the Government had, that it had no constitutional power to require compulsory attendance at school. If the Minister is banking on a misunderstanding on that matter, to think that he may have compulsory powers analogous to that to operate this section, he would do well to refer to that matter.
I would recall to him that, while only one point in the School Attendance Bill was referred to the Supreme Court at that time, the Bill, although it contained provisions that were considered to be very necessary, has never been brought before the House since then. The Minister suggested that there was very general acceptance of the idea of compulsory school attendance in this country. That is so; and the question of any difficulty in connection with it would never have been raised if undue interference with the rights of people in connection with the schooling of their children was not forced through this House, in spite of general warnings from various Parties in the House. An element of compulsion of a particular kind was brought in, in a way that drove the Supreme Court, when the matter was brought before it, to examine the whole question and to show the constitutional weakness there was in the Bill.
Now the Minister is apparently likely to find himself up against this— that by persisting in a particular type of compulsion in connection with medical inspection, he may find that there will fall from under his feet the authority that would come from a general and harmonious acceptance of a particular position by the people themselves. That may fall from under his feet because he is proceeding to provide a service and to demand that that service be accepted by the people under a compulsion which the Minister may find he has no constitutional power to require.
I rather sympathise with the Minister in the position in which he has got himself. This whole business of compulsion started with Section 87 of the unfortunate Public Health Act, 1945, when, with regard to the medical treatment of school children, in respect of which there was an educational movement, an excellent State service provided and a more extensive and voluntary acceptance of that service and a seeking after that service, the Parliamentary Secretary in charge of that Bill of 1945 brought in the idea of compulsion. Section 87 of the Public Health Bill, 1945, read:—
"(1) The parent of a child shall submit the child to any medical inspection provided for the child or at the child's school pursuant to the Public Health (Medical Treatment of Children) (Ireland) Act, 1919, or Section 85 of this Act.
(2) A person who contravenes sub-section (1) of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof in the case of a first offence, to a fine not exceeding £5 or, in the case of a second or any subsequent offence, to a fine not exceeding £10.
(3) An offence under this section may be prosecuted by the county authority who provided the relevant medical inspection."
The Minister finds himself asked to handle that particular idea, and, in the new section, he gives just one outlet, that is, that where a person does not wish to submit to it, he is offered the alternative of getting whatever doctor he likes and having his child examined, or his two, three, four or five children examined, perhaps twice a year. But, unfortunately, the original sin is there at the back of the whole idea and the Minister has to extricate himself from it.
That is the position in which he finds himself. He has a legacy of original sin from that section, and however awkward the Minister may find his position in having to endeavour to stand over the idea, I think he will realise, if he stands back from the situation, that much of what has been said here is quite correct, that is, that if the service is provided and the educational work donepari passu with the improvement and extension of the service, there will be more work done in a voluntary way than the service to-day, next year or the year after, can do. He will find that, as the service grows and is capable of doing all the work there is to be done, compulsion will not be necessary and that compulsion introduced to-day will only prevent the voluntary work which could and would be done being done to the extent to which it might be done and will merely walk the Minister up against constitutional difficulties, difficulties with regard to liberty and freedom which the School Attendance Act walked everybody up against, a situation which has never yet been faced and which is accepted only because of the commonsense of the people. The people even acquiesce in the cases brought before the District Court to-day for non-compliance with the School Attendance Act, because quite a number of people feel that it is reasonable and because the people being proceeded against are so poor and so far away from an understanding of things that they do not know that the Supreme Court has decided that there is no constitutional power in the State to compel the attendance at school of any child.
I feel that I must press this amendment. The Minister says that to pass the amendment is to destroy the whole section. I think it would be healthier to destroy the whole section by passing the amendment than to destroy the whole idea by bringing the Minister up against either the reaction of public opinion against this proposal or a declaration by the Supreme Court that what he proposed to do was unconstitutional and that the Legislature had no power to require people to surrender their children for medical examination and treatment in this way.