Seanad Éireann debate -
Thursday, 21 Jan 1943

Vol. 27 No. 9

School Attendance Bill, 1942—Committee Stage (Resumed).

SECTION 4.

Mr. O'Connell

I move to delete the section. I am opposing this section and I must ask Senators to bear with me while I set forth at some length my reasons for doing so. I am moving its deletion, not because I am opposed to any principle contained in it, but because I think it is a clumsy, cumbersome and roundabout way of trying to deal with a problem which, in practice, I submit will hardly ever arise. It is a case of using a sledgehammer to kill a rather harmless little fly. I feel that it will be found in practice that this section of the Bill will be operated, if at all, only on extremely rare occasions. It adds nothing to the effectiveness of the Bill and, while that is so, it is the one section which, above all others, has given rise to most of the criticism and controversy which have attended the passage of the Bill through both Houses. It has caused much uneasiness and irritation to many people outside and to some within the Oireachtas, and even though such uneasiness may be quite groundless, I think it advisable to have regard to it in the interests of the success of this particular legislation—especially if nothing is lost by doing so.

Let us consider for a moment the various classes and types of children who are affected by this Act. You have first the children who attend the ordinary national schools. These are by far the greater number of those affected by the school attendance law. The Minister has stated that of the children between the ages of six and 14 enrolled in national schools there are approximately 65,000 who should be in school, but who are absent every day, and the real purpose of this Bill is to endeavour to get after the defaulting parents of these 65,000 children. In addition you have those children between the same ages, comparatively few in number, who attend secondary schools or vocational schools or private schools within the State which are or may be certified as suitable schools for the purpose of the Act by the Minister.

Section 4 is not concerned in any way with children attending any of these various schools. As is set out in the section, it deals with the child who is not attending a national school, a suitable school, or a recognised school, but who may be receiving private tuition in his own home or who is being educated outside the State. Of the latter class, those who are being educated outside the State, we may exclude the 500 or thereabouts who go daily across the Border to schools in Northern Ireland. The Minister gave an assurance for what it is worth—and I shall deal with that point later—that this situation, which has existed on the Border for the 16 years during which the Principal Act has been in operation, would still continue as heretofore and that this particular section was not intended to apply to these children. Whom, then, have we left? Only the almost negligible number who are receiving education in their own homes, and those sent to schools outside the State other than those sent to elementary schools across the Border. Is the problem to be dealt with such a difficult one that we must frame this elaborate machinery to deal with it? I strongly suggest that it is not. The Minister is obliged by the Constitution to see that every child gets at least a certain minimum education. Has he any doubt in his mind that the parent who goes to the trouble and expense of employing a governess or a tutor, or of sending his child to a school in Britain, Belgium, or elsewhere, will fail to provide that necessary minimum for his child? I do not think there can be any doubt on that point.

Again, take the machinery that is provided in the section. The Minister is to decide whether or not a child is getting suitable education on the strength of an individual test. Anyone who has ever taught or examined children will know how futile it is to assume that you can judge the value of the education given on the answering of an individual pupil.

Mr. M. Hayes

Hear, hear.

Mr. O'Connell

I would venture to say that there is not a school in the country—national, secondary, or otherwise—that might not be declared unsuitable if their fate were dependent on the answering of a particular pupil.

Mr. M. Hayes

And you could shut all the universities on that principle also.

Mr. O'Connell

On the other hand, a thoroughly bad school might be declared to be an excellent one if it were dependent on the answering of a particularly bright pupil. The Minister will not apply the test himself—he must relegate that duty to an inspector —but he will have to accept responsibility for granting or refusing the certificates, and I can see all sorts of difficulties arising if a certificate is refused. For instance, if the parent concerned happens to be a strong political opponent of the Minister, political motives, possibly, will be urged as the reason for refusal, and anyhow the Minister will be placed in an invidious position, whether he refuses or grants a certificate to a particular individual. All sorts of anomalies may arise in the application of this section. Take the case of two children: one living in Cork and the other in Sligo, who may be attending the same school—say, in England. Each applies for this certificate. They will be examined, probably, by two different inspectors, and let us take it that one passes the test successfully, while the other fails completely, which means that in one case the certificate is granted, while it is refused in the other case. As a result, the Minister is placed in the position of certifying that the Sligo child is receiving suitable education, while the Cork pupil, who attends the same school, is not.

As I have stated, the number of children who are likely to be affected by this section is almost negligible. There is no likelihood that they will not receive the minimum of education required by the Constitution, or that they will be a danger to the community as a result of their neglect or failure to receive that minimum. If, however, a rare case does occur, where it is thought that there is wilful neglect, the parent can be brought before the court. There is a provision in the Act to deal with such a case, and the onus will be on the parent, under sub-section 2 (b) of Section 3, to satisfy the court that his child is getting a suitable education.

I stated that this section applies to the very small number of children who are being educated in their own homes or in schools outside the State, but there is another case, which the section might be deemed to cover, and that is the case of children attending a private school within the State, which the Minister has not certified as a suitable school, or whose certificate has been revoked. I had intended to move an amendment to deal with this type of case but, unfortunately, owing to illness, I had not been to my office since the last meeting of the Seanad before Christmas. I had drafted the amendment, but did not send it in, but I intend to do so for the Report Stage.

The amendment that I had drafted was on the following lines:—

"A child who is receiving education in a school situated within the State shall not be deemed for the purposes of this Act to be receiving suitable education within the meaning of this Act unless such school is a national school, a suitable school, or a recognised school."

In other words, a child who is attending a private school within the State, which is not certified by the Minister as "suitable," is not deemed to be receiving suitable education. If a provision of that nature had been inserted in the Principal Act, this case which occurred, I think, in Wexford or Kilkenny, and to which reference was made during the discussions, could not possibly have arisen. By the way, from some of the remarks made by the Minister when speaking here the last day, I think it was on Senator Johnston's motion, it would appear that he himself is not very clear as to the application and the limitations of this particular section. For instance, he said, as reported in volume 27, No. 4, column 580:—

"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."

I suggest that the section which deals with those private schools, and which makes provision for their inspection and examination, is Section 20, and that while Section 20 remains in the Bill it would be absurd to apply the provisions of Section 4 to those private schools which the Minister apparently had in mind when he spoke as I have quoted. Section 4 refers repeatedly to the certification of an individual child, and not of a school. That is provided for in Section 20.

Now I want to refer to another aspect of the case. During the discussion on this section, and especially in connection with Senator Johnston's amendment, the Minister was asked for and gave certain assurances as to how the Act would be operated. I want to make it clear—it must be clear to anybody who studies the measure— that the Minister is not in a position to give those assurances. Once this Bill becomes an Act, its control passes completely out of the Minister's hands. Neither the Minister nor his Department will have anything to say to its enforcement. The Act will be administered by the enforcing authority— either the Gárda Síochána or the attendance committees — and the courts. The Minister cannot prosecute any parent who defaults. He has no right, authority or power to prosecute a parent, and neither has he any right, authority or power to prevent prosecution. When, therefore, he tells Senator Baxter that a Cavan parent may send his child to a school across the Border, of course he is quite correct, but that is not the whole story. It requires some qualification.

Senator Baxter or any other Cavan or Border parent may send his child across the Border, but if the local superintendent of the Gárda Síochána, for one reason or another—especially if he holds certain views which have been enunciated here, I think it was by Senator Buckley if I am not mistaken—thinks that it is not proper for Senator Baxter to be sending his child across the Border, then, of course, he can prosecute. He can summon that parent to the court, and unless the parent thereupon submits his child to a test, obtains the Minister's certificate and produces that certificate in court, he will have no defence, for the court will be bound, under this Section 4, to convict in the absence of such a certificate. It will have no discretion in the matter. The same applies, of course, to a child who is being educated outside the country. It is quite true, as was stated here, that there is nothing in this Bill to prevent a parent sending his child to a school outside the State, but equally there is nothing in it to prevent the enforcing authority —not the Minister, but the enforcing authority—from prosecuting a parent because he does so, and the only defence left to the parent is to obtain and produce this certificate from the Minister. This Bill gives the Minister no control whatsoever over the authority which is charged with enforcing the Act.

I may say that, from the first day on which I saw this particular section, I felt that it was something in the nature of a blot on an otherwise excellent measure, and I am sure the Minister will recollect that I made that objection pretty early on. I felt and I still feel that the agitation and the uneasiness to which it has given rise, and which possibly will continue even after the Act is passed, will have a detrimental effect on the working of the Act as a whole. It looks as if, in straining after what might be deemed to be absolute perfection, and in an attempt to pick up every possible loose strand, the framers of this particular section overreached themselves. I feel that, as a result, any possible good which the section might achieve, if any, is more than counterbalanced by the possible harm it may do to the general administration of the Act. If this section were not in the Bill, I think it would have been almost certainly regarded as a non-controversial measure. As I said earlier, it was around this particular section that all the controversy arose. I would strongly appeal to the Minister, therefore, to reconsider this section, and not to insist on its inclusion. He can take full powers in Section 20 to deal with the private schools within the State, and to see that they provide suitable education for those who attend them. The very small number—a negligible few—for whom this section is intended, may well be left to be dealt with by the courts, if there is ever any need to bring them before the courts, which is extremely doubtful. So far as I know, no case of that kind ever came before the courts during the 16 years of the operation of the Principal Act. To use a legal phrase, I feel that the section was ill-conceived or, in sporting parlance, that it is not worth its place on the team and should be dropped. I earnestly appeal to the Minister to consider whether it is worth while retaining it in an otherwise excellent measure.

Professor Tierney

If one is to judge by various remarks let fall by the Minister himself, both during the Dáil debate and in this House, and by certain other speakers such as Senator Buckley, one is almost driven to conclude that there is very little hope of getting the Minister to act reasonably in regard to this section. As Senator O'Connell has pointed out, if it were not for this section there would be no controversy worth speaking of in regard to the Bill as a whole. This one section, dealing with an infinitesimal number of children, has caused practically all the debate and all the discussion that has taken place upon the Bill. The Bill would probably have passed into law some time ago if it had not been for the very natural misgivings and fears to which this section gave rise. As Senator O'Connell has pointed out, it applies only to two classes of children, those who are being educated by their parents in their own homes and those who, for some reason or other, have been sent abroad to be educated.

When one reads the section with its very complex phraseology, and when one has heard the discussion that we had about certain aspects of it at last week's meeting of the Seanad, one is forced to wonder whether the section was really put in by the Minister's Department by way of a mechanical attempt to fill up every chink that was left, every loophole that could possibly be found, in the original Act, and whether the consequences that may possibly arise from the passing into law of this section were really consciously contemplated by the Minister at all, or have arisen by inadvertence. On the other hand, one wonders—and there is a certain amount of reason for that in remarks made by the Minister and by Senator Buckley—if this section was put in deliberately and designedly by the Minister, or with the Minister's sanction, in order that it might be used later on for the purpose of persecuting a certain small class of individuals. That is what the thing really amounts to.

Senator O'Connell has raised the question how far this section is really going to be workable in practice. It is curious to contemplate, even as a hypothesis, this spectacle of the Minister sending around inspectors and carrying out examinations of children who are being educated by their own parents in their own homes. How is he going to find out about these cases? How is the inspector going to be called on to carry out such examination, and what guarantee is there that the examination carried out by an inspector in circumstances such as will arise under this Bill will be a fair or a reasonable examination? There again Senator Buckley threw a certain amount of light upon what might possibly be contemplated. In the debate on the Second Stage of this Bill— Volume 27, No. 2, column 211—he said:—

"Tá daoine ag rá go mba cheart go mbéadh cead ag tuismightheóirí a gclann do chur in áit ar bith chun oideachais d'fháil, an fhaid is fhághann siad é. Ní aontuighim leis an tuairim sin ar fad. Smaoinighím anois ar Eirinn agus ar an scéal ar leith atá againn. Pé ar bith áit a rachas daoine ar scoil, ba cheart dúinn a chur in áithrid, an oiread is féidir é, go bhfuigheann na daoine sin oideachas i nGaedhilge— oideachas do réir mar is toil le Rialtas agus muintir na hEireann."

If Senator Buckley is to be taken seriously, at any rate, he contemplates that this section of the Bill shall be used to enable the Minister to carry out an inquisition so that he can drive the infinitesimal number of parents who are giving their children a private education in their own homes to have them taught Irish. I do not know whether that was in the Minister's mind when the Bill was being drafted, or not, and I may say at once and quite frankly that I have no sympathy with the people who do not want to have their children taught Irish. I think they are very foolish people and they are doing a thing that may be of no particular advantage either to themselves or their children. But to say that they are foolish is a totally different thing from saying that the State is entitled to take by legislation the right to inflict persecution on them, which is really what this section of the Bill will amount to.

The same applies to people who choose, for whatever reason, to send their children abroad to school. There is a very small number of people, generally well-to-do people, who, for some private family reasons of their own perhaps, or because of some bee the father or mother may have in their bonnets, for all anyone can tell, prefer to have their children educated, say, in England. To leave out of account altogether the case of those people who are driven by circumstances to send their children over the Border, there is a certain small number of people who like to have their children educated in England. Again, personally, I do not approve of people doing that. I think it is a foolish thing for them to do, but, at the same time, the people who have the right, in my view at any rate—and I think it is the ordinary commonsense view, and I think, above all things, it is the Catholic view—to decide where they will send their children to school are the parents of the children, and if the State purports to cut across that right of the parents, it can only do so, if it is to keep within the bounds of justice, in the most limited possible circumstances, and in the case of people who are known to be in some way or other delinquent with regard to the rights of their children. To interfere between an ordinary parent, who is known to be an upright, honest and law-abiding person, and his right to arrange according to his own wishes about his children's education is, to my mind, an injustice, and I do not care what is in the Constitution, and I do not care what is in any Act of Parliament. Such a provision, no matter where it is to be found, is an injustice and a persecution. The sooner we are clear about that and make up our minds about it—I do not care whether it is in the Constitution or not—the better it will be for us.

I would recommend the Minister, in that regard, to read and ponder over an article, by a distinguished English barrister, on "The Disintegration of the Family", that appeared in last week's issue of The Tablet. It is a very interesting and important article in regard to all this question and it throws, I think, a new light on this proposal that the State should interfere between the parent and the children. The point of the article is that in the old Common Law of England which, as Senator Magennis reminded me here some time ago, was in substance Catholic law, inspired by Catholic teaching down through the centuries—

"the right of a father to the custody of his legitimate child is to all intents and purposes absolute, and this right to custody carries with it the right to determine all matters concerning the education and the religious training of the child."

Every word in that sentence is important. The right was absolute. It carried with it the right to determine all matters concerning the education and the religious training of the child. We are not talking at the moment— although it is concerned in this question—about religious training, because this is a much wider matter than any question of religious training; it is the question of the right of parents. I am sorry to see that it is being cut across even by a suggestion that this section could be used to prevent people from getting for their children a certain type of religious education, because other people are concerned, and other rights are concerned besides religious rights. The article goes on to say:—

"If it could be shown that serious and direct injury might happen to the child through its being under the control of its father, then the Court of Chancery, exercising the Prerogative of the Crown as parens patriæ, might interfere to protect the child, and was under obligation to act as an affectionate and careful parent would act for its welfare.”

I suggest that the framers of the Constitution, in drawing up these clauses in Article 42, were, in fact, inspired by that idea that the right of the parent in fact is absolute, that the right of the State only comes in when the child is liable to suffer. There again the words are important—"serious and direct injury". Only in that case should the State interfere between the parent and the child.

It is very interesting to follow how that old English and old Christian common law has been altered in England during the last 100 years, as is shown in this article. The writer of the article shows that the beginning of the decline in the law as regards parent and child in England set in with the Divorce Act in 1857, that the first interference of the State between the parent, and particularly the father, and his child, and the father's right to supervise himself absolutely the education of his child, only set in when divorce legislation was introduced for the first time in England. That interference, once it had started, spread more and more widely and, as the writer of this article points out, "its effects did not manifest themselves in practice until men who had grown up under the older order had been succeeded by men who had been educated under the new conception."

He points out later on that another step was taken to destroy the rights of parents by the Children Act of 1908 and that the ill-effects of that Act were extended still further by the Children and Young Persons Act of 1933. According to this writer, who speaks with authority and whose name is well known as a writer on legal matters, the effect of this legislation in England for the last 100 years has been to bring it about that at the present time the parent has scarcely any more right over his child than the probation officer has. The father's right is what is in question. It is not a question of the mother's right as against that of the father. The right of the father to supervise his child's education was absolute but it has been cut away and destroyed by a whole series of enactments arising out of the introduction of legalised divorce in England. The result of all these enactments has been that under the ordinary law in England nowadays, a father has scarcely any more right over the education of his child than the public authority has. I suggest that the consideration set forth in that article should be a very serious warning to us in this country, that we should take the greatest care to secure that we do not follow the English State in the direction in which it has gone.

We talk a great deal, and hear a great deal of talk, about the Catholicity and the Christianity of Ireland, about our opportunities to establish here a Christian State and to see that Christian principles are observed in Ireland, but when it comes down to practice, what we are always up against is that the Irish State, just as every other State, by its very nature seems to be driven inexorably to encroach on these Christian principles and to take away these rights which, according to the Christian law of centuries, belong to the private person and the parent. If we have any hope at all of breaking away from that system and from these claims of the State, surely it is in a matter like education we should make that hope effective. Even if it means going a little over the line, even if it means relaxing in certain respects the supervision we might feel otherwise entitled to exercise, surely it would be better to relax in the direction which will ensure that the right of the Christian parent is recognised. Surely it would be better to go too far in that direction than to go too far in the direction of establishing complete control by the State as between the parent and the child.

The reason that many of us are disturbed by the inclusion of this section in the Bill is that we see that this section, consciously or unconsciously, may quite well turn out to be the thin end of the wedge which will bring about the condition of affairs here in a short time that you have in England, under which, the father will have no longer any control over his children's education at all. If there is one principle we should stand for—it is one of the fundamental principles of Christian society—it is the right of a father to look after and supervise his child's education. That is an absolute right against any State, any Constitution or any Act of Parliament and if any authority should try to interfere with that right it is sinning against justice and doing something which will inevitably shake the whole foundations of family life and of ordered society in the country where these things are done. I do not believe that the Minister or the people who framed this Bill were deliberately trying to do anything of that kind, I am far from making that accusation, but in a Bill to secure that loopholes will be closed up and that the Principal Act will be made watertight in every respect, they are inclined to go a little too far over the line in the wrong direction, in the direction of stealing a little on behalf of the State from what should be the prerogative of the father, the head of the family. Even, as I say, if it could be shown to me that this was not intentional, that the Minister had no desire to do anything of the kind, still I think the Minister ought to go over the line in the right direction rather than in the wrong direction, to relax rather on the side of the parent, and if there is to be any relaxation or going over the line it should be on the side of the parent, on the side of the family rather than on the side of State control.

I do not like to bring the question of the Constitution into this debate at all, because it raises what is, to my mind, an extraneous matter. Even if the Constitution appears to confer certain rights on the Minister, the Minister would be very well advised in a matter like this not to exercise these rights if his exercising them is going to raise the slightest danger—I emphasise the word "slightest"—of an infringement of the rights of the parent. I say that if the Minister is going to step in to prevent a parent who wants to do so from bringing up his child without a knowledge of the Irish language, for example—although I do not approve of parents doing that; I think a parent would be very foolish to do so—I say in taking such powers the Minister is infringing on the fundamental Christian right of the parent. It may well happen that perhaps certain well-to-do people, who have peculiar ideas, may not like their children to learn Irish, but it is much better that they should be allowed to have their way than that the fundamental right of the father over his children's education should be interfered with. I should like to appeal to the Minister in spite of all the argument and all the heat caused here and in the other House, that he would still bethink himself and mend his ways.

I want to emphasise once more what Senator O'Connell said as to how this section of the Bill will be carried out. The Minister ought not to try to put it across the Seanad that his intentions in framing this Bill will have any force or relevance in the operation of the Bill when it becomes law. The Minister knows, as we all know, that the history of legislation is strewn with the relics of various enactments which were framed and passed with one intention and which were operated in a totally different fashion. It is quite well known that the Minister's intentions or views once the Bill has become law and has to be operated, are of no more importance than those of the least authoritative man in the street. It will be interpreted by the courts on its own face and that is what we should be concerned with. We should not allow to go on our Statute Book a Bill that on the face of it, even though this may be perhaps a strained interpretation—and I do not believe it is a strained interpretation; I believe it is a plain honest straightforward interpretation of the section—purports to interfere between the father and the child in a case where the Minister has no real cause so to interfere. Even if that were a strained interpretation, I still hold that the Seanad should not allow legislation of that kind to get on its Statute Book.

There is one minor aspect of the question that I should like to put to the Minister. It has been already dealt with at some length by some other speakers. It is the question of the effect of this kind of legislation abroad. Even supposing that the critics of this section were all wrong and the Minister and his supporters entirely right, I suggest that it would be very bad for this country to have it go abroad that we have passed an Act under which the State can prevent parents from sending their children abroad to have them educated, if they so desire. Few things could, in the long run, do more harm to our good name in the world than such a provision will do. It may do harm not merely to ourselves but to our fellow-Irishmen in other parts of the country. Suppose, for example, you have an agitation about this Bill when it is passed into law and some journalist decides to interpret it—as he may legitimately interpret it—as designed to prevent people in "Southern Ireland", as it will be described, from sending their children to be educated in the North. Suppose that the Northern Government says that that is unfair and that they will have to pass similar legislation. Suppose they pass an Act enabling the Minister of Education in Northern Ireland to prevent Catholic parents sending their children to be educated in convents in this part of the country. What effect will that have? If that happens, it will be said that the initiative came from us in this Parliament, which claims to be legislating so as to put Catholic principles in operation. It will be said that we have initiated a course of competitive tyranny on both sides of the Border.

The effects of this section and of this Bill may be so grave and far-reaching that I cannot understand how any responsible Senator can look upon it with equanimity or allow it to pass without deeply examining his own conscience on the whole question and making up his mind about it. It is, certainly, a section that ought not to be passed in the routine way in which people vote for sections without thinking of what they contain. This is a section which may have most far-reaching repercussions. I should, certainly, advise members of the Seanad who have any concern at all for Christian ideas, or for the possibility of establishing what we like to refer to as a Christian State, to ponder the matter very carefully, indeed, in their own consciences before voting for this section.

Professor Magennis

Senator Tierney has delivered an impassioned address on the subject of the fundamental rights of the family. While he proclaims doctrines to which I most heartily assent, as doctrines, he at the same time brushes aside the Constitution as of little consideration. Something like the same argument was used, I understand, by a friend for whom I have a profound admiration—Deputy John Marcus O'Sullivan, former Minister for Education—in the debate in the Dáil. Whether he did or did not use the same argument, I am not, unfortunately, in a position to say, because I am not aware of what occurred in the other House, nor have I the report of what happened in this House at the previous dealing with the present Bill, because the economy dictated by the present emergency has precluded us, who are a deliberative Assembly—a Second Chamber—from having the heretofore normal advantage of having all these relevant reports circulated to us.

Mr. M. Hayes

Has not the last report of our proceedings been circulated? I got my copy, in any event.

Cathaoirleach

The report of the Seanad debate has been circulated.

Pádraic O Máille

It has not reached me.

Cathaoirleach

It is not the practice now to circulate the reports generally but if Senators apply at the General Office, they will get copies.

Professor Magennis

Let me explain that I am not making any complaint in this respect. I spoke about the matter merely in passing. I realise that, owing to the necessities of the emergency, there must be economy in printing and other matters, but I suggest that, as regards the work of the Second Chamber, such economies should not apply. I have held that view all along.

Sir John Keane

Can we get this matter clear because it is important? Is it not a fact that any member who applies can get a copy of the reports?

Cathaoirleach

Yes.

Mr. Fitzgerald

Nevertheless, I think that Professor Magennis has a grievance. A circular was sent out saying that these reports would not be circulated to us unless we specifically wrote saying we required them. I think that that was a ridiculous document to send out.

Professor Magennis

I merely mentioned the matter in passing as an excuse for my own lack of sufficient knowledge and not by way of attack. I have to deal with the matter as hearsay. I should like to draw the attention of Senator Tierney and those who have heard him to-day to the Constitution, notwithstanding his dislike of it. Article 41 of the Constitution has anticipated not only Senator Tierney but the writer of the article in The Tablet, which he gave us the benefit of hearing. Article 41 proclaims these fundamental rights. It is not the case, as so many people imagine, that we attach authority to what is declared in the Constitution because it is declared in the Constitution. There are people, like the late Mrs. Humphrey Ward, the novelist, who approved of everything Christ taught or practised and everything Christ recommended because Christ was a good man and an excellent teacher. That is not Christianity. Those who profess Christianity accept the teaching of Christ because he was God. It is the divinity of Christ and the divine authority we recognise. Similarly here. I have quoted frequently from the Constitution. I shall quote now, with your permission, from Article 41:—

"The State recognises the family——"

What I am reading is not an enactment that the family shall be regarded in this State as the natural protector of the child. It accepts the doctrine and the legislation is based upon that acceptance.

"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."

It is independent of and antecedent in time to any positive legislation proceeding from the mind of man.

"The State, therefore,——"

as a consequence of accepting this doctrine—

"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."

So far as regards the inalienable and imprescriptible rights of the family. The application of the doctrine in respect of education is dealt with in Article 42 and it is upon this I take my stand, as I think most Senators do.

"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."

Section 2 of the Article states:—

"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. 1º. 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."

Now, so far everything is on the side of Senator O'Connell and Senator Tierney, apparently, but sub-section (2) of Section 3 adds an "however":—

"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."

I apply all that here in Section 3 of the present Bill:

"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."

If that stood alone, without any modification, it would unmistakably be a contradiction of what I have read from Article 42 of the Constitution, but sub-section (2) of Section 3 proceeds:

"Any of the following ... shall be a reasonable excuse for failure to comply with this section".

That is, this section in so far as it is enunciated in sub-section (1)

"(a) that the child has been prevented from attending school by the sickness of the 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."

I need not read any further for the purposes of this argument. In the Principal Act there is a definition of these various schools, and, in the present Bill, what is added refers to a recognised school as defined in Section 2. Now, by reading, as we are directed to do in Section 1, the Principal Act and the present intended legislation, we know what is contemplated by the three sorts of schools that are set out in Section 3: a national school, a suitable school, or a recognised school. The requirement is that the child shall be sent to some of these schools unless— here is where the right of the family to direct the quality and measure of the education or, at any rate, the character of the education, is applied—the parent objects to send his child to one of these schools. Very well. Does that settle the matter? Here is something which, in so far as Senator Tierney read from the article in The Tablet—it was very incomplete as an exposition of philosophy—it is necessary to remind people of, that in our eyes the child has rights under the Constitution. The phrase is used there, “the right and duty of parents”.

In our philosophy, which is embodied in the Constitution, rights accrue from duties. That is because every individual human person has to pursue an appointed end, to fulfil his destiny in accordance with the conception of Creation. But he is subject at all times, from the beginning to his last hour, to what is called the law of his nature, the law of personality, because there is always present an obligation to fulfil the moral law as it applies to him. He has the right to act in such wise as the moral law makes requisite in his case and, correspondingly, every other individual human person in the community is, in the pursuance of his destined end, under the moral law entitled to claim non-interference with that pursuit on the part of his fellow man. So duties create rights, and what is one man's duty makes another man's rights, and what is another man's rights make another man's duty in respect of his fellows.

The child has rights, and that is why we were able to, and entitled, both legally and morally, to deal with the Act of 1908 as we did in 1941. The writer in The Tablet—I have not read or seen the article—forgets that, but what I do say is that, in so far as Senator Tierney read it, there is no mention of it, and it is all important in this connection—the parent's duty to the child. Not only that, but there is the right of the organised political community called the nation or the State, so that there are three rights in question as I tried to show on the last occasion. This Section 4 is an implementation of the Constitution which declares the right of the State, no matter what happens or how things go, to see that the child shall receive the minimum of education that is requisite for him to grow up and develop on the right lines, to be a good citizen of a good State. The child has the right to that as against the parent, and the parent has a duty, within the measure of his opportunity and means, to supply that. It is provided then that, in the case where that is not forthcoming, the State is entitled to require that the child shall not go uneducated.

The real purpose of Section 4 is, as I have just said, to implement the requirement that the individual child is receiving the proper quota of education. The right of the family is not interfered with. The parent has the unquestionable, imprescriptible right to teach his child or have his child taught otherwise than as a pupil in one of these schools; but the exercise, on the part of any individual human person, of his right is always as a member of the social frame, as a member of the organised community. That is common in Roman law and in every law ever since. No one has the right to do things in such ways or at such times or in such circumstances as would be of inevitable danger to another. As those of you who have studied law know, that is part of the doctrine of manslaughter. A man who has taken out a licence for a gun is at perfect liberty to carry a gun and fire it off on his farm, say at vermin; but if he fires it across a county road and a passer-by—perhaps a person for whom he would give his own life—is shot, he is charged with murder to begin with, because the principle is that a man is taken to intend the natural, rational and foreseeable consequences of his own act.

There is nothing new or unique about this legislation. Where there is a constitutional doctrine, it will remain, so to speak, in the air or in vacuo unless it is implemented by legislation. Suppose A.B. has a conscientious scruple about sending his children to any of these schools. A man's conscience is his own: it may be a false conscience and may require a great deal of emendation in its application to the facts of life, but, notwithstanding that, the State is not entitled to interfere with it. However, that does not give him a claim, as against society, to penalise his child and, through that, to penalise the community, by leaving the child uneducated. This Constitution is the fundamental organic law of the State —that is to say, it is this which creates the organs or instruments of Government. The organ or instrument of Government with which we are concerned here is the Minister for Education. It is the function of the Minister for Education, as for the State, for the organised community, to see to it that the right of the State to have the child receive the education that is his right shall not be lost and to enforce it.

The parent, therefore, who elects not to send his child to any of these three schools, may either have the child taught at home—taught by himself or by the child's mother or by a senior member of the family—or sent to a private school; but the State prescribes that it shall be satisfied—and the Minister for Education has to take on the task—that the education is suitable. How can that be considered persecution? Senator Tierney spoke on this subject with his usual impassioned eloquence, and warned us against persecuting anyone. I fail to see where there is persecution of anyone. It is a reasonable requirement that, if a parent has a special way of discharging his duty to his child in respect of education, the public mind should be satisfied that the education is of a suitable character and extent. That is quite reasonable and I challenge anyone to say that it is unreasonable.

Let us come down to the details of this. I will agree that the drafting— if anyone alleges it—is not as perfect as it ought to be; and, if I am permitted, I shall have a lot to say about subsequent sections from that point of view. Section 4 says:

"A child shall not be deemed for the purpose of this Act to be receiving suitable education..."

None of us can say with authority what is deemed to be suitable education. My quarrel with the section, if I have any, is largely one with respect to the draftsman's work. I want to know what will be deemed suitable education. For the purpose of the national schools, suitable schools and recognised schools, the school education will be, I take it, the suitable education that is in view for the interpretation of Section 4. But I do not know what it is. I take it that that will belong to the regulations which the Minister or his Department would make as regards programmes, distribution of work, hours of instruction, and so on. So, though it is not actually stated on the face of the Bill what suitable education is, it is not so mysterious as to defy discovery. Suppose we agree—I do not see any reason why we should disagree—that "suitable education" can have an acceptable meaning, all we have to consider now is to whom this Section 4 applies. Obviously, it is to those children who are receiving education in a manner other than by attending a national school, a suitable school or a recognised school.

Now, the legislation is with regard to the child. So far as sub-section (1) is concerned:

"A child shall not be deemed for the purposes of this Act to be receiving suitable education... 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."

Consequently, part of the price—if I may loosely call it so—to be paid by the parent who elects to keep his child out of these three schools is that he exercise his right without challenging directly or impugning the right of the child and the right of the State.

So far as regards the share of the State in this triple right relation, the Minister unquestionably has the authority to see to it that the child— notwithstanding that he is not receiving education in what, for the rest of the children, is the normal way—shall submit to a prescribed test. So far I see no persecution whatsoever of anybody. On the contrary, I see equity providing that, if A.B. and C.D. send their sons to a national school where they have to undergo the tests that are applied by the inspectors who are in charge of national schools, there shall not be privilege for other parents to keep children at home and say: "That is all right, I am seeing to it, I am the child's father and it is for me to decide." It is not for the father to decide, and that is the loophole of individualism Senator Professor Tierney should use some of his impassioned eloquence against. I am as strong as he is against any encroachment of the State on the rights of human persons.

Professor Tierney

Human persons have not any right, so far as the Senator has just said. The State is to decide the right.

Professor Magennis

With due respect to Senator Tierney, I have not said anything resembling such an infamous doctrine. I declare again with the Constitution that the family is the unit, the cell, in that great organisation that we call the nation or the State, and that that society, father, mother and child, is a natural society, antecedent to any organisation of a State, owing none of its rights as such a unit to any State or to any legislation of any State. Must I say that a second time? The child, as an individual, has rights; the family has rights; the State has rights. The larger, wider organisation, of which the family is the cell—I hope I have not to spell that word—has rights, and it is the maintenance and exercise of those rights of the wider community that I am stressing. To stress these is not to deny the others. Surely a man of such attainments as Senator Tierney does not require to be told such an elementary thing as that, that to stress the right of the community is not necessarily to deny the right of the individual?

Professor Tierney

It all depends on the extent to which you stress the right. If the community claims to come in and examine my child and say whether I am giving it a suitable education or not, then I say the community is exceeding its rights.

Professor Magennis

I think every person who is not afflicted with that heinous doctrine called individualism would deny Senator Tierney's contention.

Mr. Baxter

No, surely not.

Professor Magennis

Senator Tierney laid great stress on the absolute right of the family. That is individualism, as regards the individual family. Does Senator Tierney contend that if I have a house which is sacred to me by all sorts of memories and traditions, and the community's welfare requires that it be taken down to leave room for the widening of a road, that I am to gratify my sentiment by the assertion of my individual rights and penalise the community?

Professor Tierney

There is no comparison between a house and a child.

Professor Magennis

I think I should be permitted to speak without interruption.

Cathaoirleach

The Senator should be allowed to continue his speech without interruption.

Mr. O'Donovan

A tinker has the same right as Senator Tierney.

Professor Magennis

If I have a licence for a gun and I wish to shoot crows on my farm, I am entitled to shoot at the crows; but if, inadvertently, through negligence or carelessness, I happen to shoot somebody who is where he has a perfectly legal right to be, on the high road, then I must stand my trial, first on the charge of murder, which may be commuted to a charge of manslaughter. A man may have rights, but he must exercise them rationally. A man has rights as a member of the family, but as a member of the community he is not entitled to do what he likes, not with his child, not with his own life. Let us test it this way. What is the limit of the extent of a man's rights with regard to his own bodily existence, his own life? If he intends to commit suicide and does not succeed, he finds himself in the dock indicted for attempted suicide and he can suffer a heavy penalty for having attempted and not succeeded. Surely Senator Tierney does not ask us to agree with him on the fundamentals of a philosophy and then, some five minutes later, contradict that philosophy in every fundamental element.

I challenge Senator Tierney—and he may take his leisure to do it—to read this up and study it further and he will find the difference between the Catholic and the non-Catholic philosophy of the State. I am now including in "Catholic" quite a number in professions, creeds and practices who are non-Catholics. He will find that the difference between us and what began with Descartes—I am not mentioning any religious leader on purpose—is individualism, and, while we appear at times to speak the language of individualism, there is nothing on which our philosophy is stronger than upon this question of rights and of their exercise. Senator Tierney, in effect, challenges the Constitution. He declares that what is laid down in our fundamental organic law is wrong. He is entitled to do that.

Professor Tierney

I did not say that.

Professor Magennis

In what respect have I misquoted the Senator?

Professor Tierney

I said I did not care whether it was in the Constitution or not.

Professor Magennis

I have quoted the Constitution——

Professor Tierney

I have views about the Constitution, but I did not express them.

Professor Magennis

Senator Tierney, in the form of words which I am not able, unfortunately, to quote with the exactitude he requires, denied the position. He holds that the parent has an absolute right. He is taking the parent into a vacuum; he is taking him out of the social milieu in which he exists and is claiming for him something which he could not have, as a member of the family, in the concession of his claim and in the exercise of what he claims. Protection is accorded to him by reason of the fact that he is a member of the State, and the State that affords him this protection is maintaining his rights and exercising his right with reciprocal demands that he recognises the rights of every other individual and of the community of individuals.

Does Senator Tierney or any member of the House seriously claim—Senator O'Connell did not claim—that the State should not inspect schools? I am not using any parallel now, as evidently Senator Tierney has a temperamental objection to parallels. I will take the actual facts. Nobody knows better than I do, except Senator O'Connell, the way in which the national schools, the schools of the Christian Brothers and Patrician schools and primary schools work. They are inspected and reported on. The number of hours devoted to subjects, the way in which the teacher discharges his duties—all these things are subject to inspection and report, and an unfavourable report involves the dismissal of a teacher. Why? Because the Department of Education is charged with the duty of seeing that the type and the manner of the education are up to standard.

What Senator Tierney commits himself to is a denial of the right of the Department to inspect schools. If they have the right to inspect schools, have they not the right to determine the level of education to which a child is being brought when not attending those schools? It develops now out of the argument that Senator Tierney's objection is not merely to the section, but to the whole philosophy underlying it. That is what it amounts to.

Coming back to the section, I pointed out on the previous day, and I think Senator Douglas, who unfortunately is not here, accepted my argument, that there should be no privilege. When he asked us by the amendment which has been provisionally withdrawn to say that the Minister shall not refuse a certificate to children who are being educated outside the country and it was pointed out to him that that involved a claim of privilege as against children who are sent to one or other of these three types of schools, he acknowledged that. It is unmistakable. If, therefore, we inspect national schools, in what way is it wrong or bad to inspect others? If it is the law of the land that every child is to get a certain measure of education, where is the rule of law that prescribes that this, however, does not, or should not, apply to those whose parents have certain views?

The drafting of sub-section (2) is defective. It says:—

"The following provisions shall apply and have effect in relation to every certificate under this section by the Minister."

I should prefer it to read: "The following provisions shall apply and have effect in relation to the issue or refusal, as the case may be, of any certificate under this section." Subparagraph (a) then 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, and the Minister may refuse to give such certificate if such parent fails or refuses so to submit such child."

That is to say, if a parent, in much the same spirit as would animate Senator Tierney, refuses to submit the child to examination, the Minister may refuse to give such certificate. A great deal of the invective we have been treated to results from reading "shall" for "may". It is true that in certain contexts, according to leading cases of law, "may" is imperative, but certainly this is not the context in which "may" is to be read as an imperative. See what a host of "shalls" surround it—"a child shall not be deemed" and so on. In every one of the sections "shall" appears.

Here the Minister "may". In other words, the Minister exercises his discretion. If a parent sends his child to Rugby—that, of course, is absurd, because we are dealing with children between the ages of six and 14; unfortunately, I cannot name what would be the equivalent for a child of tender years of such schools as Rugby, Harrow or Eton, but I daresay there are such schools, or the school in Belgium such as that mentioned by Senator O'Connell—if the Minister is satisfied that the child's presence in that school is a guarantee, he may accept it. There is nothing in the Bill which says he shall not, or that he has no discretion. I shall no doubt be told that this is making it dependent upon the good sense and wisdom of the present Minister, but that it is not operative in regard to any successor in the year 2001, and so on; but the real point is that the legislation intended here empowers the Minister in the exercise of his commonsense and knowledge to withhold a certificate. Where is there penalisation or persecution in that? I fail to see it.

Mr. Fitzgerald

I think it was a French writer who said that error becomes less from falsity than from the distortion of truth. I am not going to relate any particular statement of Senator Magennis; because, as I have not got his written text in front of me, he would probably say I was misrepresenting him on each occasion. I think he did misrepresent Senator Tierney in some aspects.

Professor Magennis

If that can be shown, I shall withdraw it and apologise.

Mr. Fitzgerald

I was merely explaining that I do not want to be taken as attributing things. I have only a general impression from what Senator Magennis said and when I say that error is generally more from a distortion of truth than from falsity, I mean that a great way of distortion is stressing, and it seems to me that in this matter we can make a very plausible case, supporting what we are saying in a dozen ways, and misrepresent the fundamental relationship by a mere matter of stress.

I want to say first that the Constitution means very little to me. It provides for a continuity of government and, so far as Articles 41 and 42 are concerned, they are not enactments. They are only a statement of pre-existing fact and their interest is that they are, to a large extent, an admission by the Government that there are anterior to itself certain laws which limit what is called State sovereignty. We write things down in the Constitution that sound splendidly:—

"The State recognises the family as the natural primary and fundamental unit group of society..."

—mind you, the family is something more than that. It is not merely a part of the whole of what is called here society—

"... and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law."

That sounds quite fine, but by positive legislation we may make enactments which, if not in direct contradiction of what is laid down in the Constitution, may be what I might call an infringement of or nibbling at it. Article 42 makes statements with regard to the rights of the family in relation to education and in sub-section (2) of Section 3 it affirms a mitigated right, another right, anterior but indirect as compared with the directness of the authority of the family.

In the statements I have heard here this afternoon, there were certain rather false analogies. "No one has a right to do things in a way which injures another," and the relationship in that was to the family or the father not doing something, to the injury of a child. The analogy was made of the shooting of crows and the killing of a man walking quite legitimately along the road. The family is an authority; the man shooting crows on his land has no rights whatever with regard to shooting a man on the road. The father has the right, the primordial right, anterior to, superior to and taking precedence of the right of the State with regard to the education of his child.

I think that the representation of the family or person in regard to society has also not been exact as given here, because although the individual is contained within and is subordinate to the national society, at the same time, that society does not contain in his totality that human person. That human person is himself the universe of liberty, the master of his own act, and you must take these two aspects—the sovereignty of the person, superior to the State and the individual in the relationship of the part to the whole with regard to the State— together. It is only by getting a right balance that you get the truth, and in so far as you stress one to the detriment of the truth of the other, you yourself will be making statements contrary to truth.

We are told about Catholic teaching in relation to this matter. The Catholic Church does assert the authority of the State and it does assert the authority of the family.

Notice this, how far the Church herself recognises the enormous import of the voice of the parents' authority. It will be admitted with regard to man's final end that baptism is as vital as a knowledge of Irish. Nevertheless, we are not entitled to baptise a child other than with the assent of the parents, except under specified conditions. What is implicit in the whole tone of the section we are dealing with is, that we have given lip service to the authority of the family in relation to education. You can always get away from that right. You can turn around and say that some parents get drunk, that some are ignorant, and that some bring children up in the way of crime. The parent is the authority directly preposed by God over children, and yet it is being assumed, by virtue of numbers, that the Minister, as in a paragraph like this, is to be indefective as to what constitutes the full implementation of the rights of the child. My interpretation, very defective as it is, is that inasmuch as the authority proposed for the child is the divine act of the parents, that is the operative authority. There is the right of the State also, directed to the common good, to take an interest in seeing that its citizens have a certain degree of moral intellectual and other education. But the primary right and authority are in the parents. The interpretation given in this Bill, and that has been given in some of the statements heard to-day is this: we will pay lip service to the parents' right, but here is the State, which has set down in Article 42 (2) of the Constitution a statement of its right to insist on a certain degree of education that is going to be the only operative right.

In Papal enactments I think there will be found instances, probably in Rerum Novarum, where the right of the family is asserted, and the right, under certain circumstances, of the State to take over certain functions is also asserted. If you read it you will find that the State only enters into that right when an enormous number of conditions have been fulfilled. What are we doing in this Bill? We say that there is a distinction now between “may” and “shall”. The beginning of Section 4 reads:

"A child shall not be deemed for the purposes of this Act to be receiving suitable education..."

The primary authority responsible, and with rights relating to the child, is the family, but this enormous abstract monster that we call the State comes in and, by virtue of a subordinate right relating to a lesser end that we propose in Article 3 (2), says: "We are going to lay down the entire conditions." It does not matter what the parents may do. I referred on a previous occasion to the case of a boy who, at the age of 13, had a remarkably competent knowledge of Greek and Latin, and who at an early age became a professor, but who when he was sent to school was not able to write his name and was sent home. In my view—a very defectible view—that boy in intellectual education had received equipment enormously superior to what he would receive at an elementary school. I would not mind betting that, if one of the officials of the Minister's Department came across that boy, who was educated at home, and became aware that he was not able to write his name, then, in the name of the almighty State, he would have found that the boy did not fulfil the conditions required, the parents' rights would be completely eliminated, and the Department would decide to what institution the boy was to be sent.

The Constitution lays it down that the authority with regard to education, moral, intellectual and so on, is primarily the father, but the State also says that it is going to assume, unless it decided otherwise, that the requirement of a minimum education is not fulfilled unless it decides it. Good heavens, if the family is the primary institution has a father not the right to say with regard to schools, that he is not satisfied they are giving the minimum education that he requires to be given? My interpretation is that the superior authority more immediately preposed to that end is the parent. In the light of that judgment or misjudgment we read Section 4, which is arrogant, arbitrary, and totalitarian in tendency by our Government.

(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.

I should like to propose as an alternative:

"That no schools shall be considered suitable unless each individual parent certifies that he is satisfied with a manner in which the teaching is being given the children."

The section continues:—

"(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;"

We are assuming that Ministers are always perfect. We know that some parents get drunk. I hope the Minister will not take offence if we assume that by some particular grace applying to Ministers they never get drunk, that the parents might have a deleterious effect on the moral well-being of the child, but we must assume that no Minister can ever have any deleterious effect on anybody. In so far as this is permissive, it just permits him not to require something. Let us see how much freedom we get out of this:—

"The Minister shall not refuse 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..."

He shall not refuse until he has told the other people that he is going to refuse. But the power to refuse, so far as that sub-section (b) is concerned, is completely unmitigated. It merely says that he has still power to refuse. But, when he has made up his indefectible mind that he is not satisfied with the education, he will tell the other man so.

"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."

I can see that what the Minister has in mind there is that certain incompetent people may set up schools and charge fees to parents and not give the children an education such as the parents have a right to expect. But, actually, what that is doing is again adding to this almighty power of the Minister to the further elimination of the natural and rightful authority in the parent.

"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...."

He may, if he likes, make such inquiries as he thinks proper. Implicit in the whole structure of the section we are dealing with is the elimination of the right of the parent and the responsibility of the parent. If I am a parent, as I am—I do not want to go on exalting myself unduly—I do think that I am at least as good a judge as to what the well-being of my children requires as is the Minister or his officers, and I think I am at least moved by the same degree of affection and care for their well-being as is the Minister or his abstraction which we call the Department. But it will be assumed until I satisfy him under conditions laid down by the Minister that I am legally liable as a person who has failed to fulfil my most elementary duty as a parent.

My interpretation of that is that it is unjust in this way, that it is one authority blotting out and arrogating to itself the authority which, by natural law, belongs to another authority, namely, the father. I am not denying that a case can be made —and I support it—that the common good requires a certain degree of moral and intellectual education amongst the citizens and, as the State is preposed for the common good, that it has the right to require that the parents will make provision to see that a certain minimum requirement is fulfilled. But I do not say that that particular right in the State should be used, as is done by all States to-day, to the obliteration of those lesser but more direct and immediate societies, such as the family. That is what we are doing here.

The last time we were discussing this here I listened to Senator Buckley and I was rather amused, although it was an unworthy amusement if you like, because we are so enormously intent upon reaching that ideal condition in which we all shall be like Senator Healy and be able to begin what we have to say in English with the words: "Tá cúpla focal le rádh agam." We are intent upon reaching that ideal condition, but what we are doing is taking the latter-day heritage that we got from England; not that British Common Law, which I think is one of the greatest assets and inheritances that we have, that Common Law which has now been distorted in the light of modern conceptions of reality such as is embodied in the section here. We are so determined on Gaelicising ourselves so as to be able to say: "Tá cúpla focal le rádh agam", that we are going to follow in the most slavish and contemptible fashion the worst tendencies that are in England and, not merely in England, but in the modern world generally.

I have consistently tried to fight this continual tendency for the State to grasp more and more power to grip the human persons within it and practically eliminate their dignity as human persons, which is not only here, but is world-wide. Because it is world-wide and because we are so slavish, I know well that in getting up here to argue against it I am just wasting your time and my time. We assume that what modern clamour and ignorance are assuming is some sort of eternal and immutable law and that we have to follow that just the same as other people.

My reading of this section here is that it is a direct attempt to enable the State, if not to eliminate, to act in complete disregard of that natural right which is not created by the Constitution, but which the Constitution has merely set down—and the Constitution is the work of the present Government—apparently with a view to whittling it away by specific legislation. What is the meaning of the word "lawful" in the Constitution? We are here purporting to enact a law. Personally, I do not think it is a law, because nothing that is contrary to the Constitution has the binding effect of law. I myself, in my interpretation of this, interpret it as the State claiming for itself here what it denies to itself in the Constitution and denying to the parents what the Constitution recognises belongs to the parents by natural law without their being indebted to this State or this Constitution for it.

I do hope that in this matter we will forget Party differences. I do not think there is anything vital in this particular section for what you might call the desirable aspects of the Bill. I want to be perfectly frank and say that I think there was a certain soupcon or tinge of irritation in the minds of the framers of this section at the idea that this all-powerful State is not able to take the children of all parents, irrespective of the parents' rights, and insist upon ramming Irish down their throats. So far as I am concerned, I may say that, in spite of the Minister and the Government, I would not hesitate, and would not have one flicker in my conscience, to send my boys abroad if I thought that, spiritually, morally or intellectually, they would be bettered in any way, rather than by fulfilling the Minister's desire to force us all into the one mould. Human nature and human life are infinitely varied. Our little bureaucrats in the Department have sat down and decided that every little child in this State at a given moment will be learning or not learning some particular thing. That was an idea that came in with the French Revolution. That is the idea that is implicit, and within it is the whole evil of modern social life, and implicit within it is the whole negation of the tradition of 2,000 years of enlightened Christian minds. We are now ceasing to be parents, ceasing to be persons or individuals. The individual is becoming completely contained in the State. The State is going to decide. We pay lip-service to the family, but what is the family? It is to be only the “cell” of the State.

Professor Magennis

Where did the Senator get the word "only" from what I said? I spoke of the child, as an individual, having rights, the family having rights, and the State having rights, and I mentioned the State as the wider organisation of which the family is the "cell". I think that this is only a rhetorical gesture on the part of the Senator.

Mr. Fitzgerald

I may say that I was not meaning to attribute any particular form of words to the Senator, or to attempt to translate what he did say or did not say. What I do say is that he did not stress, as it should have been stressed, that in relation to the family—this finite, this inferior thing, directed towards a temporal end, the common good—that enormous fact that the universe of liberty is not and cannot be contained or directed to a temporal end, nor did he stress the fact that that universe of liberty, in the case of an individual, is superior to the State and all its mechanisms.

Liam O Buachalla

Sa gcéad dul síos ba mhaith liom a rádh nach fíor do na daoine ar an taoibh eile atá á rádh go raibh caidreamh idir mé fhéin agus an tAire maidir leis an alt seo den Bhille no maidir le halt ar bith eile dhe. Ní hionann sin agus a rádh nach gceapfainn go mba onóir dom baint a bheith agam le ceapadh an ailt no le ceapadh an Bhille—mar is Bille é a bhfuil mé an-tsásta leis.

Rud ar bith a dubhairt mé ar an mBille no ar alt a 4, is uaim fhéin a dubhras é; níor nochtuigh mé ach mo chuid smaointí fhéin. Rud ar bith atá ráidhte ag an Aire ortha, siad a smaointí fhéin a nochtuigh sé. Rud ar bith a bhéas le rádh agam, ní bheidh ann ach mo thuairmí pearsanta féin. Sílim nach bhfuil ann ach cothrom na féinne don Aire an méid seo admháil go poiblidhe.

Is maith liom gur labhair an Seanadóir Magennis romham. Is maith é mar gheall air gur phléidh sé an chuid is mó de na poinntí a raibh fúmsa tagairt a dhéanamh dóibh. Phléidh sé iad go cruinn, cúramach slachtmhar, i bhfad níos fearr ná d'fhéadfainn iad a phléidhe. Beifear buidheach de as ucht an mhéid staidéir a rinne sé ar an mBille seo agus go mór mhór as ucht chomh maith agus a chuir sé ar an eolas i gceart sinn maidir le cearta agus dualgaisí na dtuismightheóirí agus maidir le cearta agus dualgaisí an phobail agus an riaghaltais.

As I have said on other occasions, what I wish to say in this House I should much rather say in Irish, Sir, but you can see for yourself that some Senators—especially Senators on the other side—are so educated that they would not understand me were I to continue in Irish. Some of them, indeed, are so educated that they would not hesitate to take up what I had said in Irish and would persist, as they say in the Gaeltacht, in putting a "leagan ar mo chuid chainte". Fortunately, Senator Magennis got an opportunity of speaking before I did— fortunately for the House and fortunately for the public—because, whether we like Senator Magennis or not, we will all have to agree that there are few men as capable as he is of probing a question of the kind we are discussing and of stating it clearly. I have said in Irish it will not be very long, I am sure, until politicians and teachers, as well as the public in general, will have occasion to give their thanks to Senator Magennis for explaining this matter and elucidating it in the way he has.

In dealing with such a question as this, one is tempted to enter into a discussion of the whole field of education and its objects. I mean to try to avoid such a discussion. Education has its moral, its spiritual and its religious objects, but education also has to do with the nation. It has a national purpose, and unless we deny the existence of the nation, unless we deny such a thing as nationalism, and unless we utterly despise it, then we will have to acknowledge that it has a right to a place in every curriculum, and we will have to acknowledge the right of the educational authority to see to it that the children should receive proper instruction in regard to matters relating to their nation and in regard to matters relating to nationalism. I make no apology whatever for saying that. I acknowledge the existence of the Irish nation. I acknowledge the existence and the importance of nationalism. Only a fool would deny the existence and the importance of nationalism. Only a fool would disregard it. If we acknowledge the existence of the nation, if we acknowledge that nationalism must have its place in the curriculum, then it is essential that the State should see to it that, wherever the children are educated, they will get such instruction as will enable them to become good citizens of the nation in the fullest sense of the word.

I made a statement in Irish—it has been quoted here to-day—that I was glad that this section had been framed in the way in which it was, and I also stated my reason. I was particularly glad to-day, when Senator Tierney was quoting my remarks—whether he knew he was doing it or not—that he stressed the words "ar fad" in the quotation. I do not agree entirely with the statement that people have a right to educate their children any way they like and to send them anywhere they like to be educated. I do not accept that in its entirety. God knows I am a rational being; I agree and acknowledge there may be occasions when children may have to go abroad to be educated, and I raise no objection to that. I was visualising this whole matter from the long term point of view. The declared aim of the people of this country is to preserve their nation and their nationhood. The declared aim of this country is to restore, as soon as ever they possibly can, what has been robbed and filched from them in every department of national life. Among those aims is undoubtedly the restoration of the national language.

It is because I realise that if people, because of their wealth or because they are in a peculiarly favourable position, for any reason could send their children to be educated any way they liked or anywhere they liked, and then bring them back here again, to obtain higher education and positions, this whole effort of ours could be sabotaged, could be torpedoed, that I feel the Minister is perfectly right in taking those powers to check such a movement should he notice any attempt to start or develop it. I cannot agree, because people have high incomes or because they have sucked particularly well of the wealth of this or any other country, that they should be in a privileged position in regard to the education or non-education of their children. They have the right to educate their children at home, the right to bring in tutors and governesses and all the rest of it. At the same time, the nation has rights, and the fact that certain persons are well off gives them no right whatever to override the declared objects and intentions of the Irish people and of the people's Government. The declared intention is to get back to the Irish language as soon as we possibly can. Surely, all reasonable Irishmen—unless we are all of the jellyfish type to which we had to listen here to-day from the other side—would wish to see education in the secondary schools and in the universities conducted through the Irish language.

Sir John Keane

On a point of order, are the words "jellyfish type" a proper Parliamentary expression?

Mr. M. Hayes

It is peculiarly inappropriate to Senator Desmond Fitzgerald.

Cathaoirleach

The Chair does not consider that it is unparliamentary.

Mr. M. Hayes

I do not think it is.

Liam O Buachalla

If there is anything unparliamentary about it, I withdraw it. I have not referred to Senator Fitzgerald either. Because I realise that you cannot divorce primary education from secondary and university education, I am particularly pleased that this section is included in the Bill. As our secondary schools are fed from among the children who receive primary education, those secondary schools and, in turn, the universities, cannot be successfully carried on unless the students have got a sound primary education. It is obvious they cannot be Gaelicised unless primary education is properly biased. The whole thing is continuous. If we fail to see that children get a proper knowledge of the Irish language, and of all that pertains to the nation, as part of their primary education, it is quite obvious that the other two branches of education can never play their part in bringing about the realisation of our aim—an Irish-speaking Ireland. Surely there is nothing wrong or unfair in stating that opinion. The feeling I have about the debate here is that we are letting our imaginations run riot. Senator Tierney spoke about the heat that was engendered by the discussions on this matter in the Dáil and in the Seanad. Surely there was no heat displayed here until he himself began to speak. I had the idea that, had he continued a little further, we would have seen cubhar na buile ag teacht ar a bhéal.

Senator O'Connell, in his opening remarks, expressed the view that it hardly mattered one way or another whether the section was in the Bill or not, but if it came to the point he would as soon see it out of it. If it mattered so little, why spend the whole evening discussing it as we have done? This is just another of those occasions in the Seanad when we seem to have lost control of ourselves and given rein to the wildest imagination. Senator Tierney, too, for our edification, quoted The Tablet. Here again I am grateful to Senator Magennis for dealing with that aspect of the discussion in the way he did, but I want to say that I am not very much impressed by many of the things that appear in The Tablet. I was not impressed by many of the things that appeared in The Tablet in the past, any more than I was by The Statesman. I have not seen the article, but as far as I am concerned there is very little use in quoting The Tablet for me in connection with this country.

With regard to the rights of people in Northern Ireland as against the rights of people in Southern Ireland, I take this attitude, that it is we who have the rights; people may have the power for the time being—I do not acknowledge their right to act against this State—to take it into their heads to deprive parents in the North of the right to send their children down here to be educated. That is the difference between me and some of the other speakers. Ireland to me is a nation with inalienable rights.

Mr. Baxter

That would not help the parents or the people in the Six Counties.

Liam O Buachalla

It may not.

Mr. Baxter

You would not care about that.

Liam O Buachalla

References have been made to the possibility of the people in Northern Ireland being deprived of the opportunity to obtain a knowledge of the Irish language because they could not send their children down here. It would be worth some Senators' while making an investigation of the matter. I believe they will be surprised at the extent to which the people of Northern Ireland are pulling their weight at home for the development of the Irish language in spite of all obstacles.

Mr. M. Hayes

I have made some investigations, Sir.

Liam O Buachalla

Again, with regard to Senator Fitzgerald's tilt at Senator Healy about, "Tá cúpla focal le rádh agam," certainly he himself does not even give us the cúpla focal. I wonder how many Senators have taken the trouble in the last few years to attend children's day at An tOireachtas, the primary school day as well as the secondary school day? They would have got a pretty good idea there as to whether the children can or cannot rise beyond, "Tá cúpla focal á rádh agam." It is because people are out of touch with this whole matter of the progress of the language, and do not realise the extent to which we have advanced and might progress further if they would only pull their weight, that they feel and speak in the way they have done with regard to this section. No injustice to any child or parent is intended, nor is any injustice possible. God knows, Senator Magennis has made that clear. If children for any reason must be sent away to be educated, there is the right of appeal; the Minister will give a certificate. It is all very well to say that you cannot account for future Ministers. Surely we do not visualise in this country that a pack of bosthoons are ever going to get control of the Government.

Just one word more in conclusion, and that is with regard to the rights of the family. I certainly am opposed to State control as far as it can possibly be avoided. I agree that the family is paramount, but I also want to make it as clear as I possibly can that I acknowledge that the State must to a degree interfere in matters of the family. Somebody mentioned the question of the tinkers. The tinkers have their champions here, I understand. I am not begrudging them their champions, but why should we declare that the State has the right to interfere in the family affairs of tinkers and has not the right to interfere in the family affairs of other people? Possibly, it would help the Minister if we told him that the thing to do was to make a list of the names of people who, he is confident, will give their children the proper education and avoid interfering with them. That is what some people want, it would seem. The family has its rights. Of course it has, but the family has its duties. We are all aware of occasions when parents abuse their rights. They are not isolated cases. Very many laws are passed enabling the State to interfere as between parents and children. We had a law not very long ago here giving the State rights with regard to the taking of children away from the parents.

In conclusion, I want to make it clear that I do not withdraw one word of what I said with regard to the necessity for the State to see that, wherever children are educated, they will be educated in such a way that they can become good citizens of their country, that they will be educated in such a way that they will not form any stumbling-block or be imposed as a brake on any development of this country towards that goal of cultural independence which is inherent in the national language. I also want to make it clear that, as far as I am concerned, I do agree that there should be no interference with the rights of the family except in so far as it cannot possibly be avoided, but I want to make it clear, further, that I acknowledge that the State has the right to see to it that parents fulfil their duty to their children and the only way, as far as primary education is concerned, is to give the Government or the Department for Education the right to call for an inspection of schools or of individual pupils as the State or the Department for Education may think fit.

Cathaoirleach

The Minister.

Sir John Keane

Is the Minister concluding, Sir?

Cathaoirleach

No; this is the Committee Stage.

Minister for Education (Mr. Derrig)

I do not intend to speak again on the matter, so perhaps I had better wait.

Mr. M. Hayes

As a matter of fact, I think the Minister could have shortened the debate if he intervened after Senator O'Connell. Apart from the question of principle, which is being debated so much at large, is it correct that this section deals only with children who are being taught at home or who are being sent outside the jurisdiction, outside of Ireland—the Minister says he has no intention of interfering with people going to Northern Ireland? Will the Minister say why he wants this particular section for the purpose of examining the child, as distinct from Section 20, which provides for examination of schools? If he would tell us that, and also how he is going to examine the children, it might shorten the whole business.

Mr. Derrig

Perhaps I had better explain, for the benefit of Senator Hayes. I explained that, under the original Act, one of the reasons which may be given as a reasonable excuse for failure to send a child to school is that the child is receiving suitable elementary education in a manner other than by attending a national or other suitable school, and I explained to the House that the determination of whether the education in question was suitable or not had not been provided for. There was no method, in my opinion, of determining it, in accordance with the provision of the Constitution, which lays down that the State shall take steps, in view of actual conditions, to see that children receive a minimum education. It is in accordance with that principle that this provision, Section 4, has been brought in. It is an amplification of Section 3, sub-section (2), clause (b), which gives as a reasonable excuse for failure to comply with the section

"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."

Some provision must be made for dealing with children who are not going to the types of schools which are mentioned in the Bill. The Minister, under this section, may make inquiries and I have explained to the House that if it should appear to him, and if he has evidence to make him believe, that a child is not receiving a sufficient minimum education, he will have power to take certain steps to get knowledge on one side or the other which will enable him to determine whether, in fact, the child is being educated or not. If Senators read through the section they will see that the Minister may make such inquiries and investigations as he shall think proper. If it is the case that the child is attending a school which the Minister, without very much detailed inquiry, feels satisfied is a type which would give the child a suitable education, I think he will certify it accordingly. If the child is not attending one of the schools mentioned in the Bill—this section deals with that situation—the parent will have to communicate with the Minister and say in what manner the child is being educated, whether at home or with relatives or any other way. In that case, if the Minister is not satisfied, if it should appear to him or a complaint is made to him that such child is not in fact being educated, he may ask that the child should attend on a certain occasion, convenient to itself, to be questioned by the inspector or, if he is satisfied that such actual interview with the child itself is not necessary, he may, of course, as a preliminary, if he considers the matter of importance, ask the inspector to interview the parent first and get whatever information he requires. That is provided under Section 4 (2) (d). The test, of course, may have to be applied if the Minister has not got any information, after making preliminary inquiries, to show him that, in fact, the child is receiving the fundamental education that is necessary. He may then ask that the child be tested by the inspector who would take all the circumstances into consideration.

I explained or, at least, I intended to explain, that when children are being educated at home, and when it is clear that the parents are providing tuition for them, there is no intention whatever of interfering in the domestic arrangements. I think when it is made known by the parent that he is making such arrangements for the private tuition of his children, the Minister would grant the necessary certificate. But, if it should appear that there are parents in the country—and there may be such—who are not in fact providing for the education of their children, while they say that they are, who may in fact be keeping their children away from the ordinary national school, let us say, on the ground that they are providing for the children's education themselves, it seems to me that in such a case, for example, the Minister would be failing in his duty if, having received information that that was the position, he did not take steps to inquire into the matter.

I think if the parent is not prepared to give the Minister the information he seeks as to what education the child has had, what kind of education he is receiving, what actual provision the parent is making, the Minister, as guardian of the community rights in this matter and as the appropriate State authority, should be entitled to take action against that parent. If the parent has conscientious reasons, then I suggest that those reasons, which were debated at some length when I was last in the House, are covered by Section 3 sub-section (2) (c) where it is made quite clear that if a parent has not available a national school, a suitable school or a recognised school accessible to the child, to which he does not object on religious grounds, then he is not compelled to send the child and, as far as the Minister is concerned, that child in the absence of a school to which the parent does not object in his vicinity, may not receive any education at all.

We have taken steps to deal with the vast majority of children under the School Attendance Act which is at present in operation. As Senator O Buachalla has pointed out we have the position—and I think we ought to advert in these discussions to the realities of the situation—that large numbers of children are not attending school, that very large numbers having been brought before committees and the courts, have had to be sent away from their parents. I am not in the position of discussing this matter in a theoretical or philosophical manner. I have approached it in the first place as a member of the Government, as one who is interested in implementing the Articles of the Constitution which lay down these Christian principles which have been referred to. In the second place I have administrative experience over a period of years and I have had to deal with actual cases—to ask myself, for example, whether it was for the moral, intellectual and even the physical good of the children that they should be left to their parents or whether they should continue to remain in the schools to which the courts had sent them, I having a discretion in that matter to release such children. I have had to ask myself whether, even from the moral point of view, I am entitled when certain facts are brought before my notice, to release children to their parents. I have had to decide on the facts before me that I am not entitled so to release them. Does anybody suggest that in such cases I am interfering with the rights of parents, or does anybody contend that because it is my duty under the administration of the Government here to determine that question, that that power should be taken from me and that we should revert to the position when no arrangements were made for such children, when they were allowed to wander, to go into bad company, to be out at night or to remain in homes in which there were serious domestic stresses and very often worse? I think everybody agrees that it is right that the State should interfere in such cases, in spite of the writer in The Tablet, who is writing in reference to entirely different conditions.

I do not say that we should not advert to conditions in other countries but I do not think we should have such an inferiority complex in dealing with our own situation and in carrying into operation the principles that the Irish people have laid down for themselves in a Christian Constitution. I do not see why we should have such a complex that we are afraid to deal with this question and examine it home. There must be differences of interpretation, but if we are going to have these principles surely we ought to endeavour to see that they arise out of a consideration of our own actual conditions, not because we have certain types of Catholic life on the Continent, not because in a neighbouring country you may have a very serious situation with regard to the whole problem of the juvenile population, where fathers and mothers are separated from their children, where children are homeless, abandoned and outcasts. You have on the one side the philosophy that there should be more liberty in these cases and that nothing should be done lest the rights of parents should be interfered with. I do not sympathise with the idea that parents have an absolute right in these matters over the rights of the community or beyond those which, after carefully examining the question, the community through its representatives chose to embody in the law of the land. I think the Constitution itself, in providing that in certain cases the State may come in and take the place of parents who have failed or neglected to carry out their duty to their children and also in the fact it lays on the State the duty of seeing that these children have this minimum education, has taken up a definite attitude, that there is a definite orientation in the way of regulation on Christian lines, taking Christian principles as the foundation and not in the way of some idealistic attitude that the best course and the best situation is that the parent should have liberty.

The parent should have liberty, but does that mean that the parent who is not doing anything to give his child education or to give him the foundation that is necessary to become a worthy citizen, should be given the right to neglect that child? I claim, as Minister for Education, that I stand in the position also of having a certain duty as protector of children, particularly of those children who are neglected, and that I come in as representative of the State to see that where they are being neglected that situation shall be brought to an end, that so far as can be they will get a minimum education and the minimum physical and moral training also that is required. I think, therefore, that a good deal of this discussion has been beside the point. We are not talking merely of philosophical principles here. They are, no doubt, of the greatest importance in this matter and they were carefully considered when this section was being drafted by my advisers and by the legal advisers of the Government. I am satisfied that there is not any infringement of the rights of parents but we cannot take up the position, if we are going to save children who are being neglected and who are not being educated, that rather than deal with that situation, that rather than appear to infringe on the rights of the parents generally, we shall leave that situation undealt with. It is a question of interpretation and there are differences of opinion as to how far one may go, but this, at any rate, is my considered opinion. This is the view I have arrived at after careful consideration of the matter over a long period. If this section were not in the Bill it would simply mean that you would have no means of dealing with those parents who would claim that they themselves were arranging for the education of their children. They could defy the Minister for Education, or his officials, in refusing to give information as to what exactly they were doing. They could simply ignore the community rights which, I suggest, must be adverted to here.

Mr. M. Hayes

Could the Minister give us any idea of the size of that particular problem? Could he give us the number of parents who neglect their children, not in the ordinary sense of the word, but the number of parents who claim the right to educate their children in a particular way of which the Minister might not approve?

Mr. Derrig

I do not think it would be very large.

Mr. M. Hayes

Is there not power given in the section to override entirely the parent who is not neglecting his children but who is adopting for his own purposes a particular method of educating his child?

Mr. Derrig

I do not know why the Senator assumes, or why any Senator should assume, when we set out to amend the law dealing with school attendance so as to ensure that every child gets the minimum education provided for by the Constitution, that that is not, in fact, the object of the Minister but that his object is to penalise parents who may disagree with him politically or in some other way.

Mr. M. Hayes

That is very unfair. I did not make a political statement, nor was I thinking of politics. I should, probably, disagree with the people in question as much as the Minister does. I used the word "override" in its ordinary sense. In a conflict of opinion between the Department of Education and any given parent, does not this section give the Department of Education complete power over the parent, however it may be exercised?

Mr. Derrig

Yes. There must be some final authority. I maintain that the present position, whereby the parent is the final authority without any reference to the authority of the State or communal rights, is an indefensible position. It is to bring that to an end that the present section was introduced. It gives the parent an opportunity of stating whether or not he is educating his child. It imposes upon the Minister for Education the duty of explanation. If he thinks that the child is not being suitably educated, he has to give his reasons. He cannot refuse a certificate to the parent until he has given him a reasonable opportunity of fulfilling the requirements. Latitude is being given —and rightly so—to the parent. If a parent is wilfully refusing to educate his child and if he argues that, in fact, the necessary education is being given privately, all that is provided is that the Minister shall, in the last resort, have authority from the Oireachtas to investigate that position and to take steps to determine it.

I do not believe, as I said, that the number of these cases is large. There is no intention whatever of interfering with parents who are giving private tuition, or arranging for private tuition, for their children in the ordinary way. What is intended is that parents who are neglecting to provide education for their children shall be dealt with. If they are not to be dealt with, it will mean that while you make laws for a large majority of the people—about 90 per cent.—you are going to allow a small section to go free. Many people in that smaller class are sending their children to be educated outside the country. I have explained that it was not the intention, when this Bill was being drafted, that it should have special reference to that position. The question was raised in the other House. I do not know why. I can understand the question of the rights of parents to educate, their children in their own way, whether within or without the jurisdiction of the State, being raised, but what I cannot understand and what I believe to be entirely mischievous is the suggestion that it was sought to create a barrier between those who choose to have their children educated in their own way outside the jurisdiction of the State and those who choose to have their children educated within the jurisdiction of the State. There is no intention of interfering with the rights of parents, but this section has been drafted to fill a gap —to determine in some way, finally, whether, when a parent claims that he is providing suitable elementary education for his children who are not attending any school, that is so or not. Having regard to the provisions of the Constitution, that matter should not be simply left in the air.

Sir John Keane

I had not intended to speak on this amendment until I heard Senator Buckley. I am glad he lapsed into English because, otherwise, I might have been in complete ignorance of the—to my mind—very dangerous doctrine he advocates. I fondly hope that the Senator's views are not a shadow of things to come, that he will not some day be the leader of a Government which can put into force the astonishing doctrine he postulates. I should like the Minister, if he is speaking again, to deal specifically with the point Senator Buckley made. He said that the Government should have power—what is the good of having power unless they use it?— to impose a test in education, so as to ensure that every child shall be educated in the principles of nationalism and in the knowledge and use of the Irish language. In fact, to carry that a step further, such education should be a sine qua non of every citizen's education and steps should be taken to see that those principles were given effect. The next step is obvious —no child should be sent outside the country to be educated because, outside the country, one could not get, unless one sought in out of the way places, these subjects included in the curriculum. That is a profoundly disappointing point of view.

Does this section give power to enforce Senator Buckley's views? It does. They can be enforced through the medium of what is called a "suitable education". I can conceive Senator Buckley as Minister for Education. He presumes that every parent must obtain a certificate before his child can be educated abroad. I can imagine Senator Buckley saying: "Where is your child to be educated?" The answer may be: "At an English public school." He will say: "I cannot allow that because, at an English public school, he will not get education in Irish nationalism or in the Irish language." I think that the Minister honestly intends that that doctrine shall not apply. But that is merely an intention. I say that the section gives that power to the Minister and that is where the danger lies. If that idea gets abroad, I can see the utmost havoc being created in the whole of society. Apart altogether from the principles that Senator Buckley advocates, is it to the advantage of the country, even from the narrow, nationalist point of view, that steps should be taken to prevent anybody who wants to do so from being educated outside the country? I ask that question plainly and simply. Surely it is in the national interest that the outlook of our citizens should be wide, that we should aim at being part of the comity of nations, associated in the work of humanity and the broader outlook of the world regarding international relations. Will the Senator suggest that, because you are so associated, because you are concerned with the brotherhood of mankind, perhaps, even more than with that of your own citizens, your nationalism is impaired and your country suffers? Does he suggest that, because other countries such as America, Great Britain and, in fact, all the countries I know, place no obstacles in the way of parents who desire to have their children educated abroad, they are necessarily lacking in patriotism?

That is why I am so profoundly disturbed with the views enunciated by the Senator. If it were felt that these views were going to be the law of the land you would have uneasiness and, I should say, emigration by a large number of well-to-do people. The Senator scoffs at wealth and says why should wealth have privileges, but everybody knows that people of leisure contribute very largely to the common good. I agree that leisure can be abused, but, without people of leisure, you will have a great limitation on scholarship, art, culture and the wider things of life. I think it is disastrous to know that the Senator should hold, and honestly hold, as I am sure he does, views so narrow, views that in the long run would do damage to the real essential interests of the country. I should like the Minister to answer this point: has he the power—I do not say that he would use it or intends to use it—under Section 4 to apply the doctrine enunciated by Senator O Buachalla? If he has, I consider it a most alarming thought for our people to entertain.

Mr. M. Hayes

I think I have heard the Minister twice on this particular section, on the last occasion on an amendment moved by Senator Johnston and Senator Douglas, and to-day on the question that the section should stand part of the Bill. I still do not understand what the purpose of Section 4 is, unless it be the purpose which Senator O Buachalla made very clear, and about which Senator Sir John Keane is afraid. Now, my fears are different from those of Senator Sir John Keane. I am not worried about wealthy people leaving the country, but I am worried about those of us who live in the country and are not wealthy enough to leave it, and about the liberty that we and our children are going to enjoy under this kind of legislation. We do not want to leave the country any way.

There is the problem that Senator O'Connell pointed out, that in this State we have 65,000 children absent from the national schools every day. In Dublin City, the number is 11,000. We are all in complete agreement on this: that suitable machinery ought to be introduced to make those children who are on the rolls of our national schools attend school. There is a considerable amount of machinery in the Principal Act and in this amending Bill for that purpose. Section 4 deals with a much smaller number of children. I really cannot conceive why the Minister will not tell us what that small number is.

Mr. Derrig

I do not see how the Minister could.

Mr. M. Hayes

That seems extraordinary. Surely, the Minister must have some idea, because he told us that it was as a result of his own administrative experience that he felt it necessary to bring in this section. The Minister is not the only person in the House that has had administrative experience or that understands this kind of machinery. Some of us here have had experience of that kind. Section 3 allows any parent who is prosecuted to make the defence in court that the child is receiving suitable education other than by attending a national school, a suitable school or a recognised school, and it is for the court to decide whether that plea is correct. The Minister is not satisfied with the courts. This is one of the things that has been objected to here on general principles: that the Civil Service is becoming less and less satisfied with the courts and wants more and more to oust the jurisdiction of the courts. It wants power put into the hands of some official acting in the name of a Minister. That is the general broad principle.

It is true that Section 4, if we are to take it as it stands, compels every person whose child is not going to a recognised school, a national school or a suitable school to notify the enforcing authority under pain of a fine not exceeding £5. In other words, if we pass this particular section, any person who is going to give his child an education at home or send the child to the Six Counties or to England must give notice to that effect to the enforcing authority, whereas previously, the position was that only when he was a defaulter and detected was he put on his defence. Is not that the position under this section? We have had the Minister's view of what the section is for. He says the section is not intended in any way to interfere with people who send their children to the Six Counties, but it is not disputed that the section could be so used.

Professor Magennis

It is.

Mr. M. Hayes

I have read a fair amount of sections and of bills in my time, perhaps as much as anybody here, and have devoted as much thought as anybody here to the meaning of sections in Bills. It seems quite plain to me that it is open to the enforcing authority to disagree that a school in the Six Counties is a suitable school. It is, surely, possible to apply this particular section in that way. It may not be the intention of the Minister himself. He knows from his experience when in Opposition—I have often heard him say it when in Opposition— that on many occasions governments and parliaments pass legislation which turns out to have a different meaning from the meaning it was meant to have by its introducers. This section, quite plainly, can be applied to the Six Counties. The Minister says that it is not intended, and that neither is it intended to apply to English schools, although Senator O Buachalla in his statement quite clearly would apply it to some English schools.

If we are to take Senator O Buachalla's criterion then no English school will suffice while only some of the Six-County schools will suffice. In some Six-County schools children get a better education with regard to Irish than they can get here. Presumably, in no English school can they get that. Therefore, if Senator O Buachalla had anything to do with the administration of this particular section he, surely, would object to children being sent out of the jurisdiction where they would not learn Irish.

The Minister, speaking a moment ago, said that he did not want the section to apply to English schools, to foreign schools of any kind or to Six-County schools. That being so, what does he want the section for? I cannot understand. You have an enormous number of children—65,000—absent from our national schools every day. That, heaven knows, is a sufficiently large problem for the enforcing authority, for the police courts and for everybody concerned, and I am sure there are sufficient files and information about all that. What other children do you want to get at now? The Minister, in his speech, continually talked about the defaulting parent. The trouble arises about the parent who, from the point of view of the Minister or Senator O Buachalla or even from the point of view of Senator Tierney, may be a wrong-headed fellow. I am not a philosopher and I refuse to take any part in Senator Magennis's and Senator Fitzgerald's philosophy. I am just a plain, blunt man. I do know something about schools and scholars, but such a parent may be a wrong-headed person and say: "I am going to keep my child at home; I am a well-educated person and I am going to educate him in any way I like, and I am not going to tell you anything about it." There is power in that case to prosecute him because he will not produce the child for examination.

Mr. Derrig

If the Minister has evidence that the child is, in fact, being educated, he is hardly likely to expose himself to ridicule by bringing a parent into court who is going to make the perfectly good case that he has educated his child.

Mr. M. Hayes

What we are discussing is a section that is going into an Act.

Mr. Derrig

Yes.

Mr. M. Hayes

I have known Ministers of more than one Party to make themselves completely ridiculous.

Mr. Derrig

Not in this particular matter over a period of 16 years.

Mr. M. Hayes

Why should the Minister want this power? According to himself, if he exercised it, it would make him ridiculous. Therefore, he should not have it and should not ask for it. It is foolish for him to insist on getting it. I cannot see why all this pother is being made about those children. Their number is very small. I do not at all agree with Senator O Buachall that we want this uniformity in nationalism.

I am as good a nationalist, I hope, as Senator O Buachalla and I rather think he did not do himself justice by the rather pharisaical speech he made when he called upon us all to witness that there was more Irish understood upon his side of the House than on ours. I think that is not literally true, and if the Senator would make a little investigation he would find there is more Irish understood and better Irish spoken, in some instances, over here than anywhere else in the Seanad. In saying that, I do not mean to reflect at all on the Senator himself. We have this pharisaical attitude, that: "If you do not adopt my view about Irish, no matter how much you know, you are not a nationalist"——

Liam O Buachalla

I have not implied that at all.

Mr. M. Hayes

It was very clear to me. I have an interest in this matter of education and Irish that goes away back to the time when the British were in this country, and I put down money, though I had very little of it, to have a school set up in Dublin to teach people through the medium of Irish. My bona fides in this matter are quite unshakable.

Liam O Buachalla

That is accepted.

Mr. M. Hayes

I refuse to give my approval to the notion that, when a small number of people do not want to have Irish taught to their children, they should be compelled to do so. I say that that is foolish.

Liam O Buachalla

If the Senator noticed a rather widespread tendency in that direction, would he not do something to check it?

Mr. M. Hayes

A widespread tendency in that direction is impossible under existing circumstances. There is no use in people harping on these rich-class people. There is practically no rich-class people now in the country and soon there will be no rich-class people in any country. Senator O Buachalla talked about the attempt to sabotage the national effort. That could not be done by the small number of people who could afford to send their children to England. I could give the Senator plenty of historical examples of Irishmen educated in England at Oxford and coming back here unable to speak the English language properly.

Liam O Buachalla

I have not confined myself to schools in England. I was thinking of the possibility of that being done in this country.

Business suspended at 6 p.m. and resumed at 7 p.m.

Mr. M. Hayes

I was endeavouring to deal with this Section 4 in the calmest possible way and without very much advertence to the principle of the powers of the parent and of the State. It seems to concern a very small number of people, and I think the Minister will not deny that this is a very elaborate provision for that purpose. It contains a new principle, in that it compels—under sub-section (5) —the parent who is not sending his child to a particular type of school to notify the enforcing authority and makes him liable to a fine if he does not do that.

The whole notion of Ministerial guarantees of what will or will not be done under any Act of Parliament has very grave defects. There is no use in the Minister explaining what he will or will not do. The Minister for Education cannot speak for the enforcing authority. This Act is to be enforced by committees all over the country and there is no knowing what exact line they will take. Apart from that, the whole notion of examining the child is not a good one. As Senator O'Connell said, it will lead to complications, it will be very difficult, it will be done very rarely, and there is no necessity at all for such an elaborate section for the purpose of doing it.

The Minister very carefully avoided any advertence to the principle laid down by Senator O Buachalla. There is no denying that the Senator is a member of the Minister's Party—a front bench member nominated to this House apparently to speak to us the true gospel of Fianna Fáil. We learn from him that, in his view, every child, whether educated privately or not, should be compelled to learn Irish, and that the tendency to send children outside the country should be checked. I am and always have been a strong advocate of the Irish language, but I am not an advocate of uniformity, and I think that Senator O Buachalla has the idea that was worked in a great many European States, and one of the ideas and processes that has brought about the present world war—the idea of endeavouring to ram a particular kind of nationalism down everybody's throat. There is no possibility of anyone who educates a child privately or sends a child to England sabotaging the national effort for the Irish language. If we were really in earnest about the Irish language, there is no class in the country deemed to be against it that could in any way interfere with our efforts. We could get along ourselves and Irish would become the common language, which would like a tide, so to speak, flow over the others and make them swim in it.

Senator O Buachalla went further. He wants people to know Irish. He wants to have a national object in education. That is not capable of exact definition: one Minister may have one object and another Minister another object. Senator O Buachalla said he wanted the children to get a national outlook in the schools. My national outlook differs from that of Senator O Buachalla, though, as it happens, both of us are Irish speakers. We would have a very dangerous position in which not only the Irish language would be taught but a particular version of history would be taught, and that is very objectionable. I know the Minister may tell me that this is to some extent theoretical, problematical, hypothetical, and not likely to happen at all; but the Minister should not take power here to do something which, according to himself, he does not want to do. If people who want to go very far get a majority under this democratic system, they could go a long way. Neither the Minister nor ourselves should leave after us a handy weapon for some persons to grasp and use in an objectionable way.

The Minister has said that the State should have power to determine what is suitable education for a particular child. I do not think so; and even if it were so, I would like to go on record as thinking that it should not be operated and that it should not go into legislation. We should allow as much variety as we can. The State has a perfect right to prescribe Irish and to prescribe certain things in our own schools. It has the right also to make the language compulsory for civil service and other posts. It is compulsory, for example, for those who wish to become members of either of the two legal professions. However, if any number of people do not want to learn Irish and wish to make other arrangements for their children—and that necessarily must be a small number— I have, frankly, no objection. That necessarily small class would be bound, in the end, to be overcome by the forces of nationalism. I do not mean flag-wagging nationalism or the nationalism that is doctrinaire about certain forms of government. There is a cultural force, a unifying force, a social force, and I have the greatest possible confidence in its overcoming any possible opposition.

I do not think it is necessary for the Minister to take this power to deal with the small number of cases that the Minister mentions. It is objectionable, not only from the point of view of the minority, but from the point of view of the majority. It is objectionable also in that it seems to be unworkable. The Minister had better proceed on the lines of Section 20. It is worth considering whether any person should be allowed to open a school without proper qualifications. There are many people teaching in schools, which are not completely private but are called preparatory schools for secondary colleges, where the teachers are not as well qualified, in some cases, as national teachers and where, in some other cases, they have no qualifications at all. There is a case for inspecting them and seeing that the people who teach have minimum qualifications. That principle has been applied to doctors and dentists, and it is sought to be applied to architects and engineers. Perhaps, with certain modifications, it might be applied to the practice of teaching in the country. Section 20 would accomplish something in that way.

This particular Section 4 seems to deal with a small number of people. It is unworkable and it is something which the Minister says he does not want to work. Therefore, it should not be left in the Bill at all. It enforces a principle with which several sections of the House and several sections in the country are in violent disagreement. The Minister would not lose anything by taking it completely out of the Bill. I listened to him very carefully on the last occasion and this evening. He seemed to be confusing entirely the defaulting parent who obviously ignores his child's education with the parent who, for some reason which seems good to himself, wants to take charge of his child's education. I think the latter parent should be let alone. The Minister would be well advised not to insist on this section going into the Bill. He would lose nothing except the desire which State servants and the State generally seems to have—as Senator Tierney has said —to fill every chink, to block every loophole, so that every child of every kind and class will come into the Bill.

The Minister made some play with the notion of well-off people getting away under the Bill. I do not think there is anything in that: one might make something of that argument at a cross-roads. I say that with no disrespect to the Minister. I do not begrudge well-off people getting away from this particular Bill if they can. It will not hurt the State, but will hurt themselves. For these reasons, I think the Minister should not insist on putting in this section at all.

Mrs. Concannon

The debate on this amendment by Senator O'Connell has extended over such a wide range and has brought us into such high regions of political and moral philosophy, that there is danger, perhaps, that we may forget some of the more practical aspects. It is with those practical aspects that I would like to deal. Senator O'Connell's amendment is to delete Section 4. Before we come to a decision on that, we should ask ourselves what the effect of such deletion would be. In its Long Title, the Bill purports to be "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." The Minister reminded us that at the present day there are 65,000 children whose parents are evading the provisions of the 1926 Act. I am not very skilled in legal terminology and I may not fully understand the exact implications of the wording of Section 3 (2) (b) of this Bill, but it seems, too, that the parents of every one of these 65,000 children might plead as an excuse under the sub-section that they were receiving "suitable education within the meaning of the Act, other than that obtained in a national school, a suitable school, or a recognised school." Therefore, the problem is much greater than Senator Hayes thinks. If parents keep their children away from "a national school, a suitable school, or a recognised school" they might plead that they were receiving "suitable education within the meaning of the Act".

As far as my reading of the Bill goes there is no definition of "suitable education". The words must have a legal meaning. If Section 4 were omitted then if any parent pleaded Section 3 (2) (b) before a district justice the latter would have to define what was "suitable education within the meaning of the Act". I do not know if any district justice could decide what is "suitable education within the meaning of the Act". Perhaps he could attempt a definition within the meaning of the Act, but the Act does not give such. At all events it would appear that if Section 4 were omitted it would be left to district justices to define what is "suitable education" within the meaning of the Act. As far as I could judge, Senator Hayes seems to think that it would be preferable to give that power to a district justice rather than to the Minister. I appeal to the Senator to reconsider the matter. District justices are as fallible as Ministers. They may have whims, they may be fanatics, they may have all kinds of prejudices, they may be cranks, and supposing the education given did not satisfy their particular point of view, the parents might have a very bad chance of exercising their right to give their children what they considered to be suitable education. If it is left to district justices to define suitable education within the meaning of the Act, I think it would be necessary very soon to bring forward amending legislation. It seems to me that that would be very likely.

On the other hand, Section 4 does not purport to give a definition of what is suitable education within the meaning of the Act, but provides a test which should satisfy district justices as to whether children are or are not receiving suitable education. That is the whole purpose of Section 4. The other aspects are not so relevant as some speakers would have us believe. Take the position of district justices and the position of the Minister. The Minister, faced with the fact that he must satisfy himself that the child is receiving suitable education, applies certain tests. If the Oireachtas is not satisfied that the Minister exercises the necessary discretion, or that he is unreasonable in the application of the test, or if there is any other objection to the functioning of Section 4, then it is within the power of a democratic State to call the Minister to account but, as far as I know, we would have no jurisdiction at all over district justices. Therefore, before we vote on the amendment, we should consider very carefully what would be the effect of deleting the section. Certainly if it were deleted the situation would call for some other provision or else within a very short time the Minister would have to come to the Oireachtas to ask it to pass amending legislation.

Mr. Douglas

Apart from a great deal of interesting and, perhaps, abstract questions that have arisen in the debate, which I am not competent to follow even if I so desired, it seems to me that there are really two questions for consideration. The first one concerns children being educated outside the State. Senator O Buachalla says he considers that there are a limited number of cases where it would be necessary for children to be educated outside the State. I gathered that Senator Magennis agrees that there are a certain number of parents giving their children a good education, who desire that they should go outside the State for it. That is my view and, I gathered also, the view of the Minister. Therefore we may take it that there is no difference of opinion on the fact that there would be a certain number who, for various reasons, may wish to have their children educated outside the State. If we agree upon that the only question that then arises is as to whether the section we are now discussing has any bearing on it. If I understood Senator Magennis aright—and I should like to say that he was very courteous to me yesterday in devoting a good deal of time explaining his view, although I have to confess that it did not convince me— he is of opinion that Section 4 does not apply, and could not be used to prevent children being educated outside the State. My understanding of what the Minister said is that he does not take the same view as Senator Magennis. He said that it could be used, but that it was not intended that it should be. I believe the position is that the section could be so used, but that it was never intended to be so used. In that case it seems to me that a solution, as far as that matter is concerned, could be found by a comparatively simple amendment, either providing that the section did not apply or by inserting some such words as "children educated outside the State" or including in Section 3 a provision for a reasonable excuse that a child is being educated outside the State.

If the number was very large, and if there were not certain minority rights affected there might be a case against amending the section. As the numbers are small the Minister would be extremely wise in giving legislative effect to what is intended, by making it clear that they will not be interfered with. I absolutely accept his word that there is no such intention. I suggest that this difficulty could be met by an amendment, and I ask the Minister carefully to consider it, inasmuch as it cannot affect what he is hoping to do under the section. He says that he had no intention of using it in the case of the small numbers of children whose parents wish them to be educated outside the State. I urge again that there is very grave danger, if this section is not amended, that when it comes to be put into operation there may be certain parents who feel that they must refuse to carry it out and therefore we would be up against a serious difficulty. As a general rule children are not sent outside the State to be educated until they are ten to 12 years of age. Then the parents feel, either for religious or other reasons, that a child of that age should be sent to school where it could be taught in accordance with their desires. Under this section a parent must then send notice in writing to the enforcing authority. Otherwise they would commit an offence. I am not at all sure that difficulties might not arise there. I do not want to mention cases but I have in mind certain districts where people might not do that. In cases where they do not do so, it is then up to the enforcing authority to prosecute or not. Before considering that he has to find out whether they have a certificate from the Minister. If they have declined to ask for a certificate from the Minister—as I believe some of them would do as a matter of principle—the enforcing authority will have to decide either to let the Act lapse on the grounds that it was never intended to use it, or you will have one more Act here which is not being enforced. Supposing they do not send the notice to the enforcing authority under sub-section (5), then I presume it will be up to the Department of Education, on being so informed, to take the necessary steps to get a conviction for an offence under the section. I think that that could be got over, so far as the children who are likely to be educated outside the State are concerned, by simply exempting them from it, and I suggest that any possible harm that can come from agitation and from unwillingness to carry it out is far greater than any harm which could come from exempting these comparatively few people. I suggest to the Minister that that is a comparatively easy way out of it.

Senator O'Connell, very rightly I think, pointed out that but for Section 4 and certain provisions in it you would get practical unanimity. There should be no need to emphasise this. This House, so far as I can gather, is completely unanimous in its desire to see that the 65,000 children who do not go to school should go to school. There may be a difference of 100 or so, but there is no difference between us that steps should be taken to see that they should go to school. So far as Section 4 is concerned, it is only a difference of opinion, apart altogether from the children who may be educated outside the State, as to what is the best way of attaining what Senator Magennis describes as the duty of the State in this matter. I think there is very little to be gained by appearing to emphasise what should be laid down as the duty of the parent and the right of the parent as against the right of the State or the duty of the State, because they are both rights and duties and I do not think anybody could deny either of them—at least in this country. They will only come in conflict on very rare occasions. On the rare occasion on which they do come in conflict or on which the parent sincerely and conscientiously believes that he ought to educate his child in a different way from what the State regards as suitable, I would differ from Senator Magennis. I would say that in that case the parents' right should come first. It would be only a matter of a relatively small number.

I think that no one in criticising this Bill is questioning that the State has a duty to endeavour to get even more than a minimum of education, to provide as good education as it properly can for the majority of the children. I am convinced that can be done, if it is done wisely, without cutting across what I still believe to be a greater right and a fundamental right, and that is the right of the parent. Abstract arguments as to which is the most important I do not think will help us in connection with this section. At the same time we want to be very careful in legislation to see that we do not cut across the conscience of a small number of people, because what otherwise might be excellent legislation which could be enforced and which would be of value to the community as a whole may be defeated and confidence in it may be destroyed because of the fact that it can be operated to injure a comparatively small number in a matter that is to them of vital importance.

I do not think that there is any use in taking other illustrations, because when you are touching education it is not to my mind in any sense comparable with the right of property, because you are dealing with what most of us believe to be a fundamental religious matter which affects not only the health, as it must do, but the life of the child and also the soul of the child. In a matter of this kind you cannot compare it in any way with what would be regarded as the State's rights over property or almost any other matter. Therefore we have to be extremely careful in dealing with it. Whereas it might not much matter if you took powers which you do not intend to use in matters affecting property, because that can be comparatively easily got over, you will want to be very careful not to take powers, even though you do not intend to use them, that may suggest to conscientious parents that they may not be able to do what they believe to be right. If a parent, who may be a Catholic, happens to be in the minority in his own religion, or if a parent belongs to a religion which is in a minority, for some reason feels that he wants to send his child to school outside the State, and if it is a matter of his best judgment, we will gain nothing whatever for the education of our children by interfering with him. I think we are agreed upon that. I suggest that we gain nothing and may lose something if we have it actually in black and white that at some point the power is there to be used if somebody at some future date so chooses. For that reason I would urge the Minister, if he will not agree to the deletion of the section, at any rate seriously to consider whether there are not some amendments which would get over almost all this difficulty.

I urge that we should not treat this as a matter of Party politics. I am certain it was not so introduced by Senator O'Connell, who was moderate and clear in his statement, and I do not believe it is the desire of anybody here to make education a matter of Party politics. Those of us who urge amendment are doing so because we do not want anything in a Bill of this kind which could be used, either inside or outside the State, to affect its credit. That is the only reason why we are urging the matter so strongly on the Minister.

With regard to the point made by Senator Mrs. Concannon, that is a matter for legitimate difference of opinion. I do not agree that there is as much danger as she thinks of district justices making extraordinary decisions with regard to suitable education. You will get cranks amongst them, but cranks are even to be found in Government Departments. I will not say they are to be found in the Minister's Department, but there are a few in the Civil Service. No matter what you do you have the human element and you will always have the risk of a possibly bad decision. I am afraid that is something which we cannot help. It is, I think, a matter for legitimate difference of opinion as to whether it is better to leave it to the district justice, in the case of a prosecution, to define what is suitable education or to leave it to the Minister. This Bill takes it, in effect, from the district justice, who was the decider before, and brings it to the Minister. I think that is a mistake, but it is a matter for legitimate difference of opinion. Senator Mrs. Concannon says that it has the great advantage that the Oireachtas has certain power over the Minister and that it can therefore be discussed. With very great respect, I think that is one of the disadvantages. I cannot think of anything more undesirable than a public discussion, or even a question, in the Dáil about the examination of a particular child. If the Minister has the power, she is right in saying you can ask a Parliamentary question about an examination or the refusal of a certificate. But, for my part, I would be sorry to see that happen. I think it would not be good for education in this country or for Parliament. Therefore, while I appreciate her reasons, I think they are reasons against leaving it to the Minister, rather than reasons for it.

Professor Magennis

Senator Douglas was kind enough to say that I had been generous, or words to that effect, yesterday, but that I failed to convince him. As a matter of fact, if he will recollect, he did not permit me to finish a single sentence in my exposition, and under those conditions it would be impossible for me to convince him. Furthermore, in the speech he has just now delivered, he ignores completely the arguments or answers that I have given out of the Constitution. Both he and Senator Hayes refused to recognise the Constitution as a relevant argument with regard to this matter. Senator Douglas disposes of the whole thing by saying that, so far as the Constitution is concerned, such arguments are purely abstract. Could anything be more concrete than the provisions of the Constitution in connection with this proposed legislation? I cannot think of anything more concrete or pertinent. Senator Douglas, himself, appeals to the principles of the Constitution, evidently as being concrete and pertinent arguments when he wants to appeal to them, but afterwards he refers to them as being abstract. When he appeals to the Constitution, it is one thing, evidently, but when I appeal to it, it is a different thing. Now, I deny that this empowers the Minister to prevent any parent from sending his child outside the jurisdiction of the Minister of this Government, if that parent is conscientiously convinced that he is doing better for the child by doing so. I deny that, and I challenge anybody to show one iota in this Bill that lends itself to that as a reasonable interpretation.

Professor Tierney

Would Senator Magennis explain that a little?

Professor Magennis

Certainly.

Professor Tierney

Is it not laid down in the section that a person who sends his child outside the State can be prosecuted before the school attendance authorities?

Professor Magennis

Quote any section or sub-section where that occurs.

Professor Tierney

I have not got the Bill with me at the moment.

Professor Magennis

There is no such section or sub-section in the Bill, or anything remotely like it that, even on a hasty reading, should confuse one into thinking that it is there. About half a dozen different answers could be put up to the case that was made by Senator Douglas just now.

Professor Tierney

Would the Senator explain what the section means, then? In the opinion of every other Senator who has spoken about this matter, that is the meaning of the section—that that power is given to the Minister. Will the Senator explain what is in the section, if that is not in it?

Professor Magennis

I have answered that on two different occasions. It may seem that I am imposing frightfully upon the House in being, perhaps, too meticulous about abstract things. That is the idea—to suggest that they are abstract and therefore to wave them to one side. To come back to the Constitution again, however, the Constitution recognises what Senator Douglas and the rest of us recognise: to wit, the parent—the rights of the parent. I am sorry that Senator Fitzgerald is not here. I would have spoken earlier only that he was absent. His interpretation of the right of the parent is one that identifies ownership of a chattel with the right of the parent in the child. The parent, according to his conception of the matter, may say: "The child is mine; I shall do what I please with the child, and you must not interfere with me." If that were so, what would become of the legislation that we dealt with in April, 1941, the amendment of the Act of 1908— where we dealt with vagrants? There are clauses in this Bill dealing with vagrants, and I suppose Senator Fitzgerald would be inconsistent enough to let that go in the case of a vagrant but deny it in any other case. Now, it must be remembered that the child has rights. There is even such a thing as the right of the unborn child. There are laws against abortion. Why is that so? It means that the child has a right with which no individual is permitted to interfere, but according to Senator Fitzgerald, and according to what is implied in arguments by Senators Douglas, Tierney and other Senators, there is a conflict there— Senator Douglas speaks of the conflict between the rights of the State and the rights of the parent.

As I pointed out earlier, there are three rights involved. It is the duty of the parent to educate the child, and because it is the duty of the parent to educate the child, the child has a right against the parent to get that education. There are, of course, circumstances in which the parent has not the means to supply that education, but that is contemplated in the Constitution, and also in this legislation that is now before us. Now, in the Constitution, in addition to Article 41, there are sections of Article 42 which lay down that principle. Article 40 of the Constitution says:—

All citizens shall, as human persons, be held equal before the law.

That is, they have the common rights attaching to personality, in virtue of personality. Then Article 41 says:—

The State recognises the Family as the natural, primary and fundamental unit group of Society...

and that is applied to education—

... and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

Article 42 says:—

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.

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

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.

Could anything be clearer, I ask, than that? I shall repeat it, even ad nauseam:—“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.” I think it was Senator Professor Tierney who asked what was meant there by the word “lawful”. The reference is to the moral law.

Professor Tierney

I do not think I said so.

Professor Magennis

Excuse me. I am fairly certain that the Senator did, Sir, and I shall appeal to the Official Report afterwards. He asked what did the word "lawful" mean in that connection. Again, I would refer to the words of the Constitution, which say 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.

The next sub-clause of that Article of the Constitution says:—

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.

Is it necessary to point out to Senator Douglas or Senator Tierney the significance of the word "however" there? I have referred to it already. The words are that the State shall, however, as guardian of the common good require in view of actual conditions—there is nothing abstract about actual conditions—that the children receive a certain minimum education, moral, intellectual and social. Now, that has to be implemented. I argued that on the last day. It remains a doctrine and a guarantee in the Constitution, that it has to be implemented when we have compulsory education. Senators overlooked the fact that the reason why compulsion applied to parents is justifiable and legal is in virtue of that. Not a single soul in this House has stood up at any time to impugn the right of the State to have compulsory education. We have not heard one iota from any member of the House against compulsion in the matter of education. Now, in virtue of what, is there compulsion? It is in virtue of the fact that the State —the citizens in a corporate capacity— in order to safeguard the integrity and welfare of the State, shall see to it that its integrity and welfare shall be protected by means of the education of every citizen of the State, so far as that may be possible.

Most of the attacks that are made on Section 4 ignore the fact that that section is the implementation of that item of the Constitution, and it is in virtue of the Constitution that we are entitled to legislate for compulsory attendance at school. It never occurred to Senator Fitzgerald when he was talking of the parents' right over the child—in his interpretation, it was tantamount to omnipotence—to attack compulsion. What right has the State to compel any parent to send his child to any school of any type? Is not that getting down to bed-rock? It is in virtue of the social necessity; it is in virtue of the right of every child to equality of opportunity in a democratic State. One of the first doctrines enunciated in the Constitution is that the people take to themselves a Constitution which declares that this is a democratic State, and one of the first essentials of a democratic State is equality of opportunity. A poor parent cannot give the same inheritance to his child as a wealthy neighbour can give to his child. The pauper cannot indulge his child, except in comic papers. There is a famous case of the pauper's will: "I have nothing, but I bequeath all of it to my only son." That is no joke. What a parent cannot do, but with the assistance of the State can do and ought to do is to endow his child with the opportunity of making the most of what is in him, to provide him with religious and moral training and the discipline of school, to provide him with what will give him an opportunity of becoming a great man or a good man, or a great good man in his State. That, some cynic will say, is an abstract conception of the relationship of the State to its citizens, but it is the Christian view of that relationship.

Senator Fitzgerald and occasionally Senator Douglas talked of the State as if they were referring to some great giant, some Blunder-bore, in the background of individual life applying the coercion which it is natural for a giant to apply to the helpless. That is not the situation here as between the State and the individual. Making the fullest possible allowance for the family right as well as the family duty, the State insists upon the nation's right, and the child's right—as against the misfeasance of a parent—to a minimum education. Unless that is implemented in an Act, which is an Act, essentially, of compulsion, compulsory attendance, then the Constitution remains a pious opinion almost, rather than an aid to the better development of the social organisation. My answer to the question as to why this Section 4 is here is because that provision is here in the Constitution.

That ought to be a safe answer. I gave that answer before. I am apologising for repetition, but it is repetition forced upon me. If we purported to confer powers on the Minister to act tyrannously, to invade the home contrary to national justice, it would be undoubtedly waste of energy, a dissipation of our forces, a loss of our time, because there is Article 15 of the Constitution. This again is no abstraction. This is a very important bulwark or protection for the rights of the citizen against an aggressive or usurping State. Sub-section (4) of Article 15 says:—

The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof....

Am I not correct in calling that the bulwark of individual personal liberties? The Legislature cannot validly enact a law which is repugnant to the Constitution, and it is clear in the Constitution that the State guarantees respect for the rights of the family as the natural God-appointed guardian and trainer of the child. Sub-section (4) of Section 15 says:—

The Oireachtas shall not enact any law that is in any respect repugnant to this Constitution or any provision thereof. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

It is not left to an enforcing authority nor to a district justice to declare that the power taken is too much. There is a far higher court than the district justice's court. There is the Supreme Court. It will be said that that costs money. Undoubtedly, but a parent who wins his case—he would easily win it if there were anything in this clause repugnant to the Constitution—will get costs against the State. Not only that, but he will have the sympathy of everyone. It is easy to scoff at that, but that is what the courts are for. That is why I have, on two occasions here, objected to anything which seems to infringe upon the independence of the courts because they stand between the individual and the Government. It is easy to scoff, as Senator Sir John Keane does, at my pointing out that there is this repugnancy point in the Constitution.

Sir John Keane

As Senator Magennis has mentioned my name, I should like to say that he only overheard a remark which I made. He said that if a parent was successful in the courts, he would get his costs against the State. My remark—the Senator must have very good hearing—was: "He will be out of pocket all the same." Now, is that scoffing?

Professor Magennis

I have no time to go through a lexicon to find a more appropriate word, but the noise that came to my ears—the Senator admitted that I have excellent hearing— is the noise that most people interpret as one of contemptuous ridicule.

Sir John Keane

He would be out of pocket all the same.

Professor Magennis

He might be out of pocket. It is perfectly true that he might be.

Mr. Baxter

If there was anything in his pocket.

Professor Magennis

He may, in his eagerness, incur a great many costs, costs between solicitor and client. That is perfectly true, but there is a bulwark provided in the Constitution, and that is one of the reasons why I protest against the suggestion that those are abstract things. They are not, unless we change the meaning of "abstract". The principle that regulates the life of the community can hardly be said to be an abstraction. It is a reality, unless we are to change the meaning of words and say the test of reality is what we can see with our eyes or touch with our hands. When the Constitution is implemented by Section 4, what religious wrong can be done? Suppose Section 4 is passed and becomes part of the law of the land, what religious wrong is done to anybody? What would happen would be something like this: the child is not at school; the attendance officer discovers he is not at school.

Mr. Douglas

The parent has to send a notice.

Professor Magennis

That is a point. The Senator is forcing my hand a little because I have an objection to the section. I intended to make my own objections after the amendment by Senator O'Connell.

Mr. Douglas

May I just point out to the Senator that he will be too late then? We are now dealing with the whole section. I hope he will do it before that.

Professor Magennis

No. With all respect, as I understand the order of procedure, when Senator O'Connell's amendment is defeated, the section as it stands on the Paper can be discussed.

Mr. O'Connell

On a point of order, I take it the question before the House is: "That Section 4 stand part of the Bill."

Mr. Douglas

That is the question.

Mr. O'Connell

That is the form in which an amendment to delete a section is proposed from the Chair.

Professor Magennis

I thought we were discussing Senator O'Connell's amendment.

Mr. Douglas

I did not want to interrupt. I only wanted to help.

Mr. Byrne

Will not the amendment be put first and, if it is defeated, will not the section be put?

Acting-Chairman

No. The procedure in a case of an amendment to delete a section is as stated by Senator O'Connell.

Mr. O'Connell

There is no need to put down an amendment at all.

Professor Magennis

Let me point out, for the satisfaction of Senator Douglas, that the Minister has already answered that the case that the Senator has in contemplation is dealt with, or could be dealt with, in paragraph (b), sub-section (2) of Section 3. Sub-section (2) is:

Any of the following but no other shall be a reasonable excuse for failure to comply with this section.

The reasonable excuse contained in paragraph (b), which the Minister quoted, is:

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.

Mr. Douglas

The meaning of that is defined in Section 4.

Professor Magennis

I have already explained that I do not like the drafting of this Bill. There are ever so many sections that are susceptible of better statement. However, I must take it as I find it. In Section 4, sub-section (5), you have this:

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, ...

That is the very excuse given as a reasonable excuse.

Mr. Douglas

I think it is Section 4, sub-section (1), that makes it clear that the whole of Section 4 is a definition which limits paragraph (b), sub-section (2), of Section 3. That is the whole case. I only want to clarify it between us. If the Senator will read Section 4 (1), he will see that that limits the meaning of Section 3 (2) (b).

Professor Magennis

I will read it:—

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.

Well?

Mr. Douglas

Surely that is clear.

Professor Magennis

Certainly.

Mr. Douglas

That means that Section 3 (2) (b) will not be a reasonable excuse unless there is a certificate by the Minister.

Professor Magennis

Oh yes, but I have not attacked that at all.

Mr. Douglas

I have.

Professor Magennis

What is happening is this, Sir: Senator Douglas is forgetting to go through the actual procedure. He, who is so opposed to abstract thought, neglects to go through the procedure that will occur in the case of a given child who is not attending school in the area of school attendance in which his parent resides. That is concrete. Very good. The school attendance officer reports this child. Maybe, under one of these other sections here, a child is found going about the streets at a time when it will be obvious to any one that, in view of his age and so on, he ought to be at school.

Mr. Douglas

It is Senator Magennis who is not going through the procedure. The procedure is, first, that he must send a notice to the authority.

Professor Magennis

Yes, but the Senator has not grasped that, in response to a remark of his, I am pointing out now what my objection to (5) is.

Mr. Douglas

I thought he was replying to my point about Section 4 (1).

Professor Magennis

I am grateful to the Senator for his proffer of assistance and his willingness to assist me. Perhaps the fault is mine. I may not have spoken distinctly. I said that I have my own objections to this (5).

Mr. Baxter

We did not hear that until now.

Mr. Douglas

Oh yes; I did.

Mr. Byrne

Yes.

Mr. Baxter

Sorry.

Professor Magennis

I was postponing consideration of these until the major question had been disposed of, to wit, whether or not, there is anything in what Senator Tierney calls persecution latent in the operation of Section 4 or in what Senator Douglas seems afraid of, that there will be power taken under it to deal unfairly with some member of a small religious denomination. My objection is that a parent who sends his child out of the country to school would plead, as a reasonable excuse for his child not being in attendance at one of the schools provided in his district, that the child was receiving suitable education within the meaning of the Act in a manner other than by attending a national school and the very excuse that the parent would give in his defence is now so dealt with, in sub-section (5), that he is to be fined, heavily fined, if he does not himself take the initiative and announce that his child is not attending the school, that he is going elsewhere. To my mind—I may be utterly wrong—that is a flaw. I left that all in abeyance because the principal issue to my mind, as I explained over and over again, is whether or not we are purporting here to confer a power on the Minister to do essential injustice to certain parents. No legislation that we purport to pass here can take away from the parent his lawful right in discharging his duty to his child in respect of religion. I have already laid stress on that.

The tests that are to be applied to the child do not include an examination in religious knowledge or doctrine of any creed or faith. That is expressly and clearly stated. Religious education is purely and exclusively within the control of the parent. The State does not interfere with it. I was very anxious that no one should be able to point the finger of condemnation at our State on that score. That is why I spoke of it first, as I explained. Those who begin to read Section 4 with an idea already in their minds look for and find what they wish to find. I do not mean that in any malign sense. I am merely speaking of what is an ordinary phenomenon dealt with in psychology—what is called the phenomenon of expectant attention. The man who is at a railway junction hears a train whistling somewhere near the junction at a time when it has not left the departure station. People see what they expect to see. Suspicious minds find corroborations for all sorts of things. I was labouring to show that there is nothing in this, with all its faults, to my mind, of bad draftsmanship, that confers on the Minister power to forbid anyone to send his child abroad to school. When we were discussing this on a previous occasion Senator Tierney drew attention to the word "before" in paragraph (a) of sub-section (2). The paragraph reads:—

The Minister may, before giving such certificate in respect of a child require such child to be submitted by his parents to such educational test....

It seems meticulous but it is practical and real—when is "before"? Is it before such child sets out? Surely not.

Professor Tierney

Before giving a certificate. There are also the words "to be receiving suitable education in a manner other than by attending a national school" in line 2, sub-section (1) of Section 4. These words have also to be taken into account.

Professor Magennis

The question is the time at which this test is to be applied. If the test—it is too ludicrous but I have to put it in this way—were to be applied before he went abroad it would be nonsense, because what you are testing is whether the child in that case has got a suitable education in a school to which he has not yet gone. When is the test to be applied? Surely some time after he has gone to the school. Therefore, there is latent in any rational interpretation of the clause, that the Minister has not forbidden the parent to send his child out of the country. You cannot read that as a rational or intelligible statement without the implication that the child is being tested as to whether or not the education he was supposed to receive in that foreign school is education that corresponds to the description "minimum" used in the Constitution.

Professor Tierney

The point that troubles me all along is that the child has to be certified by the Minister to be receiving suitable education—"to be receiving". That has to be certified as a result of examination and the examination can only test whether or not he has received such education.

Professor Magennis

The Senator has read out the words "is receiving". That can be interpreted to mean that when the child returns home on holidays from the school which he is attending abroad, the Department of Education can arrange that he be subjected to this test. Assume that this was passed as it stands, the court would hold, under the interpretation of statutes, that the words had a rational meaning and that the meaning imposed on them in each sub-section was coherent and compatible with the meaning of the rest of the Act. My argument is that there is implicit in the wording of this that the Minister is not preventing a parent from sending his child to a school outside the Minister's jurisdiction.

Sir John Keane

Would the Senator allow me to ask a question? I do not intend to be provocative, but the question is on that very point. Would the Senator say that it would be unconstitutional to include in the term "minimum education" a test as to the child's knowledge of the Irish language and of national history?

Professor Magennis

That does not arise at all. You might as well ask who I think will win a prize in the forthcoming sweepstake. The point at issue is what power this does confer on the Minister. It is alleged that it confers on him power to prevent a parent from sending his child outside the country. There is nothing, I repeat, in the four corners of the section that lends itself to that interpretation. On the contrary, I am saying that this cannot be construed as a rational document at all unless you take it that the child has already gone to an outside school. If the child is outside the country, what are we to test? Are not we testing the efficiency and the character of the elementary education he is receiving abroad?

Professor Tierney

I do not think there is any dispute about that.

Professor Magennis

I thought we had agreed about that the other night but Senator Douglas returned to it again this evening.

Mr. Douglas

I think it would really be better if we allowed the Senator to proceed. He does not understand us, and it is possible that we do not understand him.

Professor Magennis

If you do not understand me it is because you do not understand the Bill or the Constitution.

Mr. Baxter

He was not bad on Constitutions, as you know.

Professor Magennis

I do not know anything about his qualifications.

Mr. Douglas

That is also irrelevant.

Professor Magennis

It is irrelevant because the remark to which it was a retort is irrelevant. I do not like the wording of this section, as I have said. In clause (b), sub-section (2) it says:

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...

Here the draftsman makes the ground shift a little so that we are dealing not with a foreign school but with a school at home. Furthermore, in paragraph (d) of the same sub-section it is stated:

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)...

It seems to me that the words "if any" are in the wrong place, because they would admit of the interpretation "if there is a school", whereas I take it that they are intended to mean "if there is a manager or conductor". Finally, in this section, more than one reference is made to the refusal of the parent to submit his child to an educational test. That has not been dealt with by any member of the Opposition, so far as I can recollect. However, I am open to correction. It is upon the refusal of a parent to submit his child to an educational test that much of this turns. I am sorry to read the provision again but I am afraid I must. (Paragraph (a) of sub-section (2) read.) Why should it be claimed for a parent, merely because he has sent his child to a school outside our State, that he is entitled to refuse to have his child subjected to an educational test when every other child who gets his education in a national school, a recognised school or a suitable school must undergo tests?

That is something that has not been explained by anybody on the other side. Every child who goes to a national school is subjected to educational tests. There is a report even on the teacher. Let us remind ourselves again that the teacher can be dismissed. Why should we seek to exempt a child from submission to an educational test because the parent refuses? There is an answer in part to that. If the Minister entertains the same idea of the worth or value of the school as the parent seemingly entertains, the Minister need not submit the child to any test. He may take the sufficiency of the educational curriculum in the school for granted. I am taking Senators back again to the point that the "may" is permissive and not imperative.

I venture to add in conclusion that if it were not suggested to anybody beforehand that there was some malign element in this provision, capable of being worked injuriously by a perverse or wrong-headed Minister at some time to come, nothing of that nature would be discovered in it. I agree with a great deal of what Senator O'Connell and others said with regard to the small number of people likely to be affected by this provision but, with all respect, I submit that you cannot decide these things merely by quantitative consideration and considerations of number, because it is a matter of high principle. To me, it is even more than that. It is a question of the reputation of this State. If portion of the speech delivered by Senator Tierney this afternoon were published out of its context, it would go out to the world that he had made a gallant and noble stand against an intolerant attempt on the part of the Government Party to support the Minister in passing legislation injurious to the religious minority. It would lend itself to that interpretation and I am jealous of the reputation of this State.

Professor Tierney

Lest anything of that kind should go out, may I point out that I said not one word about religious minorities? I deprecate the introduction of the question of religious minorities into this matter.

Professor Magennis

On the last occasion, when discussing the amendment by Senator Johnston and Senator Douglas, the question of religion was raised. Senator Tierney spoke on persecution to-day and we must, as men of the world, remember that things are read in their context——

Professor Tierney

Is the context of this debate the debate the other day?

Professor Magennis

The context of the Senator's speech would not support any suggestion of religious intolerance. If Senator Tierney wants me to make that statement, I make it gladly. The context is the debate on this amending Bill. It might easily go out across the Border that Senator Tierney's speech was a fine, manly protest against persecution and persecution, to them, means religious persecution. If I have introduced any element of vehemence into my remarks, that is the reason.

Mr. O'Connell

During the course of this debate, we have had many philosophical dissertations, academic statements and references to rights, constitutional and otherwise. I do not think that these have helped us to decide the motion before the House. I had hoped and intended that this section would be looked at from the purely practical, administrative point of view, without raising high points of principle. At the outset I said that I was not objecting to this section because of any principle contained in it and I, certainly, did not raise any question of rights. I did not insist on the rights of the parents or the rights of the child, one way or the other, and I did not deny the right of the Minister to insert this section in the Bill if he so desired. But I did question, and do question, the wisdom or expediency of having this section in the Bill. I question the necessity for it. I do that because my only object in connection with this measure is to get an effective School Attendance Act. I feel that, with all the questions that have been raised both in the other House and in this House about constitutional rights and other matters, the impression will go forth that there is something in this Bill which is objectionable in some way and that, as a result, there will not be the same unanimous acceptance of the school attendance law as might otherwise be the case. That is the only purpose I have in asking the Minister to drop the section.

I feel that the Bill would be more generally accepted if this particular ground of objection were removed. I do not wish to pass judgment, one way or the other, as to whether the objections made on the grounds of constitutional rights were justified or not. I do not propose to go into that. I am looking at this purely from the point of view of the manner in which it will be administered and of its practical utility.

I pointed out in my opening remarks that, as far as I could see, this section affected a particular class of people and not anybody else, the parents of children who are being educated in their own homes and those going outside the State for their education. If the Minister is speaking again, I would be glad if he would say definitely whether I am right in assuming that. Paragraph (c) of sub-section (2) of this section refers to the child who is receiving education in a school other than a national school. I should like to know if I am right in assuming that the question of the private school within the State is fully dealt with, and can be fully dealt with, in Section 20. If that is so, why bring in the school here because, obviously, unless it refers to a school inside the State the Minister will have no right or authority to ask the manager of a school outside the State to give him any information. If he were to do so, that manager would probably tell him to mind his own business.

Professor Magennis

Section 4 deals with the child and Section 20 with the school. There are different ways of giving a suitable education outside of the three ways here provided.

Mr. O'Connell

Paragraph (c), to which I have just referred, speaks of a child receiving education in a school other than a national school, a suitable school or a recognised school. The Minister may refuse to give a certificate on the ground that such school is not appropriate. I would like to have it made clear if Section 4 deals with the private school within the State. I hold that there is full power under Section 20 to deal with the private school within the State, and that the Minister can make any regulations he wishes in regard to it. If the school is certified as being suitable then, I take it, a parent will have the right to send his child to it. If it is not so certified, then it will not be fulfilling the purposes of the Act.

The more the Minister explains these things the more he mystifies me in some directions. If the Minister gets information that a child is not getting suitable education he will make inquiries, and will take certain steps. I want to know what steps he can take, because he will not be the enforcing authority under the Act. I maintain that the Minister has no power over the enforcing authority. It can prosecute, or refuse to prosecute, just as it wishes. The Minister cannot order a prosecution. He may say to the Guards that they should prosecute a particular parent because his child was not getting a proper education. He may say the same thing to a school attendance committee. But the superintendent of the Guards or the school attendance committee may tell him that it is their business, and that there is nothing in this Act, or in the Principal Act, giving the right or the power to the Minister to prosecute anybody for default in the matter of school attendance. I want to emphasise this point: that it is the enforcing authority, the Guards in the rural areas, and the school attendance committee in the city, and not the Minister, who can bring, or neglect to bring a prosecution. The Minister, of course, can use his influence with them.

There is another point. In the case of a parent who sends his child outside the country to be educated, there is no obligation on him to get a certificate unless it becomes necessary for him to produce it in court in the event of a prosecution being brought against him by the enforcing authority. Sub-section (2) of Section 3 says, among other things, that this will be a reasonable excuse, that a child is receiving a suitable education within the meaning of the Act other than by attending one of the three classes of schools set out, while Section 4 says that the child will not be receiving a suitable education unless the school is certified. A parent sending a child to a school outside the country may be prosecuted. Senator Tierney, I think, asked if that were so, and Senator Magennis said "no". That is not correct.

Professor Magennis

I did not say that.

Mr. O'Connell

Such a parent may be prosecuted. I referred to-day to the case of the parent in say, Cavan, who may send his child across the Border to a school in Fermanagh. Suppose Senator Buckley was a superintendent of the Guards in that area, he might very well say that the children of Senator Baxter, citizens of this State, who were going across the Border to a school in Fermanagh were not in his opinion receiving a suitable education since they were not learning Irish, and, therefore, he was going to prosecute the parent and bring him to court. He would be within his rights in doing so. Senator Baxter would have no defence to make to the court unless he submitted his children for examination, and unless the Minister for Education, after a test, decided that they were getting a suitable education. The Senator would be all right in that case if he got the certificate, but if he did not get it he would be fined.

Professor Magennis

It does not rest with the parent of the child merely to say that the child is getting a suitable education.

Mr. O'Connell

Certain assurances were asked for and given by the Minister on the last day here, and they were given again to-day, when the Minister said there was no intention to interfere with those children who go outside the country or who are being educated in their own homes. I can accept the Minister's statement, so far as he is concerned, that he has no intention to interfere with children going across the Border or being sent out of the country for their education. However, it is not a matter for the Minister, but for the enforcing authority.

Professor Magennis

But the giving of a certificate is a matter for the Minister.

Mr. O'Connell

I quite understand that the giving of a certificate rests with the Minister, but the taking of the child to the court rests with the enforcing authority.

Professor Magennis

It is at the discretion of the enforcing authority.

Mr. O'Connell

Discretion or indiscretion, as you wish.

Professor Tierney

The parent has to report to the enforcing authority.

Mr. O'Connell

I would like the Minister to clear up a couple of points before we leave this matter. I am anxious to know whether I am right in holding that Section 20 deals with the private school within the State— any school that purports to be a school. Under that section, the Minister can take additional power to deal with private schools within the State and, therefore, that leaves us only with the almost negligible number of those who go outside the State or are educated in their own homes, and with whom the Minister says he does not intend to deal. With whom, then, is he trying to deal? I recognise the absolute right of the Minister to say that not even one child shall be left uncovered by our school attendance law, but from the point of view of expediency and of practical necessity in administration, this is not necessary.

Senator Mrs. Concannon referred to the 65,000 children enrolled in the ordinary national schools, and said that any one of the parents might make the plea that his child was being properly educated at home. There are a lot of things possible in the world that are not in the slightest degree probable. For example, except the difficulty of getting them, there is nothing to prevent us all wearing straw hats during the winter, but there is not the slightest likelihood that we would do so. The Principal Act has been in operation for the past 16 years and no case ever arose of a parent whose child was not attending the national school pleading that he was teaching him himself. That plea would not be listened to very long if it were made. Many other things were pleaded as a reason for keeping children at home, but certainly not that.

I do not suggest that any injustice is being done to any body or that there is persecution of anybody, but I think this section is so unworkable in practice and so unnecessary that, in view of all the objections that have been raised to-day on other grounds, it is not worth while retaining it in the Bill. There is no great necessity for it and as it has given rise to much discussion and debate, and as there have been objections inside and outside the House, the Minister would be wise not to persist in it.

Sir John Keane

Could I state this matter as it presents itself to me and to the minority which I claim to represent in this matter? Could I try to state it in simple terms? The minority which I have in mind has, for generations, sent children to English public schools and certainly has every intention to continue to do so. It may be unpatriotic—call it what you like—but it is a fact. I can conceive this section being used to prevent that. The Minister could question whether the children were receiving a suitable or a minimum education in those institutions. Is that agreed? He might further say that they are not receiving a suitable or minimum education because they are not being taught nationalism and the Irish language. The Minister might say that his definition of suitable education includes the teaching of nationalism. I am not quite clear what that is, but I suppose it is possible to define it as Irish history from the national point of view.

Liam O Buachalla

Irish history from the point of view of the truth.

Mr. M. Hayes

"‘What is truth?' said jesting Pilate."

Sir John Keane

Irish history from the point of view of the truth, if the Senator likes it put that way. The Minister may refuse to certify that that child is being suitably educated because he is not being taught these two subjects. He cannot be taught them in the English public school. It is like the straw hat—it is quite improbable that the English public school would alter its curriculum to include these subjects. The child would be prevented then from receiving education in the school where members of the family had been educated for generations. I hope I have put the matter simply.

The whole thing turns on the definition of suitable education. I believe the Minister would get agreement all round if he would attempt some definition of suitable education. It would be reasonable to include general knowledge, the three Rs, and such subjects, but should not include as obligatory subjects a knowledge of Irish history from the point of view of the truth, or a knowledge of the Irish language. I hope the Minister will address himself to that very specific question which I have raised. I hope I have been clear, as there is so much confusion about this that it is very hard to see one's way through the mass of argument. I have attempted to put a specific question to the Minister. Will he give a specific answer? May I make this further point: I hope he will not tell me it is his intention not to do that. I believe it is not his intention, but what I want to know is whether what I apprehend is possible, within the Bill as we now have it.

Dr. Rowlette

May I ask one question before the Minister speaks, to clear up the matter to which attention has been drawn? I understand from what I heard in the last half-hour that the Bill gives power to the Minister to interfere with the life and education of children who are living outside the jurisdiction of the State, directly or indirectly; to interfere, that is, with a parent in respect of children who have as regards their own residence left the jurisdiction of the State. If that is not so, as Senator Hayes assures me, the four hours we have spent at this business seem to have been largely irrelevant.

Professor Magennis

Does Senator Rowlette know the law of domicile and did he think of it before he put that question?

Dr. Rowlette

No, I do not.

Professor Magennis

A citizen of the State leaving the State for three, four or even five years may retain his domicile, if he has expressed the intention to retain it in this State. That is the law. The more fact of going out of the territory does not have the effect that Senator Rowlette seems to think it has.

Mr. Derrig

It was chiefly to try to meet the case of private tuition in homes that this section was introduced. I cannot see how any Senator can feel that a particular class of children should be the subject of special privilege and discrimination. All children so far as possible ought to be treated the same, and I am glad that Senator Magennis called attention to the fact that the vast majority of our children are undergoing tests regularly, and we do not hear any complaint about them. If the Minister has to impose a test in order to carry out his duty under the Constitution, I do not see why there should be this objection to it. I have no sympathy whatever with the view that there should be an artificial barrier created and one kind of treatment given to parents who for one reason or another wish to have their children educated outside the jurisdiction of the State and another kind of treatment to those who have their children educated inside.

I do not agree with Senator O'Connell that because objections are raised to a particular section, it is any reason for the Minister deciding to eliminate the section. When I put this section in the Bill, I had the advantage of having discussed it and considered it very carefully, as I have already mentioned, and all aspects of it, particularly the constitutional aspects, were carefully considered. I have considered it again since the last occasion this matter was before the Seanad, and I see no reason for introducing an amendment to safeguard further the constitutional rights of parents. In my opinion, there is no interference in this section with the right of parents quoted by Senator Magennis to provide education in their homes, in private schools or in schools recognised or established by the State, and 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 was with regard to these two principles which had to be borne in mind that this particular section was framed. Surely if the section were to be eliminated, it should be eliminated on the ground of the quality, the sincerity and the merit of the argument advanced against it rather than on the ground of the theories which have been referred to and the meanings which different Senators have chosen to take out of it. There is scarcely any kind of legislation out of which one might not take different meanings, and in any matter affecting constitutional and personal rights, there obviously may be differences of opinion. I have stated my own view that these fundamental rights are not transgressed in the Minister seeking to enforce the duty which lies upon him of seeing that all children receive the minimum education required by the Constitution. May I say also, with regard to Senator O'Connell's point that the Civic Guards will be far more energetic in following up parents who choose to educate their children privately than they are in other cases——

Mr. O'Connell

What I suggested was that if there was a superintendent on the Border who had the same views as Senator Buckley, he might.

Mr. Derrig

It scarcely tallies with the general complaint we hear from Senator O'Connell's side that the Act is not being enforced adequately throughout the country. I think there is at least sufficient liasion between Government Departments to ensure that in a matter affecting a constitutional issue, steps would not be taken without consideration.

Senator Magennis complained that the parent has to take the initiative but I see no way out of compelling the parent to inform the enforcing authority where his child and how his child is getting suitable elementary education, if he is not getting it at one of the schools mentioned in the Bill. There are children who are not attending any school. We have no way of finding out the existence of these children. All the school attendance officer knows is of the children who have reported themselves to the national schools.

We also perhaps know of the children who attend private schools. If we make inquiries, we can secure their names, but there is no way of identifying the children who do not attend any of these schools or of finding out the position regarding them, except by compelling their parents to inform the enforcing authority. I think it legitimate and proper that parents should do so. If they attach so much value to educating their children in a special way, that is, by themselves, by a tutor or by relatives, they certainly will not object, if they are reasonable people, to informing the enforcing authority that they are doing so. When the Minister hears, as I think arrangements should be made for him to hear, that the enforcing authority is not satisfied with the position in certain cases, he will then take steps to get the parents to apply for a certificate. He can make known to them that a certificate is necessary, and in that way the whole situation will be brought before the Minister through preliminary inquiries. If he is satisfied that a parent is providing education in a proper way for his children, he is not likely to expose himself to ridicule by having such a parent brought before the court.

Sir John Keane

I feel that I am entitled to an answer to my question. I asked the Minister a very specific and straightforward question and I cannot believe that he is deliberately ignoring it or refusing to reply to it.

Mr. Derrig

I have not ignored it. I have told the Senator already and the Seanad generally that it was found impossible to have a definition of "minimum education" which could be inserted in the Bill and which would cover all cases. There are different degrees of efficiency and different types of qualifications, for example, even in our national schools. An inspector is guided by the circumstances of a school. In one case he will demand a much higher standard than in another. The position, as I see it, is that if this test comes to be applied, the inspector will report fully to the Minister on the type of education a child is receiving and offer his own observations. The Minister will then decide in his discretion whether he considers that the requirement of minimum education is being carried out or not.

Sir John Keane

What I asked the Minister was whether under the Bill it would be possible, in the case of a child being educated outside the State, to include a knowledge of Irish history as taught from the standpoint of truth and a knowledge of the Irish language as two essentials.

Mr. M. Hayes

It is quite possible. There is no doubt about it.

Mr. Derrig

So far as I am concerned, if such a case came before me and if I were satisfied that the child was attending an ordinary well recognised school, public or other school, I would assume that the child was receiving the minimum education.

Mr. M. Hayes

And not bother about Irish in such a case.

Mr. Derrig

I am not going to be put into the position which Senator Hayes and others have been angling for hours to get me to take up, that I am going to force a test in Irish upon these children, or, alternatively, that I am not going to bother about it.

Mr. M. Hayes

Senator Buckley would do it, if he were Minister, and the Minister himself might do it. We should be treated honestly in this matter and we have not been so treated.

Question—"That Section 4 stand part of the Bill"—put.

The Committee divided: Tá, 20; Níl, 13.

Tá

• Brennan, Joseph.
• Byrne, Christopher M.
• Colbert, Michael.
• Concannon, Helena.
• Goulding, Seán.
• Hawkins, Frederick.
• Johnston, James.
• Kennedy, Margaret L.
• Lynch, Peter T.
• McEllin, Seán.
• Magennis, William.
• O Buachalla, Liam.
• O'Callaghan, William.
• O'Donovan, Seán.
• O'Dwyer, Martin.
• O Máille, Pádraic.
• Nic Phiarais, Maighréad M.
• Quirke, William.
• Ruane, Thomas.
• Stafford, Matthew.

Níl

• Baxter, Patrick F.
• Campbell, Seán P.
• Conlon, Martin.
• Counihan, John J.
• Cummins, William.
• Douglas, James G.
• Hayes, Michael.
• Keane, Sir John.
• McGee, James T.
• O'Connell, Thomas J.
• Robinson, David L.
• Rowlette, Robert J.
• Tierney, Michael.

Tellers:—Tá: Senators Goulding and Hawkins; Níl: Senators Baxter and Tierney.

Question declared carried.

Progress reported; Committee to sit again on Wednesday, 27th January.

The Seanad adjourned at 9.10 p.m. until 3 p.m. on Wednesday, 27th January.