The Gazette 1980

GAZETTE

JULY-AUGUST

1

the post and the same persons applied again, and Mr. McCarthy was so appointed as temporary principal teacher. The Irish National Teachers Organisation ("the I.N.T.O."), a registered trade union, was pressing the claims of Mr. James Collins, and organiser of the I.N.T.O. and a member of its national executive, whom the Minister regarded as unsuitable. The I.N.T.O. suspected that Fr. Crowley, acting under the orders of the Bishop, was going to retain Mr. McCarthy as a temporary teacher until 1 July 1976 and then, when he was eligible, to appoint him as permanent principal teacher. In October 1975, a board of management of which Fr. Crowley was chairman took over the duties which he had previously performed. In 1976, the I.N.T.O. threatened strike action against the Minister because he had allowed the appointment of an ineligible person as principal teacher in a temporary capacity while eligible applicants were available. On 16 March 1976, the I.N.T.O. wrote to Fr. Crowley to inform him that unless he re- advertised the position and undertook to appoint a qualified person, the teachers in the three schools in the parish of Drimoleague would be withdrawn on 29 March 1976. As Fr. Crowley did not give this undertaking, the I.N.T.O. placed pickets on the three schools on 29 March 1976 and all the teachers at the three schools, except Mr. McCarthy, did not pass them. These pickets were continued until 5 May 1976 when they were withdrawn but the teachers at the three schools continued the strike and did not attend at the schools. The parents of the children attending these three schools tried to get their children into other schools but, on 20 August 1976, the I.N.T.O. sent a circular to all their members in the areas adjoining Drimoleague directing them not to enrol pupils from Drimoleague. The instruction in this circular remained in force until 13 June 1977 when it was withdrawn. This circular is the foundation of the proceedings against the I.N.T.O. and the members of its Central Executive Committee. When the parents could not get their children into adjoining schools, they tried to recruit teachers. Mr.

McCarthy, who had been appointed permanent principal teacher in July 1976 on the recommendation of a board of assessors, continued to teach, and a retired lady teacher volunteered to do so, and a number of girls who had got their Leaving Certificates but were not qualified as teachers tried to do so. Fr. Crowley tried to persuade the Minister to pay these temporary teachers but he refused to do so and they were paid by contributions made by the parents to a fund. The education received by the younger children who were not taught by Mr. McCarthy was seriously deficient. On 21 April 1977, the parents, suing in the names of their children, brought proceedings against Ireland, the Minister, the Attorney General, the I.N.T.O. and the members of the I.N.T.O. Central Executive Committee claiming against the first three defendants the provision of free primary education within the parish of Drimoleague and claiming against the other defendants (i.e. the I.N.T.O. and its Central Executive Committee), damages for conspiracy. Whe interlocutory relief was sought, a compromise was reached under which, from 1 January 1978, the children were to be brought to adjoining schools by buses provided and paid for by the Minister and taught there. The High Court (McMahon J.) had found that the circular of 20 August 1976 was an unlawful interference with the infants' constitutional rights and that the Minister had failed to carry out his constitutional duty to provide for free primary education for the infant plaintiffs from 1 April 1976 to 31 December 1977. In the High Court, the plaintiffs' main case was that they had a right to be educated in their own parish and that their transport to and from schools in adjoining parishes was not a performance by the Minister of the State's constitutional duty. They also said that the mode of transport was unsatisfactory and imposed great hardship on them. The High Court had rejected all these contentions and the Plaintiffs did not appeal to the Supreme Court against this part of the High Court judgment. Held: (per Kenny J. with Henchy and Griffin JJ.; and with O'Higgins

RECENT IRISH CASES

CONSTITUTIONAL LAW — EDUCATION The effect of Article 42.4 of the Constitution, which prescribes that the State shall provide for free primary education and the extent of constitutional duty of the State acting through the Minister for Education to provide buildings, teachers, means of transport for pupils and minimum standards. In the parish of Drimoleague, Co. Cork, in 1975, there was a mixed four-teacher school called Drimoleague National School which had 133 pupils on its roll, and two other national schools called Knock Bui and Castledonovan. The principal teacher at the Drimoleague National School was due to retire on 30 June 1975. Rule 15(1) of the Rules of the National Schools provided that the Manager, who had the duty of appointing the principal teacher, had to comply with Rule 76 in making the appointment, which latter Rule provided that in schools which had from 80 to 199 pupils, the person appointed had to have the qualifications, that his last three years of service had been satisfactory and that he had given in all not less than five years service as a teacher. In June 1975, Father Crowley, the Manager wrote to the Minister for Education ("the Minister") that he had been directed by the patron of the school (the Bishop of Cork, Dr. Lucey) to appoint Mr. Nicholas McCarthy as principal teacher. Mr. McCarthy, who had been highly recommended by the divisional inspector of schools as the most suitable candidate, had not on the 30th of June 1975 five years service as a teacher; he would not have this until 1st July 1976. When Fr. Crowley appointed Nicholas McCarthy as principal teacher, the Minister refused to sanction his appointment as permanent principal teacher and Father Crowley then appointed him to act as temporary principal teacher, a step which the Minister approved. The Minister directed Fr. Crowley to re-advertise