Executive Power and the Right to Primary Education: The Case of School Closures

 Conor Casey, European University Institute

On 12 March 2020 then Taoiseach Leo Varadkar announced that the Government had taken the momentous decision to order the closure of primary and secondary schools and third-level institutions in response to climbing levels of COVID-19 infection. This closure would last until August 2020 for primary and secondary schools. On 6 January 2021 the Government ordered a further closure of primary and secondary schools, a closure that is currently being phased out.

 

Like many decisions taken by the Government in response to the pandemic, the repercussions of school closures are being felt very keenly by thousands of citizens and families. Teachers, pupils, and parents have tried to adapt to the difficulties of online teaching, struggled to balance work commitments with at-home learning, and striven to ensure children’s educational progress does not regress. 

 

Whether one agrees or disagrees with the merits or wisdom of the Government’s decisions, there is no doubting they are truly weighty ones that directly touch on the State’s constitutional obligation to provide for free primary education. On what legal basis did the Government take such a significant decision dramatically affecting the lives of thousands? Surprisingly, this question has received vanishingly little discussion. The purpose of this post is to outline the most plausible legal basis for the Government’s closure order and offer some critical thoughts.

 

Government power and the Constitution

The Irish Government derives its powers from two sources. One source of legal authority comes from statutes passed by the Oireachtas granting the Government, or a member of Government, statutory authority. Statues like these will typically provide a Government minister power to take X, Y, or Z action in respect of a particular policy area; or set out broad objectives to be achieved while giving a minister discretion on how to go about pursuing them through promulgating secondary regulations. Statutes make up, by far, the bulk of the Government’s legal authority. 

 

The second source of authority comes directly from the Constitution. The Constitution explicitly vests several powers in the Government, including power over the conduct of foreign affairs, the appointment of judges, defence of the State from invasion, and preparation of the budget. Aside from explicit powers vested by constitutional text, there is a fuzzy reservoir of constitutional powers housed within Article 28’s laconic vesting of ‘the executive power’ of the State. Article 28 gives the Government the constitutional power and duty to see the laws are faithfully executed, power to set up non-statutory tribunals of inquiry, plenary powers to regulate immigration for the State including the entry, residence and exit of immigrants, and the power to create non-statutory policy schemes. 

 

Article 28 has been used as the legal basis for many weighty policies: the IBC/05 residency scheme, Direct Provision, the State’s main policy document on family reunification for non-EEA migrants, its division of immigration permission into different ‘stamps’, and for several legal aid schemes. More recently, the High Court has confirmed the Government could rely on its executive power to underpin its widespread promulgation of public health guidelines exhorting citizens to take certain steps to help curb the spread of covid-19. 

 

There are several limits on using executive power to achieve policy goals. The most important is that it cannot be used to frustrate or usurp legislative power by purporting to amend, disapply or suspend a statute. Executive power cannot also be used to impose legal burdens or obligations on citizens – the hallmark of a legislative power reserved exclusively to the Oireachtas. Indeed, Simons J. in the Ryanair case held that any purported attempt to give the impression that executive power derived guidelines were legally enforceable would be an unconstitutional usurpation of legislative power. This means that constitutional rights like liberty, family, security of the dwelling, property, and access to primary education, cannot be restricted without a statutory basis.

 

Decision to close schools

On 12 March 2020 the Government ordered the closure of primary and secondary schools and third-level institutions as precautionary response to climbing levels of infection. This closure would last until August 2020. On 6 January 2021, the Government again decided that all schools – including special schools – were to be closed, in response to the third wave of the pandemic. In this second instance, the Government based its decision to order a blanket closure on guidance from NPHET, which maintained that while there was ‘very little evidence of transmission within schools’ the levels of mobility and linked activity that reopening could generate would bring an increased risk of further community transmission.

 

While statutory instruments have been used to implement the bulk of the Government’s lockdown strategy, it appears that the closure of schools came from a non-statutory source - a Government decision drawing on the executive power of the State to issue non-statutory policies. 

 

The blanket nature of the closure has been sharply criticised for its disproportionate impact on children with special educational needs or with poor access to online facilities. Some have argued the policy of school closure represents, in its current iteration, an unconstitutional infringement of the rights of children to be provided with primary education by the State.  A legal opinion prepared for the Children’s Rights Alliance argued that ‘children with special needs for whom online learning is not practicable are not receiving any educational provision at all’ and that many mainstream primary students lack the ‘IT facilities and adult supervision’ to make use of the online educational provision.

 

Are there any problems with closing schools via executive power?

There is, in my view, nothing inherently problematic with the Government relying on its non-statutory constitutional powers to pursue policy goals. Using executive power unilaterally and without a statutory basis can be a useful way to respond rapidly to a policy problem, and to maintain a high degree of flexibility. The common good, to which the Irish Constitution orients all political life, arguably demands a unified and energetic executive able to act in this manner where necessary.

 

But relying on executive power to pursue policies has its detractions. Policies created through executive power are simply not subject to the same level of deliberation and scrutiny as those stemming from bills passed through the legislative process. One does not need to work from an unrealistic ideal-type image of the parliamentary process to suggest that it offers some level of increased scrutiny and debate more than unilaterally issued executive measures; an increased level of debate and scrutiny which can be useful for bringing perspectives to bear that might have been overlooked or given inadequate consideration by Government or its civil servants. 

 

Such inputs can spark public debate and pressure for policy alterations. In this context, it is worth considering whether the need for statutory authority to issue a closure order would have led to more political debate in the Oireachtas about the disproportionate impact on children with special needs? Would it have led to a more tailored policy suitable to their needs? What can be said at least is that the chances such concerns would have been aired and debated were vastly more likely in a more open and deliberative forum like the Oireachtas. 

 

More problematic, from a strictly legal perspective, is whether the closure of schools can be conceptualised as a restriction of children’s constitutional rights as opposed to merely being a different way of regulating or structuring their exercise. The more charitable interpretation is that the Government has not restricted the right to primary education but regulated it in a manner suitable to the current circumstances of the pandemic. That is to say, the mode of delivery might have changed, but the Government is still allocating the resources to vindicate the right to primary education as before. The less charitable interpretation, one reached by counsel briefed by the Children’s Rights Alliance, is that it is reasonable to conclude there are ‘categories of children for whom no educational provision is currently being made.’ In other words, their constitutional rights are being de facto restricted.

 

I do not profess an opinion either way here save to say that, to the extent one can view the closure of schools as a restriction on the rights of some children to access primary education, then the constitutional propriety of relying on executive power to close schools diminishes rapidly and the need for a legislative basis to lawfully ground such action becomes more pressing. 

 

Conor is a Max Weber Fellow at the European University Institute and incoming Lecturer at the University of Liverpool School of Law & Social Justice. The author would like to thank Hilary Hogan for helpful comments on the post.

 

Suggested citation: Conor Casey, ‘Executive Power and the Right to Primary Education: The Case of School Closures’ (11 March 2021) https://tcdlaw.blogspot.com/2021/03/executive-power-and-right-to-primary.html