The Laustsi Decision and the Irish Education System

I have an article in today's Irish Times on the Lautsi decision and the need for a secular education system in Ireland
http://www.irishtimes.com/newspaper/ireland/2011/0411/1224294389373.html

The establishment of a forum on the question of patronage of Irish schools by the new Minister for Education, Ruairi Quinn means that the coming months are likely to see major debate on the question of the relationship between religious denominations and the education system.

Those in favour of the denominational nature of Irish system have been heartened by last week’s ruling by the European Court of Human Rights in the Lautsi case.

In this case the Court reversed a previous ruling and held that the presence of crucifixes in Italian state schools did not amount to a breach of the European Convention on Human Rights.

However, those who see the Lautsi judgment as evidence that the Irish education system is in compliance with our European human rights obligations would do well to examine the judgment more carefully.

The Court’s conclusion that the presence of crucifixes in state schools did not breach the right of parents to ensure education is provided in a manner that respects their philosophical convictions was based primarily on the idea of “margin of appreciation”.

The Court noted the diverse approaches of European countries to religion in schools and held that such diversity made it appropriate for it to grant a degree of deference to Member State practices.

Its conclusion that Italy had not exceeded this margin was based on the fact a crucifix on a wall in an otherwise secular school is an “essentially passive symbol” and that there was no compulsory teaching of Christianity or use of “teaching practices with a proselytising tendency” in Italian schools.

Contrast this situation with that in Ireland where over 90% of schools are under the patronage of the Catholic Church and where the “integrated curriculum” means that the religious ethos of the religious patron is intended to permeate the entire school day and teaching of all subjects. 

In short, the degree of interference with parental rights inherent in the current Irish education system is much more severe than that upheld by the Court in Lautsi.

The Catholic Church has indicated that it is willing to hand over control of some of its schools to reflect changing religious demographics. However, we are likely to remain with a system that is overwhelmingly denominational in character.

Those who are in favour of a system of denomination schools argue that such a situation represents the best way to guarantee parental choice. However, one can only justifiably claim that degree of choice that is consistent with a similar degree of choice for others.

A denominational education system fails such a test. In many areas there is only sufficient population to support a single school. If a majority of parents in that area are of one faith and a denominational school is established to reflect this, all other parents will be required to send their children to schools that actively promote a religion other than the one they desire to pass on to their children.

It would not be reasonable for Catholic parents living in an area that is 55% atheist to have to send their children to schools dedicated to the promotion of atheism, where atheism permeates the school day and the walls of each classroom hold pictures of atheist figures such Richard Dawkins and Christopher Hitchens.

Similarly is it unreasonable for non-Catholic parents in majority Catholic areas to have send their children to schools that promote the Catholic faith.

One cannot claim a school run by your own denomination is vital to reinforce the ability to pass on your religion to your children while at the same time arguing that there is no real damage to those of other faiths required to attend such schools.

A denominational system provides choice for some only at the cost of the rights of others. The only fair approach is for the State to provide educational facilities that promote neither any particular religion, nor atheism. This is the only approach is capable of respecting the rights of everybody equally.

The values to be promoted by such schools will, of course, require careful negotiation to ensure the adequately respect the convictions of diverse groups of parents as well as the rights of the child.

In areas where the population can support more than one school, it may well be reasonable for the state to facilitate religious parents by establishing further schools to accommodate a desire for denominational education. However, it should only do so once it has fulfilled its obligation to provide everyone with educational facilities that can be used by those of all faiths and none.

As it stands, the education system in Ireland effectively requires parents to send their children to schools that actively promote a faith that is contrary to their own. Such a situation is some distance from the scenario of secular schools with a passive symbolic crucifix accepted by the Strasbourg Court in its judgment last week.

The Lautsi decision should not therefore be taken as any indication that current relationship between religious organisations and the education system is compatible with the European Convention.

Indeed, given the commitment of our own constitution to respecting parental rights and Article 44.2.4’s protection of “the right of any child to attend a school receiving public money without attending religious instruction” one may well share the doubts of the 1996 Constitution Review Group that they system is even compatible with Bunreach na h-Éireann.

Democratising Academia

Academia has been the subject of significant criticism in recent times. In the UK the Browne Report calls on universities to follow a market model, with student "consumers" deciding on which courses will and will not be taught. This is based on the ludicrous idea that only that which 18 year olds find appealing should be taught. This is a recipe for hugely undermining universities' ability to produce graduates who are culturally literate with the intellectual depth to apply analytical and intellectual skills in a range of situations. 


My own experience of studying law has been that there were a number of course such as tort and contract that I found boring and would not have chosen to study. However, the background knowledge of the overall nature of the legal system that these courses gave me has proved indispensable in allowing me to properly analyse the subjects, such as constitutional law and EU law, that I would have chosen to study anyway.


As was shown by the exodus of British students from foreign language learning that followed the removal of the requirement to study languages beyond the age of 14, young people, if given the chance, will avoid courses that require initial effort to build up basic skills in favour of those that offer more immediate gratification. A market-based approach is a surefire way to further undermine the idea of a shared public culture and is a further move to promote the individualistic, consumerist ethic that has done so much damage in recent decades.


More defensible have been critiques that argue that academics have become excessively narrow and jargon-focused in their writing http://www.guardian.co.uk/commentisfree/2011/jan/30/nick-cohen-higher-education-cuts. I tend to agree that this has happened and that academics should definitely minimise the jargon. I think the resort to jargon (particularly in literature and social sciences) is probably a status anxiety based reaction to the loss of social status that academics have undergone in the context of the glorification of money making that has occurred over the past few decades. 


That doesn’t make it justifiable (actually I think it is self-defeating and makes this status loss more acute). However, it is also important to resist the notion that academic writing should aspire above all at being "accessible" and should aim to secure the widest possible audience.

To break new ground academic authors often need to take as read, a large amount of material that most people don’t have the inclination or time to have read or thought about. They should make their work as open as possible to as large a number as possible, but producing new knowledge and critiques will often require focusing on limited audiences if nuance is not to be lost or if new material is not to drown amidst hundreds of pages of explanation of context.

There needs to be room in culture for that which most people find boring and inaccessible. Public policy and culture are already saturated with market ideas based on giving consumers what they want and the ability to withstand the pressure to appeal to narrower audiences is one of the more useful capabilities still possessed by universities (indeed, outside academia I would probably prefer public broadcasters like the BBC to be less democratic and to focus more on high culture even at the cost of lower ratings).


That said, specialisation in academia, caused partly by the huge increase in available knowledge brought about, inter alia,  by the internet, has made many academics unduly narrow in their focus. Juergen Habermas argued last year that to make a useful contribution to public intellectual life, commentators need to be willing to speak about subjects in which they do not specialise http://www.dublin.diplo.de/Vertretung/dublin/de/06/GI/Habermas__Veranstaltung.html. This brings the risk of making errors but that is one that must be accepted. 


I have met a heartbreaking number of academics who have no interest in broader issues or public life and who are only ever willing, even in private conversations, to venture views on their extremely narrow area. This seriously undermines the social value of academia. It is not a profession of technical experts like medical doctors or engineers, but a group who are meant to provide a broader intellectual approach that enriches public life and public culture. However, if undergraduate students are to learn only that that is immediately appealing to 18 year olds, the academics of the future are likely to be even more narrowly focused than their contemporary equivalents. 

Recognising Fanaticism

Winston Churchill provided a good definition of a fanatic as “someone who can’t change his mind and won’t change the subject”. However, I think that the Israeli writer, Amos Oz, provides more illumination of the nature of the fanatic’s mind with his telling observation that the fanatic is "always a great altruist". He comes to this conclusion on the basis that, viewed in the fanatics’ own terms, they are never simply trying to inflict their will on you but are simply trying to save you from yourself.

Christians have long been exhorted to do unto others  as you would have them do unto you. This is, in many respects, very laudable advice. However, Oscar Wilde provided an important gloss on this principle when he said that people should do no such thing, as others may not like what you like.              

The fanatic’s chief sin is the failure to accept that it is legitimate for others to have goals for their own lives that may seem self-defeating or wrongheaded; a certainty that the goals one values one’s self are also good for others.

It is this certainty of the primary importance of one’s own moral goals, the failure to relativise one’s  beliefs, the inability to accept that the goals of others are as important and legitimate as your own that characterise the mind of the fanatic.

The intervention of Lord Carey, former Archbishop of Canterbury, in the case of MacFarlane v Relate is an excellent example of such a mindset.

Between 2003 and 2008 Mr MacFarlane was a relationship counsellor by Relate, a charity that provides counselling to couples. The contract of employment that he signed explicitly required Mr MacFarlane to abide by Relate’s anti-discrimination policy which includes a commitment to “avoid discrimination on grounds of sexual orientation”. In late 2007 however, he refused to provide sexual counselling to same sex couples on the basis that his Christian beliefs led him to view such conduct as sinful and following disciplinary proceedings, he was dismissed.

Mr MacFarlane took a case to the Employment Tribunal alleging that his dismissal amounted to discrimination on grounds of religion. Having lost in both the Employment Tribunal and the Employment Appeal Tribunal, he appealed to the Court of Appeal where he was represented by an activist Christian legal group. Lord Carey sent in a witness statement in support of Mr MacFarlane which contained the following:

"3. I make this Witness Statement in support of the appeal of Gary McFarlane for his case to be heard before the Lord Chief Justice... and a specially constituted Court of Appeal of five Lords Justices who have a proven sensibility to religious issues...

10. The description of religious faith in relation to sexual ethics as 'discriminatory' is crude; and illuminates a lack of sensitivity to religious belief. The Christian message of 'love' does not demean or disparage any individual (regardless of sexual orientation); the desire of the Christian is to limit self destructive conduct by those of any sexual orientation and ensure the eternal future of an individual with the Lord.

12. The comparison of a Christian, in effect, with a 'bigot' (ie a person with an irrational dislike to homosexuals) begs further questions. It is further evidence of a disparaging attitude to the Christian faith and its values. In my view, the highest development of human spirituality is acceptance of Christ as saviour and adherence to Christian values. This cannot be seen by the Courts of this land as comparable to the base and ignorant behaviour. My heart is in anguish at the spiritual state of this country.

The judgmentof Lord Justice Laws (http://www.bailii.org/ew/cases/EWCA/Civ/2010/B1.html), who is himself a devout Anglican, described Lord Carey’s observations as “misplaced” and goes on to demonstrate that they are based on a misunderstanding of the nature of the law of discrimination:

In cases of indirect discrimination(....) the law forbids discriminatory conduct not by reference to the actor's motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (...) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey's position.

Although Laws LJ notes acidly that the relevant “concerns are formulated at such a level of generality that it is hard to know precisely what Lord Carey has in mind”. He goes on to comprehensively contradict the oft-repeated claims that the law is in some way biased against Christians. The judgment, which is superbly clear and intelligently written, contains marvellous paragraphs such as the following one which ably demonstrate why a secular legal and political order is the only possible option for liberal democracies:

“We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.”

There is nothing to be added to Laws LJ’s fantastically clear writing. What I do want to highlight however, is the mindset revealed by Lord Carey’s witness statement.

 Lord Carey sees “acceptance of Christ as a saviour and adherence to Christian values” as the “highest development of human spirituality”. He is entitled to this view which is shared by many millions of his co-religionists. He further argues that the “love” shown by the Christian who wishes to discriminate against a same sex couple in the provision of services is merely” the desire of the Christian is to limit self destructive conduct by those of any sexual orientation and ensure the eternal future of an individual with the Lord”.

It is difficult to imagine a clearer example than this of the fanatic’s mindset as outlined by Amos Oz. Lord Carey seems to place remarkably little importance on the fact that the individual being “loved” in this manner may not be interested in being saved, or may feel that their eternal future with the Lord is not compromised by their sexual relationship.

On Lord Carey’s analysis, to throw a gay couple out of a hotel, to refuse to serve them in a shop is to love them. Not, of course because he wants to impose his views on them, but to improve them and ensure that they may have the eternal future with the Lord that he thinks they should want, ie that they should live their lives in accordance with the he just knows are the best.

Indeed, why does he stop with discrimination laws? Shouldn’t this love extend to the criminalisation of homosexuality to “limit self-destructive conduct and ensure the eternal future of an individual with the Lord.” Wouldn't it also represent love to censor any information about non-Christian religions so that individuals do not engage in the self-destructive act of leaving Christianity and depriving themselves of their eternal future with the Lord? Once we accept that it is legitimate for us to impose our version of the good life on other adult citizens on the basis that we know what is best for them there is no limit to the degree of control we can take over the lives of others. 

This is not what any reasonable person would regard as love. It is the love of a Joseph Fritzl who, of course, did not imprison his daughter selfishly but who argued that he did it to stop her falling in with bad company. It is the kind of love shown by the Taliban and Inquisition whose concern for the immortal souls of others leads them to punish heretics in order to ensure that others would not risk their souls by adopting heretical beliefs.

What Lord Carey and others perceive as “persecution” of their beliefs is nothing more that the refusal to allow them to persecute others. As society's mores have changed the restrictions on free conscience involved in all anti-discrimination laws have come to restrict discriminatory practices of Christians in a way in which they did not when conservative ideas of sexual morality were the majority view.

I understand that it is difficult to adjust when the previously dominant conservative and discriminatory sexual morality one has lived by suddenly becomes the minority position. It is particularly hard when this causes anti-discrimination laws to bite on conduct that was previously free from legal regulation. However, religious people must realise that in a free and equal society they cannot demand exemptions for themselves from laws on the grounds that their beliefs are religious in nature and therefore more important than the beliefs of everyone else. If an employer who strongly believes, for non-religious reasons, that  that mothers working outside the home is wrong, is required to employ appropriately qualified women who have children, there is no reason his counterpart who holds the same views, with the same intensity, for religious reasons, should not be similarly coerced.

More importantly people like Lord Carey must internalise the reality of a liberal society and accept that individuals must be free to live in ways that he feels are wrong and self destructive. We all have some desire to “improve” others and have all, at times, wished we could just get someone to see how wrongheaded they are being in their choices. However to move from the desire to improve others to attempting to pressurise individuals into following one’s own view of how life should be lived upon them by witholding from them services such as hotel accommodation or relationship counselling as Mr MacFarlane and Lord Carey wish Christians to do, is the essence of fanaticism.

Housing and Wealth

I am not an economist so this is more of a question than a statement. At least part of the credit crunch has been caused by the huge increase in house prices in recent years. In fact property prices before the crash reached levels that were way out of line with the historic ratio of income to property prices. Fine Gael and other parties in the Irish election all proposed measures to "help the recovery" of the property market. This mirrors steps over the past couple of years by several governments in the US and Europe to "help" or "fix"the housing market by taking measures that will cause house prices to stop falling.

I just don't see how this can work. House prices are not falling solely because their true value is being disguised by our economic difficulties. The difficulty in getting credit might prevent some from buying, but a lot of the problem is due to the fact that houses were NEVER worth the mad prices people paid for them in recent years. 


The solution to the collapse of the price of tulips following the tulip craze of the 17th century was not to use state funds to artificially inflate the price of tulips to the crazy heights of the peak of the boom. Similarly, spending public money to prop up house prices merely puts off the evil day when the market will reflect the true value of the property people bought.

We have to adjust to the reality that people paid more for houses than they are worth. People who did so will lose money and the economy may suffer. I am all for the state using money to ensure that credit worthy businesses can access the credit facilities they need to operate but pumping money into the housing market, as was done in the US, seems to be a waste of money.

Looking back I wonder if the real lesson is that the idea that we could get rich with our feet up by buying assets that would inevitably increase in value, is wrong. Sadly, those who bought into the idea that prosperity was simply a matter of getting on the "property ladder" whether we put off the evil day by throwing good public money after bad or not, are like to find out eventually, that the property market is as much of a snake as a ladder and that in general, real wealth comes, quite slowly through the application of effort and skill.

Don't do it Labour!

The results of the Irish election are in. As expected, Fianna Fáil were punished for the crony capitalism they practised that has brought the country to economic ruin. For the first time, the Labour Party came in at second place and with at least 36 seats they are, by some distance the second largest party in the Dáil. Fine Gael, which in recent years has shed most of its social democratic elements to become a clearly centre right, party, was the other big winner. With over 70 seats it is by far the largest party and will be the dominant element of any government.

Irish politics has been blighted by the dominance of catch all populist parties and the consequent failure of any kind of right-left, ideologically-based politics to emerge.

For the first time we now have a situation where the major parties in Ireland are orientated around an ideological divide with social-democratic Labour on one side and Christian democratic Fine Gael on the other. Despite the fact that, unlike Labour, the remains of Fianna Fáil have the same economic policies as Fine Gael, the consensus view is that it is a Labour/Fine Gael coalition should be the basis of the next government..

To enter government in these conditions would be a disaster for Labour for a number of reasons.

First, having achieved its greatest ever number of TDs Fine Gael is in no mood to allow Labour to implement its social democratic policies through a coalition arrangement as it was in 1994-7 when it had many fewer seats and a less clearly right wing orientation.

Second, this is the chance that Labour has waited for since the foundation of the State; the opportunity to develop a "normal" political system, based on left/right divisions rather than on populism and clientelism.

By entering government now, Labour will leave the left wing of Irish politics open to conquest by the thugs of Sinn Féin and will throw Fianna Fáil the life line of the status of official opposition. Given that the incoming government will have to continue with severe austerity measures, the potential for Sinn Féin to grow in these circumstances  is even greater.

Most importantly by joining a coalition with a party whose approach diverges from theirs on the important issues, they will be implicitly accepting that it is the distribution of the spoils of office rather than policy that is most important.

Of course, in the short term Labour may have less influence if they are not part of a government. However, in the long term, their influence will be immeasurably enhanced by taking on the role of official opposition and orienting Irish politics around the left/right divide that provides their raison d'etre.
A further period on the opposition benches would be a bitter pill to baby-boomer TDs such as Ruairi Quinn, Pat Rabbitte and Eamon Gilmore who may be too old for ministerial office next time around. However, if they have the long term interest of the party and the political system at heart they will take an approach untypical of members their generation by sacrificing personal fulfillment for the greater good.

David Miliband and "Muscular Liberalism"

David Milliband, former British Foreign Secretary and defeated Labour Party leadership candidate, has a piece(http://www.guardian.co.uk/commentisfree/2011/feb/28/uk-extremists-labour-cultural-economics?INTCMP=SRCH) in today's Guardian attacking David Cameron's call for a 'muscular liberalism' to replace state multiculturalism in the UK.

To me the most striking feature of this article is how it reveals the utter moral bankruptcy of his "New Labour" approach. Purging the Labour Party of some of its extreme tendencies was a necessary project in the late 1980s and early 1990s, but at some stage along the way, people like Milliband seem to have lost their way. While it may have been sensible to frame electoral strategy around what key electoral constituencies may want, it appears that such strategising came to completely crowd out all other considerations in some people's minds.

It is striking that Milliband's analysis of the issues around liberalism and multiculturalism is framed almost exclusively in terms of what muscular liberalism might "have to offer" key constituencies and how the certain groups are "vital terrritory" for the Labour Party.

There is not a singe line in the article devoted to considering whether there is in fact a problem with illiberalism in migrant communities and what an appropriate response on a moral, rather than tactical, level might be. Electoral strategising was meant to be a means to the end of achieving moral goals. At some stage it appears to have become and end in itself.

Greed, Sin and Shame

I have been part of an online project organised by Prof. Conor Gearty at the London School of Economics on the future of human rights (http://www.therightsfuture.org/). Actually, I am not so keen on the term "human rights" for reasons I will get into another time (I prefer "fundamental rights"). One of the most interesting discussions we had was on the relationship between religion and human rights. My view is that the prioritisation of the after life that is a feature of many religions, is inherently problematic for ensuring respect for human rights on earth, as, if this life is only of secondary importance, the person who forces you to live in accordance with what they believe to be the true religion and thereby saves your soul, is actually doing you a favour. Indeed I have often thought that Mormons are really not pushy enough if they believe that I will burn in hell for not converting to their faith.
That said, one of Prof. Gearty's best points is that those in favour of human rights can learn from (or at least draw on) some elements of religious teaching in their struggle. This idea came to me very strongly as I watched the CEO of Barclays Bob Diamond defend the obscene amount of money being paid to senior bankers. There is, obviously, nothing illegal in being paid £8 million as Mr Diamond is. I did however think that there should be more social consequences for demanding such a level of remuneration. Mr Diamond asserts that obsene rewards are necessary to keep top talent. Though abusive and repressive in many ways, the Catholic Church in Ireland has always stressed that greed is wrong (though one of their leading lights, Archbishop McQuaid, lived a life of notable luxury with champagne and hand-rolled cigarettes in the midst of the impoverished Dublin of the 1950s). I think that the idea that greed is shameful is something that we could useful draw from Europe's religious heritage. I was dying for one of the MPs questioning Bob Diamond last week to say "Would you leave Barclays if they paid you less than £8 million?" and if he said yes to follow it up with "Are you not ashamed to be so greedy?". The idea that in business one is entitled to take the very maximum possible and to resort to all strategems that not illegal to gain more money and to defeat one's rivals, is highly corrosive. We do not behave in that way in other areas of life and there is no reason we should do so in business. To ask for £8 million as a annual paypacket constitutes a sin, the sin of greed. The law cannot and should not make everything that is a sin a crime. The price of living in a free society is that people will use their freedom to do unpleasant things. It is a sin, but not a crime to be rude to one's neighbours, unfaithful to one's partner or to let down a friend who needs help. The state cannot punish these  things but society can. There can and should be social consequences for the kind of legal but wrongful behaviour of people like Mr Diamond. He is a greedy and selfish person. He should not be jailed but he should be ashamed, and be made to feel like that by the rest of society.