The Supreme Court appeal concerned the Government’s decision during the Covid-19 pandemic to postpone the 2020 Leaving Certificate and use teacher-assessed calculated grades, and the Department of Education’s scheme for implementing that decision. In a judgment delivered on 24 January 2022, Mr Justice Peter Charleton agreed with the majority’s result: the Government’s policy decision did not clearly disregard the Constitution, but the Department’s implementation exceeded constitutional limits by leaving home-schooled candidates without a reasonably comparable route to third-level education that year.
The appeals were brought by Elijah Burke and Naomi Power, a minor suing through her mother and next friend, Breda Power. Charleton said both were among a small group of candidates who were home-schooled. Their parents could not objectively assess their own children under the calculated-grades scheme, and the Department could not arrange for another teacher to do so as it could in a school.
Charleton described the Government’s decision to postpone the examination and substitute calculated grades as an exercise of high executive policy under Article 28.2 of the Constitution. He said the applicable test was whether the Government had shown a “clear disregard” of the Constitution, rather than the ordinary judicial-review tests applied to administrative decisions. He concluded that the Government’s decision met that test: it did not itself exclude home-schooled students or deny their parents’ constitutional right to educate them at home.
The implementation was a separate matter. Charleton said the Department’s scheme failed to provide the home-schooled candidates with an assessment route approximating the opportunity available to school students to obtain grades and progress to third-level education in 2020. Sitting the examination in November was an option, he said, but would have meant losing access to a third-level place for the 2020–21 academic year. He characterised the exclusion as inadvertent and said there was no ill intention.
Charleton concluded that the Department’s scheme exceeded its jurisdiction by leaving this small group without a reasonably accessible route forward. He agreed with the order proposed by Chief Justice O’Donnell. His judgment does not give the terms of that order; it distinguishes the valid Government policy from the constitutionally deficient departmental scheme. The source identifies this as Charleton’s concurring judgment on the result.