State exams commission and Minister win limited appeal against Carter judgment

The State Examinations Commission (SEC) and the Minister for Education and Skills have succeeded in their limited appeals against parts of a High Court decision allowing student Rebecca Carter to take up a place at veterinary medicine at UCD.

On Wednesday the three-judge Court of Appeal comprising Mr Justice Michael Peart, Ms Justice Marie Baker and Mr Justice Brian allowed the SEC and the Minister’s appeal against the High Court’s finding of the existence an unenumerated constitutional right to higher education.

The Court of Appeal said it was not making a view on whether such a right exists, because it was not claimed by Ms Carter in her proceedings, and that parties who were necessary to be heard on such an issue were not before the High Court.

It should not have formed any part of the High Court’s decision and therefore the Court of Appeal could not express any view on the merits of such an argument.

The outcome of the Court of Appeal’s ruling does not affect Ms Carter’s place in UCD, nor will she be liable for any legal costs incurred.

Last September Ms Carter won her High Court case aimed at forcing the commission to rectify an error in the totting up of her Leaving Certificate marks before UCD closed its admissions for 2018.

The High Court ruled that the appeals process was highly unfair, not fit for purpose and caused untold stress to students.

Mr Justice Richard Humphreys said the Minister and Department of Education should review the process to ensure all appeals were completed before the start of the academic year in 2019.

Ms Carter of Ardcolm Drive, Rectory Hall, Castlebridge, Wexford, challenged the SEC’s decision not to re-check her points score in time to allow her to obtain a place in veterinary medicine.

She repeated her Leaving Certificate in order to get a place in the course, having just missed out on a place the year before.

The Minister and the SEC appealed what they claimed was the High Court’s finding regarding the existence of a constitutional right to a third-level education.

The SEC also appealled the High Court’s findings that the appeal system was irrational, flawed, that the SEC failed to take relevant matters into account, and there was a breach of fair procedures.

Ms Carter’s lawyers participated in the appeal as legitimus contradictor to the State parties.

Giving the court’s decision, Mr Justice McGovern said “the core issue” for the SEC and the Minister was whether the Leaving Certificate’s appeal system “engaged any constitutional rights vested in Ms Carter.”

In the case of the SEC a key issue is whether that appeal system is a proportionate and rational exercise of its powers, the judge added.

The appeal court said it was satisfied that the High Court erred when making a finding that an unenumerated constitutional right of access to higher education or vocational training exists when such relief was never claimed by Ms Carter.

The SEC, Mr Justice McGovern said, is “an independent body” and its function is to “organise the holding of State examinations”.

It is not concerned with issues such as the existence of constitutional rights of access to higher education, he said.

The existence of such a right would have been of interest to the Minister and the State.

Mr Justice McGovern said the Minister’s lawyers had been released from the proceedings at an early stage and the Minister was at no stage ever notified that the High Court, or Ms Carter had concerns about the existence of such a right.

The Appeal Court was also allowing the SEC’s appeal in respect of the High Court’s finidings based on proportionality and the failure to take relevant matters into account.

Mr Justice McGovern said it was important to note that in 2018 UCD changed the cut-off date for the admissions of students, and it did not inform the SEC.

It was accepted that if UCD had not made that change to its admissions process that Ms Carter’s appeal in respect of her mark in her Leaving Cert exam would have been determined in time for her to commence at the beginning of the UCD academic year in autumn of 2018, the judge said.