The Court of Appeal has reserved judgment on appeals by the State Examinations Commission and the Minister for Education and over parts of a High Court decision allowing student Rebecca Carter to take up a place at veterinary medicine at UCD.
The Minister’s appeal centres on the High Court finding concerning a right of access to third level education which the Minister says will have significant implications for resources and decision making if upheld.
The outcome of the appeals will not affect Ms Carter’s place in UCD and she will not be liable for any legal costs should the appeal court find in the State parties’ favour.
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. Mr Justice Richard Humphreys ruled the appeals process was highly unfair, not fit for purpose and caused untold stress to students and should be reviewed to ensure all appeals were completed before the start of the academic year in 2019.
Ms Carter, of Ardcolm Drive, Rectory Hall, Castlebridge, Wexford, sued the SEC challenging its 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 previous year.
At the appeal court on Friday Nuala Butler SC, for the Minister for Education, said his concern in the appeal is about the judge’s finding of a constitutional right of access to higher education.
The Minister’s objection was not personal to Ms Carter whom he wished well but higher education is a “very complex thing”, she said. The disputed finding places a “significant obligation” on the Minister to provide for higher education commensurate with abilities of the relevant student, she said.
While veterinary science is an important source of study, we need a lot fewer vets than, for example, teachers and if the requirement to make places available is to be decided by individual student desires, that impose significant resource obligations on the Minister and requires different strategic decisions by the Minister, she said.
The finding of such a right was inappropriately made for reasons including an appropriate State party was not on notice of any such argument and had been released from the case before the judge himself introduced the issue, she said.
The trial judge had made the finding in the context of Ms Carter’s pleaded claim of generic breach of her rights, including the constitutional right to earn a livelihood, counsel said.
The trial judge had on the second day of the case talked of a constitutional right of access to higher education which would allow for securing the qualification necessary for success in the area where Ms Carter wished to earn a livelihood. It was the judge who had maintained that argument in the case and it formed the basis of his judgment, she said.
The SEC, represented by Conor Power SC, is also appealing the High Court’s decision concerning the existence of a constitutional right to a third level education.
Counsel submitted the appeals system at the time of Ms Carter’s complaint was not to blame and it was rather UCD’s fault for not adhering to the published arrangements in the CAO Handbook in regards to university places.
Ms Carter, represented by Micheál P O’Higgins SC and Brendan Hennessy BL, instructed by solicitor Eileen McCabe, participated in the appeal as ‘legitimus contradictor’ to the State parties.
Mr O’Higgins argued the appeals process was neither rational nor reasonable. There was a contradiction in the appellants decision not to appeal the substantive High Court orders but at the same time challenging the underlying reasons for the orders, he argued.
The appellants, it was submitted, were trying to have things both ways by not seeking to interfere with Ms Carter’s offer of a place in UCD while at the same time inviting the court to reject the High Court’s analysis leading to its conclusions.
In regard to the High Court finding of a constitutional right to access third level education, Mr O’Higgins said it was for the Court of Appeal to assess if such a right exists. That finding was not part of the High Court’s reasoning on the critical issue advanced by Ms Carter and did not form part of her case, he said.
The three judge court, comprising Mr Justice Michael Peart, Ms Justice Marie Baker and Mr Justice Brian McGovern reserved judgment.