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Sherry v The Minister for Education and Skills & Ors (Approved) [2021] IEHC 128 (02 March 2021)
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APPROVED
[2021] IEHC 128
THE HIGH COURT
JUDICIAL REVIEW
[2020 No. 655 JR]
BETWEEN
FREDDY SHERRY
APPLICANT
AND
THE MINISTER FOR EDUCATION AND SKILLS, THE MINISTER FOR
FURTHER EDUCATION AND HIGHER EDUCATION, RESEARCH, INNOVATION
AND SCIENCE, IRELAND, AND THE ATTORNEY GENERAL
RESPONDENTS
Judgment of Mr. Justice Charles Meenan delivered on the day of 2
nd
March, 2021.
Contents
2
Introduction
1.
The fight to contain the spread of the Covid-19 virus has involved the imposition by
the State of restrictions on almost every aspect of our lives. The young, the old, those with
disabilities, and those without have all been affected, some to a greater degree than others. To
halt the spread of the virus, it is necessary to limit, if not restrict entirely, the circumstances
under which people meet and congregate.
2.
In excess of 62,000 students were due to sit the Leaving Certificate in 2020. This
obviously involved the congregation of significant numbers of people in close proximity in an
indoor setting for prolonged periods of time. As the date for the commencement of the Leaving
Certificate 2020 approached, it was apparent that, though the spread of the virus had at that
stage been significantly reduced, for reasons of public health, the examination could not take
place. For the first time in the history of the State, by a decision of the Government of 8 May
2020, the Leaving Certificate due to start the following month was cancelled.
3.
The Leaving Certificate has a central role in the Irish education system. For those who
wish to advance to third level education, the results of the Leaving Certificate are, for the most
part, a basis for entry to a particular course and a subsequent career. For others, who do not
wish to pursue third level education, the Leaving Certificate is a qualification that may be
necessary to obtain employment. The importance of the results of the Leaving Certificate
cannot be overstated for young people who wish to pursue a particular career or, indeed, for
more mature people who may wish to embark on a new and different career. Without a Leaving
Certificate, the class of 2020 would have been left stranded, so it was imperative that an
3
alternative system be devised to give an accurate assessment, as far as possible, of the standards
that would have been achieved had the exam proceeded in the normal way. The first named
respondent (the Minister) did not have the option to simply defer Leaving Certificate 2020 to
2021.
4.
The whole Leaving Certificate system has been the subject of comment and criticism
over many years. However, it is difficult, if not impossible, to replicate by an alternative system
the fairness of the Leaving Certificate exam. Students doing the Leaving Certificate exam come
from various and diverse backgrounds. Families of some students have the financial means to
send their children to "fee-paying" schools and to provide additional education by way of
grinds. Other families who do not have such financial means may, with great sacrifice, enrol
their children in "fee-paying" schools. Very many other families simply cannot afford this but
want their children to do a good Leaving Certificate and, notwithstanding the inequalities in
the system, have equality of opportunity. However, at the end of the day, all students do the
same exam. The correction of each subject in the Leaving Certificate is done entirely
anonymously and according to guidelines which, prior to their adoption, have been considered
in detail by the relevant experts.
5.
The task facing the Minister in devising a system that would give to a student a grade
that he or she would have obtained had the Leaving Certificate exam been sat in the normal
way cannot be underestimated. Further, this task had to be completed to the satisfaction of
students, teachers and the wider public in a narrow timeframe. The system devised was the
awarding of "calculated grades".
6.
The basis used for the award of a calculated grade raises fundamental issues, not all of
which are legal. It is a fact that certain schools, in particular "fee-paying" schools, have
historically achieved stronger Leaving Certificate results than other schools. Should the
calculated grades being awarded in 2020 reflect this? Also, grades achieved in the Leaving
4
Certificate may vary depending upon the gender and socio-economic background of the
candidates. Should this also be reflected in the awarding of calculated grades? It would not be
acceptable to many to factor into the system for the awarding of calculated grades inequality,
since it must be a basic principle of any for education system to achieve equality of opportunity.
Thus, a system that may, statistically, give an accurate result would not be acceptable to the
public at large. It was the requirement for public acceptance that was central to the decisions
taken by the Minister and the Government that are the subject of these proceedings.
Calculated grades
7.
There were two phases to the system for the awarding of calculated grades. Firstly, a
schools phase; and, secondly, a phase overseen by the Department of Education and Skills (the
Department).
8.
The school phase involved the award by the relevant teacher(s) of an estimation of the
percentage mark in each subject that each candidate is likely to have achieved if they had sat
the Leaving Certificate examination in 2020 under normal conditions. The school then carried
out a "class ranking" for each student in each subject, i.e.: a list of all the students in each
individual class group for a particular subject in order of their estimated level of achievement.
Amongst the matters which informed estimated marks and rankings were the previous results
of the school in the particular subject.
9.
It was correctly anticipated that the estimated marks coming from the schools were
likely to be overestimated and considerably ahead of what the particular school had achieved
in past years. This is not an adverse reflection on the professionalism of the teachers involved
but, rather, of the difficulties faced by teachers in having to give marks to their students in
what, for many, would be the most important examination of their lives. Thus, simply awarding
school estimates as calculated grades for the Leaving Certificate of 2020 was not a viable
option, as it would undoubtedly lead to hyper "grade inflation".
5
10.
The Department phase involved the consideration and design of a "standardisation
model", which would be applied to the estimated marks coming from the schools. This was
with a view to making the calculated grades that would be awarded statistically accurate and
in line with previous years. Hence, the proposed use of "school historical data" and "national
historical data".
School historical data (SHD)
11.
This was data based on historical Leaving Certificate examination performance for the
particular school across three prior years. It is the case that the performance of students in each
school does not vary widely from year to year and, so, it was considered statistically reasonable
to assume that the cohort of students in any individual school in 2020 would not perform very
differently to that of previous years. It should be noted, as I have referred to elsewhere, that
historical school performance in each subject was a matter that should be taken into account at
school level in the giving of a calculated mark. Also, data concerning prior performance in the
Junior Certificate was part of the standardisation model and remained in place.
National historical data (NHD)
12.
This is data of student results on a subject by subject basis based on historical Leaving
Certificate examination performance. The reason for using this data in the standardisation
model was to ensure that, overall, the calculated grades awarded in the Leaving Certificate of
2020 were in line with the results of previous years. The purpose of applying this data was to
avoid "grade inflation".
13.
In order to avoid "grade inflation", not only was NHD to be used in the model, but also
another mapping exercise at a national level to map the scores from the entire cohort for the
examination to the historical national distribution would have to be used. This is referred to as
the "mapping tool". As we shall see, this "mapping tool" was not used.
6
Government decision of 1 September 2020
14.
At its meeting of 1
September 2020, the Government took two decisions on the data
that was to be used in the final version of the standardisation model for the awarding of
calculated grades: -
(i)
School historical data (SHD) would be removed from the range of data being
used in the standardisation model, however, data from previous Junior
Certificate examinations would still be used; and
(ii)
The national historical data (NHD) would be retained in the standardisation
model but the "mapping tool" would not be applied, and so the impact of this
data would be minimal.
Leaving Certificate results of 2020
15.
Results were issued to students entitled to receive calculated grades on 7 September
2020. Students also had available to them the estimated marks from their schools, as were
submitted to the Department. Thus, students could compare the calculated grades that had been
awarded with the estimated school marks. The media reported widely that students who had
attended schools or other educational establishments which historically had good Leaving
Certificate results had been awarded calculated grades below the estimated marks that had been
submitted. It was maintained that this "downgrading" stemmed from the Government decision
to remove SHD from the standardisation model.
16.
Some days after the release of the Leaving Certificate results, the Central Applications
Office (the CAO) published the points required for entry to various third level courses. It was
immediately apparent that there had been a considerable increase in points as a result of "grade
inflation". Though not highlighted at the time, this would appear to have been as a result of the
decision not to use the "mapping tool".
7
17.
The applicant was amongst those who believed that he had been unfairly downgraded.
The applicant attended Belvedere College in Dublin for his secondary education. He stated in
his Grounding Affidavit that he studied consistently for the Leaving Certificate up to the time
of the announcement of 8
May 2020 that the exam was cancelled and would be replaced by a
system of calculated grades. His Leaving Certificate subjects were English, French, Chemistry,
Biology, Irish, Latin and Maths. He received his calculated grades on 7 September 2020, and
received his teachers' estimated marks on 14 September 2020. The applicant had apparently
been downgraded. He stated that the result of these downgrades was that he did not have the
points necessary for his third level course of choice. I will examine, in some detail, the
calculated grades that were awarded to the applicant and the influence, if any, which the use of
the SHD would have had if it had been applied.
18.
An affidavit was filed by Mr. Tom Doyle, Deputy Principal of Belvedere College. In
the course of his affidavit, he refers to not only the Leaving Certificate results of the applicant
but, also, to those of other students in the school. He maintains that the absence of SHD in the
final standardisation model adversely affected the Leaving Certificate results, which had been
historically strong, in Belvedere College. Later in the judgment, I will also consider whether,
in fact, Belvedere College has been so adversely affected.
19.
In addition to the applicant herein, close to 70 other sets of proceedings were initiated
concerning the award of calculated grades. As the issue of SHD was common to many of these
actions, the Court directed that the parties involved select one test case so that this issue could
be determined. The parties selected the instant case. Both the Court and the parties were
conscious that the issues involved had to be resolved as soon as possible in a tight timeframe.
This was necessary since the Leaving Certificate of 2021 was then only a matter of months
away. It is to the credit of the parties in this case, and their advisors, that this difficult and
complex case was ready for hearing in a matter of weeks. The hearing of this application
8
commenced on 8 December 2020 and concluded on 2 February 2021, some five weeks of
hearing.
The issue
20.
At a hearing towards the end of November, 2020, a number of preliminary matters were
decided by the Court, including: the inspection of various standardised models, cross-
examination of deponents of affidavits and whether executive privilege was applicable. The
Court directed that the following issue be determined: -
"That the decision of the first and fifth named respondents of 19 August 2020 and/or
the decision of the first named respondent of 21 August 2020 and/or the confirmation
of the said decision by the sixth named respondent on 1 September 2020 to alter the
standardisation model so as to exclude the use of all school by school historical data
(SHD) on the performance of students in past cohorts in each subject was arbitrary,
unfair, unreasonable, irrational and unlawful and in breach of the applicant's legitimate
expectations."
It will be seen that the above only referred to SHD and did not refer to the decision not to apply
the "mapping tool" to NHD. In the course of the hearing, there were lengthy submissions and
considerable evidence on the latter decision. Towards the end of the hearing, objection was
taken by the respondents to the inclusion of this decision as being part of the issue before the
Court.
21.
I will not accede to this objection as, as I have said, evidence was given and submissions
were made, without objection, in the course of the hearing. I am satisfied that this second
decision, not to apply the "mapping tool", was fully dealt with. However, for the reasons I will
set out later in this judgment, I am of the view that the same legal principles apply to both
decisions. It therefore follows that in considering the issue the Court will give its determination
9
as to the lawfulness of the removal of SHD and the non-application of the "mapping tool" to
NHD in the standardisation model that was finally used.
Evolution of the standardisation model
22.
The standardisation model that was eventually used, Model 21(a), to process the school
data of the applicant evolved over a period of time, undergoing a number of iterations. In the
course of its evolution, two decisions were taken by the Minister. Firstly, to remove school
historical data (SHD) from the model and, secondly, not to apply the "mapping tool" to the
national historical data (NHD). Both of these decisions affected the calculated grades that were
awarded. In this section of the judgment, I will consider how and why these decisions came
about, the evidence that was given to the Court and my conclusions.
23.
The prevailing circumstances that were facing the Minister cannot be discounted. In a
matter of weeks, the well tried and trusted Leaving Certificate had to be replaced by an
alternative system that would award grades to the Leaving Certificate class of 2020 so that they
could go on to third level education or choose other careers. Each student had to have a Leaving
Certificate for 2020. Simply postponing everything for one year was not an option, the class of
2020 could not be abandoned.
24.
The calculated grades awarded for Leaving Certificate 2020 had to meet two objectives.
Firstly, they had to be statistically accurate, and, secondly, they had to be acceptable to
universities, future employers and the wider general public. These objectives were not easily
met. For example, details of the gender and socio-economic background of a candidate for the
Leaving Certificate might make the standardisation model more statistically accurate but
would, at the same time, not make it acceptable to the public. It was in this context that the use
of SHD and, to a lesser extent, not using the "mapping tool" became problematic. The Minister
established a complex structure to advise on and design a system for the awarding of calculated
grades. A Calculated Grades Executive Office was established to deliver the system of
10
calculated grades. A decision making forum, the National Standardisation Group (the NSG)
was established. The purpose of the NSG was to be "the decision-making group responsible
for the implementation of the iterative standardisation process and the application, review, and
adjustment of the data in line with the principles, parameters and constraints associated with
the model to arrive at fair and just representations of student performance". (Report from the
NSG, 6 September 2020). To achieve its purpose, the NSG would consider the statistical
outcomes of various iterations of the standardisation model. This required the NSG to: -
i.
Interrogate the data-sets emerging from the model at each iteration.
ii.
Compare outcomes at national level with those of recent years.
iii.
Consider effects and impacts at school level.
iv.
Ensure that the appropriate balance was struck between optimising the statistical
accuracy and maintaining "face validity".
In addition, an Independent Steering Committee was established by the Minister to provide
assurance to the Minister "of the quality and integrity of the outcomes of the calculated grades
system ...".
25.
The decision to postpone the "traditional" Leaving Certificate of 2020 was set out in
a decision of the Government dated 8 May 2020. This decision stated that the Government
agreed: -
"(i) ---
(ii) to put in place a system to be operated by the Minister ... on an administrative
basis pursuant to executive powers of Government under Article 28.2 of the
Constitution, whereby Leaving Certificate candidates could opt to have calculated
grades issued to them by the Minister in order to facilitate their progress to third-level
11
education or the world of work in Autumn 2020, and such system shall include the
following elements:
(a)
the professional judgment of each of the candidate's teachers which shall not be
subject to appeal;
(b)
in-school alignment to ensure fairness amongst candidates at school level;
(c)
approval by the school principal of the estimated scores and rankings of students
in the school;
(d)
a process of standardisation at national level to ensure fairness amongst all
candidates; and
(e)
--
(iii) to deliver the system through a non-statutory executive office in the Department
of Education and Skills and a non-statutory steering committee, made up of relevant
experts, who will oversee the quality and independence of the process under the
authority of the Minister; ..."
The said decision further stated: -
(vi) the calculated grades model would use estimated examination scores from students,
teachers and schools and would also involve standardisation at national level to ensure
equity of treatment for candidates; ..."
26.
On 21 May 2020 the Minister published a document entitled: -
"A Guide to Calculated Grades for Leaving Certificate Students 2020".
This document set out in general terms the basis upon which calculated grades would be
awarded. In his Grounding Affidavit, the applicant made specific reference to certain sections
of this document: -
Para. 2, which states: -
12
"A Calculated Grade is a grade that can be provided to students following the
combination of school information about a student's expected performance in an
examination and national data available in relation to the performance of students in
examinations over a period of time. ..."
Para. 10.2: -
"What happens to the school data in this process?
The rank order within the class group is preserved in the statistical process. However,
the teachers' estimated marks from each school will be adjusted to bring them into line
with the expected distribution for the school. The national standardisation process
being used will not impose any predetermined score on any individual in a class
or a school. ...
The relevant Department data sets that support the process include mark data at:
·
National level for both Leaving Certificate and Junior Certificate examinations for
2019 and previous years;
·
School level for both Leaving Certificate and Junior Certificate examinations for
2019 and previous years;
·
Candidate level for both Leaving Certificate and Junior Certificate examinations
for 2019 and previous years;
·
Candidate level for the Junior Certificate results of the 2020 Leaving Certificate
cohort of candidates."
And 10.3: -
"Processing the school level data
In advance of receiving the estimated marks from schools the information about how
the school has done in the past and the information about the strengths and weakness
of the current group of students will all be assembled and will be used to predict the
13
level of achievement that this particular group of students would have been expected to
reach in that subject if those students had sat the Leaving Certificate examination in the
normal way. This information is then combined with the estimates that the school has
provided in order to generate the fairest possible result that can be calculated.
..."
27.
A further document published by the Minister on 20 July 2020 once again set out the
relevant information that would be used to support the process. The document further stated: -
"By collecting and using a range of different types of information, the different sources
of data will complement each other, to provide the most accurate and fair set of results
within the limitations of the available data. As the school data is only accurate at school
level, the final calculated marks, and so Calculated Grades, provided to students, for
any subject and level, may be higher or lower than the estimates provided by their
school.
It is as a result of this standardisation process that the Calculated Grades will have an
equal standing and status with previous and future Leaving Certificate grades. If this is
not done, it would undermine the currency and value of Calculated Grades.
---
The maintenance of a national standard during the Calculated Grades process is as
important as in previous years in order to ensure that the Leaving Certificate 2020
Calculated Grades are of equal standing to the outcomes from previous years. This is
in order to ensure equity and fairness for the 2020 cohort but also for previous and
future students who may be competing for college places or in the world of work. ..."
28.
Candidates for Leaving Certificate 2020 had an option to opt into the calculated grades
system and still sit a written Leaving Certificate exam later in the year. Alternatively,
candidates could opt not to receive calculated grades and later sit the Leaving Certificate. In
14
any event, the decision had to be made before 4 p.m. on Monday 27 July 2020. This was set
out in a document entitled "Getting my Calculated Grades a Guide for Students". In the
course of the document it was stated: -
"Calculated Grades have the same status as the Leaving Certificate results awarded to
students in previous years. There is no downside to opting into receiving a Calculated
Grade."
The applicant opted to receive calculated grades.
29.
Meanwhile, various iterations of the standardisation model were being considered and
examined. In the course of a lengthy affidavit, Mr. Dalton Tattan, Assistant Secretary of the
Department of Education and Skills, stated: -
"The NSG's role included considering the statistical outcomes within a decision-
making framework which took account of the commitments, principles, values and
constraints which apply to calculated grades and to arrange for the implementation of
adaptions in order to tune the model through various iterations. This required the Group,
inter alia, to interrogate the data-sets emerging from the model at each iteration from a
range of perspectives at national level, at various disaggregated levels, ..."
He also stated that: -
"... Those commitments included ensuring that the results of school groups in 2020
were not unduly constrained by the historical performance of the school, ensuring that
the results of individual students in 2020 were not unduly constrained by the historical
performance of the school and placing a high value on the estimates from schools. It
was recognised that the overriding imperatives of fairness and accuracy could require
the relaxation or adjustment of some of those commitments in particular circumstances.
..."
15
30.
In August, 2020, the commitments that had been given to apply SHD came sharply into
focus. This was, primarily, as a result of events that took place in the United Kingdom. The
authorities in the UK were faced with a similar problem concerning the cancellation of the A
Level examinations, which are, roughly, equivalent to our Leaving Certificate examinations.
A calculated grades system was put in place. There was a separate system for Scotland. Like
the system in this country, it was envisaged that historical school data could be used to achieve
statistical accuracy in the calculated grades given. Mr. Tattan stated in his affidavit that the use
of school historic data in the UK was referred to as a "post code lottery" and "school
profiling", particularly in cases where the scale of over estimation of teacher grades was greater
in schools serving areas of disadvantage than in schools serving more affluent communities
and smaller, private fee-charging schools. This caused a major political crisis in the UK and,
indeed, threatened the future of the Government of Scotland. In response, use of a
standardisation model was abandoned and candidates were awarded calculated grades based
on school estimates, save where the calculated grade was greater.
31.
Almost immediately, the issues that were convulsing the UK calculated grades system
were widely reported by the media here. Attention was immediately focused on the use of SHD.
This was taken up by politicians and commentators, criticising the use in this country as to
what was being described in the UK as being a "post code lottery" and "school profiling".
The fact that there were a number of fundamental differences between the system for the award
of calculated grades in this country and that of the UK (to a lesser extent in Scotland) was
completely lost in the ensuing storm.
32.
The political storm set in train a number of events that would culminate in a decision
of the Government to remove SHD from the standardisation model and not to apply the
"mapping tool" to NHD. Evidence of these events was given to the Court by Mr. Tattan, who
was cross-examined, at length, on his affidavit. Mr. Tattan stated that the Minister herself had,
16
since taking office at the end of June, 2020, considerable doubts and misgivings on the use of
SHD. The Minister had to consider the effects of removing SHD. The removal of SHD would
result in taking out of the standardisation model the measure of "school effectiveness". This
means, in simple terms, that schools who have a history of obtaining high grades in the Leaving
Certificate are more likely to be accurate in their estimated marks than are schools with a less
good history.
33.
To illustrate the statistical effects of removing SHD, two models were looked at:
Models 10 and 17. For the purposes of these models only two schools were selected. The first
school, Mount Anville, had a record of strong results in the Leaving Certificate; and the other
school, a DEIS school, did not have such a record. Only one subject was considered, namely:
Mathematics, both at ordinary and higher level. In Model 10 SHD was removed, whilst it was
retained in Model 17. It should also be noted that Model 17 did not preserve the class rankings
as submitted by the schools. This exercise appeared to show that the omission of SHD in Model
10 led "to a substantial decrease in the mean mark (in higher/ordinary level mathematics) and
the grade profile in comparison to what the school had seen in the past". On the other hand,
in respect of the DEIS school, the removal of SHD had led to a substantial increase in the mean
mark and the grade profile in comparison to what the school had seen in the past. This would,
on its face, appear to show that the removal of SHD would adversely affect a traditionally high-
performing school, such as Mount Anville. However, as against this it must be noted that these
models only looked at two schools and one subject, they were experimental in nature and, in
any event, would not have been the final model that would be used for the award of calculated
grades.
34.
The Minister was informed of the exercise concerning Models 10 and 17.
35.
Confusion arose in the course of Mr. Tattan giving his evidence as to inclusion in the
standardised model of national historical data (NHD) and the application of a "mapping tool"
17
to such data. It will be recalled that the purpose of including such data was to bring about an
alignment between the results of 2020 and those of previous years. Whereas though NHD was
included, its effects on the eventual calculated grades awarded were reduced by the non-use of
the "mapping tool". In the course of his evidence, Mr. Tattan incorrectly indicated that NHD
was not used. However, the decision that was, in fact, taken was not to apply the "mapping
tool". Had the mapping tool been used, it would have meant that some 58% of higher level
grades would have been reduced by one grade. It was the view of the Minister that such a
downward adjustment in the schools' estimates "could have been fatal to the acceptability of
the calculated grades system". (Per para. 62 of the affidavit of Mr. Tattan). This resulted in
"grade inflation" in the order of 4.5% to 5%. Mr. Tattan expressed the view that there was, in
effect, a trade-off between grade inflation and restoring public confidence in the calculated
grade system.
36.
I have already referred to the fact that the standardisation model underwent numerous
iterations in the period that led up to the events and the consequent decisions of August and
September, 2020. By the middle to the end of August, the Minister was looking at two models,
namely: 18(a) and 18(g). In Model 18(a) SHD had been "dialled down to the greatest possible
degree", whereas in Model 18(g) SHD had been removed completely. Further, though in both
of these models there was an element of NHD, in neither was the "mapping tool" applied.
Before proceeding, two matters should be noted. Firstly, there was a Model 18 which evolved
into 18(a) and (g); and, secondly, the model that was ultimately used was Model 21(a), though
the differences in the final model and Model 18(g) do not appear to be relevant. As to the
circumstances under which Models 18(a) and (g) came about, the Court heard evidence from
Mr. Hugh McManus who was cross-examined, at considerable length, on his affidavits.
37.
Mr. McManus was Assistant Director of the Calculated Grades Executive Office at the
Department of Education and Skills. Mr. McManus was also a member of the NSG. He gave
18
detailed evidence of the various iterations of the standardisation model that led to Model 18
and subsequent models. In particular, he described the effects of using SHD in earlier models.
He stated that, paradoxically, over emphasising the role of SHD had actually caused the schools
to come closer together, which was not what one might expect. He stated that if you tried to
force SHD too strongly into the model that you actually prevent either individuals, or groups
of individuals, from deviating from the history of the school to the extent that they ought to if
the model was functioning properly. These observations on the effects of the use of SHD had
led to Model 18(a), which had reduced SHD to the lowest degree possible. Mr. McManus stated
that this had occurred without the intervention of the Minister and that if the Minister had not
intervened the SHD that would have been used in the final model was as it had been used in
Model 18(a). Mr. McManus was aware of the Minister's view of SHD. This evidence was the
source of considerable controversy, which I will return to shortly.
38.
Mr. McManus accepted that removing SHD from the model was removing a significant
source of information, being the element of school effectiveness. He gave evidence concerning
four tables that were set out in a document entitled "Information Note Calculated Grades"
of 20 August 2020 from the Department of Education and Skills. It would appear that this note
informed the decision that was taken to remove SHD and not to use the "mapping tool". In
this document there are four tables which set out the effects of either using Model 18(a) with
SHD and Model 18(g) without SHD. In the course of his cross-examination on these tables,
Mr. McManus accepted that they give a generalised view of how many grades will be increased
or decreased and that they do not give information as to which cohort of students will gain or
lose, though he did state that with every change to the standardised model some students would
gain and others would lose. Mr. McManus accepted that, from a purely statistical perspective,
the results that would have emerged had SHD been left in were likely to be more statistically
accurate than the ones that emerged from the standardisation model without SHD.
19
39.
Whilst giving his evidence, Counsel for the applicant challenged Mr. McManus on his
evidence that the SHD that was used in Model 18(a) was as a result of the evolution of the
standardisation model, rather than by intervention of the Minister. In a later submission,
Counsel referred to documents from Ms. Andrea Feeney, Director of the Calculated Grades
Executive Office, which, on their face, indicated that the change in the use of SHD was
prompted by intervention of the Minister following on from the public controversy, which I
have referred to. These documents were not put to Mr. McManus in the course of his cross-
examination. This prompted a letter from the Chief State Solicitor's Office, on behalf of the
respondents, suggesting that Mr. McManus be recalled to give evidence on these documents
and that Ms. Andrea Feeney also be called to give evidence on this. It should be noted that in
the course of a preliminary hearing this Court refused an application by the applicant to cross-
examine Ms. Feeney on her affidavits. Counsel for the applicant submitted that the content of
the evidence given by Mr. McManus should have been referred to in both the Statement of
Opposition and replying affidavits. Arising from this it was maintained that there was a lack of
candour on the part of the respondents, and that they had failed to meet the applicant's case
"with all cards face up", as they ought to have done. The applicant invited the Court to reject
the evidence of Mr. McManus on this point. As for the fact that the documents from Ms. Feeney
were not put to Mr. McManus, in the course of cross-examination Counsel relied on the rule in
Browne v. Dunn, as considered by the Supreme Court in McDonagh v. Sunday Newspapers Ltd
40.
I will not be acceding to this application. I accept the evidence of Mr. McManus for a
number of reasons. Firstly, Mr. McManus was cross-examined at length and in detail,
commencing on the morning of Wednesday 13 January and concluding on the afternoon of
Friday 15 January, in excess of two and a half days. In the course of that time, I had an
opportunity to assess Mr. McManus as a witness and I am satisfied that, at all stages, he gave
20
his evidence truthfully and conscientiously. As for the suggestion that this was "new" evidence
and ought to have been referred to in both the Statement of Opposition and the various replying
affidavits, I do not accept this. All of the documentation in this case makes clear that the
standardisation model was undergoing numerous iterations before a final model was arrived at.
Various iterations can only mean changes in the model from one iteration to another. Mr.
McManus was a member of the NSG and it is clear that changes to the manner in which SHD
was being used were within its terms of reference (see para. 24 above). Arising from this, I do
not accept that there has been any lack of candour on the part of the respondents. I do not attach
very much significance to the fact that Ms. Feeney's documentation was not put to Mr.
McManus in the course of his cross-examination. However, I would have thought that if this
evidence from Mr. McManus was as significant as the applicant maintains it was that the offer
to recall Mr. McManus and, indeed, the offer to make Ms. Andrea Feeney available to give
evidence would both have been accepted. Further, insofar as the evidence of Mr. McManus
may have had implications on the statistical aspect of the case, the applicant declined an
opportunity to recall their own statistical expert, Professor Cathal Walsh, to deal with this.
41.
Having considered the evidence of Mr. McManus, I find, as a fact, that had there been
no intervention by the Minister, the SHD that would have been used in the final standardisation
model would have been as it was used in Model 18(a). In this context, I also note that the only
model in respect of which the applicant submits SHD was used appropriately was Model 17. It
was common case that Model 17 was a developmental model and would not have been used as
a final model.
42.
I will now consider the documentation that was before the Court on which the decision
of the Minister was based. The respondent claimed executive privilege over the memorandum
to Government. I refer to a document, namely: "Information Note Calculated Grades" of 20
August 2020. This document refers to the memorandum to Government of 8 May 2020 which
21
sets out the data to be used in the standardisation process so as to ensure the equitable treatment
of candidates for Leaving Cert 2020. This data was: -
(1)
The estimated marks and ranking of students supplied by schools;
(2)
The historical national distribution of student results on a subject-by-subject
basis based on historical Leaving Certificate examination performance;
(3)
School historical data based on historical Leaving Certificate examination
performance at the school level across three prior years; and
(4)
A prediction of the likely Leaving Certificate performance of the class of 2020
in each school based on their collective performance when they undertook the
junior cycle examinations.
The document then sets out why standardisation was required, stating that different schools
would take different approaches for generating estimated marks and rank orders. Some schools
would be overly optimistic, others very harsh. The document further stated that the element of
the standardisation process that had proved to be least acceptable in public discourse had been
the use of SHD and reference was made to the events that had unfolded in the UK. However,
the safeguards, not present in the UK system, were set out.
43.
The document stated that two versions of the standardisation model were now available,
namely: Model 18(a) and Model 18(g). It was stated that one of the models, Model 18(g),
involved a change in the data sources used and that the Government would need to be made
aware of this change.
44.
The document considered the estimated marks that had been submitted by the various
schools, stating that when aggregated across all subjects the percentage of grade ones at higher
level in 2019 was 5.8%, while in the 2020 school based estimates it was 13.2%. Thus, the
percentage of grade ones had more than doubled in teachers' estimates in many subjects. The
22
document noted that "such a change in standards within one calendar year is simply not
credible".
45.
The document, in its four tables, sets out the effects of retaining SHD, albeit at a low
level, in Model 18(a), comparing the outcome to Model 18(g) where SHD had been removed.
This exercise was carried out for DEIS schools and non-DEIS schools. In summary, it was
found that Model 18(g) appeared to show that over 75% of all teachers' estimated grades would
remain unchanged, about 5% would be raised and 18.6% of the grades would be lowered.
Marginally fewer grades would be lowered in DEIS schools than in non-DEIS schools. The
recommendation was made to use Model 18(g).
46.
In the course of the hearing, the applicant emphasised that the NSG do not appear to
have been involved in the decision to remove SHD and not to apply the "mapping tool". These
matters were also the source of considerable debate amongst officials in the Department, with
various emails and commentaries therein being produced to the Court. However, the role of the
NSG was to develop a standardisation model based on the four data sets that had been identified
in various documentation that emanated from the Department. The NSG did not have authority
to remove a data set from the standardisation model as this was a matter for the Minister. In
any event, the NSG in its comprehensive report of 6 September 2020 supported the decisions
taken, as did the Independent Steering Committee.
47.
Prior to being considered by the cabinet, the decisions on the final standardisation
model were discussed by the Minister with the Taoiseach, and, separately, leading members of
the parties that make up the present coalition government were briefed. The matter came before
the Government on 1 September 2020. The written decision of the Government recorded the
following had been agreed: -
"(i)
that historical school distribution data, based on historical Leaving Certificate
Examination performance of past cohorts of students at the school level across
23
2017, 2018 and 2019, will be removed from the range of data being used in the
standardisation model in response to concerns that have been raised; and
(ii)
that the reliance in the standardisation model on historical national distribution
of students' results on a subject-by-subject basis, and therefore the impact of
this data, will be minimal."
48.
Having considered the affidavits filed, the exhibits and the evidence given to the Court
by Mr. Tattan and Mr. McManus, I am satisfied that the data that was used in the
standardisation model for the awarding of calculated grades did not meet the commitments that
had been given by the Minister. Though there was an element of SHD from the basis on which
teachers' awarded estimated marks and the use of prior Junior Certificate data, it clearly was
not used in the form that had been communicated to the applicant in the documentation I have
already referred to.
49.
There was also a commitment by the Minister that the results of the Leaving Certificate
of 2020 would be in line with the results of previous years. This commitment was also not
honoured in that by deciding not to apply the "mapping tool" to NHD it, inevitably, resulted
in "grade inflation" . As far as the applicant is concerned, this "grade inflation" has to be seen
alongside the effects on him of the removal of SHD.
50.
In the course of the hearing, the respondents supplied to the Court an aide-mémoire
illustrating how the standardisation model worked. There was no disagreement as to its
contents. I have therefore included it in Appendix A to this judgment. For clarity: -
-
"A" represents how NHD and prior Junior Certificate results were used;
-
"B" represents SHD, which was not used; and
-
"C" represents the "mapping tool", which was also not used.
51.
The failure of the Minister to honour these commitments has to be seen in the context
that the results of Leaving Certificate 2020 had to be acceptable to the general public. I will
24
now consider the legal principles that apply. I will also consider whether, in fact, the applicant
suffered any unfairness.
Justiciability
52.
The first legal issue which I will consider is whether the decisions, be they of the
Minister or the Government, are justiciable.
53.
Article 28.2 of the Constitution provides: -
"The executive power of the State shall, subject to the provisions of this Constitution,
be exercised by or on the authority of the Government."
Submissions
54.
Mr. Feichín McDonagh SC (with Mr. Micheál P. O'Higgins SC and Mr. Brendan
Hennessy BL), on behalf of the applicant, submitted that the system providing for the award of
calculated grades does not have a legislative basis, nor, indeed, does the Leaving Certificate
examination itself. Rather, the system was clearly administrative and voluntary. The system
was the result of negotiations entered into by the various interested parties. Therefore, the
decisions of August/September 2020 could not, and did not, transform the voluntary system
into a compulsory one. It followed, according to the submission, that the executive power of
the State was not invoked, save in respect of funding.
55.
As for the public controversy that arose following the events in the UK arising from its
system of calculated grades, Counsel submitted that the controversy was based on a complete
misunderstanding of the differences between the Irish system and that operating in the UK. In
the applicant's view, the pressure that built up on the Minister, which resulted in the impugned
decisions, was a result of ill-informed commentators and politicians. Thus, there was no
reasonable or rational basis for the decisions.
56.
As part of their submission, Counsel relied on a number of authorities. In State (C) v.
Minister for Justice [1967] I.R. 106, Walsh J. stated: -
25
"With regard to the last point, it is my opinion that the fact that a statutory power is
conferred upon a member of the executive or a representative of the executive, as was
the Lord Lieutenant, does not make that power an executive power within the meaning
of that expression in the Constitution as the statute might just as easily have conferred
the power on anybody else. ..."
Reliance was also placed on Gutrani v. Minister for Justice [1993] 2 I.R. 427. This case
concerned a letter that had been written on behalf of the respondent concerning procedures that
would be implemented for applications for refugee status and asylum, as had been suggested
by the representative of the United Nations High Commissioner for Refugees. The applicant
maintained that humanitarian considerations had not been taken into account in accordance
with the terms of the said letter. In the course of giving the judgment of the Supreme Court,
McCarthy J. stated: -
"The Minister does not contest that he is obliged to consider the application within the
framework of the letter of the 13th December, 1985. Having established such a scheme,
however informally so, he would appear to be bound to apply it to appropriate cases,
and his decision would be subject to judicial review. It does not appear to me to depend
upon any principle of legitimate or reasonable expectation; it is, simply, the procedure
which the Minister has undertaken to enforce."
The applicant also relied on a number of English authorities, in particular: The Secretary of
This case concerned a judicial review arising out of a refusal to grant a licence to catch what
was a very commercially valuable fish, the Patagonian toothfish.
57.
Ms. Eileen Barrington SC (with Mr. Brian Kennedy SC, Mr. Francis Kieran BL and
Mr. Joseph O'Sullivan BL) submitted that in making the impugned decisions the executive
power of the State was engaged. "Executive power" is not defined, but reliance was placed on
26
the following passage from the judgment of O'Donnell J. in Barlow v. Minister for Agriculture
"... It appears that the executive power in Irish law to date is, as Professor Casey
observed, the residue which is left when the judicial and legislative powers are
subtracted: Casey, Constitutional Law in Ireland, 3rd Ed., (Dublin, 2000), pp. 230-231.
..."
58.
The respondents submit that the calculated grade system was put in place by executive
decision to be operated by the Minister. This was deposed to in the affidavit of Mr. Tattan. Mr.
Tattan further deposed that the Government decision of 8 May 2020 was based on a
memorandum to the Government which included reference to using SHD as part of the
standardisation process. He maintained that in having to reconsider the matter a further decision
of the Government would be required.
59.
More particularly, the respondents submitted that the decisions to remove SHD and not
to apply the "mapping tool" to NHD involved matters of policy which, given the separation of
powers, fell outside the jurisdiction and competence of the courts to review. A number of
authorities were relied upon. As a general statement of the law, reliance was placed on the
decision of the Supreme Court in T.D. v. Minister for Education [2001] 4 IR 259. This was
an appeal to the Supreme Court from a decision of the High Court which had granted a
mandatory injunction directing the respondent to implement forthwith a policy that had been
formulated regarding the accommodation and treatment of children with special needs, which
category included the applicant. In his judgment, Murray J. (as he then was) stated: -
"Adopting a policy or a programme and deciding to implement it is a core function of
the Executive. It is not for the courts to decide policy or to implement it. It may
determine whether such policy or actions to implement such policy are compatible with
the law or the Constitution to fulfil obligations. That is not deciding policy.
27
Judicial review in a democracy
Thus the powers of the court include judicial review of acts of the executive and the
legislature. It is a feature common to many democracies, particularly with a written
constitution. Judicial review permits the court to set aside executive actions or
legislative measures which offend against the law or the Constitution. Judicial review
does not in such democracies give the courts jurisdiction to exercise rather than review
executive or legislative functions. Judicial review permits the courts to place limits on
the exercise of executive or legislative power, not to exercise it themselves. It deals
with the limits of policy, not its substance. That is why judicial review by the courts,
which are not answerable to any constituency other than the law and the Constitution,
is democratic. ..."
In considering the granting of mandatory orders, Murray J. stated: -
"In so far as McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10, Crotty v. An Taoiseach
[1987] IR 713 and District Judge McMenamin v. Ireland [1996] 3 I.R. 100 might be
said to be authority for the making of some form of mandatory order where there is `a
clear disregard' by the State of
its constitutional obligations, it must be borne in mind
that in none of those cases was a mandatory order granted. I have already made the
distinction between `interfering' in the actions of other organs of State in order to ensure
compliance with the Constitution and taking over their core functions so that they are
exercised by the courts. ... In my view the phrase `clear disregard' can only be
understood to mean a conscious and deliberate decision by the organ of state to act in
breach of its constitutional obligation to other parties, accompanied by bad faith or
recklessness. A court would also have to be satisfied that the absence of good faith or
the reckless disregard of rights would impinge on the observance by the State party
concerned of any declaratory order made by the court. ..."
28
In the instant case, were the issue before the Court to be decided in the applicant's favour, a
declaratory order would follow.
60.
The respondents also submitted that not only are the impugned decisions a matter of
policy, but also that there were no legal standards of competency on the part of the Court which
could guide it were it to review the said decisions. The respondents relied on the decision of
the Court of Appeal in Moore v. Minister for Arts, Heritage and the Gaeltacht [2018] 3 I.R.
265. This case concerned a judicial review of a decision by the respondent arising out of the
refusal to declare Moore St. and its environs a "national monument" for the purposes of the
relevant statute. The High Court had granted the relief sought, including a declaration that
certain sites constituted national monuments for the purpose of the statute. In allowing the
appeal, Hogan J. stated: -
"(41) The reason why, however, the matter would be regarded as executive (or, possibly
in some instances, legislative) in character is, however, readily apparent, because the
designation of a monument as a national monument ultimately calls for political and,
in some instances, perhaps, administrative judgment ..."
and: -
"(42) The judicial branch quite obviously lacks the institutional competence, capacity
and, most of all, democratic legitimacy to determine policy matters of this kind. Article
34.1 of the Constitution instead requires the judiciary to administer justice, thus
typically requiring the judges to apply conventional legal materials - such as the corpus
of common law rules and principles, rules of statutory interpretation, precedent and
reasoning by analogy in a detached and principled fashion, regardless of the
consequences. ..."
On the issue of separation of powers, Hogan J. stated: -
29
"(44) The other branches of government bring with them the strength of democratic
accountability and the constitutionally assigned role of policy making. The Government
brings with it the policy insights of its members and the wider civil service. It can give
a lead as to what is likely to be effective in practical policy terms and it is likewise
dispensed from the necessity to rationalise its actions by reference to conventional legal
principles.
(45) The reason for this different approach is, of course, because, generally speaking,
the two other branches of government are engaged in the business of policy formulation
as distinct from the administration of justice. In contrast to judicial decision making,
the policy makers of the legislative and executive branches are not required to be
consistent or to have regard to established precedent or to proceed from legal principle
or to give detailed reasons in writing for their decisions. Nor are they required to be
detached and impartial in the same manner as is required of the judiciary by Article
34.6.1° of the Constitution. Critically, however, the two other branches of government
are democratically accountable in a way that the judiciary are not."
61.
Similar views were expressed by Hogan J. in Garda Representative Association v.
Minister for Public Expenditure and Reform [2016] IECA 18, which case concerned an
application for judicial review of a decision by the respondent to include An Garda Síochána
in "Sick Leave" Regulations. This inclusion was made notwithstanding a commitment that the
Gardaí would be excluded. It was not in dispute that the respondent Minister suddenly changed
his mind and decided that the Regulations would apply to the Gardaí, with immediate effect. It
subsequently emerged that the reason for the volte-face was that a senior trade union official
stated that the public sector trade unions would not accept any exemption or derogation for the
Gardaí. In upholding the decision of the High Court to refuse the applicants the reliefs they
sought by way of judicial review, Hogan J. stated: -
30
"(42) In the present case the Minister was engaged in the practical politics of policy
formation by piloting the 2013 Act through the Oireachtas and by subsequently
promulgating [the 2014 Regulations] ... It is true that the GRA might legitimately
consider that they had been let down by the manner in which that decision was arrived.
The GRA are also entitled to feel disappointed given that the critical intervention of
Mr. Cody was not disclosed to them at the time and this only came to light subsequently
in the course of the discovery process after these proceedings had been commenced.
Yet, from the Minister's perspective, the greater prize of securing the reform of a very
expensive feature of public service pay and conditions while avoiding the threat of
industrial action from other public sector unions made it imperative in the
circumstances that a snap decision of this kind (i.e., to include An Garda Siochána in
the new regime) be taken immediately, regardless of any assurances in relation to
consultation which the Minister might previously have given to the GRA.
(43) This conclusion finds expression in the case-law which has consistently rejected
the suggestion that legislative, or quasi-legislative decisions, attracts the principles of
fair procedures, even though such generally applicable rules might have significant
implications for the livelihood, well-being and general welfare of those affected by
such decisions. ..."
Evidence
62.
Dr. William Maxwell filed an affidavit exhibiting an expert report on behalf of the
respondents. Dr. Maxwell is an Educational Consultant and was Her Majesty's Chief Inspector
of Education for Scotland from 2010 to 2017. He led the creation and development of
Education Scotland, a new quality improvement agency established in 2011 to integrate both
inspection and improvement support functions. As HM Chief Inspector, he was Chief
Professional Advisor to Scottish Ministers on matters relating to education. From 2008 till
31
2010, he was Her Majesty's Chief Inspector for Education for Wales. Dr. Maxwell was in a
good position to give evidence on the system that was adopted in Scotland and the remainder
of the UK for the awarding of calculated grades due to the cancellation of state examinations,
the circumstances and nature of the political storm that blew up and the steps taken by
politicians to address the situation.
63.
In his report Dr. Maxwell stated: -
"In conclusion, on the basis of the evidence I have seen in relation to the development
of the Irish `calculated grades' approach through to its conclusion, it is my view that
the Minister acted rationally and reasonably in ordering the changes which were set out
in the memorandum of the 24
th
August. These were a reasonable response to ensuring
that the overarching policy objective of maintaining confidence in the fairness and
integrity of the awarding system was secured, in the context of heightened risk arising
from a series of high-profile problems emerging around equivalent approaches in the
UK and the resulting focus of public disclosure in Ireland throughout August.
Furthermore, having considered evidence of the outcomes of the standardisation
process in general, and its impact on Belvedere College in particular, I see no evidence
that the changes which the Minister ordered, including the removal of school-by-school
performance data, resulted in any unfair disadvantage to students at high-performing
schools, and consequently to him personally, in the way that the Applicant contends.
..."
64.
Dr. Maxwell was cross-examined on his report. It was put to Dr. Maxwell that the
standardisation model was likely to be more accurate if SHD was included. In response, Dr.
Maxwell stated that, from a statistically purist perspective, it would make the model more
accurate, as indeed would including "--the social postcode of the child and the family ". This
32
would not be considered to be ethical or credible in the public domain, even though it might
enhance the statistical technical accuracy of the model. He gave details of the controversy in
calculated grades that arose in the UK. Scotland was first to give its results first and the initial
public reaction was not concerning the treatment of disadvantaged schools, but, rather, "the
sheer scale and number of students who were affected by downgrading effectively ...". A
narrative developed that this downgrading had happened more to the pupils in certain
disadvantaged schools, and hence the use of a term such as "postcode lottery".
65.
Dr. Maxwell gave evidence that a feature of the criticism of the calculated grade system
in the UK was that by including SHD in the standardisation model, not only did it favour well-
resourced schools with a history of good exam results, but it also "pegged back" less well-
resourced schools whose examination results were improving year on year. He expressed the
view that when perception of the potential for unfairness takes hold, then the credibility of the
system suffers.
66.
Dr. Maxwell outlined what would have been the appropriate response to the public
controversy on calculated grades. He stated in evidence: -
"I think the role of public administration is to adjust and adapt the way systems are
operated to guard against criticisms that are, whether justified or unjustified, as far as
is reasonably possible, and it is, therefore if some adjustment can be made to a system
to protect it against allegations or the perception, right or wrong, without doing
detriment, significant detriment to the system, when it should be - - it makes sense to
adjust."
In the UK the response was, in effect, to abandon the standardisation process.
Consideration of submissions
67.
The first matter which I wish to consider is whether the impugned decisions were an
exercise of executive power. Applying the passage I cited from O'Donnell J. in Barlow v.
33
Minister for Agriculture, it would seem to me that this was an exercise of executive power.
The decisions taken were clearly not an exercise of judicial or legislative powers. The fact that
the calculated grade system was voluntary does not alter this. (See Ryanair DAC v. An
68.
In these proceedings, the applicant has not invoked any constitutional or legal right
(save for legitimate expectation, which I will consider later) that has been infringed. Nor has
the applicant identified any "clear disregard" of the respondents of their powers and duties
conferred on them under the Constitution, as per Murray J. in T.D. v. Minister for Education
(see para. 58 above). In my view, the decision of Walsh J. in State (C) v. Minister for Justice
is not of assistance. The passage of the judgment cited earlier (para. 56) is clearly referable to
"statutory power", which is not the case here. This also applies to the English Court of Appeal
decision in The Secretary of State for Foreign and Commonwealth Affairs v. Quark Fishing
Ltd. What was involved there was also statutory provision. Further, the issue in Gutrani v.
Minister for Justice was a scheme set out in a letter from the respondent to the United Nations
High Commissioner for Refugees. This arose by reason of Ireland being a signatory to the
United Nations Convention on the Status of Refugees and Stateless Persons, 1951 and the
United Nations Protocol on the Status of Refugees and Stateless Persons, 1967, though these
were not part of domestic law of the State, such a letter is very different from the proposed
system of calculated grades in these proceedings. Further, in Gutrani the respondent did not
contest that he was obliged to follow the terms of the letter. That is clearly not the case here.
69.
Whatever issues there may be as to whether or not executive power was engaged in the
making of the impugned decisions, to my mind, these were policy decisions which, on the
authorities of T.D. v. Minister for Education; Garda Representative Association v. Minister for
Public Expenditure and Reform; and Moore v. Minister for Arts, Heritage and the Gaeltacht
34
are not reviewable by the Court. To explain how I reach this conclusion, it is necessary to
retrace some steps.
70.
The purpose and aim of the calculated grades system was to award each candidate a
calculated grade that would represent the grade that he or she would have obtained had the
particular exam been sat in the normal way. There were always two fundamental aspects to the
system. Firstly, that the system had to be statistically accurate, and, secondly, that there had to
be public acceptance of the system. The importance of public acceptance cannot be minimised.
Calculated grades awarded for Leaving Certificate 2020 would have to be accepted by those
responsible for admissions to third level education and present and future employers of the
class of 2020. However, what was not in dispute was that the use of certain data, e.g.: gender
and economic background, which might make the system more statistically accurate would not
be acceptable to the public. Statistical accuracy had to be sacrificed to maintain public
acceptance. This was the case even before the controversy arose in the UK.
71.
The effect of the controversy in the UK was that the inclusion of SHD and the
downgrading, on a large scale, of teachers' estimated grades, though statistically justifiable,
was not acceptable to the public. This left the Minister with three options, as per the evidence
of Dr. Maxwell: -
(i)
To carry on regardless, stick to the original plan, highlight the differences
between the Irish model and that in the UK, and make all the arguments to
persuade the public as to the fairness of the standardised model as it stood;
(ii)
To make a number of adjustments to the standardised model so as to reduce the
likelihood of a narrative gaining ground which could undermine the whole
system;
(iii)
To abandon the standardised model, as was done in all parts of the UK, the
Netherlands and France.
35
What is common to these options is an appreciation and understanding of what is necessary to
gain public acceptance and to restore confidence in the system for the awarding of calculated
grades. Being democratically elected politicians, the Minister and her Government colleagues
are best placed to decide what is, or is not, acceptable to the public. This puts the matter firmly
in the area of policy, which is a matter for elected representatives and not the courts. I refer to
the authorities, which the respondents relied upon, set out at paras. 56-60 above, arising from
the separation of powers, the courts have neither the competence nor legal authority to choose
one of the above options over another.
72.
Those, including the applicant, who feel aggrieved by the decisions taken by the
respondents are not without redress. I refer to the following passage from Hogan J. in Garda
Representative Association v. The Minister for Public Expenditure and Reform: -
"41. This democratic accountability has the important consequence that the electorate
expect their politicians to achieve practical results. Politicians who are perceived by the
electorate as having failed to deliver such results will potentially suffer the electoral
consequences. For these reasons, these politicians must have regard to the practical
consequences of their decisions and the wishes of the electorate in a manner which
would not be appropriate to judicial decision-making."
73.
In view of the foregoing, I am satisfied that the impugned decisions, notwithstanding
that they had the effect of reducing the statistical accuracy of the calculated grades that were
awarded and caused "grade inflation", were policy decisions taken by the respondents to
ensure public acceptance of the calculated grades system and are not justiciable by the Court.
Legitimate expectation
74.
It is clear from the terms of the issue before the Court that the applicant relies upon
"legitimate expectation".
36
75.
In Glencar Exploration Plc v. Mayo County Council (No. 2) [2002] 1 IR 84, Fennelly
J., having reviewed a number of authorities on legitimate expectation, drew the following
conclusions, which he described as provisional: -
"... Firstly, the public authority must have made a statement or adopted a position
amounting to a promise or representation, express or implied as to how it will act in
respect of an identifiable area of its activity. I will call this the representation. Secondly,
the representation must be addressed or conveyed either directly or indirectly to an
identifiable person or group of persons, affected actually or potentially, in such a way
that it forms part of a transaction definitively entered into or a relationship between that
person or group and the public authority or that the person or group has acted on the
faith of the representation. Thirdly, it must be such as to create an expectation
reasonably entertained by the person or group that the public authority will abide by the
representation to the extent that it would be unjust to permit the public authority to
resile from it. Refinements or extensions of these propositions are obviously
possible. Equally they are qualified by considerations of the public interest including
the principle that freedom to exercise properly a statutory power is to be
respected. However, the propositions I have endeavoured to formulate seem to me to
be preconditions for the right to invoke the doctrine."
I will now apply these conclusions to the case the applicant is making.
76.
Earlier in the judgment I quoted extensively from various documentation that emanated
from the Minister as to the data that would be used in the standardisation model for the
awarding of calculated grades. It was clearly the case that SHD would be used to achieve
statistical accuracy. It was also the case that the results of Leaving Certificate 2020 would be
aligned with those of previous years. This would necessitate the application of the "mapping
tool" to NHD. This is clearly a "public authority" making a statement "amounting to a
37
promise or representation, express or implied as to how it will act in respect of an identifiable
area of its activity".
77.
These representations were made directly "to an identifiable person or group of
persons", this being the applicant and the Leaving Certificate class of 2020.
78.
The third condition is somewhat more problematic. The respondents submitted that the
applicant failed to satisfy this condition in that in the document inviting the applicant to opt
into the calculated grades system stated: -
"... there is no downside to opting into receiving a calculated grade."
This statement was made in circumstances where the applicant still had the option to sit all or
any subjects in a "traditional" Leaving Certificate exam that was to be held in November that
year. In any event, the academic year in third level institutions would begin before that date
and, so, any points requirement had to be fulfilled on the basis of calculated grades so there
was no other option. In his affidavit, the applicant stated: -
"... As I thought the process was going to be fair, I didn't keep on studying for the
possible sitting of an exam in November."
Thus, the applicant maintains he acted to his detriment. In any event, there is authority for the
proposition that "detrimental reliance" is not a condition precedent to a successful claim of
legitimate expectation. I refer to the following passage from Administrative Law in Ireland by
Gerard Hogan, David Gwynn Morgan and Paul Daly (5
th
ed.) p. 1261 where, the authors having
quoted Fennelly J. in Daly v. Minister for the Marine [2001] IESC 77, state: -
"21-68 To put this important point another way: unfairness in the context of legitimate
expectations is not to be equated with detrimental reliance in the context of estoppel.
Whilst they draw inspiration from similar springs, they are distinct concepts which play
different roles in public and private law respectively. Where an applicant has
detrimentally relied on an assurance, policy or practice, his or her case may be
38
stronger (and/or may be needed to justify a public body resiling from its previous
position), but the absence of detrimental reliance will not be fatal to a legitimate
expectations claim.
However, what has to be established is that it would be `unjust to permit the public
authority to resile...' "
It follows from this that the applicant must establish some unfairness that he has suffered as a
result of the impugned decisions.
Fairness
79.
In the following paragraphs, I will consider the effects on both the applicant and his
school, Belvedere College, of the removal of SHD and the non-application of the "mapping
tool" to NHD. I will also consider the evidence given by the statistical experts on behalf of
both the applicant and the respondents.
80.
Given the number of candidates, possibly in excess of 62,000, being awarded calculated
grades, the unfairness would have to be of an order to render the system unlawful. It was clearly
the case that, from the start of the process, the standardisation model was going to undergo a
number of iterations. Each iteration was going to produce different results. Thus, it was
inevitable that any change to the model would result in some candidates gaining and others
losing. Those who lost would, undoubtedly, consider it to be unfair. However, in the absence
of evidence that the unfairness suffered by an individual was widespread across the cohort of
those receiving calculated grades and of a serious nature, it is difficult to see how such
unfairness could amount to being unlawful.
81.
In his Grounding Affidavit, the applicant maintains that, due to the absence of SHD in
the final standardisation model, he was unfairly downgraded from the estimated marks which
were submitted to the Department by his school. The following was his situation.
Estimated grades from school: -
39
(i)
English H3
(ii)
Irish H2
(iii)
Maths H2
(iv)
Chemistry H2
(v)
Biology H2
(vi)
French H3
(vii)
Latin H2
Calculated grades received: -
(i)
English H3
(ii)
Irish H3
(iii)
Maths H3
(iv)
Chemistry H3
(v)
Biology H3 (Subsequently, upgraded to H2 due to a coding error).
(vi)
French H3
(vii)
Latin H3
The applicant considered that the estimated marks submitted by his teachers and school were
a fair and accurate prediction of the grades he would have achieved had he sat the Leaving
Certificate 2020 in the usual way. The applicant also criticises the grade inflation, which was
of the order of 4.5% to 5%, which put the points requirements for his third level courses of
choice out of his reach. The applicant was supported in an affidavit of Mr. Tom Doyle, Deputy
Principal of Belvedere College. He stated: -
"9. I say that Belvedere College students have a proven history of high performance
across Leaving Certificate subjects and that inevitably appropriate clusters of students
with high grades have occurred in the applicant's classes. The College could easily have
40
explained these clusters of students with high grades had we been given an opportunity
to do so relying on our historical data."
82.
In a replying affidavit, Mr. Hugh McManus exhibits a series of tables showing historic
Leaving Certificate results (2017-2019) and the 2020 estimated grades from Belvedere College
in respect of each of the subjects taken by the applicant. I will set out these figures as they
apply to H1s and H2s, and the percentage of Belvedere students awarded these grades: -
Subject
Average: 2017-2019
2020 Estimate
2020 Calculated Grade
Irish
H1
8.70
20.70
12.20
H2
26.20
31.70
26.80
English
H1
5.80
13.70
7.50
H2
13.60
19.90
16.40
Mathematics
H1
6.90
18.90
13.50
H2
18.60
27.00
22.50
Latin
H1
11.10
37.50
37.50
H2
22.20
50.00
37.50
French
H1
12.10
15.70
12.00
H2
22.50
25.00
20.40
Biology
H1
12.80
25.80
18.20
H2
21.70
30.30
24.20
Chemistry
H1
19.20
43.60
25.60
H2
18.40
33.30
25.60
83.
It is readily apparent from the above that the 2020 estimates from the school for
H1s/H2s were well ahead of what had been achieved in the previous three years, in some cases
a multiple of such. Lest it be suggested that the class of 2020 had more ability and application
than the previous years, this is not borne out by the results which the same cohort of students
received in their Junior Certificate examinations. Overestimation by teachers in schools was
41
anticipated, but probably not on this scale. As mentioned earlier, amongst the evidence to be
considered in awarding an estimated mark by a teacher was "previous results in the school in
this subject". It is difficult to see that this was done. Belvedere College was certainly not alone
in providing overestimates, as such was prevalent in other schools, particularly at the higher
levels.
84.
I should say that I do not intend this to be critical of the teachers or the school involved.
The awarding of estimated marks by teachers to their pupils, whom they would have known
well over many years, for an examination as important as the Leaving Certificate put both the
school and the teachers in a difficult and invidious position. This underlines what is one of the
most important features of the traditional Leaving Certificate, namely: its anonymity.
85.
Given the scale of the teacher and school overestimates, it is not at all surprising that
the applicant was going to be downgraded. As Professor Van der Linden, Statistical Expert on
behalf of the respondents, stated in his report: -
"Unless the Applicant's school is able to explain the sudden increase in the percentage
of its estimated H1 and H2 grades for 2020, it is quite unlikely that the Applicant was
disadvantaged by the downward adjustment of his school grades. Also, as already
noted, the adjustments applied to them by the standardisation model appear to be
relatively mild."
86.
The basis for using SHD was that if the estimated grades came from a school that had
a record of achieving high grades, it was more likely that the estimates would be accurate and
not downgraded. In the course of the hearing, SHD was referred to in the following terms: -
"(If) School historical data (is) still working in the model, students who receive high
estimates and deserved them tend to keep them; those who received low estimates that
they deserved tended to keep them while students who were marked low deserved better
tended to go up and students who were marked low correctly tended to stay there..."
42
The issue is, of course, what is meant by "deserved"? The answer is, on the rational of SHD,
that a student with a high estimate "deserves" to keep it given the school's past record.
87.
It is not at all surprising that the Minister was not a supporter of SHD. Her view was,
as stated by Mr. Tattan in evidence, that: -
"And the way she expressed that was when, say, a candidate goes into an exam hall,
whatever they do or don't do it is their effort on the exam paper and nobody else's."
This view was also supported by Professor Van der Linden in the course of his evidence.
88.
In considering the matter of fairness, it is necessary to look at what calculated grades
would have been awarded to the applicant had SHD been retained in the standardisation model.
On the evidence of Mr. McManus, I have found, as a fact, that the SHD would have been used
as it was in Model 18(a). This was a dialled down version of SHD. The comparator is Model
18(g), where SHD was removed completely. (The final model was Model 21(a), but the
changes in this model do not appear to be relevant to the issue in these proceedings). The
exercise of comparing the applicant's grades under Models 18(a) and 18(g) was carried out by
Ms. Andrea Feeney, Director of the Calculated Grades Executive Office. (This exercise was
not carried out for the subject of Latin). The findings were as follows: -
Model 18(a): -
Irish H2
English H3
Mathematics H2
French H3
Chemistry H2
Biology H2
Model 18(g): -
Irish H2
43
English H3
Mathematics H2
French H3
Chemistry H2
Biology H2
It will be immediately seen that the removal of SHD did not affect the applicant's calculated
grades.
89.
The other decision taken was not to apply the "mapping tool" to the NHD. Had this
been done, some 58% of grades (higher level) would have had to be downgraded. This was the
source of some of the grade inflation. If the grade inflation was even across the board, then it
cannot be said there was any unfairness to the applicant. However, it was maintained by the
applicant that the grade inflation was not even and, effectively, that it favoured those schools
that had a less strong history of achievement in the Leaving Certificate. Mr. McManus
compared the results of Belvedere College over the last three years with those of 2020. The
comparison showed that the school's standing relative to other schools in respect of its results
did not suffer. This can be summarised as follows: -
90.
Professor Cathal Walsh, Professor of Statistics, University of Limerick, gave evidence
on behalf of the applicant. Professor Walsh questioned whether you could compare the Leaving
Certificate data of 2020 with previous years, given that the data of previous years had been
collected on an entirely different system, being actual exam results. Professor Walsh is clearly
Table 1h: scores on composite scale Belvedere College
2017
2018
2019
2020
sch. est.
2020 calc
grades
Mean grade
98.5
101.1
100.4
108.5
105.9
Std. dev.
19.6
16.8
15.8
17.8
17.0
School rank by mean grade
86
64
75
52
71
44
correct in saying that the results of Leaving Certificate 2020 were arrived at in an entirely
different way to those of previous years. However, in my view, the point of calculated grades
for 2020 was to enable a comparison with previous years. In my view, it is a legitimate exercise
to compare 2020 with previous years for the purposes of identifying anomalies. Professor
Walsh placed emphasis on the outcomes of Models 10 and 17, which I have already referred
to at para. 33 above. It is the case that these Models only looked at two schools and one subject,
were experimental in nature and would not have been the final model that would be used for
the award of calculated grades. Also, Model 17 did not preserve the class rankings as submitted
by the schools. In these circumstances, I am of the view that it is not of assistance for the
applicant to rely upon SHD, as used in Model 17, to demonstrate unfairness to him.
91.
In his affidavit, Professor Walsh stated that the difference between the output of Model
18(a) to 18(g) varied "but amounted to of the order of up to a few percentage points, depending
on the subject". Although, he did say that the movement from 18(a) to 18(g) "had a much
larger impact on some schools". However, these schools were not identified, nor, indeed, was
the degree of movement. Overall, Professor Walsh accepted that the effect of the removal of
SHD was to move the calculated grades awarded closer to the school estimates. Given the fact
that there was a considerable amount of overestimation on the part of the schools, this would
point towards reduced downgrading.
92.
In comparing the performance of Belvedere College between 2020 and previous years,
Professor Walsh accepted that there were no changes that would be "irrational, capricious,
averse or completely disproportionate". Expert evidence was given on behalf of the
respondents by Professor Wim van der Linden, Professor Emeritus of Measurement and Data
Analysis of the Faculty of Behavioural, Management and Social Sciences, University of
Twente Drienerlolaan, Overijssel, Netherlands. As has already been referred to, Professor Van
der Linden had serious doubts as to the predictive value of SHD, saying that "historic
45
distributions are for different students the same school but different students .." and "--in
the case of the applicant, that if (he) is at a 36 percentile in 2020, according to the teachers,
that he should be at the same percentile in the past. we'll never know ". Professor Van der
Linden did accept that SHD did remain part of the model in the form of the use of Junior
Certificate grades achieved in the past.
93.
Professor Van der Linden emphasised that the standardisation model was a statistical
exercise. He accepted that the changes made in the standardisation model could mean that some
2020 candidates had "bad luck". When it was put to him that the "unlucky students" could
have been the group with the highest marks, he did not accept that this could have been
corrected by retaining SHD. He stated "...using historical data does not tell me anything about
an individual student in the 2020 cohort". Professor Van der Linden accepted that
downgrading was a function both of teacher estimates and what the standardisation model
predicted. A student could be downgraded because of teacher overestimates or because of "bad
luck" which is a statistical consequence.
94.
In considering the evidence, both on affidavit and the cross examination of a number
of deponents, a number of conclusions can be reached. It is a fact that in order to preserve
public acceptance of the system of calculated grades, significant "grade inflation" was
permitted by the respondents. However, the initial significant "grade inflation" commenced
with the estimated marks submitted by the schools. In some cases, these estimated marks were
a multiple of what had been achieved in the past. In order to bring the results of Leaving
Certificate 2020 back into line with previous years, downgrades of the order of 58% would
have had to have been applied. Downgrades on this scale were not, as a matter of policy,
acceptable to the respondents. On a statistical analysis, Belvedere College does not appear to
have been adversely affected.
46
95.
In the course of the hearing, it became apparent that the use of SHD was questionable
on two grounds. Firstly, statistically and, secondly, as a matter of policy. On the statistical side,
the standardisation model had undergone various iterations, and by Model 18(a) SHD had been
"dialled down to the greatest possible degree". If the Minister had never intervened on the use
of SHD, it would have been used as it was in Model 18(a) and would not have improved the
applicant's calculated grades. Further, Professor Van der Linden expressed doubts as to the
predictive powers of SHD.
96.
On the policy side, the use of SHD meant incorporating "inequality" into the
standardisation model. This may not be acceptable in that the thrust of education policy must
be to reduce inequality. Further, it is difficult to see how there could be an entitlement to an
inequality so as to amount to a legal obligation.
97.
By reason of the foregoing, I am not satisfied that it has been demonstrated that either
the applicant, or his school, have been the subject of an unfairness arising from the removal of
SHD and the minimising of NHD in the standardisation model that was applied.
Public interest
98.
Even were the applicant to satisfy the various conditions identified by Fennelly J. in
Glencar Exploration Plc v. Mayo County Council (No. 2) to establish a claim for legitimate
expectation, he would still be faced with the issue of "public interest". As Fennelly J. stated at
the conclusion of the passage cited above (para. 75): -
"Equally they are qualified by considerations of the public interest including the
principle that freedom to exercise properly a statutory power is to be respected. ..."
Though a statutory power is not involved here, matters of public interest are.
99.
In Glenkerrin Homes v. Dun Laoghaire Rathdown County Council [2011] 1 IR 417,
Clarke J. (as he then was) stated: -
47
"It is clear from the passage from Glencar Exploration p.l.c. v. Mayo County Council
(No. 2) 1 I.R. 84 that the promise or representation may be expressed or implied. I am
satisfied that an implied representation can derive from the universal following of a
particular practice for a prolonged period of time. It is, of course, important to note that
the executive enjoys a constitutional entitlement to change policy. ..."
100.
An example of a change of policy defeating a claim of legitimate expectation was well
illustrated in Curran v. Minister for Education [2009] 4 I.R. 300. In this case, the applicants
were post primary school teachers who wished to apply for early retirement to take effect at
the end of the school year 2008/09, pursuant to an early retirement scheme of the Department
of Education and Science which had been in operation since May, 1997. A circular from the
said Department invited applications for early retirement in respect of the school year 2007/08.
The circular stated expressly that the scheme would operate again in the school year 2008/09.
Due to the gathering financial crisis in November, 2008, the Minister for Finance announced
that the scheme was being withdrawn. Thus, the applicants were denied the opportunity of
submitting applications under the scheme, which they had intended to do. The applicants
claimed that they had a legitimate expectation that the scheme would be available to them, and
that they had acted significantly and to their detriment in the reliance on that expectation.
101.
In the course of her judgment, Dunne J. reviewed the law on legitimate expectation,
including the distinction, if any, between a procedural or a substantive legitimate expectation.
She referred to the decision of Laws L.J. in R. v. North and East Devon Health Authority; ex
"However, Laws L.J. concluded that distinction between procedural and substantive
legitimate expectation was not helpful. He held that the doctrine was founded upon the
constitutional principle of good administration under which public bodies ought to deal
straightforwardly and consistently with the public."
48
Dunne J. further stated: -
"I am of the view that the applicants herein seek to avail of a scheme which confers a
substantive rather than a procedural benefit. ..."
102.
On the issue of "the public interest" Dunne J. stated: -
"There is no doubt that it is open to the executive to change their policies. Fennelly J.
in Glencar Exploration p.l.c. v. Mayo County Council (No. 2) [2002] 1 IR 84
recognised that the doctrine of legitimate expectation could be qualified by public
interest considerations. ... This particular qualification of the doctrine was endorsed by
MacMenamin J. in Power v. Minister for Social and Family Affairs [2006] IEHC 170,
`(28) ... the statement that a legitimate expectation will arise only if the court
thinks that there is no good reason of public policy why it should not is certainly
applicable in the instance of a discretion or power made pursuant to a statue or
statutory instrument which is exercisable for the good of the public or a specific
section thereof. Thirdly, it is clear that the court must ultimately carry out a
balancing exercise between the interest to the applicant and the public interest
in the unfettered exercise of the decision maker's discretion.'
(37) That a legitimate expectation may be overridden by virtue of the public interest
has also been recognised by the English courts in, for example, R (Nadarajah) v.
(D) 283 (Nov) and R v. North and East Devon Health Authority, ex parte Coughlan
Applying these principles to the facts of the case before her, Dunne J. stated: -
"(39) I am satisfied that declining economic circumstances were such that the
overriding public interest in taking the decision to suspend the scheme must outweigh
49
any legitimate expectation the applicants had to pursue their applications under the
scheme."
103.
Earlier in this judgment, I set out the circumstances that arose in this country following
the controversy in the awarding of calculated grades in the UK. I set out the options that were
facing the respondents to maintain public acceptance of the calculated grades system. The
respondents were fully entitled, despite earlier commitments, to make changes to the
standardisation model which they considered to be in the public interest. As stated earlier, this
Court has neither the competence nor the jurisdiction to review such a decision.
Conclusion
104.
By reason of the foregoing, I conclude that the decision of the respondents not to apply
school historic data (SHD) and not to apply the "mapping tool" to national historical data
(NHD) in the standardisation model for the award of calculated grades was not arbitrary, unfair,
unreasonable, irrational and unlawful and in breach of the applicant's legitimate expectations.
Summary
105.
The cancellation of the traditional Leaving Certificate for 2020 required the Minister to
put in place an alternative system for grading students and awarding Leaving Certificates.
Simply to postpone Leaving Certificate 2020 for a year was not an option. The class of 2020
could not be left stranded. The system for the awarding of calculated grades was a difficult and
complex exercise that had to be put in place in a matter of weeks.
106.
There were two fundamental requirements for the calculated grades system. Firstly, it
had to be statistically accurate; and, secondly, it had to have the support of those involved in
third level education, future employers of the class of 2020 and the public in general. These
requirements are not always compatible. Certain data which could lead to a more statistically
accurate result may not be acceptable to the public in general, e.g.: details of gender and the
socio economic backgrounds of students. In the course of August, 2020, school historical data
50
(SHD) and a widespread downgrading of teacher/school estimates fell into that category. In the
end, a degree of statistical accuracy had to be sacrificed to gain public acceptance.
107.
In the lead up to 27 July 2020, the date for candidates, including the applicant, to opt
into the calculated grades system all the documentation and information that came from the
Department of Education and Skills clearly stated that the data that would be used in the
standardisation model for the award of calculated grades would include SHD. It was also
clearly stated that the Leaving Certificate of 2020 would be comparable with, and have the
same standing as, the Leaving Certificates of previous years.
108.
In August, 2020, a widespread and serious controversy arose in the United Kingdom
concerning the awarding of calculated grades. This controversy focussed on what was
described as "school profiling" and a "post code lottery". Almost immediately, politicians and
commentators in this country drew parallels between the use of SHD in the Irish system and
its use in the UK system. There then followed a controversy, similar to that in the UK, centred
on the use of SHD. The fact that the UK system (to a lesser extent the system in Scotland) was
very different and, indeed, in some respects less sophisticated than the Irish system was lost in
the controversy. All this required a response from the Minister as it was believed that public
acceptance of the calculated grades system, as envisaged, was in serious jeopardy.
109.
There was a serious debate amongst officials in the Department as to the effects of the
removal of SHD from the standardisation model. The Minister herself, well before the eruption
of the controversy, had serious misgivings on the use of SHD. Having considered a number of
iterations of the standardisation model on the use of SHD to varying degrees, a decision was
taken by the Minister and the respondents to remove it completely from the model. Given the
potential number of downgrades from teacher/school estimated marks it was further decided to
minimise the effects of national historical data (NHD) by not applying the "mapping tool" in
51
the model. This led to significant "grade inflation" in the results of Leaving Certificate 2020
with consequent effects on the points requirements for certain third level courses.
110.
The decision to remove SHD and minimise the effects of NHD were clearly breaches
of the commitments that had been given to the applicant and other candidates for Leaving
Certificate 2020. This formed the basis of the issue which the court has to decide namely
whether these decisions were "arbitrary, unfair, unreasonable, irrational and unlawful and in
breach of the applicant's legitimate expectations".
111.
I am of the view that the decisions to remove SHD minimise the effects of NHD were
an exercise of executive power under Article 28.2 of the Constitution. Further, these decisions
involved an area of policy, namely how to maintain public acceptance of the calculated grades
system. In following the various legal authorities which I have referred to, I am of the view
that this Court, given the Constitutional provisions on the separation of powers, does not have
the jurisdiction to review these decisions. Further, I am satisfied that the Court does not have
the competence to make a finding as to which was the appropriate course for the Minister and
the other respondents to take when faced with the public controversy, as described.
112.
The applicant has not sought to base his case on a failure to observe or vindicate his
rights under the Constitution nor has he identified any breach of a statutory duty by the
respondents. No case has been made that the Minister and other respondents making the
decisions they did were in "clear disregard" of the duties imposed upon them by the
Constitution and law. Rather the applicant has sought to make his case as being one of breach
of his legitimate expectation.
113.
Though the applicant has met some of the conditions necessary to establish a breach of
his legitimate expectation, he has not satisfied others: -
(a)
The applicant has not established that he suffered any material unfairness as a
consequence of the said decisions. Certainly he has not established an unfairness as
52
would lead the Court to the conclusion that the system, following the said decisions,
for the awarding of calculated grades was unlawful;
(b)
The applicant's complaint is that he was unfairly downgraded from his
teacher(s)/school estimated marks. I have set out the relevant estimates as were
submitted by Belvedere College. It is very clear that these estimated marks were
significantly inflated being considerably ahead of what had been achieved by the
school in past years. It is not at all surprising that the applicant was downgraded
from these inflated estimates. Inflated school estimates were not unique to
Belvedere College and were common amongst other schools particularly at the
higher levels. These findings should not be taken as criticism of the teachers or
school involved. Teachers were placed in a very difficult and invidious position in
having to give estimated marks to their students, whom they would have known and
worked with for many years, in one of the most important examinations of their
lives;
(c)
Belvedere College maintained its position relative to other schools following the
calculated grades of Leaving Certificate 2020. This position was maintained
notwithstanding the "grade inflation". It should be noted that the starting point for
grade inflation was the estimated marks submitted by the schools; and
(d)
Had SHD been retained in the standardisation model it would have been as it was
in Model 18(a) namely "dialled down to the greatest possible degree". An exercise
in calculating the applicant's grades with Model 18(a) being applied showed little
difference from the calculated grades which the applicant did, in fact, receive.
114.
Even if the applicant had satisfied the conditions necessary to maintain a claim for
breach of his legitimate expectations he would still be met with the defence of "public
interest". I am satisfied that the respondents are entitled to maintain that the decisions to
53
remove SHD and minimise the effects of NHD (not using the "mapping tool") were ones taken
in the public interest to maintain public acceptance of the calculated grades system
115.
I am therefore satisfied that the removal of SHD and the minimising of NHD in the
standardisation model for the awarding of calculated grades was not "arbitrary, unfair,
unreasonable, irrational and unlawful and in breach of the applicant's legitimate
expectations", as claimed by the applicant.
Consequential orders
116.
Given the ruling that has been made, the Court will have to consider the issue of costs.
I would ask the parties to make written submissions on this, and other consequential orders,
within fourteen days.
117.
On the matter of costs, I would ask the parties to consider that this was the "lead case"
for the purposes of determining a central issue that is common to numerous other applications.
Result: Judicial review proceedings - reliefs not granted.
