Denominational schools should no longer have the right to discriminate in favour of enrolling children on the basis of their religion, the Ombudsman for Children has said.

Emily Logan, in a submission to the Department of Education on draft legislation on school admissions, also calls for an end to preferential access for the children of past pupils.

Minister for Education Ruairí Quinn published the general scheme of the Education (Admissions to Schools) Bill in September, to provide a new regulatory framework for school enrolment procedures and to provide a new appeals mechanism.

In her advice, published yesterday, Ms Logan says the general right currently enjoyed by denominational schools to give preferential access to children of their faith should end. This right is protected in section 7 of the Equal Status Act, which allows schools to discriminate on the grounds of religion if necessary to protect their ethos.

Head three of the scheme reaffirms this right. Ms Logan notes this has been criticised by international human rights bodies including the UN Committee on the Rights of the Child.

She says in circumstances where a denominational school is oversubscribed, children not of its denomination, or of none, are at an unfair disadvantage.

“Children should not have preferential access to publicly funded education on the basis of their religion and that the Equal Status Act should reflect that principle.”

However, she is mindful of the protection afforded to denominational education in the Constitution. This could be protected, she says, by way of a derogation to be sought from the Minister if a school’s student body was beginning to no longer reflect the school’s denominational ethos.

However, the derogation provided in the scheme allowing schools, in some circumstances, to give preference to children of past pupils is “unjustifiable” and should be removed.

“It can give rise to instances of indirect discrimination against particular groups of children,” she says. “As noted, the European Commission Against Racism and Intolerance expressed its concern at the impact this can have on Travellers and children of immigrant background.”

Though the automatic right of schools to do this has been restricted in the scheme, she says, it still cannot be justified.

“Putting children without an intergenerational connection with a school at a disadvantage vis-a-vis those with such a connection when there is high demand on limited spaces is not justifiable. In light of this . . . the Ombudsman for Children believes that the derogation contained in regulation 15 should be removed.”

She also raises concern about a proposed power for schools to refuse admission to a child based on the advice of the HSE or An Garda Síochána.

“Invoking this power clearly involves a significant interference with a child’s right to access education. This is placed in stark relief by the fact that there is no explicit provision made for how a child’s right to education will otherwise be vindicated.” She says the scheme gives no reason for the inclusion of this provision, nor demonstrates its necessity. This power “should be removed”.

The scheme proposes to get rid of the “section 29” appeals mechanism under which parents or guardians of a child who has been refused a school place can appeal to the Department of Education. Parents are to instead appeal to the school’s board of management.

Ms Logan is concerned at the removal of the “entirely independent” section 29 appeals committee and recommends that it be retained.