Opting Out of Religious Instruction: Rights under the Irish Constitution and ECHR

Dr Conor O’Mahony

News broke on Monday of a story concerning a pupil in Casteltroy College, a secondary school in Limerick run by the Education Training Board, whose father requested that she be exempted from religion lessons in the school. Initially, the School replied that the religion class (which, in this school, covered a variety of faiths rather than doctrinal instruction in one faith) was a compulsory subject and that the pupil could not opt out. However, following a meeting of the Board of Management on Monday, it was decided that the pupil could opt out, albeit that she would have to remain in the classroom while the subject was being taught.

This story raises a range of interesting issues concerning rights protected by the Irish Constitution and the European Convention on Human Rights (ECHR). Both documents protect freedom of religion (which is a right of both parents and children), and stipulate that parents have the right to determine their children’s religious education and upbringing. As part of this, both documents grant parents what might broadly be described as a right to withdraw their children from religious instruction to which they object.

The precise parameters of the right differs between the Constitution and the ECHR. The Irish Constitution was drafted with the uniquely-Irish primary school system in mind. Accordingly, it recognised that primary education is funded by the State but provided by third parties. Article 42.4 provides that the State shall “provide for free primary education” rather than “provide free primary education”; the word “for” was added by de Valera to an earlier draft in his own handwriting so as to reflect the reality on the ground. Article 44.2.4° acknowledges this reality further by explicitly recognising State funding of denominational schools, and the fact that children may find themselves attending a school operated by a religious denomination to which they do no subscribe. Therefore, to give effect Article 42.1, which recognises parents as the primary and natural educators of children and grants them the right to provide for the religious and moral education of their children, Article 44.2.4° makes express provision for the right to opt-out:

Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

The strength and effectiveness of this right is greatly undermined in denominational primary schools which operate an integrated curriculum. Under this approach, prescribed by Rule 68 of the Rules for National School 1965, “a religious spirit should inform and vivify the whole work of the school”. School ethos is protected by legislation allowing denominational schools to discriminate on grounds of religion in both teacher employment and school admissions. From the perspective of the right to opt-out, it means that children have a right to opt-out from timetabled religious instruction (usually 30 minutes a day), but not a right to be insulated from the general school ethos, as clarified by Barrington J in the Supreme Court decision in Campaign to Separate Church and State Ltd v Minister for Education [1998] 2 I.L.R.M. 81 at 101:

“The Constitution therefore distinguishes between religious ‘education’ and religious ‘instruction’ – the former being the much wider term. A child who attends a school run by a religious denomination different from his own may have a constitutional right not to attend religious instruction at that school, but the Constitution cannot protect him from being influenced, to some degree, by the religious ‘ethos’ of the school. A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion who wishes to attend that school.”

The integrated curriculum does not operate in secondary schools in the same way, and while over 95% of primary schools are denominational, this can only be said of about 50% of secondary schools. Castletroy College initially sought to resist the request to opt-out on the basis that the subject being provided was multi-denominational rather than doctrinal instruction. Nonetheless, the view taken by the Supreme Court in the passage quoted above suggests that this distinction is irrelevant. The right to opt-out applies to the formal timetabled period of “religious instruction”, and would seem to capture whatever form that instruction might take. Thus, while the distinction between “religious instruction” and the overall school ethos or “religious education” is often pointed to as undermining the right to opt-out in a primary school context, it might ironically serve to strengthen it in a secondary school setting.

The ECHR does not contain an express opt-out clause, but an obligation to provide for a right to opt-out may nonetheless arise, depending on the content of the religious instruction being provided. In one sense, it is potentially more flexible than the Irish Constitution, and an opt-out need not necessarily be provided from religious instruction which is genuinely objective and pluralistic. In Kjeldsen, Busk Madsen and Pedersen v Denmark, the European Court of Human Rights (ECtHR) stipulated at para 53 that:

… the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.

In this case, compulsory sex education, with no possibility of an opt-out, was found not to violate the parents’ rights to determine their children’s religious and philosophical upbringing because the content of the curriculum was limited to objective information and did not advocate any particular position or practice. However, notwithstanding its emphasis on the margin of appreciation enjoyed by Member States in setting curricula (see para 53 of Kjeldsen), the ECtHR has shown itself willing to scrutinise the level of objectivity of a particular course, and to require an effective opt-out mechanism where the content falls short of this requirement.

In Folgerø v Norway, the Court found a violation in respect of the so-called KRL subject (Christianity, Religion, Philosophy) due to a variety of factors. Norway argued that the course was multi-denominational and therefore objective. However, the Norwegian Education Act 1998 provided that “The object of primary and lower secondary education shall be, in agreement and cooperation with the home, to help give pupils a Christian and moral upbringing …” While other religions were covered in the subject, Christianity was given by far the most focus, and children were required to perform tasks like learning off the Ten Commandments and gain a “thorough knowledge” of the Bible. The right to opt-out was limited in nature; parents could only request that their children opt-out from the parts of the module to which they objected, and not the entire module. Reasons had to be provided supporting the request, and if granted, the children would remain in the class, with the teachers engaging in what was described as “differentiated teaching” and the children substituting “observation by attendance” for “involvement through participation”.

The Court observed at para 89 that “Article 2 of Protocol No. 1 does not embody any right for parents that their child be kept ignorant about religion and philosophy in their education.” This implies that where a religion class is genuinely limited to objective information, no opt-out need be provided (although such an interpretation does not sit easily with para 51 of Kjeldsen). Further, the Court stated that “the fact that knowledge about Christianity represented a greater part of the Curriculum for primary and lower secondary schools than knowledge about other religions and philosophies cannot, in the Court’s opinion, of its own be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination … In view of the place occupied by Christianity in the national history and tradition of the respondent State, this must be regarded as falling within the respondent State’s margin of appreciation in planning and setting the curriculum.”

In spite of these observations, a violation was found on the basis that the curriculum was not genuinely objective, and the opt-out mechanism provided was not effective. At paras 91-95, it was stated that “the Christian object clause was compounded by a clear preponderance of Christianity in the composition of the subject” and that “not only quantitative but even qualitative differences applied to the teaching of Christianity as compared to that of other religions and philosophies”. At para 99, it held that the “distinction between activity and knowledge must not only have been complicated to operate in practice but also seems likely to have substantially diminished the effectiveness of the right to a partial exemption as such. Besides, on a purely practical level, parents might have misapprehensions about asking teachers to take on the extra burden of differentiated teaching”.

Taken together, Kjeldsen and Folgerø establish that the ECHR does not always require an opt-out; but where the subject in question crosses the line from objective information to placing undue emphasis on one religion or world-view, an opt-out must be provided and it must be effective. Requiring children to remain in class potentially falls short of this requirement, although it may be argued that allowing the children to entirely disengage from the subject being taught and to pursue their own activities strikes an adequate balance. Whether this latter position would satisfy the potentially more stringent requirements of the Irish Constitution is an open question. As noted above, Article 44.2.4° appears stronger than the ECHR in giving a seemingly absolute right to opt-out of religious instruction, regardless of the character of that instruction. Moreover, it specifically uses the phrase “without attending religious instruction”. The use of the word “attending” (as opposed to “participating in”, or something similar) could reasonably form the basis of an argument that anything short of leaving the room fails to vindicate the right to opt-out.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw

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The Officer, the Master, the President and the Chief: Supreme Court Unhappy at Signing of Marriage Equality Bill

Dr Conor O’Mahony

1224307462206_1The recent unsuccessful legal challenge to the outcome of the marriage referendum threw up some interesting points of discussion, and not all of them related to the outlandish nature of the arguments made by the petitioners. From a constitutional perspective, the real talking point was the fact that the Bill to amend the Constitution was signed into law before the Supreme Court denied leave for a final appeal against the earlier decisions of the High Court and Court of Appeal denying leave to bring a referendum petition. The Supreme Court made a point of expressing displeasure at this sequence of events, citing “the respect due to the legal process by other organs of State. In the event, in this case there was no adverse consequence. However, in another situation very serious constitutional consequences might have occurred had this Court considered it appropriate to grant leave on any grounds when the certificate had become final and the Constitution amended.”

Were the Court’s remarks well founded, and against whom were they directed? On the one hand, the challenge to the outcome of the referendum, and the subsequent appeal against the dismissal of this challenge, were clearly unmeritorious. There was not a semblance of proper legal argument and it was an absolute certainty that the Supreme Court would deny leave to further appeal. Notwithstanding this, it clearly would have been better had the Supreme Court issued its ruling before the provisional certificate became final and the Bill was signed into law. The questions is, who should have waited, and did they even have the discretion to wait?

There were three persons involved in the process that led to the Bill being signed into law. As the person who signs the Bill, the President is the obvious one. However, the President only signs a constitutional amendment into law once the referendum process has been completed and certified. The latter is the function of the referendum Returning Officer. In the event of an application being made to the courts to challenge the result of a referendum, then—apart from the judges hearing the application—the Master of the High Court also becomes involved: it is the function of the Master to inform the Returning Officer of the outcome of any court applications.

FC-colourThe comments made by the Supreme Court referred to the ““the respect due to the legal process by other organs of State”, suggesting its ire was directed outside of the courts system. However, the relevant provisions of the law do not seem to give any discretion to either the President or the Returning Officer; instead, they envisage a situation where the relevant function is to be performed automatically once a designated trigger event has occurred. It is strongly arguable that neither individual could have legally declined to act.

To begin with the President, Article 46.5 of the Constitution provides:

“A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.”

The mechanism through which the President becomes satisfied that the amendment has been duly approved by the People is the Referendum Certificate. Once the Certificate has been issued, the wording of Article 46.5 is mandatory – “shall be signed by the President forthwith”. It seems reasonable to suggest that the president had no choice but to sign, and that there is no scope for him to question the Referendum Certificate once the process set out in the Referendum Act has been followed. Indeed, even if the President had delayed, the Supreme Court’s point about the appeal being moot as the provisional certificate had become final would still be valid.

The Returning Officer has a similarly reasonable argument. Section 40 of the Referendum Act 1994 provides:

(2) As soon as may be after signing the provisional referendum certificate, the referendum returning officer shall publish in Iris Oifigiúil a copy of that certificate together with a statement that such certificate will become final and incapable of being questioned when the officer is informed by the Master of the High Court either that no referendum petition has been duly presented in respect thereof or that every referendum petition so presented has become null and void.

(4) When a provisional referendum certificate has been confirmed or is deemed to have been confirmed by the High Court and is returned to the referendum returning officer with a statement of the fact of such confirmation endorsed thereon in accordance with this Act, the referendum returning officer shall send a copy of such certificate to the President and the Taoiseach.

Again, note the mandatory language – the certificate “will become final and incapable of being questioned when the officer is informed by the Master of the High Court … that no referendum petition has been duly presented in respect thereof”. The Returning Officer “shall send a copy of such certificate to the President and the Taoiseach” once this has happened. There is no scope to question the information provided by the Master.

There is some scope for contrast with the position of the Master of the High Court. Section 41 of the Referendum Act 1994 provides:

Subject to the provisions of section 58, where—

(a) application for leave to present a referendum petition in relation to a provisional referendum certificate has not been made to the High Court within the time limited by section 42(2), or

(b) the High Court has refused all such applications made to it within the said time, or

(c) no referendum petition has been presented in relation to the provisional referendum certificate within the time limited by section 44 , or

(d) every referendum petition so presented has, under section 44(4) or 50(3), become null and void,

the Master of the High Court shall forthwith notify the referendum returning officer in writing accordingly.

In this case, the governing provision is paragraph (b) which deals with refusal of leave to present a referendum petition (rather than paragraph (d), which deals with very specific reasons for rejecting the application rather than a refusal of leave to apply). Strangely, the provision is silent on the position of appeals. Paragraph (b), which refers to the High Court having refused all such applications, presumably falls to be interpreted as only applying once any appeal against the High Court decision has been rejected.

Looking at the chronology of the case, the Master of the High Court sent notification to the Returning Officer on August 24. This was already 24 days after the Court of Appeal order had been perfected. There were only four more days during which the applicant could have sought leave to appeal to the Supreme Court. If it was acceptable to wait 24 days before sending notification, then surely it would have been acceptable to wait 28 and see whether such an appeal would be lodged?

These comments are not intended to be critical of the Master of the High Court as such; the Master commented, not unreasonably, that the Referendum Act had not been updated to take account of the new courts structure resulting from the Court of Appeal. The point is more that the Supreme Court clearly intended to criticise individuals outside of the courts system; close inspection reveals that such criticism is arguably misplaced.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw

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Dáil Privilege and Publication

Dr Seán  Ó Conaill


While the political fall out from Denis O’Brien’s legal action and the subsequent comments made by Catherine Murphy in the Dáil continues to gather steam there remains a lot of uncertainty about the exact constitutional position when it comes to Dáil Privilege and publication.

What is certain is that Denis O’Brien and others successfully obtained an injunction restraining RTÉ from publishing a details about Mr O’Brien’s banking and commercial arrangements.

Yesterday Catherine Murphy TD made a number of comments on the record in the Dáil in connection with a seemingly related matter. Questions have been posed since asking whether media outlets are free to report the comments made by Deputy Murphy under the generally accepted Dáil Privilege or whether the comments are still covered by the restraining injunction previously granted.

In the normal course of events if an injunction was granted then any subsequent breach of that injunction would be considered a contempt of Court however Dáil Privilege has the potential to alter this dynamic. The original concept of Parliamentary privilege covered privilege from defamation actions concerning any utterances made in the houses of Parliament. What is not entirely clear, legally speaking, if this privilege extents to some form of immunity from contempt of Court.

The most relevant Article of the Constitution here is 15.12. Article 15.13 has important protections for the TDs and Senators themselves but does not directly concern the media. Article 15.12 however tells us that “all official reports and publications of the Oireachtas…and utterances made in either House wherever published shall be privileged”.

The exact meaning of privilege and the extent of this protection in this situation is uncertain as we have never had a case exactly on point however the Supreme Court did rule in Attorney General v Hamilton (No 2) in 1993 that this privilege was wide ranging and extends “to any form of legal proceedings” and is not merely confined to defamation.

The Irish text of the Constitution (which is the authoritative text) makes this somewhat clearer whereby the Irish text says “táid saor ar chúrsaí dlí cibé áit a bhfoilsítear” which translates literally as “being free from matters of law wherever published” which would seem to suggest that publication of official records is absolutely covered and extents to all forms of legal actions including contempt of Court.

A further question arises as to whether the protection granted by Article 15.12 merely extends to official publications which are published by the Oireachtas itself or whether others who publish the materials are also covered. The law in the area of defamation defines publishing very broadly as bringing material to the attention of another and it is difficult to see any Court willing to define publication in this context so narrowly as to only cover documents published directly by the Oireachtas themselves.

On balance it would appear that publication of comments made in the Dáil should enjoy the protection of privilege particularly with a view to the seemingly wider scope offered by the Irish text of Article 15.12 however questions still arise as to the limits of this privilege. Could TDs, for example, constantly frustrate all publication based injunctions simply by making statements in the Dáil which could then be reported? This would bring us to the point where the Court’s Order would essentially become irrelevant and worthless and then questions would naturally arise as to what extent Courts should continue to allow privilege to reach.

It is worth noting that Dáil Standing Order 57 (3) requires that  “a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a Judicial Tribunal”.  This goes some of the way to allaying these fears by way of the Dáil’s own rules however the Courts have recently expressed serious concerns in Callely v Moylan & Others about ever intervening any such issue even if the Dáil itself failed to do so.

Dr Seán  Ó Conaill

Twitter @soconaill

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The Marriage Referendum on ConstitutionProject.ie

With the broadcast moratorium now in effect citizens have some breathing space to reflect on the Marriage Referendum before polling closes tomorrow.

ConstitutionProject.ie, through Dr Conor O’Mahony, Dr Laura Cahillane and Dr Seán Ó Conaill, has engaged with many aspects of the various issues and debates surrounding the Marriage Referendum via media engagement, speaking at public events/debates and in particular blogging here on ConstitutionProject.ie.

Immediately prior to the campaign beginning in earnest Dr Conor O’Mahony looked at how the issue of Marriage Equality made it the US Supreme Court.

Dr Seán Ó Conaill explored the potential issues surrounding the use of terminology in the Referendum Campaign particular with regard to the Referendum Commission.

Although not directly connected to the Referendum itself there has been much discussion during the campaign on the Children and Family Relationships Bill. Dr Conor O’Mahony explored the constitutionality of the bill.

The Irish language wording of the proposed amendment attracted a lot of attention in the early stages of the campaign. Dr O’Mahony and Dr Ó Conaill engaged in a high profile debate in the Irish Times. Dr Ó Conaill also analysed the original wording and drafting process (also available in Irish) and the revised final wording.

During the height of the Marriage Referendum campaign the Supreme Court issued its judgment in the Jordan case. Although the Jordan case was concerned with the Childrens’ Referendum and not the Marriage Referendum, the case had relevance to all referendum campaigns (as discussed by Dr Cahillane here).  The judgment helped to clarify the terms of engagement for the ongoing referendums; Dr Ó Conaill provided some analysis here.

However, of all the issues in the Marriage Referendum debate, the one that attracted the most attention and interest was the issue of surrogacy and donor assisted human reproduction. Dr O’Mahony conducted an extensive analysis of the issue, which was widely quoted and referred to in the course of the campaign (see, eg., the Irish Times Newspaper, the Irish Times podcast, the Irish Examiner, RTE Drivetime and Spirit Radio) and was the most viewed piece on ConstitutionProject.ie with almost 7,000 views. Dr Laura Cahillane also appeared on an RTÉ Prime Time feature on the issue and offered her expert opinion. Finally, Dr O’Mahony concluded the commentary on the issue with an analysis of the number of lawyers offering opinions on both sides of the surrogacy/DAHR issue.

Thank you for reading!

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The Wisdom of Crowds: Legal Opinions on Surrogacy, DAHR and the Marriage Referendum

Dr Conor O’Mahony

The campaign around the referendum on marriage equality has seen technical argument around the interpretation of the Irish Constitution rear its head in places it is not often seen, whether in the media, the barroom or the doorstep. The central point of dispute has been whether the proposed amendment would give same-sex married couples a constitutional right to access donor-assisted human reproduction (DAHR) or surrogacy services and/or tie the hands of the Oireachtas with respect to laws governing access to such services and governing adoption.

The No campaign has argued vociferously that these consequences will flow from a Yes vote, and has produced some lawyers to support this claim. The independent Referendum Commission has stated that they will not, and this view has been echoed by a large number of lawyers (some of whom are associated with the Yes campaign and some of whom have not declared a voting intention). How should the average voter react to this?

Many readers may have heard of the concept of the Wisdom of Crowds (for example through James Surowiecki’s 2004 book). A much older version of this line of thought is Condorcet’s Jury Theorem, which dates back to 1785. The jury theorem holds that a decision made by majority vote of a group of people becomes more likely to be correct as the size of the group increases, provided that each member of the group is more likely than not to be correct (i.e. more than a 50% chance).

It seems like a reasonable assumption that highly educated, experienced and professional legal experts have a greater than 50% chance of being correct on a question of legal interpretation. Thus, the more legal experts that are asked a question, the more likely it is that the position arrived at by the majority of them is the correct one. This helps to explain why the number of judges used to decide a case increases as the issues become more complex. Routine cases are decided by a single judge. Complex High Court cases, like Marie Fleming’s case on assisted suicide in 2013 or last December’s judgment on whether life support could be removed from a brain dead pregnant woman, are decided by a Divisional Court of three judges. Supreme Court cases are decided by five judges, and the most complex – like last November’s judgment on surrogacy – are decided by seven.

In light of the above, it has been striking to note how the overwhelming body of opinion among Irish lawyers has supported the view taken by the Referendum Commission – namely, that a Yes vote in the referendum will not give any married couple, gay or straight, a right to access DAHR or surrogacy services. The same number hold the view that if credible evidence could be produced to the effect that it is not in the best interests of children to be parented by same-sex couples, the Oireachtas would remain free to legislate so as to prevent this from happening, whether through adoption, fostering, DAHR or surrogacy.

A quick run-down of the lawyers holding this view seems in order. I expressed this view in a blog posted on this site on April 21. Since, then, aside from the Referendum Commission, this analysis has been publicly echoed by one large representative group and at least thirteen further individual legal experts:

Contrast this with the number of lawyers produced by the No campaign to support their claims: Dr Thomas Finegan, legal advisor to Mothers and Fathers Matter; a legal opinion commissioned and published by the Iona Institute (written before Article 42A on Children came into effect); and a group of three lawyers styling themselves as “Lawyers with Real Concerns Voting No”. Thus, on one side is a group with hundreds of members; at least fourteen separate individual opinions, and the independent Referendum Commission. On the other side is a group with just three members and just two individual opinions (one of which fails to account for recent constitutional change).

Obviously, many of the names listed above have taken a partisan position in the referendum – as would be expected in a vigorous democratic debate – and could therefore be accused of bias. Presumably, RTE Prime Time approached Dr David Kenny and Dr Laura Cahillane as they are not associated with either campaign and have not publicly declared their voting intentions. The key part of all of the above, however, is that the Referendum Commission is required by law to be completely impartial – as a body funded through the public purse, it is bound by the principles set down in the McKenna and McCrystal judgments that preclude public funds being used to distribute information that either expressly advocates a vote in either direction or is biased in favour of a vote in either direction. A notable feature of the RTE Prime Time feature was the virtually identical analysis presented by Mr Justice Kevin Cross of the Referendum Commission and Dr Kenny and Dr Cahillane (which was also closely aligned with the analysis published on this blog a full three weeks earlier). While two independent lawyers have agreed with the Commission, none have agreed with the No campaigners.

Recall that Condorcet’s Jury Theorem holds that a decision made by majority vote of a group of people becomes more likely to be correct as the size of the group increases. By now, a large number of lawyers have had their views canvassed on this issue. The clear majority are of the view that the analysis of the issue offered by the Referendum Commission is correct. This is unsurprising, given the independence and expertise of the Commission, and also re-assuring to the average voter.

In spite of this, the No campaign has refused to accept that the Referendum Commission’s statements undermine their position. Ultimately, an argument like this would be resolved in the courts, and as noted above, a case on a sensitive issue like surrogacy would be heard by the Supreme Court sitting as a court of seven judges. Therefore, an argument can only succeed if at least four Supreme Court judges accept it. Since Supreme Court judges are products of the legal community, it seems fair to suggest that a clear majority opinion among the legal community is a good indicator of what a future Supreme Court might hold. In this case, the odds of four Supreme Court judges being persuaded by the claims being made by the No campaign seem remote in the extreme.

If the No campaign is really concerned about what it professes to be concerned about, then its members should be relieved to be in the minority. All indications are that the concerns that they have expressed about the legal impact of a Yes vote are highly unlikely to come to pass. Perhaps they continue to express those concerns because they hold them so deeply; perhaps they do so in order to deliberately stoke up fear and confusion among undecided and “soft Yes” voters so as to advance opposition to an unrelated issue. Perhaps it is a little of both. Whatever the explanation, anyone who is considering voting No solely on the basis of fears around legal implications related to adoption, DAHR or surrogacy should now know that they can safely exclude those issues from their considerations.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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