On 12 June I attended the last of the four workshops at UCL in the series on Negotiating Religion: Inquiries into the History and Present of Religious Accommodation. Number four was entitled Legal Frameworks: Schools and Religious Freedom and included a paper by Professor Ian Leigh on Teaching Religion: Religious Education, Religious Worship and General Syllabus, much of which was concerned with an analysis of recent ECtHR jurisprudence on the curriculum and the wider teaching of “religion”, however defined: in particular Folgerø & Ors v Norway 15472/02 [2007] ECHR (GC) 546, Zengin v Turkey 1448/04 [2007] ECHR 787, Appel-Irrgang & Ors v Germany 45216/07 [2009] ECHR 783 and Grzelak v Poland 7710/02 [2010] ECHR 904.

Against the background of Professor Leigh’s fivefold typology of attitudes towards religious education in state schools – the confessional approach (as in Ireland), state neutrality, civic liberalism (under which religious education is regarded as some kind of extension of education for citizenship), the separatist approach typified by France and the active promotion of secularism by the state as a counter to religious influence – England and Wales would appear (as in so many other areas of “law and religion”) to have a mixed system:

• on the one hand, a kind of civic liberalism in which the local authority has a statutory obligation to provide religious education for all pupils in maintained schools, advised by its local standing advisory council for religious education (the SACRE); and
• on the other, a confessional approach in which around one-third of maintained schools in England are “schools with a religious character”: about two-thirds Church of England and about one-third Roman Catholic, with a handful of Islamic, Jewish, Hindu and Sikh schools; but
• obligatory collective worship even in non-religious maintained schools.

Currently, all maintained schools must hold daily collective worship for pupils. Parents have the right to withdraw their children from all or part of attendance at worship and are not obliged to give a reason, while sixth-formers have the right to withdraw themselves from collective worship but not from religious education classes.

In schools that are not of “a religious character” the SACRE advises the local authority on matters relating to daily collective worship which must be wholly or mainly of a “broadly Christian” character. Exceptionally, however, where the head teacher and governing body feel that a broadly Christian act of worship is not suitable, they can apply to the local SACRE to have that requirement lifted.

Collective worship in foundation schools with a religious character and voluntary schools will be in accordance with the school’s trust deed: where it is not, the worship should be in accordance with the beliefs of the religion or denomination specified for the school.

In reality, only very few parents exercise the right to withdraw their children – not least because of a concern that it might make them feel ‘different’ and isolated from their peers: see Alison Mawhinney et al: Opting Out of Religious Education: The Views of Young People from Minority Belief Backgrounds (Belfast, Queen’s University October 2010) p 7. And a Comres survey for BBC local radio in September 2011 found that 64 per cent of the 500 parents questioned said that, so far as they were aware, their children’s schools did not have daily acts of collective worship anyway.

But there also appears to be a human rights issue here so far as the children themselves are concerned. The Joint Committee on Human Rights pointed out in its Twenty-Eighth Report of Session 2005–06 in relation to the Education and Inspections Bill that children also have the right to freedom of thought, conscience and religion under Article 9 ECHR and Article 14 of the UN Convention on the Rights of the Child. Moreover, Article 12 of the UN Convention requires that states parties “shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”.

In Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7: [1986] AC 112 the House of Lords held that a girl under the age of 16 had legal capacity to consent to medical examination and treatment, including contraceptive treatment, if she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment: Lord Fraser of Tullybelton, for example, declared that he was “not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment merely on account of her age”, while Lord Scarman held that “as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. Hence the concept of “Gillick competence”: that children should be treated as legally competent to make their own decisions if they have “sufficient understanding and intelligence” to understand their nature and implications.

The Joint Committee said that refusing to guarantee a “Gillick competent” child the right to withdraw both from collective worship and from compulsory religious education was incompatible with the UK’s human rights obligations. At paras 2.3 and 2.4 it recommended that, as a minimum, 16-year-olds and above should be able to withdraw from religious education as well as from collective worship – but that, preferably, all “Gillick competent” children also should have the same right. But that was not granted: for the current position see s 55 Education and Inspections Act 2006 and the relevant parts of DfE Circular 1/94: Religious Education and Collective Worship.

Comment

I would suggest that, at least from a UK perspective, when you start to unpick the broad issue of religious education and human rights you can begin to see at least the potential for clashes between the rights of parents under Protocol 1 Article 2 ECHR to educate their children in accordance with their convictions and the rights of “Gillick competent” children under Article 9 ECHR and Article 14 UNCRC to have their own views on matters of faith or lack of it – even if their parents think differently. This, to my mind, points up the paradoxical nature of human rights and religious education: the “education” is done to the children but, in practice, the “rights” largely inhere in the parents – and relatively little attention, if any, is given to the preferences of children under the age of sixteen.

Why should this be? Is an intelligent fourteen- or fifteen-year-old really incapable of making an informed choice about the value of religious education or school worship?