In a guest post, Professor Russell Sandberg looks at the Welsh Government’s proposals for the teaching of religion in schools.
A new Consultation Paper from the Welsh Government, Legislative proposals for religion, values and ethics, proposes further changes to the teaching of religion in Welsh schools – including significant legislative changes that will explicitly include the teaching of non-religious beliefs, transform the status and importance of locally agreed syllabi and require faith schools, potentially, to provide two different forms of religious education.
It was already clear that teaching about religion in Welsh schools is about to be transformed. It has already been stated that Religious Education will be renamed Religion, Values and Ethics (RVE), that the right to parental opt-out will be removed and that it will be a mandatory part of the new Curriculum for Wales, sitting within the Humanities Area of Learning and Experience.
These changes have proved controversial, with Humanism UK, for instance, opposing the removal of the opt-out on the basis that teaching may continue to favour particular religions and not include non-religious beliefs. This is particularly so in the case of schools which have a religious character (often colloquially called “faith schools”) who can teach according to their own agreed syllabus (in the case of voluntary controlled schools) or in accordance with their trust deed for the tenets of the religion specified in relation to the school (in the case of voluntary aided schools). However, it is also a concern in relation to schools without a religious character. Currently, an agreed syllabus is adopted by the Agreed Syllabus Conference at a local authority level; and the Education Act 1996 prescribes that this “shall reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain”: s.375(3).
The latest consultation seeks to deal with these concerns. It outlines (at para 2) that the Welsh Government has an “expectation, based on the current case law” that RVE “must be pluralistic in nature”. This “Pluralistic Requirement” (para 14) means that RVE “must be balanced in its content and manner of teaching” and “should reflect the range of different religions, non-religious philosophical convictions or worldviews” (para 2).
The consultation puts forward two ways in which this could be achieved. The first “would be to impose a new obligation on all schools to teach RE in a pluralistic manner” (para 13). This would “remove all other restrictions” and “would also have primacy over any provision set out in their trust deeds “. It is for this reason that the Welsh Government does not favour this option: “it would have significant implications for schools of religious character and it is not our intention to make fundamental changes to these arrangements”.
The Welsh Government favours the second option, which is a more nuanced approach. This would “make a number of legislative changes to legislation related to the provision of the agreed syllabus to ensure, so far as a possible, that it meets the Pluralistic Requirement” (para 14). Cunningly, although it is presented as the less radical option and as the option that most preserves the autonomy of faith schools, the changes being sought are groundbreaking.
Under this second option, the Welsh Government proposes four significant changes:
1. Requirement to reflect non-religious belief
First, it is proposed to amend existing legislation “to make it explicit that any agreed syllabus for RVE must reflect both religious beliefs and also non-religious beliefs which are philosophical convictions within the meaning of Article 2 Protocol 1 (and which are therefore beliefs within the meaning of Article 9) of the European Convention on Human Rights” (para 16).
The Consultation Paper states that this will “make it clearer that the philosophical convictions and beliefs that need to be reflected are only those that are caught from time to time by Convention Rights case law and so have a certain level of seriousness, cogency, cohesion and importance under the Human Rights Act 1998”. This perhaps overstates the cogency of the case law as to the definition of belief under both the ECHR and domestic law. A number of employment tribunal decisions have grappled with the definition of belief (with the same employment tribunal chair deciding in two different cases that veganism is capable of being a protected belief but vegetarianism is not).
The European Court of Human Rights has taken a much broader and permissive approach than domestic courts and has even included political beliefs as being capable of protection. The Consultation Paper implies that there will be room for interpretation here. It states that “beliefs such as humanism or atheism” will be included but that it will be for the Agreed Syllabus Conferences “to determine what should be included in the agreed syllabus” but that guidance will be provided. The detail of this guidance will be important – it will be interesting to see if the Welsh Government can succeed where Employment Tribunals chairs have not.
The Consultation Paper also talks about how this change will be implemented in law – and this is where things get a bit confusing. Curiously, para 17 then states how the Welsh Government propose to give effect to this. It states that references to non-religious philosophical convictions will be added to laws that make reference to “such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area” or equivalent”.
The “such Christian denominations …” wording is to be found twice in the Education Act 1996 (in section 390(4) and Schedule 31, para 4). But both provisions refer to the membership of committees deciding the syllabus rather than to the syllabus itself. Para 17 then goes on to say that “changes will also be made to the provisions dealing with the membership”. The word “also” is important here. It suggests that the intention is to change other provisions as well (and that perhaps that the authors were unaware that the “such Christian denominations …” wording referred to membership). The words “or equivalent” do, of course, provide some leeway here.
What is important is that it is made clear that the provisions that need to change are not only those which use the “such Christian denominations …” wording (which only deal with membership) but also those provisions that deal with the content of the curriculum. It is not only section 390(4) and Schedule 31, para 4 that will need to be revised to include a reference to beliefs but also section 375(3)). This would ensure that the principle set out in para 16 is achieved.
The Consultation Paper states that this would not “reflect a material change in the law” but would “make explicit what the law already requires – the pluralistic teaching of RE in accordance with the European Convention on Human Rights” (para 18). This is non-controversial but this para then further muddies the water by noting that the Government wrote to local authorities in May 2018 confirming this interpretation stating that “local authorities could invite representatives to become members”. This again suggests that the legislative change planned relates just to the membership of the committees. This risks diluting the principle that para 16 elucidates. The clarity that the Welsh Government seeks would be best achieved by revising legal provisions on the membership of the committees and the content of the syllabus to include non-religious beliefs. That, then, would only lead the issue of what constitutes a non-religious belief to be resolved.
2. Regard to be had to Welsh Government guidance
Traditionally, religious education has been a local matter for the local authority, the Standing Advisory Councils for Religious Education (SACREs) and the Agreed Syllabus Conference. The direction of travel, however, is clearly away from this in two respects: first, as we will see below, the focus in the new Curriculum for Wales is on the particular school and the particular learning experience designing and implementing a “bottom-up” unique curriculum that begins with the locality; second, making RVE a mandatory part of the Curriculum for Wales and developing guidance and policy on this pushes power to the Welsh Government from the local level.
Para 19 of the Consultation Paper represents a step in this second direction towards uniformity and centralisation. It proposes making a “new provision requiring the local authority, SACRE and ASC to have regard to guidance issued by the Welsh Ministers in relation to the curriculum in developing and adopting an agreed syllabus”. It may be questioned whether such a provision is technically required but nonetheless the provision is important in terms of curtailing the autonomy previously allowed at a local level.
3. Non faith schools to “have regard to” rather than “teach in accordance with” the Agreed Syllabus
Para 20 emphasises the “bottom-up” nature of the new Curriculum saying that it “provides a clear national framework within which schools will design a curriculum which meets the needs of their learners”, creating “new duties for schools to design their own curriculum and then implement the curriculum they have designed and adopted”. The document then cleverly uses this as the justification to reconsider “the appropriate status of agreed syllabi”.
This allows the Welsh Government to propose a major change by stealth. They suggest that “in general, it will be more appropriate for schools to be required to have regard to an agreed syllabus rather than to teach in accordance with it”. As para 20 concludes: “This change allows schools some discretion to depart from the Agreed Syllabus”.
This again can be seen as limiting the influence of the Local Authority, SACRE and ASC. This is appropriate given the nature of the new Curriculum but it does now question the need for such local bodies to operate.
More importantly, this change should also encourage schools to take an imaginative approach to RVE. Schools will now be able to teach RVE as they like provided that they have regard to both the Agreed Syllabus and to Welsh Government Guidance. This is made clearer in para 27 which states: “in general, we think it is appropriate that schools should be required to have regard to an agreed syllabus, rather than be required to design their curriculum in accordance with an agreed syllabus”.
This will not only affect what is taught but how it is taught. Para 21 states that schools without a religious character “will be required to have regard to an agreed syllabus in designing and implementing teaching and learning for the mandatory element of RVE within the school curriculum as a mandatory element of their curriculum as part of the Humanities Area of Learning and Experience”. This makes it clear that RVE could be taught as part of the Humanities Area of Learning and Experience rather than as a subject in its own right. Having regard to rather than teaching in accordance with the agreed syllabus means that schools will need to teach RVE as part of the school year but not necessarily a bespoke lesson that is timetabled weekly or fortnightly. A school which teaches humanities classes which includes some RVE over the course of the year can say that they have regard to the locally agreed syllabus but would possibly have struggled to say that they taught in accordance with the agreed syllabus.
The version of the consultation document which was online at the time of writing concluded para 21 by stating that schools without a religious character “will no longer be required to teach in accordance with an agreed syllabus [and will continue to be precluded from offering a denominational syllabus?].” These statements are non-contentious but the text in square brackets is presumably a comment on an earlier draft of the consultation.
Paras 22 and 23 propose the removal of the right of parental right in respect of secondary schools to ensure that “satisfactory arrangements have been made for the pupil to receive RE of the type wanted by the parent in the school, without the school or the local authority having to bear the cost of providing that education”. This provision, under paragraph 2(3) of Schedule 19 to the School Standards and Framework Act 1998, is considered not to fit “with the principle of seeking to ensure pluralistic RE in schools in Wales”. This is surely correct but can be interestingly compared to what is proposed in relation to faith schools.
4. Faith schools to provide the option of Pluralistic RVE
The “Pluralistic Requirement” (para 14) and the change that schools are to “have regard to an agreed syllabus rather than to teach in accordance with it” (para 20) are to be applied also to schools with a religious character. This is perhaps the boldest aspect of what the Welsh Government is proposing and this comes close to the universal pluralistic requirement option which the Welsh Government said that they were not in favour of. It may be questioned what the difference will actually be between the two options that the Consultation Paper mentioned.
The usual distinction is made between voluntary controlled schools with a religious character and voluntary aided schools with a religious character. Both will be required “to design their curriculum so that it provides … for two alternatives”. These two alternatives are first, “RVE which has been designed having regard to an agreed syllabus” and second “RVE which has been designed in accordance with the trust deeds of the school or the tenets of the faith of the school”. (Strangely, for voluntary aided schools, the text refers to “RVE which has been designed in accordance with an agreed syllabus”. This is presumably a mistake since the Welsh Government’s preference is for regard to be had to the agreed syllabus).
The proposed difference between voluntary controlled schools with a religious character and voluntary aided schools with a religious character is as follows:
- In voluntary controlled schools, the default will be for “RVE which has been designed having regard to an agreed syllabus but, as now, RVE in line with the trust deeds or tenets of the faith must be provided where a parent requests it”.
- In voluntary aided schools, it will be the reverse: “the default for these schools, as now, will be for learners to receive RVE in line with the trust deeds or tenets of the faith of the school. However, where a parent requests RVE in accordance with an agreed syllabus, it must be provided. The schools will have no discretion as to whether to accept this request”.
In other words, all faith schools will need to provide the option of both pluralistic RVE and denominational RVE with a parental right to move from whichever is the default in that particular school to the other. In this respect, the parental opt-out gets a reprieve of sorts. It may be questioned whether it would be better to afford pupils themselves this choice when they come to an age of maturity. It may also be questioned whether denominational RVE (that is, taught in the tenets of the faith school) is RVE all and whether it fulfils the Welsh Government’s “Pluralistic Requirement”. This raises a further point: if in schools without a religious character RVE can be taught as part of the humanities, then how would this work in schools with a religious character? How would such schools ensure that the form RVE applicable to each pupil is taught if RVE is not a separate timetabled subject but is embedded within the curriculum as a whole?
This cunningly crafted Consultation Paper is to be welcomed as a way of thinking through the ramifications of the major changes being planned to transform the teaching of religion in Wales.
In respect of schools without a religious character, the proposed additional modifications are welcome in principle as a means of achieving a pluralistic RVE. However, as ever, the devil is in the detail: in particular, further clarity is needed on how non-religious belief is to be understood and it needs to be clear that legislative changes to include belief are to relate to requirements as to syllabus content as well as to committee membership.
For schools with a religious character, the fact that the parental right to decide gets a reprieve may be a necessary concession but it does seem to undermine the general principle. And requiring faith schools to provide two different forms of RVE on request raises the question of how this is to be resourced and adequately taught. Perhaps a solution would be for pluralistic RVE to be taught in all schools including those with a religious character with faith schools allowed to also teach according to their tenets a separate form of religious instruction (perhaps in registration/tutor times rather than through the formal curriculum).
It is clear, however, that Wales is innovating and making significant strides in moving away from a legal framework that is clearly outdated. This will raise questions about that legal framework continuing to apply in England as well as to the similarly antiquated law on religious worship which continues to apply in both England and Wales. As this post has suggested, there also questions about principle and implementation in relation to the teaching of religion in Wales. And there is time to provide answers or to pose other questions. The current consultation closes on 28 July 2020.
Cite this article as: Russell Sandberg, “Radical reform of ‘Religion, Values and Ethics’ in Welsh schools” in Law & Religion UK, 6 May 2020, https://www.lawandreligionuk.com/2020/05/06/radical-reform-of-religion-values-and-ethics-in-welsh-schools/.
I still don’t understand how the abolition of the right of parents to withdraw their children from religious education – even religious education rebadged as “Religion, Values and Ethics” – can satisfy the terms of Article 2 of Protocol 1 ECHR.
I’d be very interested in the views of the law & religion community on the point.
The ECtHR has held that the opt-out is not required if the teaching is impartial/pluralistic, in Zengin and Folgero, even if in both these cases the states in question (Turkey and Norway) had not got the curriculum balance right. Current proposals for reform in England (by the RE Council) also call for the removal of the opt-out. Schools are entitled to teach about religions (see Kjeldsen): on this perspective, RVE as learning about religions & values is no different to learning about the reformation in history, for which there is no opt-out.
Thanks you very much Russell for producing this so quickly. You are correct that “the devil is in the detail” must be the mantra for this short document.
1. Para 27 explains the puzzle in the bracketed section of the 2nd paragraph of your point 4 – “However, we have proposed an exception to this general approach [to ‘having regard to’ rather than ‘teach in accordance with’ the agreed syllabus] where Voluntary Aided schools are designing their ‘alternative’ RVE curriculum or implementing it. This exception does not impact on their denominational RVE provision. The reason for proposing this distinction is to offer parents clarity about the alternative RVE provision on offerin those schools.” This has the bizarre result that Voluntary Aided schools of a religious character will be the ONLY schools required to teach in accordance with the agreed syllabus – the exact opposite of the current situation, and paradoxical to say the least.
2. In addition to the points you make about para 17 – which is very obscurely worded (and even more so in the Welsh language version) – it also says that “Changes will also be made to the provisions dealing with the membership of SACRES and ASCsto create new groups to represent those who hold philosophical convictions of that kind.” This implies that there will in future be 4 voting groups on SACREs and ASCs in Wales – LEA, teaching unions, religious groups and non-religious groups. This will give an equal vote in the syllabus design to non-religious groups (e.g. the Welsh Humanists, with fewer than a thousand members across Wales) and religious groups (representing well over 300,000 people across Wales). This seems inequitable, and is either a mistake or suggests a secularising agenda.
3. Take these two points together, and you realise that NON-religious groups will in future have a major voice in determining the RVE syllabus of schools with a religious character, but a lesser voice in schools of a non-religious character.
The devil is in the detail and the law of unintended consequences applies. We can expect faith groups in Wales to respond vigorously!
Thanks. Interesting stuff.
Ah yes – I think the requirement for voluntary aided schools with a religious character to teach in accordance with the agreed syllabus may make some sense in that context given that it is the school that creates that syllabus. But I agree – it’s messy and undermines the general move to just have regard for. I think that could still apply to voluntary aided schools and would allow them to have humanities classes that have regard to the school syllabus on RVE.
Interesting point about how this will affect committees. However, I do wonder the extent to which this will matter in practice given that local authorities will play a less important role – being guided by Welsh Government guidance and with schools developing their own bespoke curriculum.
Russell Sandberg is to be thanked for this quick and valuable analysis of the Welsh proposals. This comment is confined to the difficulty he sees in defining non-religious beliefs. The need, I think, is to distinguish those legal contexts where a broad definition is merited (typically so as to combat unfair discrimination in employment) and those where a narrow one is preferable, such as might have been intended when the law originally included a test of ‘similarity’ to a religious belief.
There are at least two contexts where a narrower definition is desirable, one being education and the other being charity law. In that context I wrote a paper some years ago on behalf of Humanists UK and at the request of the Charity Commission – see http://www.thinkingabouthumanism.org/religion/religion-and-non-religious-beliefs-in-charity-law/. There I proposed a definition of “religion or belief” based on the observation that the worldviews one wants to capture have two characteristics in common: they make claims about the nature of the world we live in and of human life; and they draw from these claims implications for the way one should live – typically establishing a basis of morality and values.
As I wrote: “Both elements are important. A free-floating ethical code without claims about the nature of the world would fall short of what is required (though it may qualify for charitable status by some other route). Equally, claims about the nature of the world are what scientists advance all the time. It is the relatedness of one to the other that is distinctive.” From this, and drawing on the Communications Act (sn. 264) (“‘belief’ means a collective belief in, or other adherence to, a systemised set of ethical or philosophical principles or of mystical or transcendental doctrines”) and on Campbell and Cosans, I proposed this definition, which I would recommend to the Welsh education department as applicable to both religions and non-religious beliefs:
“A collective belief that attains a sufficient level of cogency, seriousness, cohesion and importance and that relates the nature of life and the world to morality, values and/or the way its believers should live.”
Thanks. This is a good point. We already have different legal definitions of religion for different legal rights so the same could be true of belief. The problem is, however, that the ECHR approach which is favoured here is very broad. But if this approach is not followed then could RVE be subject of a challenge under the HRA? It’s a tricky one. I’m beginning to wonder whether talk of definition in this context is wise at all. Presumably it’s there more because of the need to revise membership rules rather than to stipulate RVE content.
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