In a guest post, Professor Russell Sandberg looks at the newly-published  Curriculum and Assessment (Wales) Bill, which includes the Welsh Government’s proposals for the teaching of religion in schools.

The Curriculum and Assessment (Wales) Bill has now been published, together with an explanatory memorandum. The Bill establishes a new legislative framework to support the implementation of the new curriculum for Wales, including Religion, Values and Ethics (RVE) which will replace Religious Education (RE) in Welsh schools. The Bill provides a further insight into how RVE will operate and which legislative provisions will no longer apply in Wales. In short, the Bill, if enacted, would create a very different legislative framework for Wales distinct from the English model. And it may well prompt reform there too given that some of the changes are said to be made to bring the law in line with the Human Rights Act 1998.

As the Explanatory Memorandum puts it: ‘The Curriculum for Wales framework gives every school in Wales the opportunity to design their own curriculum within a national approach that ensures a level of consistency’ (para 3.7). This is achieved, under clause 6 of the Bill, by requiring six areas of learning and experience (of which humanities is one) and four mandatory elements (English; Relationships and Sexuality Education; Religion, Values and Ethics; and Welsh). RVE will also form part of the Humanities area of learning and experience (Explanatory Memorandum, para 3.48). The curriculum developed by each school will encompass an area of learning and experience if it encompasses the ‘What Matter’ key concepts which will be consolidated into a code (clause 6(2)). A summary of the adopted curriculum must be published by the headteacher and governing body (clause 11(1)).

The main changes in relation to RVE are twofold. First, a number of changes are made under Schedule 2 which affects the local authority level, amending existing legislation on agreed syllabuses and advisory councils. Second, Schedule 1 stipulates requirements on how RVE is to operate in different types of schools.

Agreed Syllabuses and Advisory Councils

These changes, under Schedule 2 to the Bill, take the form of amendments and repeals to existing legislation.

Under paragraph 6 of Schedule 2, section 375 of the Education Act 1996 (which provides for agreed syllabuses for RE) is to be amended to state that it only applies to England. Under paragraph 7, a new section 375A would provide for agreed syllabuses for RVE in Wales. These will be determined by each local authority for the use in schools maintained by them but authorities can make different provisions for different descriptions of schools and different descriptions of pupils. This syllabus ‘must reflect the fact that the religious traditions in Great Britain are in the main Christian while taking account of the teaching and practices of the other principal religions represented in Great Britain’ and ‘must also reflect the fact that a range of non-religious philosophical convictions are held in Great Britain’. This second requirement goes beyond the current law. It is stated that ‘the reference to philosophical convictions is to philosophical convictions within the meaning of Article 2 of the First Protocol to the European Convention on Human Rights’. It is questionable whether these provisions go far enough given the Welsh Government’s ‘pluralistic requirement’ and whether citing the ECHR jurisprudence on the definition will give the conceptual clarity needed

Under paragraph 8, section 390 of the Education Act 1996 is amended so that Standing Advisory Councils on Religious Education (SACREs) are renamed Standing Advisory Councils. The Explanatory Memorandum explains that this is ‘because in Wales they will advise on RVE, whilst in England, they will continue to advise on religious education’ (para 27). This is a welcome name change in that their name has long been inaccurate in that they also deal with religious worship. However, the name change does not recognise that they have also long had powers which extend beyond being more than advisory

Under paragraph 9, section 390(4) of the Education Act 1996 is amended so that the list of representative groups on the Standing Advisory Council in Wales includes ‘a group of persons to represent such non-religious philosophical convictions … as, in the opinion of the authority, ought to be represented’. The same definition of ‘non-religious philosophical convictions’ is to be taken as under the new section 375A. The Explanatory Memorandum notes that this is in line with a Welsh Government circular of May 2018 setting out the (non-statutory) requirement to include representation from non-religious beliefs (para 3.95). It is tatted that this change is ‘to ensure compatibility with the Human Rights Act 1998’ but that: ‘The appointment of such persons is not a mandatory requirement and whether it would be appropriate for so, so as to reflect the local authority area, is a matter for the local authority’ (para 3.96). So, the provision enables rather than mandates the representation of groups with non-religious philosophical convictions.

Paragraph 10 amends section 391 of the Education Act 1996 on the function of advisory councils to include the function of advising the local authority on religious worship in schools without a religious character and RVE. It also, importantly, inserts a new subsection 11 which would state that: ‘In exercising its functions under this Act, a council constituted by a local authority in Wales must have regard to any guidance issued by the Welsh Ministers’. As noted in my previous post, Radical reform of “Religion, Values and Ethics” in Welsh schools, this is one of the changes that are currently subject to consultation. The Explanatory Memorandum notes that consultation on ‘Legislative proposals for Religion, Values and Ethics’ will close at the end of July and that ‘Responses will inform any potential amendments to existing legislation’ (para 4.33)

Other powers are also transferred to Welsh Ministers. Sections 394-395 of the Education Act 1996 provide that standing advisory councils have the power to deal with applications to disapply the requirement for Christian collective worship. Section 396 gives a power to the Secretary of State to direct a standing advisory council to revoke a determination or discharge a duty in relation to this. Paragraph 13 of the Bill states that section 396 applies only to England and paragraph 14 inserts a new section 396A which provides a similar power for Welsh Ministers in relation to Wales. Similarly, paragraph 15 amends section 397 of the 1996 Act in order to clarify that the powers to make regulations in relation to advisory council and agreed syllabus conference meetings and documents now rests with the Welsh Ministers.

Paragraph 26 makes amendments to Schedule 31 of the Education Act 1996 (which deals with convening conferences to agree on a syllabus). These amendments include a duty on local authorities to convene a conference to prepare the first RVE syllabus and also to state that ‘a committee of persons representing such non-religious philosophical convictions … as, in the opinion of the authority, ought to be represented’. It also specifies the circumstances where in the event of those conditions for adoption not being met by the Welsh Ministers would be required to take action to appoint a body of persons appearing to the Welsh Ministers to possess relevant experience to prepare a syllabus of RVE. Moreover, a new paragraph 14A would be added to the Schedule 31 of the Education Act 1996 to require local authorities, conferences and a body of persons appointed to prepare a syllabus to have regard to any guidance given by the Welsh Ministers. There is a clear direction of travel here but perhaps it does not go far enough: if the new Welsh curriculum is the creation of each school, then it may be asked why there is a need to develop a syllabus for RVE at local authority level.

RVE in Schools

The Bill also makes provision for how RVE is to operate. This is dealt with in Schedule 1 to the Bill. This replaces the requirements in Schedule 19 to the School Standards and Framework Act 1998 in Wales (those provisions will now apply only to schools in England, under Schedule 2, para 42). Schedule 1 continues distinguishes between different types of school

Maintained schools without a religious character are dealt with by paragraphs 2 and 6 which state that RVE must be ‘designed having regard to the agreed syllabus’ (para 2(2)). This differs from the School Standards and Framework Act 1998 which states that provision for RE ‘must be in accordance with an agreed syllabus adopted for the school or for those pupils’. This change from ‘in accordance’ with to ‘having regard to’ is another one of the changes currently subject to consultation. The change, if implemented, would give schools considerable freedom. The Explanatory Memorandum states that schools have the choice whether to deliver RVE as an individual subject or as part of a multidisciplinary or interdisciplinary Humanities approach (para 8.264). There are other significant changes. The parental right to opt out found in Schedule 19 to the School Standards and Framework Act 1998 would no longer apply in Wales and, curiously, the rule that the agreed syllabus cannot provide for the teaching of RE by catechism or formulary is also absent from the Welsh legislation.

Foundation and voluntary controlled schools that have a religious character are dealt with in paragraphs 3 and 7 of Schedule 1. Again, RVE must be ‘designed having regard to the agreed syllabus’ (para 3(2)) but where this does not accord with the provisions of the school’s trust deed or religious tenets then ‘the curriculum must also make additional provision for teaching and learning encompassing the mandatory element of Religion, Values and Ethics that does accord with those provisions or (as the case may be) tenets’ (para 3(3)-(4)). Paragraph 7 provides that a parent can request that their child is provided instead with teaching and learning in accordance with the school’s trust deed or religious tenets. This is broadly in line with the current law as found in School Standards and Framework Act 1998 Schedule 19 para 3, although it does not include the obligation to ‘make arrangements for securing that such religious education is given to those pupils in the school during not more than two periods in each week’ where a parent requests RE in accordance with the school’s trust deed or religious tenets.

Voluntary aided schools that have a religious character are dealt with by paragraphs 4 and 8. Here, as under the current law, RVE must accord with the provisions of the school’s trust deed or religious tenets (para 4(2)). Schedule 1 further states that where this does not accord with the agreed syllabus then ‘the curriculum must also make additional provision for teaching and learning encompassing the mandatory element of Religion, Values and Ethics that does accord with the agreed syllabus’ (para 4(3)-(4)). Paragraph 8 provides that a parent can request that their child is provided with this RVE designed in accordance with the agreed syllabus. This is broadly in line with the current law as found in School Standards and Framework Act 1998 Schedule 19 para 4 except for that provides that the parental choice for non-denominational RE will only be considered if the parents ‘cannot with reasonable convenience cause those pupils to attend a school at which that syllabus is in us’

These provisions for schools with a religious character are also the subject of the on-going consultation. It may be argued that the Welsh Government are not being bold enough here. An element of the parental opt-out retains for these schools and there is a risk that pupils at these schools will not have access to the pluralistic RVE which the Welsh Government seeks to make universal. A preferable approach may be to permit denominational religious education in addition (rather than in place of) RVE in schools with a religious character

The Bill also makes a significant change in relation to sixth-formers – registered pupils at maintained schools who are above compulsory school age. This provision uniquely is dealt with in the main body of the Bill under clause 62. RVE is only to be provided for those who request it (clause 62(1)). This is a change to the current requirement to provide religious education to all registered pupils (Explanatory Memorandum, para 3.83). This new requirement will be met where ‘teaching and learning is provided at the school at a time or times which are convenient for the majority of the pupils who have requested it’ (clause 62(2)). RVE must meet the same requirements for sixth formers as for those of compulsory school age but in this context, these requirements are listed in the Bill itself (clause 62(3)-(6)). The Explanatory Memorandum states that ‘A school may make the study of RVE compulsory for all pupils if it wishes. As with pupils under 16, there is no right to withdraw’ (para 3.104) but this is not expressed in clause 62.

Other Amendments

A few other amendments are made by schedule 2 which are worth noting. Paragraph 33 inserts a new section 68A into the School Standards and Framework Act 1998 giving Welsh Ministers with the power to designate schools as having a religious character. This replaces the power given to the secretary of State under section 69(3). Paragraph 37 makes similar provision in relation to independent schools

Paragraphs 34 and 35 provide that the duty to provide religious education under section 69 of the 1998 Act applies only to England. Paragraph 36 amends section 71(1) of the 1998 Act to provide that the parental right to opt out of religious education only applies in England. The right of parents and sixth formers to opt out of religious worship under 71(1A-1B) are not amended. Curiously, neither is section 71(3) which provides that pupils who have been excused from RE under section 71(1) or religious worship under section 71(1A-1B) can in certain circumstances be withdrawn from the school for the purpose of receiving religious education. This has a curious effect. The explanatory notes suggest that this means that a pupil withdrawn from religious worship could still receive RE elsewhere under this provision but that this would be in addition to the RVE that they received at their school (para 187). This seems an odd provision to retain. Interestingly, the current consultation document proposed ‘to remove this additional right to alternative (potentially non-pluralistic) RE in schools without religious character because we do not consider it fits with the principle of seeking to ensure pluralistic RE in schools in Wales’.

The above describes the Bill as introduced on 6 July 2020. The timetable for the Bill foresees a committee report being published and Senedd approval of the general principles being sought in December 2020, ahead of stages 2 to 4 occurring in February and March 2021 with Royal Assent planned for April 2021. There is thus ample time for the issues raised above to be ironed out. The proposed changes would transform the teaching of religion especially in schools without a religious character and the boldness of the Welsh Government is to be applauded but there is scope for an even bolder and clearer approach.

Russell Sandberg

Cite this article as: Russell Sandberg, “Religion, Values and Ethics under the Curriculum and Assessment (Wales) Bill” in Law & Religion UK, 9 July 2020, https://www.lawandreligionuk.com/2020/07/09/religion-values-and-ethics-under-the-curriculum-and-assessment-wales-bill/