In a cross-post from his blog, Russell Sandberg reports on the latest progress of the Curriculum and Assessment (Wales) Bill.
The Curriculum and Assessment (Wales) Bill has now completed Stage 3. On 2 March 2021, the Senedd rejected all amendments relating to the teaching of religion. The debate can be found here.
Suzy Davies MS, introducing the amendments on the teaching of religion, cited my previous blog post for Law and Religion UK. That post called for consideration of her amendment that schools with a religious character should have regard to both their trust deeds and the locally agreed Religion, Values and Ethics syllabus in designing their own RVE syllabus.
The Minister, Kirsty Williams, rejected this amendment on the basis that this requirement might force schools with a religious character to breach their trust deeds. She said that the Welsh Government had no idea what was in the trust deeds and would not legislate in a way that forced schools to breach them:
“The Welsh Government does not see those school trust deeds and so we cannot be certain what they require. As such, we cannot legislate to require schools with a religious character to prepare a single syllabus of RVE which has regard to both an agreed syllabus and the school’s trust deeds, as we cannot be certain that it would be possible for the schools to comply with this kind of requirement.”
However, if the Welsh Government does not know what is in the trust needs then how can it be content that the requirements under the Bill as drafted will not breach them?
If requiring faith schools to design their RVE syllabus with regard to both their trust deeds and the locally agreed syllabus could potentially breach their trust deeds, then wouldn’t the same apply to the Bill as drafted which requires faith schools to potentially design two syllabi, one complying with their trust deeds and one with regard to the locally agreed syllabus?
The Minister seemed to suggest that the problem with the amendment was that it would require faith schools to design their syllabus with regard to their trust deeds rather than in accordance with. But surely this could be remedied by tweaking the wording of Suzy Davies’ amendment (assuming, that is, that there is an important difference between ‘having regard to’ and ‘in accordance with’ which would have an effect upon the school’s ability to follow its trust deeds).
Here is what the Minister said of the Davies amendments:
“These would amend the Bill so that religion, values and ethics in a school of a religious character would have to be designed having regard to the school’s trust deeds, rather than in accordance with them, and would potentially enable schools of a religious character to provide one course of study for RVE, which has regard to both an agreed syllabus and the school’s trust deeds. In removing the requirement on these schools to design denominational RVE that accords with their trust deeds, however, the amendment does create the possibility of such schools breaching their trust deeds. In other words, there may be a tension between what a trust deed requires and what the agreed syllabus may require. That tension can be resolved if two RVE syllabuses are designed separately and in accordance with the Bill’s current requirements, but the tensions can’t necessarily be resolved within a single RVE syllabus.”
I am not convinced that amendments would remove the requirement for faith schools to teach in accordance with their trust deeds. I am also sceptical whether the distinction drawn by the Minister is accurate. If the ‘tension’ is automatically resolved by having two syllabi then why wouldn’t it be resolved by having one syllabus that includes both? Indeed, surely having some children at a faith school follow a syllabus that only takes regard of the locally agreed syllabus is more likely to breach trust deeds. And this is what the Bill currently provides for.
As Suzy Davies pointed out in her reply, having regard to the locally agreed syllabus would not require a syllabus that has a 50:50 split between denominational and non-denominational RVE. She said that there was a need to define what ‘have regard’ actually means, and relating it specifically to RVE:
“… because having regard doesn’t mean that you have to adopt exactly the same amount of each type of curriculum, it doesn’t mean that you have to adopt the whole of either of the two types of curriculum that we’re talking about here. But what it does mean is that if you decide that part of a curriculum is not to be taught, you have to explain why, you have to show your workings or what thought you’ve applied to the decision that you’re making.”
Surely, if the Welsh Government is content to require faith schools to develop two syllabi (denominational and non-denominational) and does not think that that would breach trust deeds, then surely the same would apply to one syllabus that included denominational and non-denominational teaching?
The Minister’s other argument against the Davies amendments was that the Church in Wales and Catholic Education Service were in favour of the Bill as currently drafted and had told her that only one child was currently withdrawn from RE so this meant that the two syllabi requirement would not be overly onerous on faith schools. The Minister added that:
“It is also an option for schools of a religious character to work with neighbouring schools to deliver non-denominational RVE if they wish to do so.”
As with the Minister’s previous responses on this point, this reference to practicality does not address the question of principle.
Moreover, does the data from the Catholic Education Service actually suggest that the current law is not actually working and that the right to withdraw is too cumbersome and parent-focused? It does not provide for the religious freedom of the child – a point that was raised by the Senedd committee report but not discussed further at Plenary.
This all makes nonsense of the Minister’s repeated pledge that the Bill will ensure that all Welsh learners will have access to pluralistic RVE. At stage 3, she added the words ‘where that is wanted’ to this pledge. This is telling. Those in faith schools will not necessarily have access to pluralistic RVE – either as a result of parental wish or because in some schools denominational RVE will be the default. And, contrary to the Minister’s new caveat, it is not even the case that learners will have access to pluralistic RVE where they want it, because the choice will be in the hands of parents rather than of the children themselves.
Other amendments, including the re-assertion of the parental right to opt out and a separate complaints process for RVE, were also rejected by the Senedd. In relation to the amendment by Darren Millar which would re-assert the parental opt-out, the Minister repeated without caveat that under the Bill ‘all learners will have access to pluralistic RVE’ and that this ‘will include a range of religious and non-religious views’. She added:
“There is no absolute right to have a child educated in accordance with the parent’s religious or philosophical beliefs, either in UK law or under the European convention on human rights. Similarly, there is no right to have education provided by the state according to one’s own religious beliefs. So, whilst the state recognises a place for religious schools, its obligation under the rights protected by the Human Rights Act is to provide the opportunity for pluralistic provision alone.”
Whether the Bill’s removal of the right of withdrawal will withstand human rights challenges will remain to be seen. It will depend on how pluralistic RVE actually is.
The removal of the parental opt-out, therefore, increases the scope to challenge RVE provision that is not pluralistic. This may well prove to be more effective than the right to withdraw which if anything perpetuated a narrower approach to the subject.
The Bill will now proceed to Stage 4, at a date to be determined, at which time the Bill as a whole will be voted on by plenary. Although I still have concerns about aspects of the Bill, I hope that it will be passed at Stage 4. The Bill will transform the way in which schools in Wales operate and in relation to teaching religion, it provides a much-needed update to laws that were originally enacted during the Second World War.
Two questions will then be posed: first, will it then be finally the time to deal with similarly antiquated laws on religious worship in school? And second, will England now follow where Wales has led?
Thank you Russell. I agree that there is much more that is good than otherwise in this Bill as it now stands. I also agree that the Welsh Government’s willful refusal to find out what is in church schools’ trust deeds is mysterious in the extreme (all they have to do is ask – the Education, Children & Young People Committee of the Senedd were told that in the case of Catholic schools the trust deed is that of the Diocese, so there are just three covering the whole of Wales!). A determination to legislate in ignorance on this point will remain a puzzling feature of what has, in most ways, been a well-run, exciting and invigorating process.