In this guest post, Russell Sandberg returns to discuss the reforms of the teaching of religion in schools in Wales and find that the final Guidance is a significant improvement on the first draft but that confusions remain.
As regular readers of the blog will know, the law in relation to the teaching of religion in schools in Wales is changing. As part of the new curriculum ushered in by the Curriculum and Assessment (Wales) Act 2021, RE becomes RVE – Religion, Values and Ethics – with the parental opt-out removed in schools without a religious character. In May 2021, the Welsh Government published draft Guidance on the design and delivery of RVE, which was subject to a consultation period that ended in July.
In January 2021, the Welsh Government published its revised guidance. The headline is that it is an improvement on the draft Guidance which was unclear, referred to superseded legal precedents and was generally likely to be little use to those designing and delivering RVE. However, as this blog post will explain, many of the concerns I expressed in my response to the consultation remain unaddressed. Not only are parts of the guidance legally questionable but more importantly the Guidance still seems to lack the clarity and relevance needed to be of use to those designing and delivering RVE. This is particularly important given the ‘bottom up’ approach of the new curriculum.
Two new documents have been published. A seven thousand word long document on ‘Religion, Values and Ethics’ was published at the foot of the webpage on designing the humanities curriculum (https://hwb.gov.wales/curriculum-for-wales/humanities/designing-your-curriculum/#religion,-values-and-ethics-guidance). And further 3,750 words on RVE was also added to the ‘Curriculum for Wales- Summary of Legislation’ webpage (https://hwb.gov.wales/curriculum-for-wales/summary-of-legislation/#religion,-values-and-ethics) For convenience these two documents will be referred to as the ‘Curriculum Guidance’ and the ‘Legislation Summary’ respectively.
In my response to the consultation on the draft guidance, I contended that needed in respect of seven issues. This blog post explores what the new guidance says about each of these issues in turn.
1. The place of RVE within the Humanities AoLE
The draft Guidance was unclear as to the positioning of RVE in the curriculum and its relationship with other humanities subjects. The Curriculum Guidance makes it plain that RVE is to be understood primarily within the context of the Humanities Area of Learning and Experience (AoLE). Indeed, this is underlined by its publication in that section of the website. It also states that the purpose of the Guidance is to ‘provide additional support on how RVE can be taught within the Humanities Area’.
However, the document also stresses the ‘holistic’ nature of the new curriculum as a whole and states that links need to be made between RVE and all other aspects of the curriculum. The Guidance, therefore, states that it “emphasises the integral nature of RVE within this Area and outlines the unique and distinct contribution that RVE makes to the Curriculum for Wales”. It mentions various “disciplinary approaches relevant to RVE” (“religious studies, philosophy, theology, sociology, psychology, and anthropology”) and stresses that “there are also strong relationships between RVE and the other disciplines within Humanities as well as with other Areas”.
Although the Guidance notes that “curriculum design can be integrated, multidisciplinary, interdisciplinary or disciplinary”, schools are asked to consider “how RVE will work best within the Humanities Area”. The Guidance is explicit that the first step is to “consider the Humanities statements of what matters, which contribute to learners realising the four purposes of the curriculum” and then to “consider the statements of what matters in other Areas where RVE may be able to contribute to learning”.
The retention of the “disciplinary” option is the only reference in the Guidance that goes against an integrated and holistic approach. Yet, my concerns about the relationship between RVE and other Humanities subjects and what is legally permissible remain unanswered.
The Curriculum Guidance does now provide some further clarity on the relationship between what will now be the Standing Advisory Councils on RVE and particular schools. The Guidance states that ‘RVE is a locally determined subject’ with an agreed syllabus being determined at local authority level. It states that “the agreed syllabus is the first point of reference for RVE provision in schools”. However, it then states that local authorities could “adopt or adapt this guidance as their agreed syllabus” if they so wish. This is strengthened in the Legislation Summary which states that “the statutory RVE guidance has been written as the basis for the agreed syllabus”. Even if the local authority does not adopt or adapt the Curriculum Guidance they must nevertheless make sure that the agreed syllabus recognises and reflects the principled laid out in it “in order to create balance and maintain coherence across the Curriculum for Wales”.
The Legislation Summary also provides that
“the agreed syllabus is not designed to be a scheme of work, but rather a helpful guide and legal reference point for schools to support them in designing an appropriate and relevant curriculum for their learners which includes RVE within the Humanities Area”.
It states that the new curriculum “is based on the principle of subsidiarity and, as such, each agreed syllabus should recognise and reflect the autonomy of each school and setting in realising its own curriculum”. It points out that “it will ultimately be the responsibility of the provider to ensure that non-denominational RVE is provided pluralistically”.
It may be questioned whether there is a need for Standing Advisory Councils on RVE given that they are expected to follow the nationally imposed Curriculum Guidance and that decisions as to content are made at a school level.
2. The opt-out for teachers
The Legislation Summary explains that the parental right of withdrawal has been removed but both of the new documents are silent on the matter of the teacher opt-out which has been retained. This is likely to prove more problematic than at present given the placing of RVE within the Humanities AoLE and the “holistic” approach of the new Curriculum. It remains to be seen how the teacher’s right not to teach religious education will apply in a context where RVE is taught holistically across the whole curriculum rather than as a discreet subject
3. The Nature of RVE in Schools with a Religious Character
The Curriculum Guidance provides little clarity on the nature of RVE in schools with a religious character. It simply states that “additional guidance relating to RVE for voluntary-aided schools and settings has been produced by the Church in Wales and the Catholic Education Service with funding from Welsh Government”. It does not, however, link to that Guidance. The Legislation Summary simply provides a recap of the law on the matter.
4. The Definition of RVE
The Curriculum Guidance differs significantly from the draft in that it does not attempt matters of definition. Instead, it states that:
“In the Curriculum for Wales RVE is objective, critical and pluralistic, both in content and pedagogy; it is not about making learners ‘religious or ‘non-religious’. The expression ‘objective, critical and pluralistic’ comes from European Convention on Human Rights case law. The Curriculum and Assessment (Wales) Act 2021 ensures that all learners must be offered opportunities through RVE to engage with different religions and non-religious philosophical convictions in their own locality and in Wales, as well as in the wider world”.
The absence of extended and in some respects outdated discussion of definition issues is to be welcomed. The final Guidance is much clearer than the draft. Yet, the final sentence in the paragraph quoted here is suspect. It is questionable whether schools of a religious character are required to include opportunities to engage with different religions and non-religious philosophical convictions where they are permitted to teach according to their trust deeds or ethos.
As we will see, further details as to definitional matters are provided in the Legislation Summary. This similarly assumes that the requirement that RVE engages with different religions and non-religious philosophical convictions applies to all schools. It states that the change in name to RVE “reflects the expanded scope of religious education (RVE) and ensures the legislation itself is clear that RVE includes non-religious philosophical views”.
However, this is not my reading of the legislation. With the exception of RVE for sixth-formers which is explicitly defined in section 61 as needing to reflect ‘a range of non-religious philosophical convictions, the requirement to reflect a range of ‘non-religious philosophical convictions’ only applies to RVE taught in accordance with the agreed syllabus. There is no suggestion in the legislation that this is an element that schools with a religious character cannot opt out of where they are permitted to teach according to their trust deeds or ethos. Such denominational teaching on religion would not need to include non-religious philosophical convictions where teaching this would be contrary to the trust deeds or ethos of schools of a religious character.
The reference to opportunities for learners is also questionable given that the choice as to whether to receive denominational teaching or agreed syllabus rests in schools with a religious character with the parents, not the learners.
Confusion still exists in the Curriculum Guidance, however, in that the RVE lens remains divided into a number of sub lenses through which the RVE concepts can be viewed and explored and the sixth sub lens remains ‘values and ethics’ which is concerned with ‘how and why people make moral choices and how this influences their actions’.
The root of the problem is the inclusion of the words ‘values and ethics’ in the name for the new subject. Unlike the terms ‘beliefs’, ‘worldviews’ or ‘convictions’, ‘values and ethics’ are not terms that have been legally defined or used in court decisions. They also denote particular characteristics of religious and non-religious worldviews. As we will see, the Legislation Summary continues to adopt the definitions expressed in the case law of the European Court of Human Rights but this underlines that it would have been preferable to adopt the same terms or synonyms used in the case law rather than the words ‘values and ethics’.
5. The definition of “Religion”
The Legislation Summary states that the definition of religion continues to be that ‘clarified in section 375A of the Education Act 1996 (the 1996 Act) which refers to religious traditions’. The Legislation Summary concludes that ‘what must be included is a range of different religions’. It would have been wise to leave the matter at that but instead the document goes on to provide a list of world religions and denominations within them which it says that ‘courts have decided a belief is a philosophical conviction within the meaning of the ECHR’. This is confusing given that the list provided is of religious groups. The Summary states that ‘these are just examples of some religions and not an exhaustive list’. It is questionable whether such a list (and its references to the names Strasbourg decisions provided without citations) is necessary or indeed helpful.
6. The definition of “Philosophical Convictions”
The Legislation Summary takes a similar approach to the definition of philosophical convictions noting that references to ‘non-religious philosophical convictions’ in the Curriculum and Assessment (Wales) Act are ‘linked to the term “philosophical convictions” within the meaning of Article 2 Protocol 1 of the European Convention on Human Rights (A2P1)’. The Summary states that this means that ‘the RVE provided in accordance with the Act must be compatible with A2P1 in that it must include teaching on philosophical convictions within the meaning of A2P1’. However, as argued above, the reference to reflecting non-religious philosophical convictions only applies to agreed syllabus RVE and the optional RVE taught to sixth-formers.
The Legislation Summary seems to accept this by stating that ‘the Act makes 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 A2P1’. It notes that the ‘Act refers to “non-religious philosophical convictions” and not “philosophical convictions”’ because . ‘religious philosophical convictions are already covered by the section that refers to “religions”.
It then states that non-religious philosophical convictions include ‘beliefs such as humanism, atheism and secularism’ but that this ‘is not an exhaustive list but just examples of the sort of beliefs that are within scope of RVE’. It insists that ‘these changes make explicit what the law already requires in respect of pluralistic RVE’. The Summary further states that Council of Europe recommendations are helpful in this regard before stating that courts have held that
non-religious philosophical convictions are ‘not synonymous with the terms “opinions” and “ideas”’ but rather ‘denotes views that attain a certain level of cogency, seriousness, cohesion and importance’.
The issue is then confused further by providing a brief list, name-checking Strasbourg and domestic decisions, of ‘some examples where the courts have decided a belief is a philosophical conviction within the meaning of the ECHR’ which also stresses that these ‘are just examples and not an exhaustive list’. This list shows how problematic the adoption of the Strasbourg jurisprudence is in this area since the terms have been defined widely by Strasbourg to include principled opposition to military service and veganism. While these should no doubt be taught in schools, this is not equivalent and should not replace the teaching of systems of non-religious worldviews. The uncritical adoption of the human rights jurisprudence means that it will also be difficult to determine groups of persons who represents non-religious philosophical convictions on the Standing Advisory Committees: should they really include a representative of vegans alongside a member of Humanists UK? The Guidance confuses rather than clarifies the issue. Again, it is questionable whether the level of detail provided is necessary or helpful.
7. The position of sixth-formers
The Legislation Summary provides a section on what it terms ‘guidance’ on the position of sixth-formers. This largely provides an accurate summary of the law, ‘RVE post 16 is no longer mandatory’, learners can opt in but that where the ‘learner chooses to opt into RVE then the school or college must provide RVE which is objective, critical and pluralistic’. It correctly notes that section 61 of the Act requires RVE for sixth-formers to be designed to reflect the facts that ‘religious traditions in Wales are in the main Christian while taking account of the teaching and practices of the other principal religions represented in Wales’ and that ‘a range of non-religious philosophical convictions are held in Wales’. Section 61 expressly places responsibility for this in the hands of headteachers and governing bodies of maintained schools, not the Standing Advisory Councils.
However, the Legislation Summary then goes on to provide a further paragraph, which is the same paragraph that I found problematic in the draft guidance. It states that:
“Section 61 of the Act does not prevent a school from imposing a requirement that all learners in its sixth form undertake compulsory RVE classes; nor does it prevent a school that adopts this approach from providing compulsory sixth form RVE that accords with the school’s trust deeds, or the tenets of its religion, or religious denomination (“denominational RVE”). The content of such denominational RVE remains a matter for the school”.
As I noted in my response to the consultation on the draft guidance, there is no legal basis for this. The provisions in the Schedules to the Act only provide to education up to the age of 16. They do not apply to sixth-formers. The matter of RVE for sixth formers is now solely now by section 61 in relation to maintained schools (otherwise there would be no need to repeat there the two facts that RVE needs to reflect: ‘that the religious traditions in Wales are mainly Christian, while taking account of the teaching and practices of the other principal religions represented in Wales’, and ‘that a range of non-religious philosophical convictions are held in Wales).
Section 61 states that in maintained schools, RVE for sixth-formers is ‘provided at the school for pupils who request it’. This means that, contrary to what the Legislation Summary states,
it cannot be compulsory: it cannot be provided for those who do not request it. Technically, section 61 provides an ‘opt in’ rather than an ‘opt out’ approach and this underscores that RVE cannot be compulsory. Furthermore, section 61 provides that RVE for sixth-formers in maintained schools must reflect the two facts given above (which normally only apply to agreed syllabus RVE). It does not provide that such RVE must accord with trust deeds or a school’s ethos. Rather, under section 61, RVE may accord with such denominational teaching provided that it reflects the facts stated above.
The new Curriculum for Wales provides a welcome break from the prescriptive and bureaucratic National Curriculum that it replaces in Wales. It restores autonomy and freedom to individual schools, teachers and learners. It is unfortunate, therefore, that the Guidance on RVE remains convoluted. Although it is a marked improvement on the draft, it still raises more questions than it answers and is unlikely to provide clarity to those to which it is addressed.
This is regrettable, given that the changes ushered into the teaching of religion in schools in Wales are broadly to be welcomed. As I argue in my forthcoming short book on the subject, ‘Religion in Schools: Learning Lessons from Wales’, the changes modernise an archaic legal framework and are to be broadly welcomed, though in some respects the Welsh Government has not been bold enough.