In a guest post, Russell Sandberg compares and contrasts the Scottish proposals for reforming the law on religion in schools with the position in England and Wales.

The Scottish Government is currently consulting on amending the law on religious observance in schools. Section 9 of the Education (Scotland) Act 1980 gives parents the right to withdraw their children from both ‘religious observance’ and ‘the provision of instruction on religion’. In light of United Nations’ concerns about the right of children to have their views considered in matters that affect them and their right to freedom of thought, conscience and religion, it is proposed to strengthen existing guidance that schools should take into account learners’ views and to require due weight to be given to the parents’ views when parents are exercising their rights to withdraw their children. As argued by Gemma Clark in The National, this stops short of actually giving children themselves the right to withdraw.

This issue has arisen in the other parts of Great Britain. In England, the law can be found in the Education Act 1996 and the School Standards and Framework Act 1998. These provisions continue to be broadly the same as the settlement reached in the Education Act 1944, as amended by the Education Reform Act 1988. Religious edu­cation syllabuses must reflect ‘the fact that the religious traditions in Great Britain are in the main Christian’ and daily ‘collective worship shall be wholly or mainly of a broadly Christian character’. These requirements can be disapplied by Standing Advisory Councils for Religious Education (SACREs): regulatory bodies at a local authority level that develop local syllabuses for religious education. Parents also have the right to opt out, and this is extended to sixth-formers in the case of religious worship. Other than that, there is no recognition of the religious freedom of children under English law.

Wales has recently taken a very different approach, as I documented in a recent book.  The Curriculum and Assessment (Wales) Act 2021 moved away from the centralised and bureaucratic approach of the National Curriculum to afford more autonomy to schools to develop their own bespoke curriculums. Religious Education became Religion, Values and Ethics. For the first time, the law explicitly stated that non-religious beliefs are to be studied and associated groups are to be included in the Welsh SACREs. Notably, there is now no parental right to opt out of Religion, Values and Ethics in the same way that there is now no equivalent parental right to opt out of what is now called Relationships and Sexuality Education; both are “mandatory elements” under the new curriculum. Religion, Values and Ethics is intended to be objective, critical and pluralistic. This, together with its centrality to the curriculum and the way in which it is no longer necessarily a discrete subject but dispersed throughout the curriculum, meant that the parental opt-out was removed.

This radical step was undermined, however, in two respects. First, in relation to schools with a religious character, Religion, Values and Ethics can still be denominational – though the parental right to opt out exceptionally remains. This seems to be an unprincipled throwback to the previous position. Second, the law on collective worship in schools remains unreformed. This means that, as in England, the law still requires that all pupils take part in a daily act of worship “wholly or mainly of a broadly Christian character”, and the parental and sixth-former opt-outs continue to apply to religious worship.

It is interesting that opt-outs have been retained in Scotland, which has seen educational reform much like that more recently enacted in Wales. 2011 Guidance on religious and moral education under the Scottish Curriculum for Excellence regards religious and moral education in non-denominational schools and religious education in Roman Catholic Schools as one of the eight core curriculum areas and stipulates that it should include ‘well-planned experiences and outcomes across Christianity, world religions and developing beliefs and values’. Perhaps an opt-out is considered necessary given that this stops short of the Welsh approach, which in schools without a religious character, at least, is intended to be objective, critical and pluralistic. Nevertheless, the way in which religious education (however named) is central and dispersed throughout the curriculum in Scotland, as in Wales, means that the same practical issues may apply that would render opt-outs unworkable: while a child can be removed from a particular class on religion, it is far more difficult to remove them from an interdisciplinary project that may have a religious dimension.

Scotland, like England and Wales, continues to have an opt-out in respect of what may, for convenience, be called religious worship. However, again, such an opt-out seems less necessary in the Scottish context. The 2017 Guidance on Religious Observance under the Scottish Curriculum for Excellence defines religious observance as “community acts which aim to promote the spiritual development of all members of the school’s community and express and celebrate the shared values of the school’s community” and states that the term “Time for Reflection” may be preferred by schools. This is roughly in line with recent calls by Humanists UK and others finally to reform the archaic laws on religious worship in schools in England and Wales. The Scottish approach seems preferable and more advanced than the English and Welsh approaches to religious worship.

Overall, it would appear that the Scottish opt-outs are not as necessary as they are in the English law on religious education and the English and Welsh law on religious worship. The Scottish guidance indicates that the approach is far more human rights compliant. The current consultation, therefore, provides an opportunity for this to be taken further. However, the trouble is that the current proposed reform does not go far enough. Giving weight to a child’s views after a parent requests an opt-out is an improvement on the current practice but is inadequate.

It is difficult to disagree with the view of Gemma Clark and the Humanist Society Scotland that if there is an opt-out from “religious observance” and “the provision of instruction on religion”, then it should be capable of being exercised by children themselves. The trouble is that rules on religion in school have for too long been looked at through the lens of the human rights of the parents and guardians rather than the human rights of the children. Yes: there would be a need to ensure that the child is legally competent to decide, but there are other legal contexts where that does not pose too much of a problem. Legally competent children should be able to exercise their right to opt out. Should this change be enacted, then there will be even more grounds for those of us in England and Wales to look enviously at the Scottish model and to emulate their approach for much-needed reform here.

Russell Sandberg

Cite this article as: Russell Sandberg, “Lessons to be learnt from and about the current Scottish consultation on religious observance in schools” in Law & Religion UK, 8 January 2025, https://lawandreligionuk.com/2025/01/08/lessons-from-the-current-scottish-consultation-on-religious-observance-in-schools/