In a guest post, Professor Russell Sandberg looks at the latest instalment in the continuing saga of religious education…

The Scottish Parliament has published the delightfully snappily-titled Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill following a consultation on amending the law on religious observance in schools (on which I have commented previously).

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”. Like similar provisions in other parts of the UK, this law has been criticised by the United Nations on the basis that it does not adequately protect the right of children to have their views considered in matters that affect them and their right to freedom of thought, conscience and religion.

The Scottish amendment, however, stops far short of giving children the right to opt out of religious observance and instruction. The Bill simply provides for the situation after the parent has made a request to withdraw.

Following that request, the education authority or school managers must inform the pupil and, under s.1(3):

“give the pupil an opportunity to express the pupil’s views about the request in the manner that the pupil prefers, or a manner that is suitable to the pupil if the pupil has not indicated a preference or it is not reasonable to accommodate the pupil’s preference, and  have regard to any views expressed by the pupil about the request, taking into account the pupil’s age and maturity.”

The Bill further provides that there is no obligation to inform and consult the pupil if they are satisfied that the pupil is not capable of forming a view. The Bill provides that: “The pupil is to be presumed to be capable of forming a view unless the contrary is shown.”

If following being informed and consulted the child objects to all or part of the parent’s request to withdraw, then a discussion must be sought with the pupil and the parent and regard must be given “to any views expressed during any discussion”. Once this is complied with then “the operator is not to give effect to the parent’s request to the extent of the pupil’s objection”.

This means that, while the child does not have the right to opt out of religious observance and instruction, they have the right to override a parent’s opt-out. While this covers the situation where the pupil wants to attend religious observance and instruction and protects their rights to receive it, it provides no rights should a child wish not to attend (other than relying on the parent – the very mechanism that the United Nations has been critical of).

Given that the Bill states that pupils are to be presumed capable of forming a view on this matter, surely the question of whether they opt out or not should remain with them.

The lingering doubt that this slight change does not fully address the concerns of the United Nations is underscored by the rest of the short Bill, which amends the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024  to state that a public body will not be acting unlawfully where it does something that relies on a UK or Scottish Parliament enactment – presumably such as only recognising and protecting  the right of the child in the limited way prescribed by this Bill in relation to religious observance and instruction!

A Policy Memorandum published with the Bill suggests that providing an independent right for pupils to withdraw would address recommendations from the UN Committee on the Rights of the Child (para 60). It notes, however, that “consultation and engagement raised concerns around how an independent right for pupils would be balanced with parental rights” and that it would continue to conflate religious observance and religious instruction in legislation.

This second criticism applies to the approach taken in the Bill too. The Policy Memorandum states that Religious and Moral Education “is one of the eight curriculum areas within the Curriculum for Excellence framework and is considered to make an important contribution to the personal and social development of children and young people” (para 13).  Given this, it would be perhaps appropriate for Scotland to take the same approach  as Wales – where the new curriculum similarly integrates the teaching of religion, values and ethics and here there is no opt out at all from this given its centrality to the curriculum.

In Wales, however, the law on religious worship in schools remains unreformed and remains subject to opt out. Perhaps the solution, in Scotland, Wales and England, is to move towards inclusive assemblies that are non-religious in nature.

Consideration of these more radical reforms underscores how limited the new Scottish Bill is. Although it is a welcome improvement, it does not satisfy calls to fully recognise the rights of children. Perhaps this shows the limitations of opt-outs in general and that a new approach to religion in school is needed.

Russell Sandberg