Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill: consumer duty assessment

Proposal aims

The Bill has two aims.

Religious Observance and Religious and Moral Education in Schools

Part 1 of the Bill would require schools to inform a child if their parent asks for them to be withdrawn from either religious observance, religious and moral education, or both. It also gives the child the chance to express their views. Where the child’s views are different from the parent’s views, the school would have to follow the child’s wishes. Where a child is not capable of forming a view, the school would not have to take these steps. However, it is assumed that a child is able to do so unless it is shown otherwise.

Amendment to the UNCRC Act

Part 2 of the Bill makes changes to the UNCRC Act. This Act places a duty on public authorities not to act in a way that is incompatible with the UNCRC requirements in the Act. There is also an existing exemption to that duty in the UNCRC Act where an Act of the UK Parliament requires or entitles them to act differently (which the Bill moves to a standalone section but does not substantively alter). The Bill would put in place another exemption so that Acts of the Scottish Parliament are treated in a similar way to Acts of the UK Parliament, where there are conflicting duties. This aims to ensure legal coherence and operational clarity by clarifying that public authorities are not acting unlawfully under the UNCRC Act when they are required by Scottish legislation to act incompatibly with UNCRC requirements. The proposal aims to avoid disruption to essential services and ensure that incompatibilities are resolved at their legislative source.

Identified impacts

Religious Observance and Religious and Moral Education in Schools

Children – All pupils who attend a publicly funded school in Scotland will be affected by the changes, given that there will be a legal requirement to consider their views in the event of their parent exercising their right to submit a withdrawal request. It is the Scottish Government’s view that the RO/RME provisions will strengthen the rights of children and young people in Scotland. Thus resulting in a positive impact in relation to Article 12 of the UNCRC, which gives children the right to have their views considered in matters which affect them, with due weight being given in accordance with the age and maturity of the child, and Article 14 of the UNCRC, which details the right to freedom of thought, conscience and religion.

Parents – Parents of pupils attending publicly funded schools will be impacted by the changes should they exercise their right to withdraw their child from RO/RME in school. As this Bill does not create a reciprocal right for the child to initiate withdrawal, all cases will involve parents starting the process by notifying the school that they wish to withdraw the child from RO/RME. The views of parents will still be considered in all cases of withdrawal, but now there will also be a legal requirement to consider children’s views in the decision-making process, in line with existing non-statutory guidance. Should the child object to their parents’ request to withdraw them from RO/RME, parents will be asked to engage with the school and pupil in further discussions to inform the decision-making process. However, it is presumed that this will not have a substantial impact on parents since they will already engage with the school regarding other areas of their child’s education.

Amendment to the UNCRC Act

The UNCRC Act amendment aims to provide legal clarity and ensures public authorities can continue to deliver essential services which will provide a positive impact on them as consumers delivering these services, and to the general public who can continue accessing these services.

Potential impacts on consumers in vulnerable circumstances

Religious Observance and Religious and Moral Education in Schools

Minority groups - There is limited evidence on the impact on minority groups, however there could be an indirect positive impact from pupils being able to decide to remain in RO/RME. Due to RO/RME promoting tolerance of different religions and worldviews, it could result in better relationships between pupils. Those with a religious background which is not Christian may be particularly affected, given that guidance on RO notes “in recognition of Scotland's Christian heritage, non-denominational schools are also encouraged to draw upon the rich resources of this tradition when planning RO”, therefore non-Christian parents may be more likely to submit a withdrawal request than parents who are Christian. However, it is important to note that the guidance also emphasises that RO should be inclusive of those of all faiths and none and should be developed in a way which reflects and understands the diversity of modern Scotland.

Pupils and parents with certain additional support needs (ASN) or communication difficulties - Should parents choose to exercise their right to withdraw their child from RO/RME, schools must tell the pupil about the request and the pupil’s right to object to the withdrawal. The pupil should be given an opportunity to express their view about the request and if the pupil objects to all or part of the parent’s request then schools are required to facilitate a discussion with the pupil and the parent.

This could be seen to negatively impact pupils or parents with ASN or communication difficulties as communication is key to the decision-making process. However, the changes outline the need for pupils to be able to express their views in a manner that the pupil prefers and requires the school to make an assessment on the pupil’s capability to form a view. This will ensure that all pupils judged capable of forming a view will have their views considered, regardless of any ASN or communication difficulties. It is presumed that parents initiating the process by enacting their right to withdraw their child from RO/RME will have previously engaged with the school and will therefore have channels of communication in place which take into account any reasonable adjustments.

Amendment to the UNCRC Act

The exemption is designed to protect vulnerable consumers - particularly children - by ensuring that services are not paused or withdrawn due to legal uncertainty. It supports systemic resolution of incompatibilities and avoids placing the burden on individual service users. Therefore, there is the potential for this amendment to positively impact those consumers accessing these essential services.

Potential harms to consumers

Religious Observance and Religious and Moral Education in Schools

At present the decision on withdrawal from RO/RME is taken by the parent, without the views of the child legally needing to be considered in all circumstances (although this is advised in guidance on RO). This may pose a risk to the child’s rights and wellbeing, if they are not being heard or represented in matters that affect them. However, there is the potential due to this change that children and young people may feel stress at the prospect of disagreeing with their parent if they choose to object to their withdrawal.

While they may choose not to express their views due to these concerns, the Scottish Government does see a greater harm if children and young people don’t have an opportunity to express their views at all. Therefore, when weighed against the potential harm of not amending the 1980 Act, the Scottish Government assess that there will be an overall benefit to children and young people from the changes made by the Bill.

These provisions are set to enhance representation of this group of consumers in the process of withdrawal. This change does not cost children and young people any money, and while the time taken may increase to make a decision on withdrawal, it allows for children and young people to be involved in this process that affects them as opposed to the current position where parents can make this decision on their behalf. There is the potential due to this change that children and young people may feel stress at the prospect of disagreeing with their parent if they choose to object to their withdrawal. However, we plan to mitigate this by developing guidance regarding the updated withdrawal process before the Bill’s provisions come into force. We will ensure that children and young people, parents and teachers are consulted in the development of this guidance. The Scottish Government will aim to ensure that the guidance supports schools to conduct the withdrawal process in a manner and setting which is as stress-free as possible.

Amendment to the UNCRC Act

There is no anticipated harm which would arise for consumers as public authorities, or consumers as services users as a result of the UNCRC Act amendment. The exemption is narrowly drawn and does not remove rights or legal remedies. It is intended to prevent harm by avoiding disruption to services and ensuring that incompatibilities are addressed through the appropriate legislative channels.

Alternatives considered

Religious Observance and Religious and Moral Education in Schools

The Scottish Government considered 4 different approaches to achieve the policy aims before confirming the final proposals, which are outlined in the Bill Policy Memorandum .

It is the view of the Scottish Government that the final proposals best improve outcomes and reduces harm for consumers. Although the alternative proposals may provide some improved outcomes for consumers, they also have associated risks that may outweigh the impact of the improved outcomes.

It is the view of the Scottish Government that the original proposals are the option which best supported the alignment with the UNCRC while balancing the 3 key considerations of this proposal: parental rights, views from key stakeholders and the wider public, and the practicality of implementing the changes for schools.

Amendment to the UNCRC Act

The Scottish Government considered alternative approaches, such as issuing guidance or using secondary legislation, but neither would achieve the necessary legal coherence.

Guidance would lack legal force, and there are no relevant secondary legislation making powers here. To ensure clarity, consistency, and legal certainty, legislating through a Bill is the only appropriate course of action.

Full considerations and comparisons of the alternative approaches can be found in the Bill Policy Memorandum .

Emerging themes

Religious Observance and Religious and Moral Education in Schools

In relation to the RO/RME provisions in the Bill, a lack of evidence was identified regarding how the right to withdraw currently works in practice, as well as in terms of children and young people’s views on the right to withdraw. This was partly addressed by the public consultation and engagement with stakeholders, including the Scottish Youth Parliament. However, there were a very small number of pupil responses to the public consultation, therefore further engagement is planned with children and young people as consumers in particular, to inform consideration of potential amendments during the parliamentary passage of the Bill as well as the development of associated updated guidance on the right to withdraw from RO/RME.

Amendment to the UNCRC Act

In terms of the UNCRC Act amendment, based on the initial scoping of impact in this assessment, and the engagement planned and undertaken, the only theme which emerged was messaging of the amendments and communicating it effectively. To address this we are working with Together to develop and share a child-friendly explainer of the amendment.