Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill: equality impact assessment (EQIA)

Background

Key terms

By way of background, definitions of the key terms which are explored in this assessment are provided below.

Religious Observance (RO) (also called ‘Time for Reflection’ or ‘Collective Worship’) – in guidance for schools RO is defined 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 community.” Guidance also notes that RO should be “sensitive to individual spiritual needs and beliefs, whether these come from a faith/belief or non-faith perspective” and that it is “of central importance that all pupils and staff can participate with integrity in forms of RO without compromise to their personal beliefs”.

Religious and Moral Education (RME) (referred to, in denominational schools, as religious education, or sometimes RERC in Catholic schools; in this document, unless stated otherwise, RME is used to describe teaching in both non-denominational and denominational schools) – in guidance for schools RME (non-denominational) is a process where children and young people engage in a search for meaning, value and purpose in life, including developing and reflecting upon their own values. It involves both exploring beliefs and values and the study of how such beliefs and values are expressed, across major world religions and views independent of religious belief.

RE (denominational) in Catholic schools takes place within the context of the wider Catholic faith community, in partnership with home and parish. It is an integral part of the Catholic school, which is itself a community of faith. It is designed to assist children and young people to be increasingly able to make an informed and mature response to God in faith and to nurture that faith. It offers opportunities for both evangelisation – proclaiming the Gospel message to all – and catechesis – the deepening of existing faith commitments among believers. It also enables pupils to understand and appreciate significant aspects of other Christian traditions and major world religions.

RO/RME – as noted above, RO and RME are two different parts of the school experience, but to make reading this document easier, a catch-all label of ‘RO/RME’ is used to describe RO and RME (including religious education in denominational schools, unless otherwise stated).

Withdrawal – in this context, withdrawal from RO/RME means that there has been a request from a parent to remove the child from participation in RO and/or RME. Withdrawal does not always mean being taken out of the class/assembly where RO/RME is happening, it can also mean being present but not participating, or doing other activities within the same classroom.

Guidance on RO and RME is clear that pupils should not be disadvantaged by withdrawal, and should be given other worthwhile activities during this time.

Further detail on the two areas of the Bill are outlined below to provide context to the overarching aims and outcomes explained in the summary section above.

Religious Observance and Religious and Moral Education in Schools

Section 9 of the Education (Scotland) Act 1980 (the 1980 Act) gives parents a right to withdraw their child from RO and/or RME as a subject, without taking into account the views of the child. While longstanding non-statutory guidance on RO notes that “schools should include children and young people in any discussions about aspects of their school experience, ensuring their views are taken into account”, there is no legal requirement to consider a child’s views as part of the withdrawal process.

Scotland, as part of the UK, is a signatory of the UN Convention on the Rights of the Child (“UNCRC”), which was recently incorporated into Scots Law by the UNCRC (Incorporation) (Scotland) Act 2024. Scotland, as part of the UK, is bound by the international obligations flowing from the UN Convention on the Rights of the Child (“UNCRC”). The current legislation on RO/RME raises questions in connection with the Scottish Government’s obligations under the UNCRC, – namely, 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. It also raises questions in relation to article 14, which details the right to freedom of thought, conscience and religion.

Therefore, to ensure clarity and put the position in relation to UNCRC compliance beyond doubt as a matter of priority, the Bill proposes to amend section 9 of the 1980 Act to qualify the parental right to withdraw to ensure that the child’s views are considered as part of any withdrawal request, with due weight being given in line with the child's age and maturity.

If Parliament does not pass the legislation, then in relation to the RO/RME elements of the Bill, the questions which have been raised about the current legislation on RO and RME and the Scottish Government’s UNCRC obligations will remain, and the position in Scotland in this context will remain unclear.

Without these changes, the decision on withdrawal from RO/RME will legally remain entirely with 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 mean that some children are not able to experience the benefits of community, spiritual development and learning offered by RO and RME, even should they wish to. This may also pose a risk to the child’s rights and wellbeing, if they are not being heard or represented in matters that affect them.

Amendment to the UNCRC Act

This Bill will introduce an exemption to the section 6 compatibility duty in the UNCRC Act in circumstances where a public authority is compelled to act incompatibly with UNCRC requirements in fulfilment of another Act of the Scottish Parliament, or in relation to secondary legislation, where the incompatibility was mandated by an Act of the Scottish Parliament.

The UNCRC Act requires public authorities, including persons delivering functions of a public nature (such as private actors providing public services) to act compatibly with the rights set out in that Act. There is the theoretical possibility however that another Act of the Scottish Parliament could be argued to require them to act incompatibly with the UNCRC Act.

The Scottish Government is therefore making this change to:

• Minimise complexity for public authorities in reading and understanding their duties under the UNCRC Act;
• Ensure legal coherence; and
• Ensure that the delivery of essential services that support children can continue, where a potential incompatibility arises.

The exemption will make clear that the compatibility duty does not apply if a public authority is delivering its functions in fulfilment of another Act of the Scottish Parliament that prevents them from acting compatibly.

If the exemption in Part 2 is not introduced, there is a risk that public authorities could be left in a position where they are unable to deliver essential services due to conflicting legal duties. This could result in disruption to services that support children and young people, particularly where legislation cannot be interpreted in a way that is compatible with UNCRC requirements. The exemption is intended to provide legal clarity and continuity of service delivery while any incompatibilities are identified and addressed.

Additionally, we will need to ensure all public authorities are aware of the existence of the exemption and when it can and cannot be applied. Although we will automatically become aware of the exemption being applied in the course of litigation (due to that triggering the ‘UNCRC compatibility question’ process), we will also work to ensure that public authorities make the Scottish Government aware of when they are relying on the exemption in practice.

Impacted groups

This Bill has the potential to impact on the following groups of people:

Religious Observance and Religious and Moral Education in Schools

Children - In terms of particular groups of children and young people likely to be affected by the proposed changes, all those who are pupils (including but not limited to those of “school age”, normally 5-16) will be affected by the changes. However, the changes may particularly affect those attending denominational schools given the central role played by religious faith in these schools’ ethos and practice. In non-denominational schools, those with a religious background which is not Christian may be disproportionately 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”, though it is also noted that RO should be inclusive and developed in a way which reflects and understands the diversity of modern Scotland.

Therefore, by taking children’s views into account in line with their age and maturity in cases where parents choose to withdraw them from RO/RME, there should be a direct positive impact on the child.

Parents - Under the proposed changes, parents will retain their pre-existing right to request to withdraw their child from RO/RME. However, there will now be a legal requirement on the operator of the school to consider the pupil’s view as part of any request. There is no reciprocal right for pupils to initiate a withdrawal request, so all cases will involve parents starting the process by notifying the school that they wish to withdraw the child from RO/RME. Those parents who have chosen to send their child to a denominational school, despite opting into that RO/RME provision, may be more likely to submit a withdrawal request based on the limited evidence available, however, there is no discriminatory impact of this amendment because the requirement to consider the pupil’s views will apply equally to all withdrawal requests.

Children and parents with communication difficulties - Communication is key to the changes to the RO/RME withdrawal process. It is important to note that the changes outline the need for children to be able to express their views in a manner that the pupil prefers and require the school to make an assessment regarding the pupil’s capability to form a view. However, to ensure there is no disadvantage for pupils or parents, consideration will need to be given to how those with communication issues can be supported in the process through considered adjustments. This will be considered in more detail as part of the development of the guidance to accompany the implementation of the changes.

School leadership teams and teachers - There were no disproportionate impacts for school leadership teams or teachers identified in relation to any protected characteristic.

Amendment to the UNCRC Act

The amendment to the UNCRC Act to add an exemption to the compatibility duty has the potential to impact children and young people, and public authorities, including those delivering functions of a public nature, particularly when carried out under a contract or other arrangement with a public authority. In terms of protected characteristics, we assess that age is the only relevant equality consideration for this amendment, as the UNCRC requirements apply to those under 18 years of age

Children and Young People – Without the exemption there is a risk that public authorities could stop delivering an essential service relevant to children and young people if they believed that delivery would mean they were at risk of acting incompatibly under the UNCRC Act. This amendment would allow for essential services to continue to be delivered while Scottish Ministers address any incompatibility in the legislation under which that service was being delivered. Therefore, there is a potential for this amendment to positively impact children and young people.

The circumstances in which the exemption could be applied are very narrow. It would apply only where a provision conferred by or under an Act of the Scottish Parliament required a public authority to act incompatibly and could not be read in a UNCRC compatible way, under section 24 of the UNCRC Act. Although our understanding of compatibility with the UNCRC Act will evolve as the courts determine compatibility questions, we are not currently aware of any provisions in Acts of the Scottish Parliament that would require a public authority to act incompatibly with the UNCRC requirements. The UK has been a signatory to the UN Convention on the Rights of the Child since 1991, and the Scottish Ministerial Code recognises the overarching duty on Ministers to comply with the law, including treaty obligations.