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

Step One – Develop a clear understanding of your objectives

We are introducing the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill (“the Bill”) which includes targeted and technical measures aimed at enhancing the coherence and clarity of the processes for withdrawal from religious observance (RO) and religious and moral education (RME, also called religious education in Roman Catholic schools or RERC) in schools, as well as the operation of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (“the UNCRC Act”).

Specifically, the Bill will amend both the UNCRC Act and the Education (Scotland) Act 1980) (“the 1980 Act”) to provide clarity to public authorities on how they should interpret and apply their duties, and improve the clarity of our statute book, thus strengthening the legal framework for the rights of children and young people in Scotland.

The overarching policy objectives are to:

• Religious Observance and Religious and Moral Education in Schools: Amend the current legislation to require that pupils’ views are considered when parents^[1] are exercising their right to withdraw their child from RO and RME in order to provide clarity and align legislation with existing non-statutory guidance.
• Amendment to the UNCRC Act: Add an exemption to the duty imposed on public authorities (and private bodies exercising public functions) under section 6 of the UNCRC Act, which requires them not to act incompatibly with the UNCRC rights incorporated by the Act. This exemption would apply to situations where a public authority is compelled to act incompatibly with UNCRC requirements in fulfilment of another Act of the Scottish Parliament.

Religious Observance and Religious and Moral Education in Schools: By way of background, Section 9 of the 1980 Act gives parents a right to withdraw their child (of any age) from both RO and from RME as a subject, without taking into account the views of the child. While longstanding non-statutory guidance on 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 Act. The current legislation on RO and 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 soon as possible, the Bill proposes to amend section 9 of the 1980 Act to add a qualification to 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.

Schools on Scottish Islands and in rural areas may be more likely to be smaller than those in urban mainland areas, particularly in the case of primary schools. For example just two pupils attend Kilchattan Primary School on the island of Colonsay, and Duror Primary, Appin. Additionally, Dalry Secondary in Dumfries and Galloway, Stronsay Secondary in Orkney and Sanday Secondary also in Orkney have only 13, 14 and 24 pupils respectively.

Schools with a smaller number of pupils are likely to have a correspondingly low number of staff, and therefore a proportionately greater strain could be put on teachers in terms of additional workload from engaging with parents and pupils regarding withdrawal requests in schools where the pupil’s views are not already being considered in the process. This may be particularly acute in the event of an increase in withdrawal requests (though no increase in withdrawal requests is anticipated as a result of the changes in the Bill).

Furthermore, in cases where a withdrawal request is upheld, there may be associated additional workload in terms of providing meaningful alternative activities for withdrawn pupils. However, this would be the case at present, and if this new aspect is added to the 1980 Act, this would add discrete additional steps and considerations in the withdrawal process rather than entailing a major change or additional process. Equally it is also possible that smaller schools are more easily able to tailor RO/RME to be reflective of their school community and inclusive of all pupils, which may reduce the incidence of withdrawal requests, though there is insufficient evidence to test this.

We do not expect this change to increase the number of withdrawal requests as there is not a reciprocal right for a child to withdraw being created. However, in schools where pupils are not already involved in discussions about withdrawal, particularly in cases where a pupil objects to their withdrawal, the changes may require some additional short-term engagement with pupil and parent compared to the present process. This may result in proportionately greater short term workload pressures for smaller schools, in cases where staff numbers are more limited.

In terms of ongoing workload for schools, given the proposed changes offer pupils the opportunity to object to their withdrawal, the changes could conceivably result in a reduced number of pupils being withdrawn, and a potential reduction in overall resource expended by schools on the on-going supervision and management of withdrawn pupils.

Therefore, while we acknowledge the greater strain on capacity which cases of withdrawal may currently have on smaller schools, we do not expect the overall workload associated with withdrawals to increase.

Amendment to the UNCRC Act: The proposed UNCRC Act amendment is not anticipated to have an effect on an island community which is different from the effect on other communities.