Official Report 243KB pdf
15:39
The next item of business is stage 3 proceedings of the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill.
In dealing with the amendments, members should have the bill as amended at stage 2—that is, SP bill 66A—the marshalled list and the groupings of amendments. The division bill will sound and proceedings will be suspended for around five minutes for the first division. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.
Members who wish to speak in the debate on any group of amendments should press their request-to-speak button or enter RTS in the chat function as soon as possible after I call the group. Members should now refer to the marshalled list of amendments.
Section 1—Pupil’s involvement in decision about withdrawal from religious instruction or religious observance
Group 1 is on the meaning and character of religious education and observance. Amendment 6, in the name of Maggie Chapman, is grouped with amendments 21, 11, 22, 22A and 24.
I begin these stage 3 proceedings by thanking the Cabinet Secretary for Education and Skills and her team for the many conversations that we have had about the bill over a very short period of time. I am grateful for that. We will come on to some of the areas of disagreement and agreement, but I want to put that on record. I am also grateful to my colleagues on the Equalities, Human Rights and Civil Justice Committee and to all the organisations that have contributed so much to the development of amendments and by giving their views on the bill.
I turn to the first group. In giving children and young people the right to withdraw, it is important that we are absolutely clear about the meaning and character of religious education. As a result of stage 2 amendments that I lodged and that were supported, children and young people will have additional rights around withdrawal from religious observance but not religious education. We should not force children and young people into religious observance, which is also understood as worship, but it is equally important that they cannot withdraw from religious education, which is a core part of the curriculum.
As a society that respects those of all faiths or of no faith, and those who are not sure, it is important that children and young people receive education in different faith and non-faith beliefs. It is also important that they receive education to understand the diverse society in which we all live. However, in the bill, the remaining references to religious education use the original terminology of the Education (Scotland) Act 1980 of “religious instruction”, which is an ambiguous phrase that could blur the important distinction between religious education and religious observance. My amendments 6 and 11 are tidying up exercises to avoid that confusion.
Amendment 22 is aimed at facilitating the exercise of the rights in the bill. Parents and pupils cannot meaningfully exercise those rights unless they know when religious observance is happening and what form it will take. Therefore, amendment 22 would require all grant-funded schools, except denominational schools, to inform parents and pupils at least 14 days before any planned religious observance in the school about the format and content of that observance and any alternative learning provision for pupils who are withdrawn. The amendment would also require an assessment of whether the information that is conveyed in any planned religious observance in the school is
“sufficiently objective, critical and pluralistic”.
Amendment 22A would apply that provision to denominational schools as well.
A court judgment recently ruled that the parental right to withdraw from religious observance is a necessary but insufficient mechanism for protecting parents’ and children’s human rights and that the observance must be objective, critical and pluralistic. Amendment 22 would support best practice and ensure that all pupils can take part without compromise to their personal beliefs. In cases in which elements of an RO activity might not meet the criteria that the court specified—that is, if it involves asking pupils to pray, worship, sing hymns or affirm their belief in God—parents and pupils will be empowered to act in line with their conscience.
Turning to the other amendments in the group, amendment 21, which was lodged by Elena Whitham, is in the same vein and would require ministers to clarify what constitutes religious observance. I support that, in the belief that clarity is important.
I am unsure about the need for Paul O’Kane’s amendment 24, and I have a question as to whether it could confuse or potentially prevent certain things later on. If we wished to amend the Education (Scotland) Act 1980 later, how would his amendment interact with that? I would be grateful if the member could address those points now or in his contribution.
I will, of course, refer to much of what Maggie Chapman described in my contribution in this group, so I do not intend to detain the chamber in that regard.
However, Maggie Chapman has made a number of assertions in her speech thus far, and I want to point out to her that, as we referred to at stage 2, there is a clear difference between denominational and non-denominational schools, in terms of religious education and religious observance.
As I said to Maggie Chapman at stage 2, I can understand where she is coming from on decoupling religious education and religious observance in a non-denominational setting, but does she understand and respect that RE and RO in a denominational setting are intrinsically linked, which would mean that some of what she is trying to do would actually be very difficult to implement in a faith school?
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I disagree. RE and RO do not have to be intrinsically linked, even in a denominational school. They might be, but they might not be.
Tomorrow is Ash Wednesday, which is a good example. In Catholic schools across the country, children will learn about Lent. They will learn about it in an academic sense, probably write down what they will do for Lent and likely write a prayer to help them do that. They do all that in an RE class, but it is also RO. Does Maggie Chapman recognise that that is what I am talking about?
In his contribution, Paul O’Kane separated the two things out. Learning about one thing is not the same as practising it, which is what we need to be clear about. It is what young people and their parents have told us that they want clarity about.
My amendments in the group, along with Elena Whitham’s, would provide clarity by defining what constitutes religious observance, which helps us as legislators to understand the definition and ensures that parents, young people, children and schools are clear about the different elements and know how to treat them. As Paul O’Kane might accept, those lines might be fuzzy or blurry, but there is a distinction between observance and education.
The Scottish Greens whole-heartedly support the role that religious education plays in any curriculum, but particularly in helping children to understand the diversity of the society in which we live. I ask members to support my amendments.
I move amendment 6.
I will restrict my comments to my amendment 21. I also declare an interest as a member of the Humanist Society Scotland.
Amendment 21 would place a duty on Scottish ministers to issue statutory guidance that sets out the “meaning of religious observance” for the purposes of the bill. It would also require the statutory guidance to be published within 12 months of the commencement of the new guidance provision. The amendment reflects calls for clarity on the meaning of religious observance after stage 2, when religious observance and religious and moral education were separated in the bill and the parental right to withdraw was limited to apply only to religious observance.
Amendment 21 also responds to the concerns that were raised about instances of non-inclusive religious observance in non-denominational settings, most notably by Humanist Society Scotland in its “Preaching is not Teaching” report. Ministers preparing the guidance would therefore be required to consider the
“importance of inclusiveness in the content and delivery of religious observance”.
That would support schools in ensuring that all pupils can participate in a way that respects their personal beliefs, while promoting a time-for-reflection approach.
Recognising the distinct context of religious observance in denominational schools, the amendment specifically includes representatives of denominational schools, alongside “operators of schools” and those who represent the interests of parents, pupils and teachers, as mandatory consultees. That would help to ensure that the guidance is workable and appropriate across all school types.
The requirement for ministers to publish the guidance within 12 months of the section’s commencement reflects the importance of the guidance in providing clarity for schools, pupils and parents on how the changes in the bill should be implemented. I encourage members to support amendment 21.
I add my thanks to all those who have been involved in the bill process. Scotland has a long tradition of providing parents and families with the option to send their children to denominational education in a setting that they choose. Much of that stems from a long history—it is more than 100 years since the Education (Scotland) Act 1918 brought Catholic schools into the state sector, which created a fairly unique social contract in Scotland. Colleagues will be glad to know that I will not re-rehearse all the reasons for that this afternoon, but the difference in provision stems from a time when there were certain prejudices about the Catholic community—particularly the working-class Irish Catholic community—in Scotland. It is important that, at the outset of our debate this afternoon, we recall that heritage, that history and the importance of the place of those schools in our public life.
That was followed by denominational schooling in the Episcopalian church and the establishment of our Jewish school, Calderwood Lodge primary school, in East Renfrewshire, which I know very well. Therefore, it is fair to say that, for at least 100 years, there has been denominational education in the state sector, which is provided by our local authorities in conjunction with religious bodies.
Amendment 24 seeks to reiterate the Parliament’s commitment to the story of faith education and denominational schooling in Scotland. It also responds to the serious concerns that have been raised about the lack of direction that the bill sets. Amendment 24 would set out in the bill the Parliament’s continued support for the role, place and function of denominational schools—most notably, Catholic schools, which account for the overwhelming majority of denominational school settings in Scotland. It would put beyond doubt that any provisions in part 1 of the bill would not infringe on or negatively impact section 16 or 21 of the Education (Scotland) Act 1980 or section 18 of the Education (Scotland) Act 1918, which established the right for denominational provision to exist and set out the powers, functions and responsibilities relating to the operation of such schools.
Amendment 24 responds clearly to concerns that the bill, or other amendments that we are considering today, would put into question the long-accepted settlement on denominational education in Scotland. In particular, I note the concerns that the Scottish Catholic Education Service has raised about amendments 6 and 11, which would change the terminology in statute from “religious instruction” to “religious education”.
When I intervened on Maggie Chapman, we had a brief exchange about how complicated the issue is in many ways, and there is perhaps a lack of wider understanding of how these things operate in practice. I note that concerns have been raised that that change in nomenclature would weaken the protections that are in place that recognise that religious observance and religious education are inherently linked in a faith school. I simply put the point to Maggie Chapman that it is very difficult to separate those two things, particularly in a faith school. In a religious education class, there will be moments when the lesson goes into religious observance, so it is not simple to separate the two.
I take Paul O’Kane’s point that the two are interlinked just now. Is he arguing that the two have to be interlinked, or could they be separated?
Mr Mason makes a fair point. I am arguing that the two should be interlinked. My understanding from my own education is that the two things are interlinked for a very strong purpose, which is about the unique ethos of a Catholic school being about both practice of someone’s faith and learning about faith in an academic sense.
Going down the road of trying to separate religious observance from religious education in a denominational setting would be extremely problematic. It would also be hard to do, particularly in a Catholic school, although, from what I understand of Calderwood Lodge, having been there, I think that that would also be true of Jewish schools. The two things are interlinked. The link is probably more acute in the primary sector. In Catholic schools, children are taught how to prepare for their sacraments in an RE lesson, but that will involve an element of practice, as Mr Mason will understand. I do not think that the two things should be decoupled in such settings, and it would be very difficult for them to be decoupled in practice, if the Government chose to go down that road.
As I have said, narrowing the definition of RE in a faith school to, extensively, interpretations in the academic curriculum could lead to more problems than are being anticipated. As I said to Maggie Chapman at stage 2, I understand the desire to separate the two elements in a non-denominational setting, because I understand the academic value of religious, moral and philosophical studies compared with what religious observance looks like in a non-denominational school. However, I do not think that we can compare the two settings, because they work in different ways. For those reasons, we will not support Maggie Chapman’s amendments.
We have concerns about amendment 21, in the name of Elena Whitham, because, although guidance on RO would be welcome, some of the text of the amendment suggests that it might lead to the deletion of ethos and nature within denominational settings, which I have referred to already. There would need to be strong assurances that it would not be used as a pretext to constrain or interfere with the ethos of faith schools.
I am conscious of time so early on in the debate, but I might just reflect on some of the information that was provided by the bishops of Scotland, who said:
“The inclusion of denominational schools in the state system in Scotland continues to be an example of a diverse, pluralistic, democratic education system in action.”
The statement also pointed out:
“Religious Education gives knowledge of faith, while Religious Observance is the living expression.”
That points to how those two things are interlinked in the denominational sector.
It is for those reasons that I urge members to support amendment 24, to make a clear statement about the value of faith schools in society and to affirm our commitment to their long-standing place and their future.
I will limit my remarks to amendments 22 and 22A, on requiring schools to provide parents and children with detailed information about planned religious observance at least 14 days in advance. That information must include not only the format and content but the assessment of whether the observance is
“sufficiently objective, critical and pluralistic”.
I begin by saying that transparency is not the problem. It is right that parents should understand what is happening in their child’s school, and it is right that observance should be inclusive and respectful. I do not think that anyone disputes that, but amendment 22 would go much further than transparency. It would introduce into primary legislation a formalised statutory test that misunderstands what religious observance is. Observance is not a classroom lesson in comparative religion. It is not an academic seminar. It might be reflective or devotional. In denominational settings, it is part of the faith character that parents have consciously chosen. To require schools to certify in advance that observance is sufficiently objective, critical and pluralistic is to apply a secular analytical framework to something that is not designed to function in that way. That is not a small drafting point—it is a conceptual mistake.
There is also a question of proportionality. We do not require 14-day statutory reports for assemblies, commemorations, themed events or visiting speakers. We do not require advanced legal assessments of whether those events meet an abstract standard. Why, then, single out religious observance for that level of prescription?
Amendment 22A would extend that requirement to denominational schools. That raises an even more serious issue. Parents who enrol their children in a denominational school do so in the full knowledge of its ethos. To subject those schools to a statutory objectivity test risks eroding the distinctive character that the Parliament has long recognised and protected. There is a difference between accountability and control. There is a difference between guidance and rigid statutory prescription. If further clarity is needed about the meaning of observance, guidance is the proper vehicle. Schools need flexibility; they do not need another layer of bureaucratic reporting embedded in statute.
The bill already seeks to narrow the parental conscience clause by removing the right to withdraw from religious and moral education. I happen to agree with that. It already seeks to introduce a new formal process around observance. In that context, we should be cautious about layering on additional statutory burdens that risk confusion, inconsistency and unnecessary administrative strain.
Matters of conscience and faith require careful handling. We should legislate with balance. That means respecting children’s voices but also respecting parental choice and the integrity of different school types in our system. For those reasons, although I understand the intention behind them, I cannot support amendments 22 and 22A.
I will make a short contribution in support of amendment 24, in the name of Paul O’Kane. We are debating legislation on the right of a child to withdraw from religious education, but it is important that that does not undermine the ethos of denominational schools. If we ask any headteacher what is successful about those schools, they will say that their entire ethos is about the discipline and character of that school and that, without that, they would not be as successful.
The 1918 act is a key piece of law for Catholic education, which is enshrined in our education system. The 1918 act corrected historical inequalities, and it is important to note that that is one of the things that it does.
We have a highly successful Catholic education system. It is part of a modern system that reflects the minority character of the Catholic community while giving choice to all parents regardless of their religious background. I think that that is right for a modern Scotland.
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This is what I want to say to the Government—although I have obviously not yet heard the Government’s argument. The Government must recognise that there have been periodic attempts to eradicate or remove Catholic schools from the education system. I have had many letters over 20 years, and that point has been argued by the Humanist Society and others. Everyone has their view. I do not have any criticism of the Government in this regard but, if the Government recognises that that has happened, then, for the avoidance of doubt, we must ensure that the right of the child that we are dealing with today does not undermine that ethos in any way. It is imperative that nothing in the bill does that.
I would like to hear what the Government has to say about that. I do not see why the Government would be opposed to amendment 24. As I have said, the 1918 act is a very relevant piece of legislation. I would be interested to hear what the Government has to say. I will strongly support amendment 24 for the reasons that I have set out.
As we have heard this afternoon, Maggie Chapman’s amendments 6 and 11 would replace references to “religious instruction” with the term “religious education” in section 8 of the Education (Scotland) Act 1980.
I understand that concerns have been expressed at use of the word “instruction”—a point that I recently discussed with the Humanist Society. National guidance has long been clear that religious and moral education is expected to cover learning from a range of faiths and world-views, including beliefs independent of religion, in an objective manner.
I discussed the amendments in this area with the Scottish Catholic Education Service last week and, as we have heard this afternoon, it expressed concern regarding the perceived impact on denominational schools in particular, including on learning outwith the classroom. In practice, the term “instruction” in the 1980 act has long been understood to mean teaching or education, and it appears throughout the 1980 act, including in contexts entirely unrelated to religion.
There are currently 27 uses of the term “instruction” in the 1980 act as it would stand after the passing of the bill. The amendments would update only a fraction of the references in the act, and they would they leave references to “religious instruction” in other sections unchanged—including in sections dealing with the management of denominational schools, for example.
While it might be fair to say that the terminology is somewhat outdated, especially given modern curriculum practice, the amendments risk creating inconsistency and uncertainty in how the legislation should be interpreted. They might create an argument that “religious education” and “religious instruction” are two substantially different things under the 1980 act, which of course is not the case.
I genuinely want the cabinet secretary’s help here, because my decision hinges on what she understands by the word “instruction”, as opposed to what she understands by the word “education”. Is she arguing that, legally, the two are the same? I genuinely still have to decide how I am voting on this point. We could easily think that the word “instruction” means religious observance. We could equally think that it means education. I genuinely want some advice—a steer—from the cabinet secretary.
I accept Mr Simpson’s question and I recognise some of his concern. There is dubiety on that point from some stakeholders, as I have set out, and I have also made the point that the term appears in the legislation—in the 1980 act—a total of 27 times, I think. There would be incoherence in amending the 1980 act at this stage, although I recognise some of the concerns that have been voiced to that end.
There is a great degree of complexity contained in the 1980 act, with the long-standing meaning attached to its terminology, which Mr Simpson rightly raises, but changes of this nature would require much more thorough consideration across the 1980 act to avoid unintended consequences.
For those reasons, I cannot support amendments 6 and 11.
Amendment 21, in the name of Elena Whitham, would require ministers to provide statutory guidance on the meaning of religious observance. I am very glad that we have worked with Ms Whitham on her amendment, which responds to concerns raised following stage 2 changes that separated religious observance and religious and moral education so that the parental right to withdraw would apply only to religious observance.
As members might know, and as we have heard from Mr O’Kane and other members this afternoon, there is a close relationship in denominational schools between religious education and religious observance. By providing a duty for ministers to issue guidance on the meaning of religious observance in schools, amendment 21 will ensure that clarity will be provided for schools, pupils and parents regarding where the right to withdraw continues to apply and where it does not.
Amendment 21 will require that ministers consider the importance of inclusiveness in the content and delivery of religious observance when preparing the statutory national guidance. That will support schools in ensuring that all pupils can participate in religious observance without contravening their personal beliefs. Recognising the particular context of religious observance in denominational schools, amendment 21 explicitly includes as mandatory consultees those who represent the interests of denominational schools, alongside education authorities and managers of grant-aided schools, to ensure that the guidance works for both denominational and non-denominational settings.
Amendment 21 will also require that the guidance be published within 12 months of the section being commenced, reflecting the importance of the guidance in providing clarity for schools, parents and pupils regarding the implementation of the changes. For all those reasons, I invite members to support amendment 21.
Maggie Chapman’s amendment 22 would require non-denominational schools to provide pupils and parents with details of the “format and content” of religious observance at least 14 days in advance—as we have heard from members today—alongside an assessment of whether religious observance activities are
“sufficiently objective, critical and pluralistic”.
Amendment 22A would apply those requirements to all public and grant-aided schools, instead of only non-denominational ones. Schools are already required by the school handbook regulations to provide information on the form and content of religious observance and on the arrangements for withdrawing a pupil. The introduction of a duty to provide an assessment of whether those activities are sufficiently objective, critical and pluralistic would place a significant administrative burden on schools, which I think is the point that Stephen Kerr made earlier.
We already expect schools to provide only activities that they believe to be sufficient in that regard, in line with the existing guidance. The new statutory guidance to accompany the implementation of the bill will highlight the expectation that religious observance is inclusive, as well as how that might look in practice. In developing the guidance, we will engage with schools and other interested parties to determine what further support might be appropriate to ensure that religious observance is consistently and sufficiently inclusive of those of all faiths and no faith.
The cabinet secretary is talking about the guidance. What thought has been given to the depth of the guidance? As former teachers, she and I will both have received guidance in the past, so we know that, sometimes, it goes to the nth degree on how something is delivered, whereas other guidance contains just top-line phrases that, in times past, during in-service training days in particular, we might have struggled to implement.
I am sure that Mr Whitfield and I both have fond memories of the many in-service training days that we spent as teachers. I draw his attention to amendment 21, in which, under the requirement in proposed new section 9C(5)(a) of the 1980 act,
“Ministers must publish guidance issued under subsection (1) … within … 12 months”.
That speaks to the broader point of the requirement to consult the mandatory consultees who are also stipulated in Elena Whitham’s amendment 21. I hope that that gives him some degree of comfort.
For the reasons that I have set out, I cannot support amendments 22 and 22A. I would, however, be happy to consider looking at how the school handbook regulations might be updated alongside the development of the accompanying guidance, to ensure that parents and pupils get that important information in relation to religious observance and their associated rights that sit alongside that, so that they can make informed decisions accordingly.
Paul O’Kane’s amendment 24, which we have heard commentary about from members this afternoon, provides that the changes that will be made to the 1980 act by part 1 of the bill would have no effect on
“section 16 or 21 of the Education (Scotland) Act 1980”
or on
“section 18 of the Education (Scotland) Act 1918.”
The amendment therefore includes reference to a provision that has not been law for more than half a century. It might create a level of confusion by giving the false impression that the modifications will, in some way, affect those or other unreferenced provisions in legislation, which they will not.
However, I appreciate that amendment 24 likely aims—as we have already heard this afternoon—to give reassurance in response to concerns from the denominational sector that the bill will undermine the existing protections for denominational schools. To reassure Pauline McNeill and other members, I again put on the record the fact that the Government remains unequivocal in its support for denominational schools. We very much recognise the vital role that those schools play, in relation to religious observance and religious education in those settings. That will be evident in the Government’s position on a number of amendments that will provide clarity, and it will also have been evident from my consistent engagement with the Scottish Catholic Education Service throughout the passage of the bill. I again say that SCES will, of course, be part of the mandatory consultation that is set out in Elena Whitham’s amendment 21.
Notwithstanding the cabinet secretary’s technical point about amendment 24, she seems to want to accept it in spirit. Will the Government support that amendment today and will it put clearly on the record, for the avoidance of doubt, that those two pieces of legislation are supported? This is the moment for Parliament to do that in our modern context by using an avoidance of doubt amendment, which I think is important.
I very much appreciate the sentiment behind amendment 24. I make Mr O’Kane aware that I discussed the content of that amendment with the Scottish Catholic Education Service only last week and that I raised some of our concerns about the anomalies that might arise as a result of the way in which the amendment has been drafted.
The Government’s preference is for members to, instead, support amendment 21, which allows for guidance to be issued and puts into statute the requirement for denominational schools, including those belonging to the Scottish Catholic Education Service, to be consulted on that guidance. The guidance that currently exists is not statutory in nature, which means that amendment 21 would arguably give further clarity and protection through legislation.
The cabinet secretary supports amendment 21. Does she also recognise that the Scottish Catholic Education Service has suggested that the proposals that RO should be
“sufficiently objective, critical and pluralistic”
have the potential to create ambiguity and to be open to interpretation or to potential challenges about the denominational nature of education in Catholic schools?
I am not sure I would go as far as to recognise all of that critique, but I have discussed some of the challenges with SCES and directly with Barbara Coupar in relation to how the bill will operate in Catholic schools. Mr O’Kane will recall that my former employment, before I became an MSP, was in a Catholic school and I very much recognise that the division between RO and RME is inherent to the culture and faith within Catholic schools. Any work will need to be undertaken in a sensitive manner and done directly with SCES, which is included under the mandatory consultees that are set out Elena Whitham’s amendment 21.
That is how the system currently operates and that is provided for in national guidance, so there has been no change in that respect. I encourage members to support amendment 21, which allows guidance to be issued.
I did not understand what you meant, cabinet secretary, when you spoke about the 1918 act. It is a century old, but it is still the law. It does not really matter how old that act is, and we have laws that are much older than that. The 1918 act is really important for denominational education, so can you clarify whether that is the source of your technical problem with the amendment? Do you accept that it is still the law?
Always through the chair.
The point that I was making is one that I have discussed with SCES. There is an issue in relation to drafting. I would have preferred it if Mr O’Kane and I had been able to work together on an amendment on the issue, but, although he and I met and discussed the point, that was not the case in the end.
There is a risk here of creating confusion or of creating a false impression that modifications in the bill will, in some way, affect legislative provisions that they do not actually affect. The bill will not affect denominational education in the way that the member suggests. However, I appreciate Mr O’Kane’s point about the concern expressed by the sector, which is why I have spent a great deal of time engaging directly with the Catholic Education Service. We will come to this in a later group of amendments, but that is also why my officials have been engaging directly with SCES and with schools in relation to how the statutory guidance will be adopted and taken forward. All of that will be undertaken in conjunction with SCES and with the Catholic church more broadly, which is stipulated as a mandatory consultee.
I ask members to vote against all the other amendments in group 1, because although they are, as we have heard, well intentioned, they are unnecessary and likely to create confusion in our legislation.
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My amendments 6 and 11 seek to clarify the terminology and help to modernise the language in the 1980 act. Religious instruction is often considered to be the same as religious observance. My amendments would clarify that by replacing “instruction” with the term “education”, helping to avoid that confusion or conflation.
Amendment 11 would clarify the language on the removal of the parental opt-out from RME as a classroom subject, which we agreed to at stage 2. To address the cabinet secretary’s concern about unintended consequences, I note that the amendment refers only to section 8 of the 1980 act, but I appreciate that that may not be enough to sway the Government.
Amendment 22 would require non-denominational schools to provide pupils and parents with information about RO, including its format and content. That is not a mistake, as Stephen Kerr seemed to suggest. It is intentional.
To be clear, I did not say that it is a mistake. I said that it was a technical issue. I hope that Maggie Chapman accepts that.
I think that I heard the word “mistake”, but I accept what Stephen Kerr has now said in his intervention.
Amendment 22 would support children’s rights under articles 12 and 13 of the UNCRC—article 12 contains the right to be heard and article 13 contains the right to information—by ensuring that children have the information that they need to make informed and clear decisions. Obviously, schools should ensure that the information is provided in formats that are accessible to children and young people and their families.
Amendment 22A would go further, clarifying that all public and grant-aided schools should be subject to the duty to provide information.
I appreciate the cabinet secretary’s comments about the guidance for schools on the matter, but we heard in committee that the guidance is not always clear and that, when it is clear, it is followed with very variable degrees of felicity across the country. However, I am grateful for her comments about her preparedness to look at the handbook in future to see whether we can get a little more clarity.
I press amendment 6.
The question is, that amendment 6 be agreed to. Are we agreed?
Members: No.
There will be a division. As this is the first division at stage 3, I will suspend the meeting for about five minutes to allow members to access the digital voting system.
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Meeting suspended.
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On resuming—
We will now proceed with the division on amendment 6. Members should cast their votes now.
On a point of order, Presiding Officer, my app would not connect. I would have voted no.
Thank you, Ms Gilruth. Your vote will be recorded.
INSERT VOTE
The result of the division on amendment 6 is: For 14, Against 102, Abstentions 0.
Amendment 6 disagreed to.
Group 2 is on process following receipt of parental withdrawal request. Amendment 1, in the name of Stephen Kerr, is grouped with amendments 2 to 5 and 19. I point out that, if amendment 19 is agreed to, I cannot call amendment 20, which is to be debated in the group on a pupil’s right to withdraw from religious observance, due to pre-emption.
For clarification, what I said to Maggie Chapman in the context of my remarks was that applying a secular analytical framework to something that is not designed to function in that way is not a small drafting point; it is a conceptual mistake, which is my polite way of saying that I do not think that it is understood.
Group 2 is at the heart of how the legislation will operate in practice. The new section 9A that the bill proposes to insert into the 1980 act establishes a formal process once a parent requests withdrawal from religious observance. That framework is now set out clearly in the bill as amended at stage 2. It requires operators to inform the pupil and invite their views and, if the pupil objects, to refuse the parental request. That is a significant constitutional and educational shift—it alters the balance between parental authority, institutional responsibility and the child’s developing autonomy.
My amendments in this group seek not to undo that framework, but to ensure that it is workable, legally coherent and fair in its consequences. Amendment 1 addresses an issue that should concern every member of the Parliament: what actually happens to the child once withdrawal takes place? If we are going to formalise a process by which some pupils are withdrawn from religious observance, the statute must guarantee that those pupils are not educationally sidelined.
The bill currently protects against disadvantage in terms of secular instruction, but it does not explicitly guarantee purposeful alternative activity during the period of withdrawal. Amendment 1, therefore, would place a clear statutory duty on the authority or managers to provide
“suitable and purposeful educational activity”.
Amendments 2 to 4 turn to the question of maturity and capacity. Proposed new section 9A, as drafted, states that a
“pupil is to be presumed to be capable of forming a view unless the contrary is shown.”
In abstract terms, that sounds child centred; in practical terms, it places schools in a difficult and potentially adversarial position. The bill now creates a process by which, if a pupil objects, the parental request must not be given effect. That is not simply consultation; it is determinative.
In such circumstances, Parliament must be precise about thresholds. Amendment 2 clarifies that it is a
“pupil 16 years of age or older”
whose position carries that determinative weight.
Will the member give way?
Will the member give way?
I give way to John Mason.
Speaking—it is interesting to note—as one religious member to another, does the member not think that 16 is a bit on the high side? I would have accepted it if he had said that the threshold should be at secondary 1 stage or maybe somewhere in between, but 16? We allow young people at 16 to do a lot of things. Surely, below 16 they should be able to opt out of religious observance.
Actually, John Mason makes my point for me—16 is not an arbitrary number. In Scots law, it marks a recognised threshold of legal capacity—
Will the member take an intervention?
Will the member give way?
It is the age at which young people acquire significant rights and responsibilities.
I give way to Alex Cole-Hamilton.
I am grateful to Stephen Kerr for giving way; I have pressed my button to speak in this group on this particular issue. We have a range of ages of majority, as laid out by this Parliament. At the age of 12, a person’s medical consent is sought and they are deemed to have capacity in medical decisions made about their body. The age of criminal responsibility is much lower than 16—in fact, the Scottish Conservatives have resisted an increase in that regard. I therefore ask him to explain those inconsistencies to the Parliament and say why he is bringing this one forward.
Alex Cole-Hamilton is asking me to explain the inconsistencies of legislation for which the Parliament is responsible. I would like there to be less inconsistency in these areas; unfortunately, we live with these inconsistencies, and that is why I have lodged amendment 2 to set 16 as the age. I recognise what Alex Cole-Hamilton says, and I sympathise with his point of view about the confusion that exists around these matters. I wish that there was some clarity.
I wonder whether Stephen Kerr is able to tell members whether he thinks that children under the age of 16 can make any decisions for themselves and therefore would be considered to have capacity in this regard. The UNCRC—which his party has agreed to incorporate in Scots law—is quite clear that children and young people should be assumed to have capacity unless it is proven otherwise. The bill as it stands is consistent with that. His amendments would put the bill at odds with that principle.
16:30
Maggie Chapman is asking me whether I believe that children under the age of 16 can make their own decisions. As the father of four children, I assure members that children do have the capacity, in many instances, to make decisions for themselves. This issue happens to fall under an area that is covered by the 1980 act and deserves our careful scrutiny. In Scots law, the age of 16 is a recognised legal threshold for capacity. It is an age at which young people acquire, as I said a moment ago, significant rights and responsibilities under law. That is not the same as the issue that Maggie Chapman raised in her question. Aligning the bill with existing legal architecture is not restrictive—it is coherent.
I turn to amendment 3, which would replace the phrase “be capable of forming” with
“have the maturity to form”.
That shift is deliberate. Capability suggests a minimum cognitive ability. Maturity recognises emotional development, contextual understanding and the capacity to appreciate consequences. It is not semantic refinement. It is a more accurate articulation of what Parliament must mean if the child’s view is to override their parents’ statutory right.
With a move from “capable of forming” to “have the maturity”, is Mr Kerr not shifting from an objective assessment to a subjective assessment? He is seeking to shift the judge—to shift who decides that.
Any decision on the maturity and emotional development of a child is an on-going subjective decision that is reviewed continually in the light of their development, which is highly individual, as I know and Martin Whitfield knows only too well.
It is important that we have clarity around the articulation of what Parliament means. I repeat this point, because it is important. The bill would mean that a child’s view would override a parent’s statutory right. That is why we require careful scrutiny of amendment 3 at this stage in the bill’s progress.
Amendment 4 would establish a presumption that a pupil under the age of 16 is not to be treated as having the maturity to form such a view
“unless the contrary is shown”.
That is not a blanket exclusion—it preserves flexibility. Where a younger child demonstrably possesses unusual maturity, the presumption can be rebutted, but the amendment would prevent the default position from becoming automatic opposition to their parent’s request. That is the whole point of the bill.
Throughout our scrutiny of the bill, I have emphasised that the UNCRC speaks of “evolving capacities”. It does not erase parental responsibility. Article 5 recognises
“the responsibilities, rights and duties of parents … to provide … appropriate direction and guidance”.
If the bill is to claim UNCRC alignment, it must respect that dual principle. My amendments restore balance without denying the child’s voice.
Amendment 5 is equally fundamental. It requires that operators “act impartially” and do not “seek to influence” the pupil’s views. If the school is required to inform the pupil of the request and of the right to object, that communication must be neutral. It must not be framed in a way that steers the pupil towards objection, nor should it minimise the seriousness of the parental decision. Schools are trusted institutions. Parents must have confidence that they are not entering a process in which their child will be subtly encouraged to contradict them. Without explicit statutory impartiality, we risk creating a dynamic in which the school becomes an active participant in a dispute rather than an honest broker. That would be unfair to families and to teachers.
Against that background, I have serious reservations about amendment 19. A statutory duty to issue guidance on the withdrawal process may appear sensible, but we are being asked to endorse guidance that we have not seen, in an area that already places teachers in a sensitive and potentially invidious position.
Guidance can provide clarification, expand expectations and reshape practice. If the bill will already formalise a process that many people believe goes further than is necessary, layering additional statutory guidance without clear parameters risks compounding that shift. Teachers are educators; they should not be routinely drawn into adjudicating family disagreement on matters of conscience. Before granting ministers further influence over how this delicate process is conducted, the Parliament should be confident that such guidance will reinforce restraint, not extend intervention.
My amendments are principled and carefully framed. They would respect children’s voices while preserving parental responsibility, provide schools with clearer statutory guidance and reduce the risk of an inconsistent application of practice across Scotland. If we are to legislate in this sensitive space of conscience, family life and education, we must do so with seriousness and balance. My amendments would help us to do exactly that, and I commend them to the Parliament.
I move amendment 1.
Amendment 19 addresses calls from several stakeholders for clear guidance on the implementation of the changes that are proposed in part 1 of the bill.
The amendment would change the existing ministerial power to issue statutory guidance to a duty to do so. It would also introduce further requirements relating to the content of the guidance, the consultation process that must underpin its development and the arrangements for its publication.
Amendment 19 sets out the core areas that the statutory guidance would have to cover. Those areas reflect many of the issues that were raised during stage 2, including:
“(a) the process for considering a request for withdrawal from religious observance,
(b) support available to pupils and parents about the process,
(c) assessing whether a pupil is capable of forming a view about a request,
(d) handling of discussion between pupils and parents about a request.”
The amendment would also establish a list of mandatory consultees with whom ministers must engage when preparing the guidance.
Amendment 19 sets out a clear timescale within which the Scottish ministers would have to issue the guidance, stipulating that it must be published within a year of the commencement of the relevant provisions. That is intended to prevent delays in providing much-needed clarity for schools, pupils and parents.
I will speak briefly about the amendments in this group, particularly amendment 19 in the name of Elena Whitham. Given the significant changes that the bill would bring and the new position in which it would put schools, of effectively needing to arbitrate between parents and children on issues of faith or conscience—things that are often deeply personal and private—it is important that schools are given clear guidance on how the processes envisaged in the bill would operate, and that must be done in a timely manner. Therefore, the detail underlying the amendment and the commitment to the production of guidance in short order are key points; it is worth putting that on the record. The whole Parliament would welcome seeing a final version of the guidance.
I have raised several concerns regarding the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill in committee, in the stage 1 debate, in the debate on stage 2 amendments and while meeting the Cabinet Secretary for Education and Skills.
I put on the record that my issues of concern are the possibility of parents being overruled, increased pressure being placed on teachers, and the danger of a precedent being set. For example, controversial organisations such as LGBT Youth Scotland are already entering schools, including primary schools, to deliver material that many parents believe advances a political agenda.
That being said, I welcomed meeting the Cabinet Secretary for Education and Skills last month. Although that meeting did not lessen any of my concerns, I was pleased to hear that the guidance will cover issues such as the age of legal capacity and how conflict between parents and pupils will be managed. However, as we know all too well, the devil will be in the detail. As we have not yet seen the guidance, I cannot support the bill. Instead, I welcome the amendments from my colleague Stephen Kerr, which include vital safeguards and recognise that pupils under 16 may lack the maturity to form an informed view.
Will Ms Gosal take an intervention?
Ms Gosal has finished her contribution.
As I hinted to Stephen Kerr in my earlier intervention, I now rise primarily to speak to amendment 2 and his attempt to introduce 16 as the age of presumed maturity in making decisions in this matter.
Stephen Kerr freely admits that we, as a Parliament and a country, are inconsistent about the age at which we recognise maturity and offer autonomy to our children and young people. That has come from a very considered space in some regards. I raised the example of health matters, in which 12 is the age at which consent will be sought for medical processes and procedures.
The age of criminal responsibility in this country was raised to 12 by legislation in the previous session of Parliament. I lodged amendments that sought to raise it higher—to 14 and to 16 for various purposes—but it was, in large part, down to Mr Kerr’s party that the Parliament rejected both my amendments and left us with an age of responsibility that is lower than those in Russia and China.
In relation to that piece of legislation and the age of criminal responsibility, the Conservatives attested that it was about understanding right from wrong. Surely the assessment of—
Will the member give way?
I will give way in a minute, but I want to make the point that understanding right and wrong and what sits well with people’s conscience is absolutely at the heart of the debate today. We cannot, on the one hand, recognise young people’s maturity in knowing the difference between right and wrong, or what sits well with their conscience in relation to criminal acts, but, on the other, deny them the same recognition when it comes to matters of faith. That is a fundamental inconsistency, and, for that reason, I believe that Stephen Kerr’s amendment is fundamentally flawed.
I respect Alex Cole-Hamilton’s point about the inconsistencies—after all, we have to deal with a variety of ages in this regard. However, does he not accept that the issue here is a matter of family life and the rights and responsibilities of parents? Surely that places a different shade on the matter than the approach that he is taking.
I welcome that important intervention, which gets to the very heart of this debate. Yes, there will always be tensions between the rights of groups in our societies. In this case, we are talking about the tensions between rights as a parent and the rights of the child. However, the Parliament has unanimously agreed to our commitment to incorporate the United Nations Convention on the Rights of the Child into Scots law. Stephen Kerr’s party voted unanimously in favour of that.
I think that I made it clear in my remarks that the UNCRC recognises the roles and responsibilities of parents and the evolving nature of the autonomy of a child.
The UNCRC offers us a blueprint as to how to navigate the tensions between those rights. Everything in the bill strengthens our compatibility with the UNCRC, so I do not accept that raising to 16 the age at which children are afforded the agency to make decisions on the matter will somehow ameliorate the tensions between those rights.
This comes back to what sits right with people’s conscience. I wish it were otherwise on the age of criminal responsibility, but if we, as a Parliament, recognise that children have the maturity, and afford them the opportunity, at the age of 12, to make decisions on what is right and wrong when it comes to criminal acts, I do not see why we should suggest that they lack the ability to say what sits right with their conscience in matters of faith.
I hate to say this to Stephen Kerr, but he has got some of this wrong. On the issue of age, and particularly the age at which children are able to form a view, it is just not right to put a hard and fast figure on that—certainly not the age of 16.
I can remember that, when I was at school—I am sure that Mr Kerr experienced this, too—there were pupils aged under 16 who were perfectly capable of forming a view on such an issue.
16:45
Does Graham Simpson accept and understand that, in the context of the bill, we are also talking about the rights and responsibilities of parents? Surely, as a Parliament, we understand and accept that parents have an important role in the lives of their children until they reach the legal threshold. To set them aside, as the proposed legislation would, is a very bold thing to do. That is why I am testing the Parliament’s view on the matter and, indeed, Graham Simpson’s view.
Stephen Kerr does not need to test my view. I am looking at the amendments that are in front of us, which do not mention parents. I accept that parents are part of the debate that we will have. [Interruption.] Stephen Kerr is chuntering from a sedentary position, but we need to look at the amendments that are in front of us.
The whole point of these amendments is to underscore the importance of the roles and responsibilities that parents have in relation to their children. I could not be clearer about why I have lodged the amendments and what the intention behind them is: it is to reinforce family life and the roles and responsibilities of parents.
Unfortunately for Stephen Kerr, the wording in amendment 3 is
“be capable of forming”
and
“have the maturity to form”.
Amendment 4 says:
“A pupil under 16 years of age is presumed not to have the maturity to form a view unless the contrary is shown.”
That is just wrong, because many children under the age of 16 are perfectly capable of forming a view.
Where I have good news for Stephen Kerr—although he might not be bothered one way or the other—is that I find amendment 1 extremely sensible in that it says:
“Where a pupil is withdrawn from religious observance,”
we must ensure that there is some kind of
“purposeful education activity during that period.”
I can support his amendment 1 but not his other amendments. I will also support Elena Whitham’s amendment 19.
I advise members—and they will probably have noted—that we will shortly reach the next time limit, and we still have a further group to debate. As a consequence, I am minded to accept a motion without notice, under rule 9.8.5A of standing orders, to extend the debate by 30 minutes. I ask the Cabinet Secretary for Education and Skills to move such a motion formally.
Motion moved,
That, under Rule 9.8.5A, the debate be extended by up to 30 minutes.—[Jenny Gilruth]
Motion agreed to.
I now call the cabinet secretary.
As we have heard, Stephen Kerr’s amendment 1 would require schools to ensure that
“suitable and purposeful educational activity”
is provided for any pupil who is withdrawn from religious observance. The amendment is consistent with the Government’s existing guidance on religious observance, which outlines that schools should provide worthwhile alternative activities for pupils who are withdrawn from such observance. For those reasons, like Mr Simpson, I am able to support amendment 1, and I encourage other members to do so.
However, amendments 2, 3 and 4, also in the name of Mr Kerr, would significantly alter the bill’s approach to how pupils are involved in decisions about withdrawal from religious observance. Taken together, those amendments would remove the presumption that pupils under 16 should have their views considered in relation to a withdrawal request. They would be
“presumed not to have the maturity to form a view on their withdrawal unless the contrary is shown.”
That would effectively introduce an age-based threshold of 16 for the new pupil rights in the bill, which would go against existing legislation on children’s rights, as we have already heard this afternoon.
Amendment 3 would specifically shift the test for whether a pupil can express a view from one that is based on capacity to one that is based on maturity. In doing so, the amendment does not align with the requirements of article 12 of the UNCRC and it conflicts with the wording in section 9A(3) of the bill, which refers to a pupil’s capability to form a view. That creates a level of confusion about the judgment that is required from the operator, without providing any clear benefit.
As it stands, the bill includes a presumption that a child is capable of forming a view unless the contrary is shown. That reflects the concept of “evolving capacities” under the UNCRC and also aligns with established legislative precedents, including the UNCRC (Incorporation) (Scotland) Act 2024. That capacity-based approach was supported by a majority of the committee’s members in its stage 1 report. For those reasons, I am unable to support amendments 2, 3 and 4.
Stephen Kerr’s amendment 5 would require school operators to act impartially and not seek to influence a pupil’s views in relation to parental withdrawal requests. Mr Kerr lodged a similar amendment on that issue at stage 2, but it was phrased in such a way that it implied a lack of professionalism in schools. I welcome the more careful framing of amendment 5, which provides reassurance without undermining trust in teachers, and I am therefore happy to support it.
Amendment 19, in the name of Elena Whitham, would replace the existing ministerial power to issue statutory guidance with a duty to do so. It would also set out additional requirements regarding the content of that guidance, as we have heard, as well as the consultation that would have to take place during its development and the arrangements for its publication.
In amendment 19, subsection (2)(a) refers to
“the process for considering a request”
and subsection (2)(d) refers to
“handling of discussion between pupils and parents”.
Does the cabinet secretary envisage that the guidance would be sensitive to what happens in cases involving a balancing of two different rights being arbitrated by another person? Will the guidance give advice on how to best handle that balance?
I envisage that those discussions would very much be sensitive to that difference of opinion—I give the member an assurance on that point. We have heard a range of views on the development of the guidance, but it is important to say that, assuming that the bill is passed, the 12-month period will begin with consultation with the mandatory consultees. That is imperative. We have heard arguments from the member’s colleagues about why that is important if we are to recognise the difference that exists in our schools and reflect that in the statutory guidance.
I mentioned school operators. Education authorities and the managers of grant-aided schools, as well as bodies that represent teachers, parents, and children and young people, would be among the mandatory consultees that I spoke about in response to Mr Whitfield. As with amendment 21 in the previous group, amendment 19 includes representatives of denominational schools. That is a recognition of their distinct interests and the importance of consulting the denominational sector.
Finally, amendment 19 would place a requirement on ministers to publish the guidance within a certain time. That responds constructively to the committee’s discussion at stage 2 and offers a helpful and proportionate set of requirements for the statutory guidance. For those reasons, I support it.
The Government is happy to support amendments 1, 5 and 19. I ask Stephen Kerr not to move amendments 2, 3 and 4.
I call Stephen Kerr to wind up and to press or withdraw amendment 1.
The rest of this Official Report will be published progressively as soon as the text is available.
Air ais
Business Motion