Seòmar agus comataidhean

I will be brief. It is worth stressing my and many others’ disappointment that, by choosing to amend the 1980 act, the cabinet secretary has ensured that the provisions covered by the bill are out of scope of the compatibility duty in our own United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. That sends a worrying signal to people with an interest in this space. We should have taken the time and care to ensure that this legislation was in that scope. If that meant taking longer to do it, that is what we should have done.

However, given that we are where we are and we have this bill in front of us, we need to bring these rights into the scope of the UNCRC incorporation act. Therefore, I press amendment 40.

Following on from what Paul O’Kane said, I would say that there were a lot of unknowns in the stage 1 evidence. A lot of the figures are projected or estimated. It is guesswork, quite frankly, because we do not have a picture of what is happening now, never mind when new rights come into play. What data-gathering mechanism do the cabinet secretary and the Scottish Government suggest would help us understand what is going on in this area?

No young person should be forced to pray, and no young person or child should be forced to participate in activities of worship against their will. That is the principle to which the amendments speak.

Young people in Scotland’s schools are still compelled to participate in acts of religious observance. With the right to withdraw being reserved exclusively to parents, some school pupils and young people are denied the right to be heard and are forced to pray against their own beliefs. That was the clear conclusion of the “Preaching is not Teaching” report that the Humanist Society Scotland published. The report also found that RO is still exclusively Christian and worship based in many non-denominational schools.

Twice, the UN has recommended that children and young people in Scotland be supported in exercising their rights by giving them the right to withdraw from RO. My amendments seek to answer that recommendation that the UN has made to us twice in the past eight years.

All the human rights experts who we heard from in committee were very clear: children and young people should be able to exercise their right to freedom of belief and expression. Faith groups, legal experts and human rights bodies have all told us that denying pupils the independent right to withdraw amounts to a breach of their human rights. My amendments seek to address that breach and to enable children to exercise their right to freedom of belief and expression.

I will press amendment 1.

I appreciate Paul O’Kane’s comments about his frustration that we are discussing this now—that frustration was clearly expressed during the committee’s stage 1 evidence gathering.

During that evidence gathering, it was clear that even representatives from the denominational schools that you have just mentioned support the separation of religious observance and education. There is frustration that that broader education or “instruction”, as the 1980 act calls it, is conflated with, essentially, worship. Those two things remain and should be distinct, and denominational leaders and teachers were comfortable with that. Some of them said, “There is that distinction and we can make it work.” I am interested in hearing Paul O’Kane’s response to that.

I am interested in what Tess White is saying about capacity and the presumption against expecting every young person who is under the age of 16 to understand or have capacity. How does she consider that that aligns with the principles—set out in the UNCRC and elsewhere across legislation that has already been passed by the Parliament—that assume capacity unless there are reasons not to? There is a presumption for, rather than a presumption against, as her amendment proposes. How do you see that aligning with our existing legal and other practices?

There is a certain amount of irony in the bill, given that, although it brings school religious activities into line with the UNCRC, part 2 provides for a very wide exception to convention rights when there is conflict between the convention and existing legislation, and not just in relation to the religion in schools issue but in relation to any issue at all.

Let us be clear about what is happening. We have just incorporated the convention into law, but we will now allow potentially very broad opt-outs from it. Instead of working out where there are incompatibilities and addressing them where we have the power to do so, we will allow for a blanket carve-out. I wanted to lodge and discuss much more detailed amendments to tackle that issue but, unfortunately, they were ruled to be out of the scope of the bill.

In dealing with the issue, the Children and Young People’s Commissioner, Together and the Scottish Human Rights Commission have all warned that there is a need to tread carefully. My amendment 51 would help us to do that. The amendment would require that a body must notify the Scottish Government and the commissioner when it relies on the exceptions to section 6 of the 2024 act. The Scottish Government would also need to report annually on all the notifications that it has received, on how children’s rights have been affected and on the action that it proposes to take.

Amendment 51 would provide safeguards for section 6. It would give us a clear sense of how often the exceptions were being used and why, which would allow us to then address incompatibilities. If we do not agree to amendment 51 or to something similar at stage 3, we will simply be living in ignorance as to how often the rights of children and young people that we have incorporated into law are not being fully upheld.

Amendment 51 has support from a range of organisations. Those organisations have also suggested further improvements, which I welcome. Together proposed that the Lord Advocate should also be notified, and the Scottish Human Rights Commission has asked to be included in the list of bodies that are to be notified. I would like to introduce amendments at stage 3 to give effect to those requests.

Together also advocates a small technical refinement to ensure that public authorities, or relevant bodies that are acting on behalf of children, can bring proceedings to seek a declarator under the relevant sections of the 2024 act. Those improvements would enhance transparency, reduce the burden on children to initiate litigation and ensure more effective oversight of proposed new section 6B in practice.

I note that the cabinet secretary has lodged amendments 7 and 8 to address a similar concern. However, the intimation provision will kick in only where there are live legal proceedings, and we need such a provision to apply prior to that—otherwise, when there are no court proceedings, we will not be aware that public authorities have identified potential incompatibilities. As the children’s commissioner has noted, the cabinet secretary’s amendments 7 and 8 are compatible with my amendment 51, and I urge the committee to support all three amendments.

As it stands, part 2 of the bill makes a mockery of the whole process of incorporating the convention into law. I remain uncomfortable with the whole principle of part 2, but the very least that we can do is ensure that we keep a close eye on how often it is used and then act to address any incompatibilities that arise. My amendment 51 would ensure that that happened.

I move amendment 51.

I thank the cabinet secretary for her comments. I am sympathetic to some of the intention behind Stephen Kerr’s amendments but, like the cabinet secretary, I do not think that the first two in this group are necessary.

I share the cabinet secretary’s concerns about the constraining definitions in amendment 44. What is listed in those two definitions is too prescriptive. We can have on-going conversations between now and stage 3 and see where we get to in that space if we can come to an agreement.

To wrap up, my amendments fulfil the committee’s recommendation to separate religious observance and RME. They focus on the existing parental right to withdraw from RO and will no longer allow parents to withdraw their child from RME as a curriculum area. That recognises the value of RME as objective, critical and pluralistic and important in supporting young people to learn about and from different faiths, beliefs and world views.

For those reasons, and because of the wealth of evidence that we heard in this space in our stage 1 evidence gathering, I urge committee colleagues to support the amendments in my name in this group.

All the amendments in the group are trying to do similar things in reporting on the exercise of rights to withdraw. It is right that we monitor how rights are being used and respected, and I support the intention of all the amendments in the group.

My amendment 43 is the most comprehensive in the group. Not only does it allow us to monitor things; it updates us on the use of religious observance. Some schools have followed Scottish Government guidance and have adopted a time for reflection model of religious observance. That more inclusive approach is less focused on prayer and religious worship and more on reflecting on a moral issue without being led in a particular way of thinking.

Schools tend to invite a range of speakers from different faith and non-faith backgrounds. However, research from the Humanist Society Scotland shows that, in some non-denominational schools, RO is still wholly or largely delivered in a Christian manner. Assemblies are held in church and involve religious worship, prayers and hymns. Non-inclusive practices such as those can isolate and discriminate against pupils, parents, guardians and teachers who do not hold Christian beliefs. That is why it is important to monitor how RO is taking place in our schools, which is covered by paragraph (a) of subsection (2) in the new section that my amendment would insert in the bill. Where students do withdraw from RO, it is crucial that high-quality alternative provision is put in place so that those young people are not disadvantaged. That is covered by paragraph (c) of subsection (2). I hope that the committee will support my amendment so that we can ensure that the rights that we are creating in law are being used effectively across our educational system, and that religious observance in our schools is delivered in a way that is appropriate and inclusive and understands that we exist in a multifaith society.

I thank everybody for the helpful debate. There are still issues that we can explore further before stage 3, and I am not sure that I agree with the cabinet secretary’s judgment on the potential consequences of my amendment 51, but I hope that there will be room for manoeuvre in the coming weeks.

Amendment 51, by agreement, withdrawn.

Amendment 52 not moved.

Amendment 53 moved—[Tess White].

Thank you, convener, and good morning to the minister and officials. Thank you for being here this morning and for the conversations that we have had about the bill in recent months.

Before I turn to my amendments, I want to briefly outline the approach of the Scottish Greens to the bill as a whole. Last year, we enshrined the United Nations Convention on the Rights of the Child in Scots law. Doing that was not the end, but the start of a process of protecting the rights of children and young people. We have committed to ensuring that every service that we provide for a child or young person, from school to social security, or from care to the children’s hearings system, should put their rights under the UN convention front and centre. Where we have failed to do so, children and young people should be empowered to speak up and call for change, and we, as policy makers, should have to respond.

The bill before us today reflects what Together (Scottish Alliance for Children’s Rights), the Children and Young People’s Commissioner Scotland and others have been saying about the Scottish Government’s approach to children and young people’s rights more generally—namely, that it comes from a place of the best of intentions but does not go nearly far enough. It is fundamental to the convention that the rights of children and young people should exist independently of those of adults, yet the bill allows for children to opt out of religious activities in schools only once their parent or guardian has already made a decision. Indeed, part 2 of the bill creates a framework for adults to override the convention only a year after it has come into force.

If we are truly to enshrine the convention, not only in law but in the everyday practice of the services that children and young people receive, we need to look again at quite large parts of the bill.

I turn to the amendments in this group. The principal amendment in my name is amendment 9, to which my other amendments are consequential. Like the original Education (Scotland) Act 1980, the bill conflates religious observance with religious education. Religious observance involves acts of worship, especially when one faith is prioritised over another. It should have no place in state schools. The Scottish Green position is quite clear: there should be a separation of church and state.