Should Scottish children have the right to withdraw from religious worship at school? At the end of last week, the United Nations Committee on the Rights of the Child answered this question with an unequivocal yes. The background to the Committee’s comments lies in our law on ‘religious observance’. All state- funded schools in Scotland, denominational and non-denominational, are under a statutory obligation to make available ‘the practice of religious observance’. Unlike religious education, in which pupils learn about various faiths, religious observance involves pupil participation in activities designed to support spiritual development. Parents have the right to withdraw their children from these activities. Children, no matter their age, have no independent right to withdraw themselves. In the view of the Committee, this approach is not compliant with the right of the child to freedom of thought, conscience and religion under the UN Convention on the Rights of the Child.
The Committee plays an important role in enforcing children’s rights under this Convention. The CRC has not been directly implemented in Scots or UK law, which means that a child cannot raise a court case against the state for breach of a CRC right. Instead, the CRC is enforced by way of a reporting procedure. Every five years, states have to produce a report detailing their compliance with the CRC. The most recent UK report was submitted last year. The Committee, made up of 18 experts on children’s rights from around the world, scrutinises the report in detail before publishing comments, known as ‘Concluding Observations’, on areas in which the state is required to improve its performance. Although these comments have no legal effect, criticism by the Committee places a significant degree of political pressure on the state to make necessary changes. It was in the Committee’s Concluding Observations on the latest UK report that its concerns around school worship were raised.
One difficulty with the CRC enforcement procedure is that it doesn’t cope well with the fact the UK is made up of several countries with different legal systems. The Committee’s concerns about ‘compulsory school worship’ make sense in England and Wales, where pupils are obliged to participate in a daily act of worship of a broadly Christian character. The Scottish obligation, as explained above, is much more loosely framed. Scottish Government guidance expressly urges schools to develop a practice which takes into account non-Christian and non-faith pupils, suggesting ‘Time for Reflection’ may be a more appropriate term for the activities appropriate in some school communities. Local authorities also have the power to remove religious observance from the curriculum entirely where the move is supported by a majority of the electorate in the area.
However, as the recent report of the AHRC Network on Collective Worship highlighted, these provisions do not go far enough to protect the autonomy of the child. In Scotland, we often recognise the idea of a ‘mature minor’ – a child who, despite being under the age of 16, is capable of making her own decisions on things like medical treatment or legal action. It seems difficult to understand why this recognition does not extend to religious practice in school.
The introduction of a right to withdraw for pupils might create its own problems, however. Children who withdraw may be stigmatised by their classmates. More practically, schools may not have the resources to provide meaningful activity – or even proper supervision - for children who are not participating along with everyone else. A better solution may be to revisit the concept of religious observance entirely, and replace it with a form of spiritual or philosophical reflection that supports this important aspect of childhood exploration without excluding children who do or do not share a particular faith.
The Scottish Government showed little enthusiasm for reopening this issue towards the end of the last Parliamentary session. Perhaps the UN Committee’s comments will lead to a change of heart in Holyrood.
~ Frankie McCarthy
Dr Frankie McCarthy is a Senior Lecturer in the School of Law.