Introduction
2.1 Since we last reported on this Bill we have received representations
from the National Secular Society asking us to consider whether
the inability of older pupils to excuse themselves from collective
worship in schools is incompatible with their right to freedom
of thought, conscience and religion in Article 9 ECHR.[73]
2.2 Under the current legal framework governing exceptions
from receiving religious education and attending at religious
worship at school, the statutory right to request that the pupil
be excused is exercisable by the parent of the pupil, not the
pupil themselves.[74]
2.3 Article 2 Protocol 1 ECHR requires States to
respect the right of parents to ensure education and teaching
in conformity with their own religious and philosophical convictions.
This is clearly a parental right, and the statutory provision
in the School Standards and Framework Act 1998 entitling parents
to request that their child be excused from religious instruction
or collective worship can be seen as a concrete expression of
this right.
2.4 Pupils themselves, however, also enjoy the right
to freedom of thought, conscience and religion in Article 9 ECHR.
This is a right they enjoy in their own right, not a right belonging
to their parents.[75]
2.5 The absence of an equivalent statutory provision
entitling pupils who are old enough to be competent to make such
decisions about their moral and spiritual welfare (referred to
by the National Secular Society as "Gillick-competent
pupils") to be excused from religious instruction or collective
worship does appear to us to raise an issue of compatibility with
Article 9 ECHR. The current statutory framework does not appear
to allow, say, a 16 year old pupil who does not wish to receive
religious instruction or attend collective worship to be excused
from them unless his or her parents agree to make the request
to be excused, which they will not necessarily do. In our view
this would be likely to lead to a breach of the pupil's Article
9 right to freedom of thought, conscience and religion.
2.6 The opportunity could therefore be taken to
amend the Bill so as to reduce the risk of this potential incompatibility,
for example by amending the School Standards and Framework Act
to make the right to withdraw from religious instruction and worship
exercisable not only by parents but by pupils who are old enough
to make informed decisions for themselves. We therefore welcome
the Government's acceptance in principle that pupils aged over
16 should be able to withdraw themselves from collective worship
rather than it being a matter for parental consent, and its indication
that it will seek to move an appropriate amendment at Report.[76]
Although such an amendment will not remove the risk of incompatibility
completely, because it draws the line by reference to a determinate
age rather than the maturity and competence of the individual
child, it should significantly reduce the risk of this potential
incompatibility arising in practice.
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