Joint Committee On Human Rights Twenty-Eighth Report


2 Education and Inspections Bill

Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

28 February 2006

25 May 2006

HL 116

18th, 21st and 25th Reports of 2005-06

Background

2.1 Since we last reported on this Bill[26] the Government has issued its consultation on whether registered school pupils above compulsory school age should be allowed to withdraw themselves from collective worship[27] and we have received further representations from the National Secular Society,[28] the Religious Education Council[29] and the British Humanist Association.[30] The Government proposes to move an amendment to the Bill dealing with this issue at Report Stage. We have taken into account the representations we have received and the Government's statement of its intention. The purpose of this Report is to set out concisely our views on the human rights compatibility issue so as to inform debate on the Government's amendment. The human rights issue is whether it is compatible with the UK's human rights obligations to make it compulsory for children at maintained schools to receive religious education and attend collective worship subject only to a parental right to request that their child be excused from either.[31]

2.2 Children enjoy the right to freedom of thought, conscience and religion under both Article 9 of the European Convention on Human Rights and Article 14(1) of the UN Convention on the Rights of the Child. The UK is also under an obligation to assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, and to give those views due weight in accordance with the age and maturity of the child.[32] The latter obligation finds expression in UK law in the concept of "Gillick competence", according to which a child should be treated as legally competent to make their own decisions if they have "sufficient maturity and intelligence" to understand the nature and implications of their decision.[33]

2.3 In our view the current legal framework[34] is incompatible with these obligations in so far as it fails to guarantee a child of sufficient maturity, intelligence and understanding the right to withdraw from both compulsory religious education and collective worship.[35] An amendment to the Bill which gave pupils over the age of 16 the right to withdraw from collective worship would therefore reduce the extent of the incompatibility of the present law with the UK's human rights obligations, but it would not remove that incompatibility altogether.

2.4 To remove the incompatibility, in our view, it would be necessary to go further in two respects: first, by granting a right to withdraw from religious education as well as collective worship; and, second, by affording the right to withdraw from both religious education and collective worship to any pupil of sufficient maturity, understanding and intelligence to make an informed decision about whether or not to withdraw. Schools should be familiar with the concept of the "Gillick competent" child, but in our view could be provided with general guidance as to how to apply it in practice.



26   Twenty-fifth Report of Session 2005-06, Legislative Scrutiny: Thirteenth Progress Report, HL Paper 241/HC 1577 at paras 2.1-2.6. Back

27   DfES Consultation, 10 August 2006, The right of withdrawal from collective worship of post-16 pupils. The consultation period closed on 25 August 2006. Back

28   Appendix 1a. Back

29   Appendix 1b. Back

30   Appendix 1c. Back

31   Section 71(1) School Standards and Framework Act 1998. Back

32   UN Convention on the Rights of the Child, Article 12(1). Back

33   Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, in which the House of Lords held that a girl under the age of 16 had legal capacity to consent to medical examination and treatment, including contraceptive treatment, if she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment. Back

34   S. 71(1) SSFA 1998. Back

35   In reaching this conclusion, we do not doubt the value of children being taught about spiritual and moral issues as part of a broad, balanced and inclusive curriculum, but, in the absence of a national syllabus for religious education, we do not consider that there are currently sufficient guarantees that compulsory religious education will not infringe a competent child's right to respect for their freedom of thought, conscience and religion. Back


 
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