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.
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