Please find enclosed a submission made by the British Humanist Association (BHA) to the DfES' mini-consultation on the right of pupils to excuse themselves from collective worship.

I wish to bring this submission to the attention of your committee in the hope that it will be useful to you in your current discussions, and also should you wish to scrutinise the Government's eventual actions in this matter at a future date.

Collective worship

We believe that the best way in practice to ensure the right of children to freedom of conscience, religion and belief, would be for the current law requiring collective worship to be repealed and for reformed inclusive assemblies not to contain any religious practice.

We note that, in 1998, many organisations stated their preference for such a reform, including all the major teaching unions, the major professional bodies for RE and Christian, Jewish and Sikh groups, as well as the BHA.

This would not remove the possibility for schools to allow separate and unrelated acts of religious worship to take place on school premises on a purely opt-in basis. Although we believe this would certainly be the best context for the child's rights to see full application, we do however realise that this is more a matter of policy than human rights law. In connection with the rights-based question at hand, the BHA believes that the law should provide for competent children of whatever age to have the same rights to excuse themselves from aspects of the curriculum connected with religion that their parents have, as you will see from the enclosed document.

RE AND COLLECTIVE WORSHIP: THE RIGHT TO WITHDRAW

Submission from the British Humanist Association

1. Current policy of the BHA:

We realise that is not immediately relevant to the present consultation, but an understanding of our policy will inform our comments on the current right of withdrawal that follow. (We use the term 'withdraw' as it is commonly used in this context while noting that the law is cast in terms of 'excusal'.) Our policy on RE and collective worship is set out in Better Way Forward, available at http://tinyurl.com/c44qh, and is summarised below.

o All maintained schools, in place of current RE, should be required to teach a National Curriculum subject of beliefs and values education, which should never be in the nature of religious instruction and which should be broad, balanced and inclusive of a wide a range of worldviews and philosophies;

o All maintained schools, in place of the current requirement to provide daily acts of collective worship, should be required to provide assemblies which contribute to the spiritual and moral development of pupils and in which religious practices such as worship play no part;

o These educational activities would require no right of withdrawal to be provided to pupils or parents;

o All schools should provide places for optional (as in pupils may opt-into it) religious practices (prayer or meditation etc);

o All schools should provide places where pupils may receive optional (as in pupils may opt into it) religious instruction outside of the school timetable

and curriculum.

In relation to collective worship, we would note that our concern about the current law is not unique and that, contrary to the consensus in support of the current law claimed by Lord Adonis in committee, all the teaching unions, many professional bodies of RE practitioners and some faith groups believe that the current requirements for worship should be reformed.

2. Rights of the child in relation to RE and collective worship

In our note that follows, we refer to the following rights of the child. They are all relevant to the question of the right to withdraw.

a. Article 9(1) of the European Convention on Human Rights (ECHR):

'Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance.'

b. Article 12 (1) of the Convention on the Rights of the Child (CRC):

'States Parties shall 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, the views of the child being given due weight in accordance with the age and maturity of the child.'

c. Article 14 of the CRC:

'(1) States Parties shall respect the right of the child to freedom of thought, conscience and religion.

(2) States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

(3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.'

d. 'Gillick competency'

Following Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL), the child should be treated as legally competent to make their own decisions if they have 'sufficient understanding and intelligence' to do so. This is in line with the evolving capacities of the child and sets no minimum age for competence.

3. Collective worship

It is clear that the forced participation of anyone in any form of religious observance violates his right to freedom of religion or belief as protected by article 9 (1) of the ECHR. The collective worship required in all maintained schools and Academies, as well as any additional worship or religious observance required or provided in maintained 'faith' schools or Academies certainly fall into this category and, currently, the child in school (right up until the age of 18) is compelled by law to participate in such worship, unless withdrawn by a parent. We believe that the law compelling the child to participate in collective worship violates the child's right to freedom of thought, conscience and religion as protected in 9 (1) of the ECHR and 14 (1) of the CRC. We believe that the fact that only the parent may withdraw the child, and the child may not withdraw himself, violates the right of the child to self-determination as protected by 12 (1) and 14 (2) of the CRC, and by Gillick.

4. Religious Education

In many maintained religious schools, RE is confessional religious instruction and certainly falls into the category of religious activities from which the competent child should be able to withdraw themselves, in accordance with the same rights enumerated above in (3). In other maintained schools, RE is generally broader (though many local syllabuses still exclude secular philosophies such as Humanism) and more balanced but, in the absence of a national syllabus compulsory for all schools, there is no way to be sure that teaching in all schools is of such a sort that would not constitute a violation of the rights of the child. The same considerations should apply here as apply to collective worship and to RE in religious schools, as it cannot be guaranteed that RE in non-religious schools will not constitute an infringement of the child's freedom of religion or belief.

5. The question of competency

Whether or not compulsory RE or collective worship in any sort of maintained school actually does violate the rights of the child in the ways suggested above (and we strongly believe that they do), the fact remains that a right of withdrawal does currently exist in UK law, but that it is a right held by the parent and not the child.

All other concerns aside, it should be clear that article 12 (1) and the question of 'Gillick competency' are certainly relevant to any situation in which the child, right up to the age of 18, has no legal right to self-determination, but all the control is held by the parent. In any situation, and certainly in one where fundamental rights are engaged, this would be prima facie incompatible with the right of the competent the child to determine these matters for himself.

6. What should the Government amendment provide for?

For as long as RE and collective worship in their current forms are compulsory in all maintained schools, whether with a religious character or not, it is incompatible with the human rights of a competent child to deny him the right to withdraw.

Any amendment should therefore cover RE as well as collective worship and should be worded in such a way as to catch any competent child, whatever his age. The test of having "sufficient understanding and intelligence" which is taken to constitute 'Gillick competency' seems suitable to be written into law through an amendment to the SSFA 1998 and we strongly recommend this. Not only do we believe that such a wording is preferable as the best guarantee of the human rights of individual pupils, we also believe that litigation, if any age limit is set, would in any case inevitably lower that age in due course.

August 2006