Appendix 1(d): Letter from the British
Humanist Association, re Education and Inspections Bill |
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.
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repealed and for reformed inclusive assemblies not to contain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
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
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;
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
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
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  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
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
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.