Chamber and committees

For the record, I am always willing to meet Mr Kerr, but he has made no approach to my office that I am aware of. I am also willing to meet other Conservative members—I think that I met members of every other party in advance of stage 2. Ahead of stage 3, I would be happy to meet Stephen Kerr or other members who are around the table today. It is important that we do that.

All the amendments in the group seek to respond to the evidence that was heard and submitted at stage 1, which called for greater transparency in situations where the exemption that we have been discussing, and which the bill introduces, is relied on.

As we have heard, my amendment 7 will insert a new section 34A into the 2024 act, which will be triggered at the point in proceedings when we would expect a public authority to have taken legal advice and to be reasonably confident in its view that the exemption applies. That means that, when the question whether the exemption applies arises in legal proceedings, there will be a clear point at which notification must take place. In such cases, the Lord Advocate, the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission should be notified, unless they are already parties to the case. The Lord Advocate and the commissioner bodies will then have the opportunity to intervene on the question.

That approach will offer an effective safeguard that ensures that the Scottish Government, the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission are aware of every case in which the exemption is relied on in a court or in a tribunal. Crucially, there will be a clear and objective trigger point, as the duty will arise when the exemption is raised in proceedings. In my view, that will provide an effective and workable route to ensuring greater transparency, and it will allow the Government to identify and assess potential legislative incompatibilities. I consider the Scottish Government, the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission to be the most appropriate bodies to which a public notification should be made.

Amendment 51, in the name of Maggie Chapman, would place a duty on public authorities to notify the Government and the Children and Young People’s Commissioner Scotland when authorities were of the view that an act or omission was not unlawful as a result of the exemptions in section 6A or 6B of the 2024 act. It also proposes a duty on Scottish ministers to report annually on those notifications, including reporting on the impact of the act or omission on children and on any action that ministers intend to take in response.

I have carefully considered what Ms Chapman is seeking to do with her amendment and tried to understand the rationale for how it is framed. It is important that public authorities have the space to deliberate about how to read and give effect to their legislative duties, about what is compatible and about whether the exemption may apply. A statutory duty of the type that amendment 51 proposes would risk inhibiting those deliberations, because public authorities might fear legal challenge—both if they report and if they fail to report to the Scottish Government—when, in their view, the exemption should apply.

It would also be difficult for a public authority to determine the precise point at which it was “of the view” that the exemption applies and, therefore, for public authorities to be held to account for a failure to adhere to the notification duty. That lack of clarity risks creating further uncertainty. It also raises questions about whether a legal duty would be meaningful in practice. We all have a responsibility to carefully consider the impact of placing further statutory duties on the public sector. That includes considering whether doing so is proportionate to the perceived benefit and whether there is an alternative way of achieving the same goal.

The amendments in group 2 speak to the need for a balance to be struck between ensuring that a sufficiently robust process is in place and avoiding imposing undue burdens on parents, pupils and schools.

As we heard, amendment 21, in the name of Tess White, would require schools to provide parents with written information on how the withdrawal process will be handled. That is a proportionate and practical measure. Although schools are already required to include that information in handbooks, anecdotal evidence suggests that parents are often not aware of their right to withdraw their child from RO or RME. Providing that written guidance when a withdrawal request is made would help parents to understand their rights and, potentially, also help to reduce disputes. It would not introduce significant costs or complexity as there could be a standard form that was included in and supported by the guidance accompanying the bill, as has been mentioned. I am therefore happy to support amendment 21.

Amendment 22 would require operators to notify all persons with parental rights and responsibilities when informing the pupil about a withdrawal request. The amendment is unnecessary and unhelpful, as the language used is not consistent with the 1980 act, which already provides a broad definition of a parent that includes guardians and others with parental responsibilities. Including a different and narrower definition risks confusion and inconsistency.

The duty in amendment 22 would also apply regardless of family circumstances, which means that unnecessary notifications would be made when both parents live together. In other circumstances, including where parents are separated and there is conflict about the child’s upbringing, the school’s operator would be required to notify the other parent regardless of any relevant agreements or court orders relating to the child’s upbringing. I hope that members will see how unhelpful such a provision could be.

Amendments 23 and 24 would add a requirement to consider the pupil’s emotional wellbeing when having regard to their views. Although that is an important consideration, the amendments would introduce subjective and undefined criteria that are at odds with the existing duties, which are covered by the wellbeing principles under getting it right for every child—GIRFEC—to ensure pupils’ welfare. Adding that requirement is therefore unnecessary.

Amendment 25 seeks to prevent operators from expressing or implying a view about whether a pupil should object to withdrawal. Teachers are already bound by professional standards to act with integrity and to avoid bias, so the amendment is unnecessary and could undermine respect for teachers’ professionalism. I mentioned in my stage 1 evidence that guidance will accompany the bill. I suggest that that guidance could usefully reinforce the importance of objectivity without suggesting that teachers would act counter to their professional standards. I hope that that reassures Tess White that she should not move amendment 25 on behalf of Stephen Kerr.

As we have heard, Pam Gosal’s amendment 5 would replace the presumption that a pupil is capable of forming a view unless the contrary is shown with a test requiring the operator to judge whether the pupil can meaningfully express a view on the request,

“having regard to their age, stage of development and understanding”.

The wording is quite unclear, and it introduces a higher assessment threshold and greater complexity for schools, which could encourage inconsistency across schools.

I tried to intervene when amendment 6 was being spoken to earlier. The amendment seeks to replace the current bill provision under which a pupil’s objection will prevent withdrawal with a best interests test, and it would create an additional barrier to the pupil’s decision being respected. It would mean that, when a pupil objects, their decision would be respected only if the operator judged that their withdrawal would be contrary to their best interests. The new test would seem to create further complexity for schools, would risk inconsistency and would increase workload because of mediating between pupil and parent. We have already heard some of the challenges associated with that from Mr O’Kane.

Amendments 26 and 27 seek to introduce a presumption of capacity at 16 and a presumption of incapacity below 16 for the pupil’s right to have their views considered. That does not align with the UNCRC and recent domestic legislative precedents, and it is far removed from the capacity-based approach in the bill, which was supported by a majority of committee members. Ms Chapman made a point on that in an intervention. It would exclude the vast majority of school-age pupils, given the presumption of incapacity below 16.

Amendments 31 to 33 would introduce significant administrative complexity. Amendment 31 would require written confirmation from the parent and the pupil before withdrawal could proceed. Amendment 32 would impose a 14-day waiting period; it provides that, if the child expresses further views during the 14-day period, those views must be treated in the same way as their initially expressed views. Amendment 33 would require decisions to be made by a panel, which would include the director of education, headteacher and, as we have heard, an independent advocate. Those changes would create delays, introduce unnecessary barriers for parents and pupils, increase costs and add disproportionate burdens on schools and local authorities. Larger local authorities, in particular, might find that provision impossible to deliver.

Amendments 28 to 30 would make technical and consequential changes linked to amendments 31 to 33, which would introduce new conditions and processes. As the substantive amendments are not supported by the Government, I urge members to resist amendments 28 to 30.

Amendment 34 would provide that nothing in proposed new section 9A of the 1980 act would affect the responsibility of parents for the upbringing, moral education and welfare of their children. The amendment seeks to make an unnecessary and inappropriate provision relating to parental responsibilities, and it restates a principle that is already well established in Scots law. There is a risk that the inclusion of the provision might imply that section 1 casts doubt over the principle that parents have primary responsibility for their children’s upbringing, which it does not. The amendment would not create new rights or duties and would add no substantive value to the bill’s provisions.

Finally, amendment 42 would introduce a statutory obligation to provide legal aid for disputes between pupils and their parents about withdrawal from religious observance. The amendment would undermine the fact that schools and teachers are experienced in having complex and sensitive discussions with parents and pupils on a regular basis and that they already have well-established processes for resolving disagreements. It would also result in significant financial and administrative burdens, and it could create an expectation of formal legal involvement in discussions that are intended to be carried out at school level.

In summary, I encourage members to support amendment 21 and vote against all the other amendments in the group.

As I set out in my evidence to the committee at stage 1, we chose the 1980 act because it is the act that makes provision in relation to religious observance and RME, and the right to withdraw from that. That is the source that we need to look at. For all the reasons that Maggie Chapman rightly sets out in relation to the UNCRC, we are amending the legislation to ensure that children’s rights are taken cognisance of in relation to the right to withdraw. However, we are not removing the parental right or creating a stand-alone opportunity to deliver on what we intend to deliver on, because, as I have already alluded to, we think that that would create incoherence. There are lots of other issues that the member will know of in the education sphere. Other members might be interested in legislating for those; our view is that we should legislate in relation to the source, which is the 1980 act.

Re-enacting those isolated provisions would risk a level of duplication and confusion. It would not be proportionate to move multiple sections of the 1980 act into this bill, particularly given the targeted and technical nature of the proposed changes. If we had tried to do that, it would have made it into a much bigger restatement project than the five-page bill that it currently is, and it would not have been possible to do that in the parliamentary time that we have left for the bill.

I acknowledge that, in the stage 1 report, a majority of committee members indicated their disappointment that the bill is proceeding outwith the scope of compatibility with the UNCRC act. However, their view concurs with the Government’s view that making amendments at stage 2 to bring the bill into the scope of the UNCRC act would not be achievable easily. I recognise the concerns about part 1 of the bill being outwith that scope, just as the 1980 act is outwith its scope.

The 2021 judgment by the Supreme Court on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill highlighted the complexities of human rights incorporation in a devolved context. Those complexities are at the root of this issue. However, the Government recently committed to address the issue of the limited scope of the compatibility duty in the UNCRC act in the proposal for a children’s rights scheme that was laid before the Parliament last month, on 20 November. That proposal states that we will progress engagement with the United Kingdom Government

“to explore the removal of any legislative restrictions that currently limit the Scottish Parliament’s ability to enhance human rights protections across all areas devolved to Scotland.”

In addition, the Government has set a deadline of November 2026—next year—for progress to be made

“in finding a more straightforward and effective route to extending protection for children’s rights”.

If sufficient progress is not made by next year, we will

“commission a review of provisions in”

the acts of the Parliament of the United Kingdom in devolved areas. That review would

“identify any key provisions that interact with children’s rights to such an extent that it may be worth reenacting them in Acts of the Scottish Parliament to bring them into scope of the compatibility duty.”

In the meantime, attempting to make this very limited change is not an effective way to address the issue and will create more complexity for parents, children and schools. For those reasons, I am not able to support amendment 40 and I urge members to resist it.

Tess White’s amendments in group 5 relate to the introduction of a new duty that would require the Scottish ministers to prepare and publish guidance for school operators on the process for withdrawing from RO and RME. That would replace the requirement in the bill for operators to have regard to any guidance that the Scottish ministers might give. Amendments 36, 37, 57 and 58 are consequential to amendment 41, so I will speak substantively only to that amendment.

The Government recognises the importance of guidance, as we have heard from Mr O’Kane, to support schools and teachers in implementing the changes, and recognises that there have been calls for the updated guidance to provide greater clarity. During my stage 1 evidence in October, I committed to publishing updated guidance. The principle of including a duty rather than a power to publish guidance is accepted, but the Government cannot accept amendment 41 as drafted. We would want to engage with stakeholders to ensure that the matters that the guidance is required to cover are the most appropriate, and to consider the consultation requirements so that, in preparing the guidance, we properly reflect the views of schools, parents and children. I therefore seek the opportunity to undertake that engagement and to consider further what a duty to provide guidance should look like and cover, and I would commit to bringing back a suitable amendment at stage 3.

For those reasons, I ask Tess White not to move amendment 41 and the associated consequential amendments.

As we have heard, the amendments in group 1 relate to the scope of rights concerning the withdrawal of pupils from religious observance and/or religious and moral education. I will therefore speak to them as a group.

Amendments 9 to 17 and 19, in the name of Maggie Chapman, would separate religious observance and religious and moral education, or RME, as it is known. That would mean that the parental right to withdraw would apply to religious observance only. Should those amendments be agreed to, it will no longer be possible to withdraw a child from RME. The amendments give effect to the committee’s recommendation in its stage 1 report that religious observance and RME should be separated, so that the ability to withdraw would apply only to religious observance.

The committee made clear its recognition of the benefits of RME for community cohesion—particularly in the current times—and its importance as a core curriculum area. That view has also been echoed by a number of stakeholders, as we have heard this morning, including the Scottish Teachers Association of RME, and representatives of various faith and belief groups, including the Humanist Society Scotland.

I agree with the committee and the stakeholders. As well as being a valuable academic discipline in itself, RME supports and enables children and young people to learn about and from different religions and worldviews and explore ethical questions.

Contemporary RME is very different from the religious instruction of the past and in the context of the 1870s, when the parental right to withdraw was first introduced. RME is one of the eight core curriculum areas, and it is delivered in a manner that is objective, critical and pluralistic. The amendments would also remove the oddity of RME being the only curriculum area with an associated legal withdrawal right.

However, I recognise the continuing need to provide non-statutory guidance and curriculum frameworks to safeguard the integrity of the subject. I will also be thoughtful about ensuring that those changes work in practice for denominational schools, as we have heard, which rightly have specific legal protections in relation to their faith character.

I would agree with Ms Chapman’s overall view. It is of course the Government’s view that we would want to avert legal proceedings. However, the Government is of the view that a more proportionate approach could be delivered by amendment 7, which requires the statutory notification at the point when the public authority is seeking to use the exemption in court, as we have talked about.

I would like to talk about the children’s rights scheme, which was laid before Parliament last month and which I mentioned in discussion of a previous group of amendments. The scheme commits the Government to ask public authorities, at least annually, whether they have identified any legislation that they consider to be incompatible or whether they intend to rely on the exemption. I think that that answers Ms Chapman’s point. In addition, the statutory guidance for the 2024 act encourages public authorities to alert the Government when they have concerns about potential incompatibilities.

I hope that that gives Ms Chapman some reassurance. As I set out in relation to a previous group, we will review the impact of that next November and consider all the points that Ms Chapman has, rightly, raised today.

Amendment 53, in the name of Mr Kerr, makes similar demands of public authorities, and the same concerns that I have set out would apply. Although I cannot support a statutory notification duty on public authorities, I believe that my alternative is more proportionate and workable in practice.

I turn to the aspects of amendment 51 that would require Scottish ministers to publish a response to notifications, which, alongside Stephen Kerr’s amendment 54, speak to a theme of reporting publicly and updating Parliament. I can understand and support aspects of what members are seeking to achieve with those amendments. However, requiring ministers to collate and publish information annually, as amendment 51 does, would create a risk that regular set timing of a Government response duty could lead to the Government being required to respond even when live disputes and litigation were under way or to take a view on issues that were more appropriately resolved by the courts and tribunals. It might also create the expectation that the Government should advise public authorities on how to interpret their statutory functions in a way that is compatible with the UNCRC while authorities’ own consideration is still under way. The Government has no role in providing such legal advice.

Stephen Kerr’s amendment 54 attempts to create a review mechanism, but there would be issues with including section 6A of the 2024 act in a statutory reporting requirement of that nature. Members will be aware of the sensitivity surrounding section 6A—it simply restates existing section 6(4) of the 2024 act, which was added following the Supreme Court judgment. The provision was subject to the careful analysis and scrutiny that were applied at reconsideration stage. It would have been useful to understand Stephen Kerr’s motivations for seeking to revisit those matters in the bill, but I gather that he is now keen to meet me, so we can perhaps have that discussion in advance of stage 3.

I am sympathetic to much of what Mr Kerr is trying to achieve, but I am unable to accept his amendments as they are drafted. I acknowledge that, in my response to the committee’s stage 1 report, I committed to updating Parliament on the operation of part 2 of the bill, so I ask members not to press or move their respective amendments in the group, which will allow me to consider any further reporting that we might offer in this space, alongside amendments 7 and 8. I consider that to be the right approach.

My amendment 7 creates a clear and appropriate trigger for notifications to be sent to the Government, which gives effect to the first part of what Maggie Chapman’s amendment 51 is really seeking to achieve. If we agree to my amendment 7 and to my consequential and technical amendment 8, I can proceed to consider how and when ministers might update Parliament and report on the operation of the exemption.

I have looked at the committee’s evidence sessions and, as the committee will know, and as the convener is right to say, the history of this goes back many years. The original petition was, I think, introduced in 2015, and that was followed by the commitment from the Government at that time to look at guidance—and then, of course, a commitment to publish further additional guidance, which we published last year.

It has taken too long—I will absolutely concede that. Part of the delay in relation to the most recent round of guidance was, of course, due to the pandemic, which I think was covered in some of the evidence that the committee heard. However, I accept that that has taken too long, and that it should not have had to come about in the way that it has.

The convener pointed to the fact that we are talking about a member’s bill. The committee will be aware that we published guidance last year. We have not yet reviewed the guidance and so, to my mind, there is a data gap in relation to its implementation and how it works.

The committee often asks the Government to do things that we do not have legislative power over because of the Education (Scotland) Act 1980 and the responsibilities of local authorities. A good example of that is guidance on mobile phones, which we debated recently. We can publish non-statutory guidance, but, at the current time, the statutory power rests with local authorities. Based on my understanding of some of the evidence that the committee has taken, we should also be mindful of that in relation to this bill.

As I said in my opening statement, we have not yet reviewed the guidance, and we would want to carry out that review. We still need to gather that data in order to understand to what extent the new guidance is improving practice. The committee has heard from the Association of Directors of Education in Scotland and from others that they are of the view that it is improving practice, but we need to look at the granular evidence. Originally, our view would have been that we would complete the review before considering whether statutory guidance was deemed necessary. However, the timelines for this bill mean that that has not been the case.

We are supportive of the bill at stage 1, but we have a number of concerns that I have written to the committee on, and we would like to see Mr Johnson address those. I am committed to working with him to that end.

I think that some of the asks were set out in correspondence from the SFC to the university directly, and I think that the committee received a copy of that letter back in August.

The SFC obviously supports ministers, so you cannot imagine that there would be divergence in our views on these things. However, with regard to the conditions themselves, I have not yet received that information. I met with officials on this matter yesterday, and I am meeting with the SFC later today. I would have expected to receive the conditions perhaps sooner than I have. Dundee university management has been involved in a number of workshops, along with the SFC. I think that the committee heard evidence on that from Richard Maconachie. There have been three workshops, which have helped to inform some of the thinking behind the conditions, but the conditions have not yet been presented to me, so it would be remiss of me to suggest otherwise today.

I am not familiar with the phrase “training needs analysis”, but I would argue that teachers do that anyway. They do that every year as part of their CPD—they consider what they are delivering. If they have a class one year with lots of young people with additional support needs, they might say that, as part of their continuing development for that year, they will engage in further training on X, Y and Z to support the young people in their care. That is something that individual teachers take a decision on and we do not mandate that as a Government—neither does local government. However, the committee might want to pursue the issue at stage 2 or with Mr Johnson.

I hear the point that Mr Mason is making, but we also need to be mindful that teachers are professionals, and they tend to make those individual judgments as professionals. I am not sure that it is for me to tell them what training they need in that regard, because their classes and the needs in front of them will change every year. They adapt their training appropriately and accordingly.