Chamber and committees

I think that you made that point to Alexis Jay, who spoke about some of the challenges and alluded to potential legislative change. I do not want to get ahead of the work, but she has set out that a sub-group of the national strategic group is tasked with specifically looking at the issue in more detail. I would like to come back to Parliament and provide more detail in relation to mandatory reporting, but I want to put ministers’ support for it on the record.

In relation to the strategic group minutes?

I heard that.

That was what I understood to be the case at the time, convener. Again, I am happy to check my briefing for “The Sunday Show” and to write to the committee with more detail in that regard. What I said reflected my understanding, and I think that it is the position that the First Minister broadly set out to the Parliament last week in his engagement with Russell Findlay on exactly this topic.

Tess White’s amendments 55 and 56, as we have heard, propose to introduce a statutory duty on ministers to carry out a pre-commencement impact assessment and link commencement of the act to that new duty. Amendment 55 would require ministers to undertake and publish a formal impact assessment, which would then have to be scrutinised by the Parliament’s education committee, as we have heard, before the substantive provisions of the act come into effect. I note in passing that Tess White does not anticipate a role for this committee in that process. Amendment 56 would bring the section created by amendment 55 into effect on the day after royal assent.

Amendments 55 and 56 in effect create a duplicate requirement. The Government published a comprehensive impact assessment following the bill’s introduction at stage 1, including a child’s rights and wellbeing impact assessment, an equality impact assessment, an islands communities impact assessment and a fairer Scotland duty impact assessment. Those have been shared with members of the committee, who have had the opportunity to consider them and they still have the opportunity to scrutinise them and seek further clarity from the Government on any matter that any of those assessments raises.

Amendments 55 and 56 would frustrate and delay implementation of the bill’s measures by making commencement contingent on the completion of a further impact assessment, which would then have to be considered by a relevant parliamentary committee. The amendments would introduce an unnecessary procedural hurdle and take up the valuable time and resource of the Parliament and its members. They would also impose additional costs and administrative burden on the Government. Fulfilling the duty would divert resources from implementation and development of the associated guidance that we have discussed today.

In short, adding another statutory impact assessment would provide no added value and, for those reasons, I cannot support amendments 55 and 56. I hope that Tess White will not press amendment 55 or move amendment 56. If she does, I encourage members to vote against them.

Following our discussion, I have discussed that matter in detail with officials. I give Mr O’Kane assurance that they have already started engagement with the Scottish Catholic Education Service, but we also want to engage ahead of stage 3 on how that will work in relation to the points that he raised about denominational schools.

I am also mindful of my engagement with SCES on the issue, during which it pointed out that we would be talking about extremely small numbers of pupils in a Catholic education setting, because parents will have chosen to send their children to that school for faith-based reasons. However, we do not think that it is insurmountable that we will be able to address those issues at stage 3.

I hear the concerns that the member has raised, and I hope that he takes some reassurance from the fact that we are already engaging with the Scottish Catholic Education Service. However, I am mindful of the committee’s report at stage 1, which recommended that we clarify the differences between RO and RME, and that is what we have sought to provide.

I support Maggie Chapman’s amendments, and I encourage members to do the same.

Stephen Kerr’s amendment 9A would explicitly state that the section inserted by amendment 9 applies to religious education in denominational schools as well as non-denominational schools. I do not think that that amendment is necessary, because the provisions in the bill already apply to both denominational and non-denominational schools. Moreover, there is a risk that amendment 9A would create confusion regarding whether other provisions in the bill and relevant sections of the 1980 act apply generally to denominational schools, which they do. I therefore hope that Stephen Kerr might not press the amendment—or, rather, that Tess White will not press it on his behalf.

As we have heard, amendment 20 would require separate treatment of parental requests to withdraw a pupil from religious observance and RME respectively. Again, I do not consider that amendment to be necessary. However, if Maggie Chapman’s amendments are agreed to, part of that amendment is in effect obsolete, given that the right to withdraw from RME would be removed.

It is worth pointing out that schools already make the differences between religious observance and RME clear to parents in discussions about withdrawal, and withdrawals are not always made from both. The legal requirement that exists to consider requests separately might result in additional burdens on schools, pupils and parents by requiring additional paperwork. I therefore encourage members to resist amendment 20.

Finally, in relation to amendment 44, which provides the legal definitions of religious observance and RME, which is referred to in the 1980 act and therefore in the amendment as “instruction in religion”. As I said, I recognise the importance of drawing a clear distinction between RO and RME. Providing those definitions in legislation would reduce future flexibility for course content to evolve over time, as it does.

It is worth remembering that the provisions in the bill originate from the 19th century and that the curriculum has evolved in multiple ways since that time, even since the passing of the 1980 act. Furthermore, definitions of religious observance and RME are already provided in the non-statutory guidance. Those definitions differ from the definitions that are listed in Mr Kerr’s amendments and, as they reflect Government policy, are preferable. Amendment 44 is therefore unnecessary and likely to create confusion, so I cannot support it.

In summary, I encourage members to vote for amendments 9 to 17 and 19. I hope that Tess White, on behalf of Stephen Kerr, will not press amendments 9A, 20 and 44.

I thank Tess White, Paul O’Kane and Maggie Chapman for explaining the rationale behind their quite similar amendments, although I acknowledge that there are some important differences. I also note the committee’s conclusions on data and evidence, as set out in the stage 1 report. As we have heard today, the Government undertakes research to understand better how withdrawal is monitored and to monitor better the number of withdrawal requests. In response to the stage 1 report, I confirmed that I would give consideration to the committee’s recommendations, which group 4 also speaks to. Although I welcome the intention behind the amendments, I have some difficulties with each of them.

Paul O’Kane’s amendment 38 and Tess White’s amendment 39 are very similar in that they seek to place a data gathering and reporting duty on operators of schools, which are asked to give specific items of data to ministers. That is accompanied by annual duties on ministers to collate that data and publish analysis of the report. Operators of schools are either education authorities—local authorities—or the charitable bodies that run our grant-aided schools. The specific part of Mr O’Kane’s amendment that requires schools to monitor and then report on instances of religious observance would seem to be impractical. I note that he has acknowledged that point, but the bureaucratic burden on each school to report to each education authority on each occasion seems disproportionate.

In Tess White’s amendment, the requirement to report on instances of pupil objections and where those are given effect may give rise to concerns about privacy, in particular given the estimated low frequency of withdrawals, even without a requirement for the Scottish ministers to publish that information. On that basis, I am unable to support amendments 35, 38 and 39 as drafted.

Maggie Chapman’s amendment 43 seeks to tackle these matters through a very different method, via the commissioning of an independent report by the Government two years after royal assent and then every five years thereafter. That would cover the form and content of religious observance in schools, the operation of withdrawal rights from religious observance, the extent to which alternative education experiences are provided to pupils, compliance with the United Nations Convention on the Rights of the Child in relation to the form of religious observance that is provided, the arrangements for withdrawal from religious observance, and any other matters that are deemed important by the independent body that is tasked with developing that part. I understand the intention behind amendment 43, but it is not clear how the costs of providing such a report and the gathering of data and information to include in it would be funded. It is also unclear what the purpose of each element would be and whether it would have a benefit proportionate to the requirement to gather that data.

The committee heard in evidence that conflict exists at present in relation to how the right to withdrawal operates. I am not sure that I follow that the bill will necessarily lead to further conflict in that regard.

In addition, I note that I set out at stage 1 that our approach will be to provide clarity in the guidance on the issues that Mr O’Kane has raised.

I acknowledge the member’s point. We need to be mindful that data gathering is proportionate. I am also cognisant of the fact that the statutory responsibility for the delivery of education rests with local authorities, which quite often sit with lots of data. Those who have debated with me on education matters in the chamber will know that data quite often rests at local level. I recognise the challenge in that regard. There is a need for better data gathering, as I recognised in my evidence to the committee at stage 1 and in the debate. We might be able to provide for that in a more proportionate way, and I will come on to talk to that in more detail.

Overall, although I agree that there should be appropriate monitoring on the matters that are addressed in the legislation, as I noted during the stage 1 debate, I have difficulties with what each of the three amendments is seeking to cover.

I welcome the opportunity to consider the issue further, with a view to bringing back a suitable amendment at stage 3 that seeks to fulfil the committee’s recommendation at stage 1. I therefore ask Tess White, Paul O’Kane and Maggie Chapman not to press or move their amendments on that basis.

Constructive solutions from Stephen Kerr.

Let me speak to his amendments 45, 46, 47 and 52. They all seek to alter new section 6A of the 2024 act, which restates the existing exemption relating to incompatibility action required or authorised by legislation that originates from the UK Parliament. It is important to be clear at the outset that the exemption for UK Parliament legislation is not new, in that new section 6A restates section 6(4) of the 2024 act; the exemption is therefore already part of the 2024 act and is not changed in substance by the bill. New section 6A is included here only to restate the exemption for drafting clarity, alongside the new exemption relating to certain Scottish legislation in new section 6B of the 2024 act.

Members will recall that the exemption for incompatibility action required or authorised by legislation that originates from the UK Parliament was added to the 2024 act at reconsideration stage, following the Supreme Court judgment, and was developed following engagement with the UK Government. The amended United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill that was reconsidered and passed unanimously by the Parliament was designed to carefully balance three important considerations: one, protecting children’s rights to the maximum effect possible; two, minimising the risk of another Supreme Court referral; and three, making the law as accessible as possible for users. Reopening wording or conditioning the use of the new section 6A exemption risks undermining the balance that was struck in order to secure safe passage of the 2024 act, and could risk a further Supreme Court referral on legislative competence grounds. The amendments are therefore problematic and put the 2024 act at risk.

Stephen Kerr’s amendments 48, 49 and 50 seek to alter new section 6B of the 2024 act, which is the new exemption being introduced by the bill for situations where a public authority is required by certain Scottish legislation to act incompatibly with UNCRC requirements. I was clear in my evidence at stage 1 that such an exemption should be used only where absolutely necessary. Accordingly, the exemption that the bill introduces is already deliberately narrow in scope. Amendment 48 would not narrow the exemption in practice—it would do the opposite. It would allow a public authority to rely on the exemption where it is entitled to act incompatibly, which gives the public authority more discretion to apply the exemption. Our approach to new section 6B means that the exemption can apply only where a public authority is required to act incompatibly, in order to maintain a tightly drawn exemption.

Our narrow approach was welcomed by the Children and Young People’s Commissioner Scotland and by Together, whose interests in protecting and enhancing children’s rights can be relied on. Again, it is worth considering the motivation behind the amendments, which in practice would make it easier for authorities not to act compatibly with children and young people’s rights.

In relation to amendments 49 and 50, the exemption is already designed to operate only where an act of the Scottish Parliament leaves a public authority with no discretion to act compatibly. Public authorities and courts must already read and give effect to such legislation in a way that is compatible with UNCRC requirements, wherever that is legally possible. That approach is well understood in practice and reflects a long-established model under the Human Rights Act 1998. Adding further conditions—for example, to require

“express and specific statutory words”

or to introduce a separate test that the exemption can apply only where there are no alternative compatible means—does not add protection in practice, as those safeguards are reflected in the 2024 act’s interpretation obligation. Instead, it risks departing from that established framework and undermining the legal clarity and certainty for public authorities that the bill is intended to provide.

For all the reasons that I have set out, I consider the amendments unnecessary and problematic, and I ask that Tess White does not press or move them on behalf of Mr Kerr.