Chamber and committees

I have been struck by the evidence that the committee has taken. Yesterday, I was looking again at the evidence sessions that the committee held. There is a wide variety of views on the subject.

I have been clear about why we need to act on the issues. As I have set out, part 1 of the bill is about the issues with the current legislation on RO and RME and the Scottish Government’s UNCRC obligations. On the one hand, we could go for the independent right to withdraw, which might appease some stakeholders that the committee has heard from, but it would not appease them all. I have therefore had to take a pragmatic approach that maintains parental rights to opt their children out of religious education or religious observance and puts the views of children into law. At the current time, that is not in legislation, and there is an issue around whether children’s views are listened to.

I was discussing with the Church of Scotland and the Scottish Catholic Education Service how headteachers deal with this all the time. They speak to and engage with parents and carers and, in my experience, that is a natural part of how schools engage with home. Headteachers are good at having such conversations, listening to views and balancing them, but the legislation is required for the reasons that I have set out. We have to chart a middle ground, which means looking at how we can bring stakeholders together.

In reflecting on the evidence that the committee has taken, I think that most of the stakeholders have been supportive of the bill being introduced. That is welcome, and we will continue to work with those stakeholders as we make progress with the legislation.

It is important to remind the committee that we are not proposing to provide young people with an independent right to opt out. If anything, the bill is about providing them with the right to opt in, because opting out can be driven only by parental decisions, which we are not changing.

Some of those issues are quite technical in nature, so I will ask my officials to answer with regard to the legal points.

I have engaged directly with the Humanist Society Scotland, and I am more than happy to sit down with Angela O’Hagan, too. I have been struck by some of the Scottish Human Rights Commission’s evidence, and I am more than happy to engage with it on these topics. I think that that would be a sensible route.

What I have been trying to do throughout all of this is find the pragmatic route. You are never going to appease everyone when it comes to some of these issues, because they are, by their nature, quite challenging, but we have to chart a course, for all the reasons that I have set out. We have already discussed part 1, but part 2 is about future proofing where we are. I am happy to engage with the stakeholders that Ms Gosal has mentioned, and I have already engaged with a number of stakeholders that the committee has heard from.

There have been conflicting views on part 2; indeed, that has been a theme that has run through the committee’s evidence-taking sessions. The member just cited evidence from Fraser Sutherland and the Scottish Human Rights Commission, but there was other evidence that countered what they said. For example, Together, which the committee also heard from, was quite supportive of the provisions in part 2 with regard to strengthening children’s rights.

I am quite surprised by the commission’s position on this, but I suspect that it might link to wider work in relation to the delaying of the human rights bill. Although I am sympathetic to the points that it raised, I think that this bill is needed and will lead to an improvement in children’s experience of their rights in education, which I would have thought that the commission would support.

Let us come back to the purpose of what we are doing. We are trying to stop a situation in which a public authority is forced to choose between two statutory duties—in other words, when it would breach either the compatibility duty or another legal obligation. That would mean in practice that, to avoid acting incompatibly, a public authority would have to pause or stop delivering a vital service.

We are not aware of any legislation that would require any incompatible action to be taken, but we are trying to future proof our legislation and make sure that such an issue does not arise in the future. The bill not only future proofs the frameworks but recognises that only the courts can determine whether legislation is compatible with UNCRC requirements.

I hear some of the critique that has been made, but we need to balance it with the opinions that were heard from other stakeholders.

Of course.

As, I think, I intimated in a previous response, we could have adopted that approach, which might have appeased some of the stakeholders that you heard from, but we would not have appeased them all. The Government has taken a pragmatic middle ground, to try to work through balancing parental rights. In recent years, as members around the table know, there have been issues with regard to parental rights in education and how parents’ views are listened to. I am very mindful of that. I think that the parental right to withdraw a child from RME and RO is important, and we are not proposing to change that. The change that we are proposing is to ensure that children’s views are taken cognisance of. Currently, there is no real legal requirement for that to be done. There is guidance, but, in essence, children can be withdrawn at their parents’ behest. We think that it is important that the matter is put beyond legal doubt, which is what the bill will do: it will ensure that children’s views are listened to and that there is a discussion about withdrawal from RO or RME.

We have charted the middle ground. I absolutely accept Ms Chapman’s point that this will not appease all stakeholders—it might not appease her. However, I have to balance the views of those stakeholders against the views of other stakeholders who are on a different side of the argument. We have to come to a collective view, because, fundamentally, the bill is about strengthening children’s rights. Currently, there is a question about how children’s views are listened to. The bill puts that matter beyond doubt. The updated guidance that we will publish alongside the bill will help to provide more clarity to schools in that regard, which is the important point that, I think, Mr MacLennan made earlier.

[Inaudible.]—Ms Chapman, so I am not sure that I agree with you on that. [Laughter.]

I think that we are. I do not think that the committee has taken evidence from Education Scotland. I was thinking about that this morning. We have a national senior education officer—I think that it is still Joe Walker, from when I was last there, many years ago—who leads on religious, moral and philosophical studies at a national level. We also have a national adviser who is working with our faith-based organisations and across the country on how we should update the curriculum. It may be that the committee wants to write to Education Scotland or engage with it on those issues—I will leave that up to the committee.

Ms Chapman has raised some important points. The bill requires headteachers to inform pupils of a parental request, so we would expect there to be a discussion and a conversation. We do not want young people to be othered. At present, though, children can be withdrawn from religious education and RO against their wishes. We do not think that that is tenable, so we need to look again at how we deliver on children’s rights. I absolutely accept that Ms Chapman may be persuaded by the views of others that we need to go much further than we have. I could have gone there, but, in doing so, I would not have had the support of other stakeholders. As the cabinet secretary, I have to try to bring parties together on this. As the bill progresses through Parliament, there will be opportunities and means—through guidance, which the member has alluded to—to do that and to provide greater reassurance.

On the point about conflict, I mentioned in my response to Ms Chapman that I was struck that, when we look at the responses from stakeholders such as Together, the Commissioner for Children and Young People, the Educational Institute of Scotland and a number of others, we can see that they are broadly supportive of the principles behind the bill, but, when we get into it, we can see that there are issues around how it will be implemented. I am more than happy to listen to those views as the bill progresses and to seek and find compromises, as Maggie Chapman mentioned.

I am, however, not sure that stakeholders would be unanimous on the point about conflict, because the committee has heard that conflict already exists. For example, at the moment, if a young person does not want to be withdrawn from religious education or religious observance, they have no legal right to say no to that. The parents’ rights would absolutely overrule the young person’s. We do not think that is right, because of where we are with the UNCRC, so we need to balance that.

This is not about the state; it is about listening to children and young people, so I do not agree with that point. We are talking about listening to the views of children and young people. I agree with Tess White that schools already do that and that there should be conversations, but the law as it stands does not stipulate that that needs to happen. Putting that beyond reasonable doubt is the approach that we have taken.

As I say, we could have gone much further by taking a much more interventionist approach with an independent right of withdrawal, which I do not think that Tess White would necessarily have supported. I would not support that, for all the reasons that I have just discussed with Maggie Chapman. We have to take a pragmatic approach through listening to children while maintaining the rights of parents and carers to withdraw their children from RME and RO, which are set out in statute. We are not proposing to change that.