Chamber and committees

I am not sure that I would describe it like that. It is a five-page bill. I hear that it is causing the committee a lot of additional work, but I have taken much more extensive legislation through the Parliament. This is a technical bill, and a lot of different issues have been raised with the committee in evidence sessions. There are a lot of different views on the issue, and I am happy to listen to those views and to engage with stakeholders. I have to chart a route forward.

The issue might not be at the top of teachers’ lists at the moment, but we need to reflect better on how the UNCRC interacts with the parental right to withdrawal and balance that with the rights of children.

It is a technical change that, I appreciate, is taking up the committee’s time. I apologise for that, but we are where we are in the parliamentary session.

I am sympathetic to Ms Gosal’s points about supporting teachers in how they deal with these discussions, because of all the points that Tess White made. Therefore, statutory guidance on the updated RO and RME withdrawal process will accompany the implementation of the changes.

As I think that I alluded to, we will engage with stakeholders, teachers, professional associations, parents and carers on that guidance. We will also look at how the guidance might support the delivery of inclusive RO and RME. I think that the national guidance might help to allay some of the quite fair concerns that Ms Gosal has raised.

Good morning. I welcome the opportunity to give evidence on the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill. As members know, the bill has two key purposes, which are to strengthen children’s rights in decisions about religious observance and religious and moral education and to clarify the legal duties for public authorities under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 in situations where provisions under acts of the Scottish Parliament could conflict with UNCRC obligations.

The bill is deliberately very focused, and it is intended to address priority concerns in this parliamentary session. It is also a technical bill to address two specific but separate purposes, as set out in parts 1 and 2 respectively.

As members will know, religious observance and religious and moral education are two distinct but important aspects of Scotland’s education system. Religious observance supports pupils’ spiritual development and helps to build a sense of community and belonging, and religious and moral education allows pupils to learn about different religions and belief systems and promotes understanding about them as well as exploring ethical questions. Religious and moral education is one of the eight core curriculum areas in the curriculum for excellence.

Sections 8 and 9 of the Education (Scotland) Act 1980 provide for the long-standing parental right to withdraw a pupil from religious observance and/or religious and moral education. Guidance on religious observance notes that pupils’ views should be considered in the withdrawal process. However, currently, there is no requirement in legislation to do so; the decision rests entirely with the parent.

Part 1 of the bill will make changes that provide a legal right for the child to be consulted in the withdrawal request process that was initiated by their parent. The aim is to provide legislative certainty that children and young people’s views should be taken into account when parents are exercising their right to withdraw their child. It does not introduce an independent right to withdraw for the child or alter parents’ long-standing right to request a withdrawal. Without those changes, pupils might be denied such aspects of their education against their wishes, and their rights under UNCRC articles 12, 14 and 29 might not be upheld.

I am conscious that a wide range of views have been expressed to the committee. Our public consultation also showed a wide range of views on religious observance and religious and moral education and on the exercise of parental and children’s rights in the context of learning. As such, the consultation responses reinforced the decision to chart for the changes a middle course on the spectrum of stakeholder views. Therefore, our approach aims to support alignment with the UNCRC while balancing three key considerations—parental rights, stakeholder views and the practical implications for schools.

With regard to part 2 of the bill, the 2024 act places a legal duty on public authorities not to act incompatibly with UNCRC requirements when carrying out functions under acts of the Scottish Parliament. This is a key part of the act; it allows children and their representatives to challenge decisions and to seek redress when they believe that their rights have not been respected.

Nevertheless, a public authority could face a legal dilemma in the event that, in the future, it is required by an act of the Scottish Parliament to act incompatibly with UNCRC requirements when a requirement cannot be interpreted in a way that is compatible with the UNCRC. The bill therefore makes a limited technical amendment to the 2024 act to ensure that the framework operates in a way that is clear, fair and practical. It introduces an exemption for public authorities in the event that a conflict arises between an act of the Scottish Parliament and the 2024 act that means that a public authority would not be forced to choose between breaching the compatibility duty and stopping the delivery of an essential service altogether.

That accountability is directed at the incompatible legislation where the source of the problem lies. The exemption therefore ensures legal clarity and continuity of essential services, which will protect children from avoidable disruption or harm while action is taken to consider and address any legislation that is found to be incompatible.

The change has been framed in such a way that it reflects the safeguards that exist under the Human Rights Act 1998, which have long been understood to be necessary to avoid penalising public authorities for acting in accordance with legislation. The exemption that we propose is narrower in scope and will apply only when there is no discretion to act compatibly.

I welcome the broad understanding that has been shown by many stakeholders, including Together, the Children and Young People’s Commissioner Scotland and the United Kingdom Committee for UNICEF, of the rationale for the approach, while I recognise that some concerns have been raised. I hope that the detailed letter that I sent to the committee during recess has helped to address those points, which I look forward to discussing further today.

I do not know whether Denise McKay and Sarah Booth wish to comment further, but I have seen the evidence that Ms Grant is talking about, and it is not our understanding that the bill is incompatible.

You ask whether the proposals in part 2 are easy enough to understand. I think that they are extraordinarily complex. The committee has heard that, including from witnesses.

The Government can perhaps reflect on how we can better communicate some of the proposed changes. That is probably a point for us to take away. Certainly, from my reading of the evidence that the committee has taken, there is more for us to do in the communication space. However, the bill is quite legally technical in that it looks to future proof our position with regard to the UNCRC. We could perhaps take away a point about communication on that aspect.

Joe, do you have anything to add?

It is fair to say that the bill combines two pretty distinct issues. I think that I have mentioned previously that we intended to make the change that is in part 2 at the reconsideration stage of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which is the point that Ms Grant made earlier. However, that was not possible under parliamentary standing orders. We then planned to include it in the forthcoming human rights bill, which, as the committee knows, will not be introduced during the current parliamentary session. This bill is therefore the first legislative vehicle that we could use to make the change that is required.

I suppose that covers the answer, but I would say that, although the issues in parts 1 and 2 are quite separate, they both aim to give clarity and consistency around children’s rights. The committee knows that the bill as drafted is a targeted piece of legislation that will address those priority concerns within the time that is available in the current legislative programme. I am sure that all members are aware that time is running out for our parliamentary calendar.

That is the approach that we have adopted because, as I have set out, the previous bills did not give us an opportunity to make progress.

Such a principle of Scottish education goes back to 1872, when, as members will know, RME in our schools was very different in nature and far less objective. We need to be careful, because there are legal provisions that protect parents’ right to opt out of RME and RO but that do not apply to any other aspects of the curriculum. We need to be clear about that. When we talk about other aspects of the curriculum, that is not what this is about, and we should be very mindful of that.

Ms Chapman asked why we have not separated RME and RO. I go back to the policy memorandum. We did look at that, and I encourage members to read the policy memorandum if they have not done so. There are lots of views on the matter, and finding alignment would be very difficult. For example, it would not result in a five-page bill being presented to the committee, so the process might take a lot longer. I am not suggesting that we will not come back to the matter in the future, because there are other ways in which it can be considered. Indeed, I touched on that only yesterday in my discussions with the Church of Scotland and other stakeholders. I am happy for us to look at the issue in its totality and in the round. However, I do not think that we will be able to find a route through the issues that Ms Chapman has raised today in a short, technical bill such as we have at the current time, for all the reasons that we have heard during the consultation with stakeholders. Lewis Hedge or other officials might want to say more on that.

There are currently very low rates in relation to how that practice operates. Back in 2017, Education Scotland published a supplement to the guidance—I think that the committee heard evidence on that point. I spoke only yesterday to the Church of Scotland, which is supportive of the guidance.

I think that there is support at the current time for the way in which we approach the issue. I have given the committee the rationale for why we have to slightly adapt our approach, but I think that, in broad terms, stakeholders have been supportive of the nuanced approach, and I am more than happy to work with them as we progress through this. However, to go back to Paul McLennan’s original point, I recognise that we are talking about a very small percentage of children overall.

We think that part 2 is necessary, for the reasons that I have set out. With regard to children’s rights, I go back to some of the points that were made to the committee by Together, which views this as an opportunity to strengthen children’s rights and is broadly supportive of it.

I take the member’s point, but we think that part 2 is necessary, because of the compatibility duty and the potential for something to arise with a public authority—for example, a council. I am being careful not to give direct examples; I am just discussing the matter with officials and trying to think of things that I can provide the committee with, but it is difficult to give a specific example.

We need to think about circumstances in which a local authority might withdraw or pause a service because of the incompatibility duty. Part 2 puts the position beyond doubt with regard to responsibilities and future proofs the current frameworks. We think that that is a requirement that needs to be undertaken. I appreciate that some concerns have been raised about part 2, although I think that, from the evidence to the committee that I have seen, fewer concerns have been raised on part 2 than have been raised on part 1. Indeed, some people have been quite supportive of part 2.

I am happy to listen to and engage with stakeholders—Ms Gosal referred to two of them, and I have already met the Humanist Society Scotland—but I note that Together has been very supportive of part 2. I am more than happy to listen to stakeholders about how we might strengthen the provisions with regard to children’s rights, but we do view part 2 as a requirement.

I have.