Stage 2 Briefing

December 2025. We provided members of the Equalities, Human Rights and Civil Justice Committee with a briefing ahead of their Stage 2 consideration of this bill.

Our office has previously provided the Committee with written evidence on this Bill[1]and in our Stage 1 briefing to MSPs, we indicated that we only supported the general principles of the Bill if there was a commitment to substantial amendment from the Cabinet Secretary[2]. Although we have met with Scottish Government officials to discuss amendments to both Part 1 and Part 2 of the Bill, the government amendments lodged at Stage 2 do not fully address our concerns.

By amending the Education (Scotland) Act 1980, Part 1 of this Bill provides timely evidence of the problems inherent in amending pre-devolution Acts of the UK Parliament. In addition to placing the amended legislation out of scope of the UNCRC (Incorporation) (Scotland) Act 2024, legislation that is decades old (e.g. the Social Work (Scotland) Act 1968 or the Children (Scotland) Act 1937 will inevitably contain language that is archaic and potentially open to misinterpretation.

For example section 9 of the 1980 Act is almost word for word the same text as the first half of section 68 of the Education (Scotland) Act 1872,[3]section 12 on the Library service still refers to provision of gramophone records for pupils attending schools, but no mention of information and communication technology (ICT). Other sections would benefit from being updated to better reflect the UNCRC (and GIRFEC), for example sections 35 and 36 which take a formal and punitive approach to addressing non-attendance. Other sections have had considerable complexity added by repeated amendment, for example section 1 on the duty of education authorities to secure provision of education contains 22 amendments from 8 pieces of subsequent legislation.

This is why in our Stage 1 briefing on this Bill we called for a review of the 1980 Act with a view to re-legislating and bringing all Scottish education law within scope of the Incorporation Act in the next parliament.

In fact, we have been calling for the Scottish Government to undertake an audit of pre-devolution legislation on devolved matters and develop a programme to update this legislation and bring it into scope of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. This would reduce the potential risks that Part 2 is intended to address without potentially undermining rights protections for children.

In the early years of the Scottish Parliament, it was not unusual for Scottish Government to take the approach of re-legislating rather than amending existing legislation. Several pieces of legislation were passed that extensively repealed existing legislation in devolved areas, including Education (Additional Support for Learning) (Scotland) Act 2004 which repealed a significant part of the 1980 Act.[4] As a result, these aspects of education law are in scope of the Incorporation Act. We would welcome a return to this approach.

Part 1

Scope of withdrawal rights

Whilst we are sympathetic to the intention of Maggie Chapman MSP’s amendments in this group and agree with the Equality, Human Rights and Civil Justice Committee’s (majority) recommendation that RME and RO should be separated, we do not feel that this is the right way to achieve this. The term religious instruction does not, we believe, describe a human rights-based curriculum delivered in a pluralistic and inclusive manner. Indeed, in General Comment 20, the UN Committee on the Rights of the Child re-iterated the child’s right to withdraw from “religious instruction classes” (in line with their evolving capacities)[5] differentiating between the concept of education about religion (i.e. RME) and religious instruction. As a result, we cannot support these amendments.

Whilst we appreciate the intention of amendment 44, we cannot support it. It retains the word “instruction” and defines “religious observance” much too broadly.

Amendment 9A is superfluous. The provisions of the 1980 Act (and its predecessors) has always been understood to include denominational schools.

Process following receipt of parental withdrawal request

These amendments have the effect of proposing an increasingly formalised and potentially adversarial “process” through which to address the issues which arise from proposals in this Bill which are not compatible with the recommendation of the UN Committee on the Rights of the Child in their 2023 Concluding Observations.

We do not support any of the amendments in their group. We are particularly concerned that this group includes proposals which potentially interfere with children exercising their rights including wellbeing and best interests tests.

Amendment 26 includes a presumption that children under 16 lack capacity to form a view. This runs contrary to a range of existing measures in Scots law, not least the presumption that all children are able to form a view in sections 1, 2 and 3 of the Children (Scotland) Act 2020.

If a formal process is required as a result of this Bill, it must be transparent, easy for children to navigate and consistent across all schools in Scotland. However, we are concerned that a narrative has arisen that suggests that there are potential conflicts between parents’ rights and children’s rights in this regard. The UN Committee on the Rights of the Child has made it clear that, in terms of the UNCRC, “it is the child who exercises the right to freedom of religion, not the parent, and the parental role necessarily diminishes as the child acquires an increasingly active role in exercising choice throughout adolescence”.[6]

Pupil’s right to withdraw from religious observance

We support all Maggie Chapman MSP’s amendments in this group.

By failing to provide children with an independent right to opt out of religious observance, the government has failed to address the recommendation made by the UN Committee on the Rights of the Child in their 2023 Concluding Observations. This does not reflect the maximalist approach to children’s rights the Scottish Government has previous committed to.

Reporting on withdrawals

Amendments 38 and 39 both require data to be collected on withdrawals from religious instruction. On balance we prefer Amendment 38, which collects data on withdrawals, not requests (some requests would relate to more than one child) and requires Scottish Ministers to publish that data. We note that doing so may not be possible at school level, due to low numbers in smaller schools. It would be useful for the reported data to be reported to provide details of withdrawals by type of school (i.e. primary or secondary school) as well as by local authority.

Guidance on withdrawals

We note our earlier position that any process relating to withdrawal from religious observance or religious instruction must be transparent, easy for children to navigate and consistent across all schools in Scotland. Our hope would be that such a process would not require the content of any guidance to be prescribed by law.

Making freestanding provision for pupil involvement in withdrawal requests

We take no position on this group of amendments.

Part 2

Use of exemptions from UNCRC compatibility duty

While we welcome the intention of amendments 45-50 and 52, to limit the circumstances in which public authorities may rely on the defence in ss6A and 6B, there are technical issues with the drafting which means we are unable to support them. We would be happy to work with the Member to consider alternative wording for amendments at Stage 3.

Monitoring use of exemptions from UNCRC compatibility duty

We welcome the constructive engagement with Scottish Government officials on this matter and support the Cabinet Secretary’s amendments 7 and 8. 

However, we do not think they go far enough to mitigate the negative impact of Part 2 of the Bill (see our Stage 1 evidence), or to deliver on the Scottish Government’s obligations to identify and address potentially incompatible legislation. In particular, the late stage at which the intimation provision kicks in (only where there are live legal proceedings) means that other instances where public authorities have identified potential incompatibilities (for example in response to complaints) risk going unreported. 

We note that the Scottish Government’s statutory guidance on Part 2 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 sets an expectation that public authorities will notify Ministers when they “become aware” of incompatibilities. However, this expectation should be reflected in the primary legislation and we will be seeking amendments to this effect at Stage 3. We support Maggie Chapman’s amendment 51 which addresses some of the deficiencies in the Cabinet Secretary’s amendment 7. It is important to note that amendment 7 and amendment 51 are not mutually exclusive. Both can, and should, be agreed to.

We note that should amendment 51 pass, there will require to be a further amendment at Stage 3 to remove the reference to s6A. This should not prevent the amendment being agreed to at Stage 2.

Amendment 53 duplicates the effect of part of Maggie Chapman’s amendment 51. As we are supporting amendment 51 due to the intimation provisions it contains, we are unable to support amendment 53.

We welcome the intention of Amendment 54, but would expect reporting of this nature to be undertaken through the Scottish Government’s Children’s Rights Scheme.  

Pre-commencement impact assessment

We do not support these amendments, which could needlessly delay commencement of the Act. As this is a Scottish Government Bill, a full range of impact assessments, including a Children’s Rights and Wellbeing Impact Assessment were conducted before the Bill was laid.

[1] CYPCS, 2025. Stage 1 evidencehttps://www.cypcs.org.uk/wpcypcs/wp-content/uploads/2025/11/Withdrawal-from-RE-and-UNCRC-Bill-October-2025-FINAL.pdf

[2] CYPCS, 2025. Stage 1 briefing. https://www.cypcs.org.uk/resources/children-withdrawal-from-religious-education-and-amendment-of-uncrc-compatibility-duty-scotland-bill-2/

[3] Education (Scotland) Act 1872. https://www.legislation.gov.uk/ukpga/Vict/35-36/62/pdfs/ukpga_18720062_en.pdf

[4] Education (Additional Support for Learning) (Scotland) Act 2004. Schedule 3. https://www.legislation.gov.uk/asp/2004/4/schedule/3

[5] General Comment 20 para 43

[6] UN Committee on the Rights of the Child. General Comment 20 (2016) on the rights of the child during adolescence.  https://docs.un.org/en/CRC/C/GC/20