October 2025. The Commissioner provided the Equality, Human Rights and Civil Justice Committee with written eviden during their Stage 1 consideration of the above bill.
Key points
Part 1
- We cannot support Part 1 of the Bill in its current form.
- Part 1 of the Bill amends an Act of the UK Parliament, rather than being drafted as a standalone Act of the Scottish Parliament. If the Scottish Parliament accepts this drafting choice in a Bill with such a simple purpose, it sends a clear message that drafting to maximise the scope of the UNCRC (Incorporation)(Scotland) Act is not a priority.
- The proposals in Part 1 do not go as far as required by the UN Committee on the Rights of the Child, to give children the independent right to opt out of religious observance (RO).
- Religious education (RE) and religious observance (RO) continue to be conflated in this Bill; a clear distinction should be made.
Part 2
- Part 2 of the Bill amends the UNCRC Act; we believe that further amendments could be brought to strengthen the Act to ensure that incompatibilities in Scottish legislation are identified and addressed.
Part 1
What are your views on the proposed changes in the Bill to require that a child is informed if their parent asks for them to be withdrawn from either or both RME/RE and religious observance in school.
We are concerned that the Scottish Government have decided to consider the two activities (RO and RME) together[1], including in the Children’s Rights and Wellbeing Impact Assessment (CRWIA), despite our office making it clear in our consultation responses and meetings with officials that the rights issues engaged by RO and RME are different and should be considered separately[2]. We note that concern was raised about this approach by a wide range of respondents from the Humanist Society of Scotland to the Free Church of Scotland[3].
The result is a proposal which is muddled and inconsistent and, in our view, does not meet the commitment made by the Scottish Government to take every opportunity to progress children’s rights and to increase the scope of the UNCRC (Incorporation)(Scotland) Act. The provisions in the Bill will sit outside the scope of the UNCRC (Incorporation)(Scotland) Act, leaving children with no recourse under the Act to challenge or seek remedy.
Our view is that the proposals in this Bill have not gone far enough to progress children’s right to freedom of thought, conscience and religion (UNCRC Article 14). In particular, we draw attention to the text of Article 14(2) which makes it clear that parents rights in this regard are limited to “providing direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.”
General Comment 20 (GC20) on the rights of the child during adolescence makes it clear that “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”.[4]
Concluding observations are recommendations that the UN Committee on the Rights of the Child makes in respect of individual states’ realisation of the rights contained within the UNCRC. We noted in our earlier evidence that the 2023 Concluding Observations recommended that governments in the UK should further children’s freedom of expression and religion by “Repealing legal provisions for compulsory attendance in collective worship and establishing statutory guidance to ensure the right of all children, including children under 16 years of age, to withdraw from religious classes without parental consent.”[5] Whilst the CRWIA mentions that our office had raised this issue, the Scottish Government have not explained how they think the current proposal complies with this recommendation. The UNCRC (Incorporation)(Scotland) Act clearly identified Concluding Observations as key interpretative sources for the UNCRC.[6]
We are concerned that there is a fundamental flaw in the approach taken by Scottish Government with this legislation. By amending the existing conscience clauses in the Education (Scotland) Act 1980, the government are relying on the assumption that, in law, “religious observance” in the 1980 Act is the same thing as “Time for Reflection” in current guidance and that “religious instruction” is the same as “religious and moral education” (RME). The opportunity should be taken to repeal and replace this dated language in the 1980 Act to provide clarity.
Religious Observance
In their policy memorandum, the Scottish Government argue that RO now takes various forms and may effectively include neither religion nor observance[7] and that it is “of central importance that all pupils and staff can participate with integrity in forms of RO without compromise to their personal beliefs”. The test is not whether the intent is inclusive or pluralistic but whether participation is acceptable to the child and their parents, in line with their own beliefs.
As outlined in our earlier consultation response, RO has been an issue which has been raised with the Commissioner by children. One group of children who raised the issue with us had a good understanding of the impact participating in religious observance could have on a child of another faith and shared that their experience was that religious observance in their non-denominational school had always had a Christian focus. We acknowledge that efforts have been made to update guidance, most recently in 2017, to modernise RO and encourage schools to take a more inclusive approach. However, we know there are still instances of RO occurring in non-denominational schools which are not following this updated guidance, therefore an opt out remains important.
Whilst RME is a curriculum area with a focus on religion, RO may include input of religious leaders from Christian or other faiths and may involve leading children in prayer or the singing of hymns. This can be unacceptable to parents and children of no faith but is particularly problematic to some of other faiths. There are different understandings to what “participating” in religion is. This is the reason the conscience clause was established by the Education (Scotland) Act 1872.
Our position is therefore that, as long as an RO requirement remains in statute, both parents and children, in line with their evolving capacities, should have the right to withdraw from some or all religious observance.
Religious Education
Religious education raises different issues. Learning about religion forms an important part of a human rights-based education, as envisioned by Articles 28 and 29 of the UNCRC. In particular the following parts of Article 29(1):
(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
The human rights implications of religious education were extensively explored by the European Court of Human Rights in the case of Folgerø vs Norway. This confirmed that the ECHR right of parents within “Article 2 of Protocol No. 1 does not embody any right for parents that their child be kept ignorant about religion and philosophy in their education”. The Court found that religious education based on “principles of pluralism and objectivity” did not breach parents’ rights even if there were a disproportionate focus on Christianity, given its importance to the “national history and tradition” of Norway.[8] The Committee on the Rights of the Child and the UN Human Rights Committee have also tended to support pluralistic models of religious education as an important part of an education compliant with Article 29(1).[9]
In both General Comment 20 and the most recent concluding observations, the Committee on the Rights of the Child has, however, reiterated the child’s right to withdraw from “religious instruction classes” (in line with their evolving capacities)[10] differentiating between the concept of education about religion (i.e. RME) and religious instruction.
In 2022, it is worth noting that the new Curriculum for Wales, accompanied by new guidance on what is now called Religion, Values and Ethics, removed the parental right to withdraw from religious education.[11]
We would tend to agree with the Scottish Government that RME, when taught according to the current Education Scotland guidance, may be sufficiently pluralistic so as to no longer require the opt out. However, that is not what is being proposed in this Bill.
What are your views on the proposed changes in the Bill to require that a child is given the chance to express their views; and where the child’s views are different from the parent’s views, the school would have to follow the child’s wishes? This only applies where the parent wishes to withdraw their child, but the child wishes not to be withdrawn.
Our position is that where parental rights to opt out exist in relation to RO, the equivalent right must also be extended to children in line with their evolving capacity. While we do not consider a bright line age limit is required (or useful) on the face of this Bill, our expectation would be that the extension of this right certainly includes children of secondary school age and may include younger children.
We do not agree that the current proposal meaningfully aligns with the concept of evolving capacities[12], it does not allow children to acquire “an increasingly active role in exercising choice throughout adolescence”. Children’s role in these proposals is passive and asymmetric. They can only veto a parental decision to withdraw and their role is mediated by the State (in the form of the school).
This proposal creates potential for schools, parents and pupils to be in conflict. In a way which simply recognising children’s right to make a decision, in line with their evolving capacities, would not. It effectively places schools in the position of making a decision whether or not to accept a parental request to withdraw whilst providing no equivalent right to the child. It may risk parents and children feeling compelled to disclose intimate aspects of their own religious and philosophical convictions to the school, which could give rise to concerns over privacy.
Children’s rights must not solely be considered through the lens of Article 12. Whilst it is important as a general principle of the UNCRC, it must be considered together with children’s other UNCRC rights. In this case the right of the child to freedom of thought and religion in Article 14 and their right to exercise their rights in line with their evolving capacities in line with Article 5. General Comment 12 on the rights of a child to participate in decision making, makes it clear that as a child ages and in line with the child’s evolving capacities, the role of parents transforms from “direction and guidance into reminders and advice and later to an exchange on an equal footing”.[13]
Yet the current proposal does not put older children on an equal footing to parents. Even at ages where existing Scots law recognises children’s capacity to make decisions (i.e. the Age of Legal Capacity (Scotland) Act 1991), they are to have no right to exercise their right to freedom of thought and religion. Even 16 and 17 year olds would not be able to opt out of religious observance without parental permission, even though they can make the decision to leave school altogether.
In our earlier consultation response we highlighted that the specific proposal in this Bill, whereby schools must consider and prioritise the views of the child when responding to a parental right to withdraw, may interfere with parents’ rights under Article 2 of the First Optional Protocol of the ECHR. The precise interaction between parents’ ECHR rights and children’s UNCRC rights on this specific issue is (as far as we are aware) untested by the court, although we note the judgement in Isherwood v Welsh Ministers found that removal of a parental opt out in relationships and sexuality education did not breach parents’ ECHR Article 2 Protocol 1 rights.[14]
Part 2
This Bill will introduce an exemption to the section 6 compatibility duty of the UNCRC Act in circumstances where a public authority is compelled to act incompatibly with UNCRC requirements in fulfilment of another Act of the Scottish Parliament. This mirrors the approach taken to Acts of the UK Parliament. Do you have any thoughts on this approach?
We understand that Scottish Government is suggesting this approach to make provision for the following situations:
- where legal proceedings have identified an incompatibility but (for the support and protection of children) a service needs to continue to be delivered until the incompatibility in legislation can be remedied; and
- where, outwith legal proceedings, a public body has received advice that it cannot comply with a duty, or deliver a function, in a way that is compliant with the UNCRC requirements but again a service needs to continue to be delivered because there is a separate legal obligation for them to do so.
In principle, we do not strongly object to this amendment. To enable our office to support this change, we have already indicated to Scottish Government that we believe there must be a duty on public bodies to report to the Scottish Government and the Commissioner’s office any occasion where they become aware of requirement in law that compels them to act in a way that is not compliant with the UNCRC requirements. This should be an infrequent and irregular occurrence based on the Government’s own assessment of this amendment.
When this amendment was originally proposed by the Scottish Government to the UNCRC Strategic Implementation Board, we suggested then that public authorities should be required to notify the Scottish Government when seeking to rely on the proposed exemption. We note that this suggestion has not been brought forward.
The Scottish Government is under a legal duty to identify and address any situation where a child’s rights are (or are at a significant risk of) not being fulfilled. This places a positive duty on Scottish Ministers, not previously found within the Human Rights Act. The continuing existence of legislation incompatible with the UNCRC constitutes a systematic breach of children’s rights. The Scottish Government must evidence robust procedural mechanisms to remedy this.
We do not believe that requiring public authorities to notify the Scottish Government when they are seeking to rely on the proposed exemption is a disproportionate measure. A reporting duty, by definition, could only apply where the public authority was aware (for example as a result of having sought legal advice) that it was relying on the exemption to provide a service or deliver a function lawfully.
We are aware that the Scottish Government’s preferred approach would be to prompt and encourage rather than legally require public authorities to inform Scottish Government when they become aware of a requirement in law to act in a way that is not compliant with the UNCRC requirements. At a minimum, we would want to see reports made and action taken by Scottish Government as part of their annual reports against the Children’s Rights Scheme. This would offer partial fulfilment of the legal requirement under the Act for the Scheme to include arrangements for Scottish Ministers to identify and address any situation where a child’s rights are (or are at a significant risk of) not being fulfilled.
We have seen no evidence that the Scottish Government has undertaken an audit of existing legislative incompatibilities with the UNCRC Act. The case for these amendments does need to be made by Scottish Government in a more accessible and easier to understand way.
While we welcome the fact that the proposed amendment only applies where a public authority is required to act incompatibly, it must be recognised that the proposed amendments could have the unintended effect of undermining some of the aims of the UNCRC Act. The amendment may not just have the effect of protecting public authorities when they are delivering services that are incompatible with the UNCRC. They may relieve some of the pressure on Scottish Government to amend incompatible legislation (lack of litigation urgency to drive a response) and make access to remedies for individual children more challenging by being unable to directly challenge incompatible acts of the public authority in court.
We believe that the following additional amendments should be considered to ensure that UNCRC incorporation is underpinned by strong systems of monitoring and accountability, where incompatibilities are identified and addressed swiftly, and children experience remedy and redress in practice.
1 Incompatibility declarators, courts and tribunals
As present incompatibility declarators under the UNCRC Act can only be issued by the higher courts. Incompatibility declarators can also only be made in relation to post-commencement (of the UNCRC Act 2024) provisions.
We see no reason why incompatibility declarators could not be issued by a wider range of courts and tribunals in relation to relevant Acts of the Scottish Parliament and subordinate legislation, made at any time. This would enable those working directly with children more ability to address issues before them. Courts and tribunals, for example, the ASN Tribunal, Sheriff Courts dealing with family law proceedings and the Sheriff Appeals Court all have an important role in identifying and addressing children’s rights issues.
The Scottish Government has said that one of its preferred methods to ensure the existing statute book is compatible with the UNCRC is to respond to decisions of the courts. Our suggested amendments support that policy goal by providing more courts and tribunals with the power to identify incompatible legislation both pre and post-commencement.
2. Ministerial action following strike down declarator or incompatibility declarator
Duties on Ministers when legislation has been found to be incompatible with the UNCRC could be strengthened. This could also help to address the access to justice gap being created for any children who can no longer challenge incompatible acts of the public authority in court. Currently the Act requires Ministers to report to Parliament, within 6 months, what steps (if any) they intend to take in response to the declarator. We would like to see this timescale reduced to 3 months and for this reporting duty to go further, requiring Ministers to assess the impact of the breach on children, and to provide that assessment back to the court or tribunal, to the child affected (if relevant) and to our office.
3. Statutory reporting duty
There is a risk that incompatibilities remain hidden and are not dealt with at a systemic level if public authorities do not have to notify Scottish Government when they become aware that legislation obliges them to act in a way that is not compatible with UNCRC requirements. We urge Scottish Government to revisit this point to ensure an enforceable and timely mechanism for reporting and addressing incompatibilities is put in place.
Details of potential amendments for consideration
See attached PDF for potential amendments
[1] Scottish Government 2025. Proposals to amend the legislation on religious observance and religious education in schools. https://consult.gov.scot/education-reform/religious-observance-education-legislation-schools/
[2] CYPCS, 2025. Religious Observance in Schools. https://www.cypcs.org.uk/resources/religious-observance-in-schools/
[3] Free Church of Scotland. Consultation Response. https://consult.gov.scot/education-reform/religious-observance-education-legislation-schools/consultation/view_respondent?_b_index=360&uuId=458463544
[4] 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
[5] LINK COBS. Religious classes in this case should be interpreted with reference to General Comment 20, paragraph 43 which is clear children should have the right to exercise freedom of religion in respect of “religious instruction classes”.
[6] United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 s4(2)
[7] Policy Memorandum, para 12.
[8] Folgerø and others v Norway (2007). https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-2665%22]}
[9] Tobin, 2019. United Nations Convention on the Rights of the Child: A commentary. Oxford Commentaries on International Law. p502-3.
[10] General Comment 20 para 43
[11] Education Wales, 2022. Religion, Values and Ethics replaces ‘Religious Education’ under Curriculum for Wales. https://educationwales.blog.gov.wales/2022/07/19/religion-values-and-ethics-replaces-religious-education-under-curriculum-for-wales/
[12] Article 5 of the UNCRC, see also General Comment 20
[13] UN Committee on the Rights of the Child. General Comment No 12 (2009) on the right of the child to be heard. https://www.refworld.org/legal/general/crc/2009/en/70207 para 84.
[14] Rex (Isherwood and Others) v The Welsh Ministers 2023 PTSR 901 https://www.judiciary.uk/wp-content/uploads/2022/12/Isherwood-v-Welsh-Ministers-Summary-221222.pdf