March 2026

We recognise the need for Part 2 of this Bill to be passed into law. We have detailed below which amendments would expressly address concerns raised by MSPs about the need for these changes to the UNCRC Act.

We particularly seek the Parliament’s support for Amendment 14.

Should this Bill not pass stage 3, the amendments proposed in Part 2 to the UNCRC Act will still be required and we seek the support of parliament to find the earliest opportunity to do this.

Part 1

We have consistently expressed our concerns about Part 1 of this Bill since the Scottish Government’s consultation in January 2025.[1]

We remain concerned that Part 1 of this Bill, even with the proposed stage 3 amendments, will not create improvement and a rights respecting situation for all children. Too many issues remain insufficiently addressed.

• Unless amendment 17 passes there will be no independent right for children to withdraw from religious observance.
• There is limited recognition of the right for older children to make decisions in line with their evolving capacity.
• Part 1 has not been drafted in scope for the UN Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.
• While we are supportive of the principle, the removal of the parental right to withdraw from religious education as drafted has received insufficient scrutiny to ensure there are no unintended consequences for children in all forms of education.

We previously highlighted the recommendation made by the UN Committee on the Rights of the Child in their 2023 Concluding Observations for the repeal of ““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”.[2]

The UN Committee’s General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence provides the basis for this recommendation: “The Committee urges States parties to withdraw any reservations to article 14 of the Convention, which highlights the right of the child to freedom of religion and recognizes the rights and duties of parents and guardians to provide direction to the child in a manner consistent with his or her evolving capacities (see also art. 5). In other words, 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. Freedom of religion should be respected in schools and other institutions, including with regard to choice over attendance in religious instruction classes, and discrimination on the grounds of religious beliefs should be prohibited.”[3]

Group 1: Meaning and character of religious education and observance

We support amendment 11 and consequential amendment 6. This updates terminology in the Education (Scotland) Act 1980 to reflect current guidance and practice.

Group 2: Process following receipt of parental withdrawal request

We support amendment 1 which adds useful clarity.

We have serious concerns about whether amendment 19 iscompatible with Article 12 of the UNCRC and General Comment 12. In particular, subsection (2)(c) requires guidance to include information about assessing whether a pupil is capable of forming a view.

When children become capable of forming a view was discussed extensively during the passage of the Children (Scotland) Act 2020. That Act introduced a presumption in Scots law that all children are capable of forming a view and the language of section 1 has been used in other legislation since then.

If an assessment is required, this implies their capacity must be proven. We have previously raised concerns about the compatibility with the UNCRC of the “assessment” of capacity (and wellbeing) in the Education (Scotland) Act 2016.

This amendment reflects a narrow interpretation of children’s right to participate and represents a dilution even of the limited participation provided for in the Bill as introduced.

Group 3: Pupil’s right to withdraw from religious observance

We support Amendment 17 (and 16) which introduces an independent right to request withdrawal for children and young people in a manner consistent with their evolving capacities.

Group 4: Reporting on religious observance and withdrawal from it

We support amendment 8 which seeks to address the lack of consistent data on withdrawal from religious observance noted by the Committee. We also support amendment 23 but take no position on amendment 12 which requires a more detailed report.  

Group 5: Making freestanding provision for pupil involvement in withdrawal requests

Although this amendment does strengthen pupil’s involvement in decision making it does not overcome the fact that the child only has a role if their parent choses to withdrawn them.

Part 2

We have made clear that we share the concerns expressed by MSPs and others that Part 2 must be amended so as to mitigate the negative impacts on children. These include disincentives to raise proceedings, and lack of access to individual remedies. 

Mitigation requires a coherent package of amendments to work together. We particularly seek the Parliament’s support for Amendment 14.  

Amendments 13, 13A and 25 are the direct result of positive discussions with Scottish Government and other colleagues to find ways to mitigate the negative impacts of Part 2, while recognising Ministers’ arguments about why Part 2 is necessary. They will ensure that Scottish Government, the Commissioner and the Scottish Human Rights Commission are made aware of potentially incompatible legislation at an appropriately early stage. 

However, we have been advised that it may take the Scottish Government considerable time to conduct assessments about legislation. Decisions by Ministers not to act on notifications will not be reported to the Parliament.

We therefore first proposed a version of Amendment 14 to Scottish Government on 4 December last year, prior to Stage 2 proceedings commencing.  

Amendment 14 is critical to making Part 2 operate effectively to deliver the policy intention and to mitigate the risks identified by our office, the sector and many MSPs. It is supported by SHRC, Together Scotland, Unicef, Clan Childlaw and Social Work Scotland. COSLA has indicated that it would have no concerns if the amendment were to be passed.

This amendment provides the Children’s Commissioner and SHRC with a means of responding to a notification from a public authority about potentially incompatible legislation by referring it to the court for a decision on compatibility.

It cannot be left to children to bear the responsibility of clearing up the statute book. Particularly when Part 2 would actively disincentivise them from raising actions they cannot benefit from. Instead, the Commissioner must be enabled to fulfil her statutory role. 

Without this amendment, our office and others will have to challenge failures of public authorities as a gateway to challenge legislation. Passing Amendment 14 would reduce the risk of public authorities needing to defend these more adversarial legal proceedings against them. We would expect it therefore to result in overall savings for the public purse.

Amendment 14 would enable the Commissioner to fulfil her statutory role more efficiently to the benefit of both children and public authorities.

Group 6: Scrutiny of use of exemptions from UNCRC compatibility duty

[1] CYPCS, 2025. Religious observance in schools. https://www.cypcs.org.uk/resources/religious-observance-in-schools/

[2] UN Committee on the Rights of the Child, 2023. Concluding Observations on the combined sixth and seventh periodic reports of the United Kingdom of Great Britain and Northern Ireland. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2FC%2FGBR%2FCO%2F6-7&Lang=en

[3] UN Committee on the Rights of the Child, 2003. General Comment No.5 (2003): General Measures of Implementation of the Convention on the Rights of the Child. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2FGC%2F2003%2F5&Lang=en