January 2025. We responded to a Scottish Government consultation.

Our response relates only to proposals around religious observance. We previously responded to the Scottish Government consultation on guidance on religious observance in 2017[1]. This is an issue which continues to be raised with us by children and young people.

Most recently, the issue of religious observance was raised by a young person during a visit the Commissioner made to a secondary school. This sparked an engaged discussion among the group of young people present. Their school was a diverse non-denominational school with a number of religions represented, but at both primary and secondary school their experience had been that religious observance had always had a Christian focus. They understood how having to participate in religious observance would make someone with another faith uncomfortable.

The young people felt that they should be able to choose to withdraw from (or opt-in to) religious observance activity if they wished. It shouldn’t be dominated by one religion. Their collective view was that children should be able to learn about different religions at both primary and secondary school.  

Learning about a child’s own and other religions forms part of a human rights-based education, as envisioned by Articles 28 and 29 of the UNCRC, in particular the following parts of section1:

(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;[2]

The United Nations Committee on the Rights of the Child’s 2023 Concluding Observations on the combined sixth and seventh periodic reports of the United Kingdom of Great Britain and Northern Ireland (“the 2023 Concluding Observations”) included a recommendation that the state: repeal “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” [3]. This followed a similar recommendation in the 2016 Concluding Observations (para 36)[4].

We do not think the current Scottish Government proposal represents significant progress towards UNCRC compliance, given its divergence from a clear recommendation made by the UN Committee on the Rights of the Child in the 2023 Concluding Observations.

The Education (Scotland) Act 1980 currently requires schools to provide regular “religious observance” in Scottish schools (s8) but also a statutory right for parents to withdraw their child from religious observance (s9). There is no equivalent right to withdraw for children, nor is there any right for a child to choose to participate in religious observance if their parents have withdrawn them.

The 2023 Concluding Observation explicitly calls for children to have the right to withdraw (or opt-in), but the current proposal would not achieve this. The proposal does not empower children to make a decision on their participation in collective worship.

Instead, as currently worded, this proposal transfers the ability to make a final decision on withdrawal from parents to the State. It appears to create a new power for a school to decline a parental request to withdraw the child from religious observance on the basis of the school’s assessment of the child’s wishes. This weakens the human rights protections introduced in section 9 of the Education (Scotland) Act 1980, without meeting the requirements of the UNCRC by advancing children’s rights to make decisions in line with their evolving capacities (UNCRC Article 5[5]). This proposal risks being incompatible not only with children’s UNCRC rights but also with parents’ human rights under Articles 8 and 9 and Article 2 of the First Protocol of the European Convention on Human Rights,[6] through weakening their existing legal right to withdraw their child from religious observance[7].

In their General comment No. 20 (2016) on the implementation of the rights of the child during adolescence (“GC20”), the UN Committee states:

“43. 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.”[8]

We acknowledge that the current proposals may appear, superficially, to provide progressive realisation of children’s rights under Article 12 of the UNCRC. However, concentration on Article 12 in isolation results in a narrow understanding of children’s rights. The UN Committee on the Rights of the Child is clear that children’s rights are not realised merely by their views being heard when decisions are made by adults. Article 5 envisages children developing increasing autonomy as they grow older, with support, guidance and eventually just advice from parents. Decision makers must also consider the full range of rights contained in the UNCRC, with reference to relevant guidance provided by the UN Committee in their General Comments.[9] Children should be able to independently exercise a legal right to withdraw from religious observance.

We would urge Scottish Government to change these proposals to ensure compliance with the UNCRC and the 2023 Concluding Observations.

[1] CYPCS, 2017. Consultation response: Guidance on religious observance. https://www.cypcs.org.uk/resources/guidance-on-religious-observance/

[2] UNCRC Articles 28 and 29. https://www.cypcs.org.uk/rights/uncrc/full-uncrc/#28

[3] 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

[4] UN Committee on the Rights of the Child, 2016. Concluding Observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland. https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhskHOj6VpDS%2F%2FJqg2Jxb9gncnUyUgbnuttBweOlylfyYPkBbwffitW2JurgBRuMMxZqnGgerUdpjxij3uZ0bjQBOLNTNvQ9fUIEOvA5LtW0GL

[5] UNCRC Article 5. https://www.cypcs.org.uk/rights/uncrc/full-uncrc/#5  See also: https://www.cypcs.org.uk/rights/uncrc/articles/article-5/

[6] European Convention on Human Rights. https://www.echr.coe.int/documents/d/echr/convention_eng

[7] See Folgerø and others v Norway (2007): https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-2665%22]} and the European Court of Human Rights guide to case law on the rights of the child: https://ks.echr.coe.int/documents/d/echr-ks/guide_rights_of_the_child_eng

[8] 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

[9] UN Treaty Body Database. UNCRC General Comments.  https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11