In whose interest? Denominational schools in Scotland
You may think that all Scottish schools are conducted in the interests of their pupils, and of the wider society in which they will be participating. But as a recent report shows, that is not how Scots law is worded.
When assumptions are ripe for challenging, the first step is to examine the words that embody them. And in Scottish educational law, the following words occur repeatedly (emphasis added):
“the church or denominational body in whose interest the school is conducted”
Many readers will know that here in Scotland there are two kinds of school; so-called non-denominational schools (which may nonetheless strongly reflect the religious views of their community, or even of their own senior teaching staff), and denominational schools. The latter are overwhelmingly Catholic, and arose historically from the 1918 merger of the Catholic schools with the general state system. My purpose here is not to question the existence of these schools, but to draw attention to a toxic assumption built into legislation under which they are run; the assumption that the Church has an interest in the schools, over and above the interests of its pupils.
The language dates back to the 1918 Education (Scotland) Act, which established denominational schools. It is repeated in the 1980 Act, in 2006 legislation regarding Parent Councils, in 2010 UK legislation exempting denominational schools from some provisions of the Equalities Act, and in current (2011) Scottish governmental guidance.
Over the coming years, there will be much discussion of the institutionalised role of religion in Scottish public life, and particularly in education. Defenders of existing privileges will claim that the the language of the law implicitly accepts the special interests of the Churches. But where the interests of the Churches and the interests of the pupils coincide, there is no need to invoke the Churches’ interests. And should they conflict, there can be no doubt as to which deserves priority. Pupils are not property, and the appeal to the interests of the Churches as a separate consideration should be exposed for what it is; morally corrupt special pleading.
Data from the 355-page Glasgow University report, Callum G Brown, Thomas Green and Jane Mair, Religion in Scots Law: The Report of an Audit at the University of Glasgow: Sponsored by Humanist Society Scotland (Edinburgh, HSS, 2016), published February 2016, on which I will be reporting in more detail shortly.
The 1918 Education (Scotland) Act itself specifies (c 48, section 18(3)) that teachers in denominational schools must be “approved as regards their religious belief and character by representatives of the church or denominational body in whose interest the school has been conducted”.
This same language appears word for word in the Education (Scotland) Act 1980, section 21: (2A). Current (2011) governmental guidance on how the 1980 act is to be interpreted regarding school closures refers to “any church or denominational body in whose interest the school is conducted other than the Roman Catholic Church, by a person authorised for that purpose by that church or denominational body and, in the case of the Roman Catholic Church, by the Scottish Hierarchy of that Church”.
Schedule 11 Para 5 of the UK 2010 Equality Act specifically exempts “a school transferred to an education authority under section 16 of the Education (Scotland) Act 1980 (transfer of certain schools to education authorities) which is conducted in the interest of a church or denominational body”. Such a school is allowed under UK law to discriminate in employment on grounds of religion; it would be interesting to see if European Human Rights law allows such discrimination.
In addition, the Scottish Schools (Parental Involvement) Act 2006, section 7, requires that Parent Councils in denominational schools “must provide for at least one of the council’s members to be so co-opted and to be a person nominated by the church or denominational body in whose interest the school is conducted”.