Church nominees on Education Committees; Petitions Committee writes to Scottish Government (for 3rd time)

Just when you thought things couldn’t get any better for our Petition to remove unelected Church nominees from Scottish Local Authority Education Committees, things got better.

Spencer Fildes and Paul Braterman testifying to Public Petitions Committee

The Scottish Secular Society is petitioning the Scottish Parliament for the removal of the theocratic anomaly, according to which every Local Authority Education Committee in Scotland must include three representatives of religious bodies. These church nominees are not answerable to the electorate, nor to the elected Councillors, and do not even have to declare an interest.

The Public Petitions Committee has now discuss the matter at three separate meetings. At its November 24 meeting last year, it took evidence from Spencer Fildes, who is advancing the Petition on behalf of the Society, with minor contributions from me, and agreed to write to interested parties, including of course the Scottish Government. So far, so predictable. On February 2 of this year, it reviewed the responses, declared itself unsatisfied with the governmental response regarding the equalities duty as it applies here, and wrote to them again. This was a highly significant development. The Committee agrees, as the Equalities and Human Rights Commission itself has agreed since the matter was first raised in 2013, that there are equalities issues here that invite discussion in terms of Scotland’s 1998 Human Rights Act and 2010 Equality Act. What is relevant is the duty of any public body, including the Government itself, to eliminate discrimination and advance equality of opportunity, and of course the privileged position of religious communities on the Education Committees is discrimination and inequality of opportunity, since it creates positions of political power for which only those holding certain religious beliefs are eligible.

In reply to the Committee’s letter, sent February 3, the Scottish Government stated that it will

seek to undertake an Equality Impact Assessment on any policy proposals emerging from the Education Governance Review. It is our intention that once this process has been undertaken we will then consider any of the Scottish Secular Society’s proposals that are not addressed through any changes made by the Education Governance Review.

We were happy, at least for the moment, with this reply. The Committee was not. At its most recent meeting (April 27), the Committee agreed to write to the Government yet again, asking for clarification of the timescale of its planned response to the Education Governance Review, whether it was committed to carrying out an equality impact assessment, and whether the final sentence of its letter referred to the Petition, or to the Society’s submission to the Review.

Johann Lamont (CC via Wikipedia)

Most significantly, the Convener (the redoubtable Johann Lamont) further commented

I was quite interested in the idea that the public sector equality duty does not apply to legislation that we have already passed—I was quite intrigued by that. That seemed to me to be saying, “Well, that was before we thought about the equality question, so we don’t have to include it.” I suppose that the question for the Scottish Government concerns the point at which it looks at things that have been done in the past to see whether they match up, and whether the governance review affords the Government the opportunity to consider that issue.

it seems clear that she, for one, will not be happy if the Government evades our arguments on the legalistic grounds that the legislation imposing the Religious Representatives requirement predates the equalities legislation.

The Committee formally agreed to keep the petition open pending the Government’s reply, with one member saying that they could then ”decide how to take the petition further”, and the Convener thanked us for our ongoing interest.

Three years ago, in response to a very similar petition, the Equality and Human Rights Commission expressed its concerns at the present situation, to no avail. The then Petitions Committee forwarded that petition to the Education and Skills Committee, who allowed it to run into the sand because of procedural complexities. So what has changed? In my judgement, several things. Firstly, the Public Petitions Committee is adopting a much more assertive role, rather than merely acting as a gatekeeper. Its convener, Johann Lamont, is an experienced and formidable politician, and former leader of the Scottish Labour Party, a position from which she resigned in 2014, giving as reason interference by the Westminster Labour leadership. She has said of herself

I have been a committee convener, proud of building consensus where possible, to test legislation and to challenge the government of the day.

Secondly, we have the steady drift away from the Churches. This has two effects. It adds weight to the argument that the present arrangement is unjust, because those excluded from the privileged position of Religious Representative are now an actual majority among younger Scots. And as a corollary, it reduces the electoral cost of opposing the Churches. It is the duty of elected Members to consider such things, not only out of self-interest, but because of their duty to represent their constituents.

It will be some time before the fate of our Petition becomes clearer, but, whatever happens next, the issue will not go away. The Public Petitions Committee has shown that it will not be fobbed off with mere generalisations. We have, with the help of our MSP friends, succeeded in framing the discussion in terms of equality, rather than in terms of religion, and I am increasingly convinced that the reforms we seek are now only a matter of time.

To support the Scottish Secular Society click on “Donate” button. The  Scottish Secular society exists to promote freedom of, and freedom from, religious belief, and holds meetings on subjects of interest approximately once a month.

Appendix: relevant documents

Full documentation is on the Scottish Government website, here. The most recent documents are shown below:

Scottish Government submission of 3 March 2017:

Thank you for your letter of 3 February in respect of Petition PE1623 from the Scottish Secular Society calling for changes to the current practices under Section 124 of the Local Government (Scotland) Act 1973 which requires that local authority education committees must include members nominated by various churches.

Following your meeting on 2 February you requested the Scottish Government’s timescale for publishing the Education Governance Review findings and whether an assessment of the position of unelected church appointees had been undertaken in respect of the Public Sector Equality Duty.

As you are aware, the Education Governance Review was launched by the Deputy First Minister on 13 September 2016 and ended on 6 January 2017. The purpose of the Education Governance Review was to ask consultees about the role that every part of our education system plays to deliver education in Scotland and how this could be improved. The consultation asked 17 questions, covering 5 key areas:

1. Empowering teachers, practitioners, parents, schools and communities
2. Strengthening ‘the middle’ – how teachers, practitioners, schools and other local and regional partners work together to deliver education – including through encouraging school clusters and the establishment of new educational regions
3. A clear national framework and building capacity in education
4. Fair funding – learner-centred funding
5. Accountability

The Scottish Government received over 1100 responses to the consultation, including a response from the Scottish Secular Society, in addition to this over 700 people attended the public engagement sessions. The consultation responses, where permission was given, were published on the Scottish Government’s consultation hub on 3 February. The Scottish Government is now taking time to consider these responses, and wider evidence, and will publish their findings in due course.

In relation to the issues of an EQIA, in 1996, section 124 of the Local Government (Scotland) Act 1973 was substituted into that Act by the Local Government etc. (Scotland) Act 1994. As this predates the Equalities Act 2010 there was no requirement to carry out an assessment of this provision in terms of the public sector equality duty at the time it was instructed.

The Public Sector Equality Duty in the Equality Act 2010 has three main elements. It requires public authorities to have ‘due regard’ to the need to:

(a) Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act

(b) Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it

(c) Foster good relations between persons who share a relevant protected characteristic and persons who do not share it

Please be assured that we will seek to undertake an Equality Impact Assessment on any policy proposals emerging from the Education Governance Review. It is our intention that once this process has been undertaken we will then consider any of the Scottish Secular Society’s proposals that are not addressed through any changes made by the Education Governance Review.

Official report of April 27 meeting: Local Authority Education Committees (Church Appointees) (PE1623)

The Convener:   (Johann Lamont, Labour, Glasgow)

The next petition is PE1623, on unelected church appointees on local authority education committees. It was lodged by Spencer Fildes on behalf of the Scottish Secular Society. Submissions by the Scottish Government and the petitioner have been circulated to members, along with a note by the clerk.

The Scottish Government identifies the number of responses that it received on its education governance review and says that it will publish its findings in due course. In response to our question on any assessment it had undertaken in respect of the public sector equality duty, the Scottish Government advises that such an assessment was not a requirement at the time that the legislation was instructed, but that is something that it will seek to undertake on any policy proposals that arise from its governance review. The Government adds that it intends to consider any of the petitioners’ proposals that are not addressed through the governance review.

The petitioners broadly welcome the Scottish Government’s response but contend that it will not be possible to establish whether any proposals that emerge from the governance review address the issues that have been raised until they have been assessed.

Do members have any comments or suggestions for action to take?

Maurice Corry:    (C, West Scotland)

First, I think that we should seek from the Scottish Government an update on its anticipated timescale for the publication of its findings from its education governance review, which will apply to the local authorities as well. Subsequently, we should have clarification on whether the Government will carry out any equality impact assessment on policy proposals from that review. Thirdly, we should have clarification on whether the Government’s reference to the Scottish Secular Society’s proposals relate to what is called for in the petition or to the society’s response to the consultation. It is also important that we refer the matter to COSLA for its views.

The Convener:

Okay. We got some information from COSLA in response to our initial search for evidence.

Do members agree that we write to the Scottish Government as suggested? I was quite interested in the idea that the public sector equality duty does not apply to legislation that we have already passed—I was quite intrigued by that. That seemed to me to be saying, “Well, that was before we thought about the equality question, so we don’t have to include it.” I suppose that the question for the Scottish Government concerns the point at which it looks at things that have been done in the past to see whether they match up, and whether the governance review affords the Government the opportunity to consider that issue.

Rona Mackay:   (SNP, Strathkelvin and Bearsden)

I agree. We need clarification on the points that Maurice Corry raised. After we get a response, we can decide how to take the petition further.

The Convener:

Okay. Are we agreed on the action to take?

Members indicated agreement.

The Convener:

Again, we thank the petitioners for their on-going interest in the question.