Denominational schools in Scotland are run according to a century-old Concordat between the British government and the Catholic Church. During that century, the influence of the other Churches within non-denominational schools has grown, even as their worshippers deserted them. The result is a mosaic of mutually contradictory objectives and provisions. Our children deserve better.
Glasgow University has just published its long-awaited report, sponsored by Humanist Society Scotland, into the role of religion in Scots law. The full report runs to 355 pages, and the summary to 11. It is limited to discussion of the law, but my commentary here also includes in some places what is known about actual practice. I will concentrate on the three areas covered are greatest length; the legal status of the Church of Scotland, religion and marriage, and, above all, education. The report covers several other areas where the law gives special recognition to religion. There are, for example, some tax advantages for ministers in accommodation provided by their Church, but these are minor matters in comparison.
Firstly, what about the Church of Scotland? Is it, for instance, an established church? And what beliefs does it subscribe to? There is no consensus on this. The 1921 Declaratory Act, which was supposed to resolve this issue, contains an attachment in which the Church describes itself as “a national Church representative of the Christian faith of the Scottish people”, but since almost all its privileges are shared with other denominations, it is not clear what, if anything, this means. Church of Scotland ministers are automatically entitled to solemnise marriages, but since celebrants may just as easily come from other denominations, and even from groups such as the Humanists, this distinction is purely ceremonial. The Sovereign is represented at the Church’s General Assembly, and while she worships as an Anglican at Windsor, she attends Church of Scotland services when at Balmoral. However, she does not choose the Moderator, whereas she does, notionally and on the advice of the Prime Minister, choose the Archbishop of Canterbury.
The Church of Scotland subscribes to the Westminster Confession (apart from its anti-Catholic clauses, which it removed in 1986). Thus it is nominally committed to the belief that I, and most of my readers, will be physically tormented in hell for eternity and serve us right. It has, however, declared itself free to interpret (i.e. ignore) its own doctrine. A saving grace, if I may so put it.
The area where the legal connections between church and state has the greatest practical importance is education, and this is the one area where is the entrenched power of religion has actually grown over time. The Scottish publicly funded school system arose in two steps, the 1872 nationalisation of schools that had hitherto been the responsibility of Presbyteries, and the 1918 nationalisation of the Catholic school system. The first of these led to the establishment of notionally non-denominational schools, in whose running the churches did not have a formal role, while the latter led to the establishment of denominational schools, within which the power of the denominational hierarchy was formidable. I was surprised at how well entrenched religious privilege has since become, in non-denominational as well as in denominational schools, how recent much of this privilege is, and how much it conflicts with the principles of a democratic state.
The 1929 Local Government (Scotland) Act, Para. 12:4, required Local Authority Education Committees to include two representatives of religion, chosen by discussion among local churches. The current requirement, for three such representatives – one Church of Scotland, one Catholic, and one other – was only formalised in 1973 (here, Sec. 124, repeated here in 1994, Sec. 31. Notice the increase in the number of representatives, and the clearer formal role of the two favoured specific denominations. Notice also that all this is pre-devolution.
The Church of Scotland and the Catholic Church each have one nominee on the General Teaching Council, the professional body responsible for maintaining standards of training and conduct among schoolteachers (here, Schedule 2).
For denominational schools, Parent Councils are required by 2006 legislation (here) to include at least one nominee of (note the choice of words) “the church or denominational body in whose interest the school is conducted” [emphasis added]. This “in whose interest” language first appears in the 1918 legislation, but continues to be used in legislation and official guidance documents regarding denominational schools. As I have remarked elsewhere, this is very strange language indeed, suggesting that the church has an “interest” in the school, over and above its duties to pupils and the wider community.
Regarding religious instruction and observance, two opposed trends have been at work. Throughout the twentieth century, the role of religious observance, in non-denominational as well as denominational schools, has been strengthened. However, the idea of religious instruction (teaching, as true, the beliefs of one particular religion) has largely been replaced by that of religious education (learning about religion in our philosophical and cultural context). Recently, in response to public concerns, guidelines on the nature of religious observance have shifted in favour of reflection on shared values, rather than formal worship. All this, however, remains very much at the discretion of the headteacher in non-denominational schools. In denominational schools, religious observance and religious education remain firmly under the control of the religious body in whose interest the school is conducted.
Many non-denominational schools have chaplains, or even chaplaincy teams, but there is no obligation to do so. The Church of Scotland receives no special legal preference, and I almost wish that it did, since extreme evangelical groups make it their business to get involved in school chaplaincies, as in the notorious Kirktonholme fiasco, when all pupils were given “textbooks”, describing evolution as a wicked lie, by a chaplain from an extremist sect who had been advising about the school’s curriculum for eight years.
Collecting information about chaplaincy teams is difficult, except when the school chooses to display it in its Handbook. Freedom of Information requests to schools, like all such requests, are forwarded to the Council, but the Council may not have all the relevant information, and some Councils even regard this information as personal and confidential. In denominational schools, chaplains are effectively church nominees.
The 1872 Act allowed schools to continue “instruction in religion”, but did not require it. It also recognised the rights of parents “without forfeiting any of the other advantages of the schools, to elect that their children should not receive such instruction”, and more recent legislation applies this right to both Religious Observance and Religious Education. Current guidance goes further, in requiring the school to provide an educational activity of value to pupils during the time that they are withdrawn from religious activities, although it would be prudent for the parent to make this easy for the school, for example by supplying reading materials.
Note that the right to withdraw rests with the parents, although in practice many schools allow senior pupils, at least, to withdraw themselves.
The obligation to have religious observance in non-denominational schools only dates from the 1946 Act. Under this Act, a local authority can only remove this requirement when authorised to do so by a ballot of all constituents, not merely those directly involved with the school system. No authority has ever seriously considered such a ballot, despite a petition to that effect a few years ago from the Edinburgh Secular Society.
Details of religious observance and religious instruction are a matter of policy, not legislation. In 1991, the Scottish Government issued a circular saying that there should be religious observance in primary schools at least once a week, and in secondary schools at least once a month, and that this should have “a broadly Christian character”.
A major 2004 consultation, the Report of the Religious Observance Review Group (Edinburgh: The Scottish Executive, 2004), made major changes in official policy. Religious observance is now said to consist of ”community acts which aim to promote the spiritual development of all members of the school community and express and celebrate the shared values of the school community”. This could be an act of worship, if the school community corresponds to the faith community. The Report also make clear the distinction between Religious Observance and Religious Education. The form of RO is very much up to the individual school and “Head teachers are encouraged to engage in full discussion with chaplains and other faith group leaders in the planning and implementation of religious observance” (here, para. 13)
The Scottish Government is committed to ensuring that parents are made aware of their right to opt out. How much this commitment is worth, is another matter. At one time guidance clearly stated that the school Handbook should tell parents of their right to opt out, but many of them do not, and there is considerable anecdotal evidence of schools discouraging opting out, by requiring a formal letter or an interview with the head teacher, or even by telling parents that their children’s education will suffer.
The content of Religious and Moral Education (or, for Catholic schools, religious education) is again a matter of policy, not legislation. Current policy (The 2011 “religious instruction” circular, Curriculum for Excellence – Provision of religious and moral education in non-denominational schools and religious education in Roman Catholic schools) lays out ambitious goals, including “well planned experiences and outcomes across Christianity, world religions and developing beliefs and values”. The details are left to the curriculum setting and examining bodies, and to the textbook writers. This could have unfortunate consequences; one topic properly discussed in RME is religiously motivated creationism, but this may be the only encounter that pupils (and RME teachers) have with evolution, and it would be going against the admirable spirit of RME to tell pupils which one they should prefer.
That European Convention on Human Rights specifies a universal right to education, and that “the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.” However, the United Kingdom signed the treaty with the reservation that this clause only applies in so far as “it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure”. This is as well, since otherwise it might be open to a parent to demand that their children not be taught about evolution. Even so, the ECHR would no doubt be quoted in support of the continued existence of denominational schools, should this ever be called into question.
The Scottish Government’s 2011 circular on religious instruction states that “In Roman Catholic schools the experiences and outcomes should be delivered in line with the guidance provided by the Scottish Catholic 168 Education Service.” Parents still have a right to withdraw pupils, but “in choosing a denominational school for their child’s education, they choose to opt in to the school’s ethos and practice which is imbued with religious faith and it is therefore more difficult to extricate a pupil from all experiences which are influenced by the school’s faith character.” My own view, unfashionable in some circles that I move in, is that if you don’t want your child to have a Catholic education, you shouldn’t send them to a Catholic school. The situation here in Scotland is different from that which has recently been engineered in England, where nondenominational alternatives may simply be unavailable.
The 1918 Act specified 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”. The 1980 Act inherited this requirement, although the reasons for objecting to an applicant must be stated in writing. According to the Scottish Catholic Education Service, a person’s faith and character could be vouched for by their priest, if they are Catholics, or by some other suitable person if they are not. I find this interesting, since it implies that being a Catholic is not a necessary condition of employment as a teacher in a Catholic school, yet (anecdotal evidence) this criterion seems to apply in practice. It also continues the right of the denomination to appoint a supervisor of religious instruction. This seemingly innocuous provision has serious effects, since in Catholic schools teaching about human sexual behaviour is included as part of the “Made for Love” module of Religious Instruction. Thus education on this topic is under the direction of the Council of Bishops, a committee of middle-aged middle management males pledged to lifelong celibacy.
I rest my case.
Reference: 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), https://www.humanism.scot/wp-content/uploads/2016/02/Religion-in-Scots-Law-Final-Report-22-Feb-16.pdf
Selected media reports:
National Secular Society newsletter: http://www.secularism.org.uk/news/2016/03/religion-based-scottish-education-system-needs-to-adapt-to-social-change-say-academics