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Scrapping right to withdraw from RE could undermine human rights law, says legal expert

The Welsh Government’s decision to remove the parental right to withdraw children from religious education (RE) lessons threatens to jeopardise the freedom of religion or belief of pupils and their families and could lead to legitimate legal challenges, according to a world-leading expert in human rights law.

Professor Sir Malcolm Evans, Professor of Public and International Law at the University of Bristol and member of the Organisation for Security and Cooperation in Europe Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Advisory Council on the Freedom of Religion or Belief – the body that prepared the Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools – issued the legal opinion in response to the Welsh Government’s recent announcement that it intends to scrap the parental right to withdraw from RE. He is now urging the Welsh Government to retain the policy to ensure it is not in breach of human rights law.

According to international case law, the state must provide education in an ‘objective, critical, and pluralistic manner’ and is prohibited in engaging in ‘indoctrination’. The Welsh Government says it will amend the curriculum to ensure it is inclusive of a variety of religions and humanism, and will change the subject name to ‘Religion, Values, and Ethics’ to reflect this broadened scope. However, Professor Evans – who was also a commissioner of the Commission on RE (CoRE) which published its final report in 2018 – maintains that ‘it is very difficult – arguably impossible’ for schools to meet the necessary standards of pluralism and objectivity in RE lessons required by human rights law. This means the abolition of the right to withdraw for parents removes an important ‘safety valve’ for the protection of fundamental human rights and is potentially unlawful.

In his legal opinion, Professor Evans highlights a number of international legal judgements to support his view. These include a recent European Court of Human Rights case involving conscience-based exemptions from religion, philosophy and ethics classes in Greece. In this case the Court found it is necessary for states ‘in so far as possible, to avoid a situation where pupils face a conflict between the religious education given by the school and the religious or philosophical convictions of their parents,’ something that is likely to be difficult in the absence of a mechanism for parents to have their children excused from RE they believe to contradict their own perspectives. Indeed, another case involving similar lessons in Norway showed that even partial exemptions from RE were not sufficient to guarantee the freedom of conscience parents and children enjoy under human rights law.

Wales Humanists, which campaigns for fully inclusive teaching of religious and non-religious worldviews in all schools, would be content to see the right to withdraw scrapped from a truly objective, critical, and pluralistic school subject teaching about religions and humanism. But it is particularly concerned that the proposal to remove the right to withdraw will apply to faith schools, which are legally entitled to teach the subject in line with the tenets of their religion, meaning that pupils who attend such schools but happen to come from non-religious or other faith backgrounds will now be automatically subjected to lessons designed to impose a specific perspective that they do not share. This seems to Wales Humanists to be especially likely to lead to illegal indoctrination.

Wales Humanists Coordinator Kathy Riddick commented: ‘Professor Sir Malcolm Evans is of the view that it will be extremely difficult for schools without a religious character to provide religious education that meets the standard of being “objective, critical, and pluralistic”. But we are extremely concerned that, in state-funded faith schools, where teachers may instruct children from a certain religious perspective, this will be practically impossible. The proposed new law seriously risks exposing pupils to unlawful indoctrination.

‘This expert legal opinion provides yet another reason why the Welsh Government must seriously reconsider the decision to remove the parental right to withdraw pupils from religious education in all schools in Wales. We would strongly urge them to do so.’

NOTES

For further comment or information, please contact Humanists UK press manager Casey-Ann Seaniger at casey@humanism.org.uk or phone 020 7324 3078 or 07393 344293.

Read Malcolm Evans’ legal opinion.

Read more about the decision to scrap the right to withdraw from RE.

Read the Welsh Government announcement.

Read Wales Humanists’ response to the consultation.

Read more about Wales Humanists’ work on RE.

Humanists UK is the national charity working on behalf of non-religious people. Powered by over 85,000 members and supporters, we advance free thinking and promote humanism to create a tolerant society where rational thinking and kindness prevail. We provide ceremonies, pastoral care, education, and support services benefitting over a million people every year and our campaigns advance humanist thinking on ethical issues, human rights, and equal treatment for all.

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