8.Section 1 modifies the 1980 Act to alter the provision it makes about religious instruction and religious observance in public schools and grant-aided schools, and parental rights of withdrawal from such religious instruction and religious observance.
9.Section 1(2) inserts a new section 8(1A) into the 1980 Act. Section 8(1) sets out the historic basis for the provision of religious instruction and religious observance in schools. The new subsection provides that the continuation of this is not to include any right for parents to withdraw pupils from religious instruction.
10.Section 1(3) amends section 9 of the 1980 Act, which previously gave parents the right to withdraw pupils from religious instruction and religious observance. Section 1(3) removes the right for parents to withdraw pupils from religious instruction and provides that pupils are not to be disadvantaged by reason of being withdrawn from religious observance. It also inserts a new subsection (2) introducing a new process for involving the pupil in a decision about withdrawal from religious observance and a new subsection (3) requiring that pupils withdrawn from religious observance are provided with suitable and purposeful educational activity during that period. The materials for use during that activity could be provided by the school or someone else, for example, the pupil’s parents.
11.Section 1(4) inserts new section 9A into the 1980 Act to provide for the new process of involving the pupil in a decision about withdrawal from religious observance. Under section 9A(2), when a withdrawal request is received from a parent, the operator of the school (as defined in new section 9A(8)) must provide the parent with written information about the process and must tell the pupil that the request has been made and also that the pupil has the right to object to withdrawal. The operator must give the pupil the opportunity to express the pupil’s views about the withdrawal request. The pupil should be able to offer views in the manner that the pupil prefers. If the pupil has not expressed a preference, or it is not reasonable to accommodate the pupil’s preference, then the manner of expressing views should be one that is suitable to the pupil.
12.An operator does not need to comply with section 9A(2) if the operator is satisfied that the pupil is not capable of expressing a view – but must presume that the pupil is capable of doing so unless the contrary is shown.
13.If, once the operator has complied with subsection (2), the pupil objects to the withdrawal request, the operator must seek to discuss the objection with the pupil and the parent. The operator must have regard to any views expressed during any discussion which takes place. The Act does not require a parent or pupil to take part in a discussion.
14.If the pupil objects to the withdrawal request, the operator is not to give effect to the withdrawal request and so it will not be granted. Conversely, if a pupil does not object to the request, the withdrawal request will be granted.
15.In carrying out functions under new section 9A the operator of the school must act impartially and not seek to influence the views of the pupil about the withdrawal request.
16.Section 1 also inserts a new section 9B into the 1980 Act. Section 9B requires the Scottish Ministers to issue guidance to operators about the carrying out of functions under new section 9A. Subsection (2) lists information which must be included in the guidance. The Scottish Ministers must consult the persons mentioned in subsection (3) before issuing the guidance. In carrying out functions under new section 9A, operators must have regard to guidance issued under section 9B(1).
17.Section 1 also inserts a new section 9C into the 1980 Act. Section 9C gives the Scottish Ministers the power to make regulations to provide for pupils to have a right to request withdrawal from religious observance in a public or grant-aided school. The Scottish Ministers must consult such persons as they consider appropriate before making regulations. Regulations under section 9C are subject to the affirmative procedure by virtue of section 1(5) of the Act.
18.Section 1 also inserts a new section 9D into the 1980 Act. Section 9D requires the Scottish Ministers to issue guidance to operators about the meaning of religious observance for the purposes of sections 8, 9 and 9A of the 1980 Act. The Scottish Ministers must have regard to the importance of inclusiveness in the content and delivery of religious observance in schools when they are preparing the guidance. The Scottish Ministers must consult the persons mentioned in subsection (3) before issuing the guidance. In carrying out functions under sections 8, 9 and 9A, operators must have regard to guidance issued under section 9D(1).
19.Finally, section 1 also inserts a new section 9E into the 1980 Act. Section 9E requires the Scottish Ministers, as soon as practicable after the end of each school year, to prepare and publish a report setting out the number of pupils who have been withdrawn from religious observance in schools during that school year.
Commentary on Provisions Part 1 –Withdrawal of pupils from religious instruction or religious observance in schools Section 1: Withdrawal of pupils from religious instruction or religious observance in schools