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INTRODUCTION

This booklet is written for all those concerned in any way with Religious Education in the schools of England and Wales. It considers the law governing those schools which use the local authority agreed syllabus but it may be found helpful for all who have an interest in the future of the subject, whatever the school. It is hoped that teachers, church members, SACRE members, members of different faiths, parents and governors will all find it useful.

Why write about the law and RE? One reason is that it is an interesting topic in itself. Another is that the law is not always well understood, even by those in authority. It can also be a controversial topic; thus it is important for those interested in the subject to have a good grasp of what is and what is not allowed. My own interest in the subject was aroused when I began to discover, in the course of research for a book, that the 1988 Education Reform Act had been widely misinterpreted; or so it seemed. This booklet is an attempt to look at the law in order to assess what the law really says about RE. It begins with an historical survey which shows how current law has developed out of a particular tradition which is still in place today. It sets out basic features of the law and then shows how a particular interpretation has steered the course of RE away from that intended by the legislators of 1988. The question is then asked whether this matters. Weaknesses in RE revealed by OFSTED suggest that it does matter and that it is possible that the recovery of the original interpretation is the way forward for RE.

I would like to thank in particular the barrister JDC Harte, senior lecturer in law at Newcastle upon Tyne, for his patience in instructing me in legal matters. Lord David Renton Q.C. too gave me the benefit of his wisdom, and told me of a 'dark secret'. Thanks to Professor John Hull, who has been most supportive of my researches even though I would take RE in a different direction from that to which he is so passionately committed. Thanks to Mr. Guy Hordern and Mr. Fred Naylor who have both been an inspiration to me. I am grateful as always to Dr. William Kay who read and commented on earlier drafts and to Eileen Wynne who kindly read the final draft at short notice. Special thanks to Professor Basil Mitchell without whose support this booklet would never have been written. I am however responsible for the views offered.

WHAT THE LAW REALLY SAYS ABOUT RE

I begin by considering certain aspects of the legislation and show how current law on RE has its origins in earlier times.

A history of the legislation for RE in England and Wales

Minimum definition

The Elementary Education Act of 1870 allowed for non-denominational religious instruction to be given to all pupils subject to the right of parental withdrawal. The local Boards set up to provide education could decide both whether their schools would give instruction and what the nature of this instruction would be. So the London Board declared: 'The Bible shall be read, and there shall be given such explanation and such instruction therefrom in the principles of religion (the Christian religion - added 1894) and of morality as are suited to the capacities of the children.'1 Here we see a precedent being set. The law does not attempt to go into detail about what shall be taught but rather authorises local bodies to do so. Religious instruction (as it was called then) is not defined in law, nor is anything said about how it shall be taught. The 1944 Education Act followed suit when it required as opposed to allowed that religious instruction be provided in all county schools along with a daily act of collective worship. The 1988 Education Reform Act (ERA) followed this tradition but added an important clause which defines the nature of RE, this being that a syllabus 'shall reflect the fact that the religious traditions in Great Britain are in the main Christian, whilst taking account of the teachings and practices of the other principal religious traditions represented in Great Britain'. 2 This both departs from and adheres to the tradition of minimal definition. It departs from it in the sense that it does attempt to define what is to be taught. It adheres to it in the sense that it is left to local determination to work out the precise details. The attempt to define the nature of religious education in law has proved controversial; a fact that is considered shortly.

Local determination of RE

As we have seen, RE was to be determined locally right from the start. In fact all education was like this until the 1988 ERA.. RE from the first was often fought over at local level and while this served to make the subject a 'hot potato' it may have encouraged subsequent Governments to continue the tradition of local determination rather than attempt to court controversy by legislating for it in detail themselves. Local determination also however allowed for the teaching to take account of local factors, such as the balance of denominations, local saints and religious traditions of the area and this influenced the retention of local determination in the1988 ERA. These factors weighed against the arguments of those who argued at the time (and still do) that RE should be part of the National Curriculum (NC) and not subject to local determination.

Syllabus Conferences

In the 1920s an attempt was made to overcome the difficulties encountered by the school boards in specifying what should and should not be taught. Conferences of teachers and representatives of the different churches were set up to agree a syllabus to be taught in the schools. These conferences were a great success and enabled standards to be raised. They also had the benefit of allaying the fears of teachers who were often uncertain about whether or not their teaching was likely to be challenged. The 1944 Education Act made it compulsory for local authorities to set them up. They were to be made up of four committees representing the Church of England3, other churches, teachers and the LEA. The 1988 ERA continued this tradition while making specific changes to allow for inclusion of non-Christian representation (which generally took place anyway). The 1993 Act required a local authority to set up an ASC within five years of adopting a syllabus. Further details of both the ASC and the SACRE may be found in my booklet on the topic (see final page).

SACREs

The 1944 Education Act allowed local education authorities to set up standing advisory councils on RE (SACREs) which were to advise the authority on training for teachers, resources and teaching methods. These bodies were to be constituted similarly to the successful syllabus conferences with four committees or groups representing the same constituencies. Their task was to oversee the implementation of the syllabus agreed by the conference. However, at this stage they were optional and a survey in 1953 by the Institute of Christian Education showed that in 1952 only 31 out of 163 LEAs had set up a SACRE. The 1988 ERA strengthened this particular part of the legislation by requiring all LEAs to set up and fund SACREs and giving them the power to require the LEA to reconsider the agreed syllabus. The 1993 Education Act laid a requirement upon the LEA to set up an ASC to reconsider the syllabus within five years of adopting it, but did not rescind the power of SACRE to require a revision at any point.

Part of the educational system

Legislation has always fully integrated RE into the educational system. RE has always been part of the county school (now called community school) curriculum, alongside other subjects. It has a call on the budget for books and resources in the same way that other subjects do. Its teachers are trained and obtain qualifications alongside teachers of other subjects. They receive the same rates of salary4 as other teachers do. Originally certain restrictions were placed on schools. Lessons, for example, had to be timetabled at the beginning or end of each day so that withdrawal would be easier to handle. This stipulation no longer exists and RE is timetabled alongside other subjects throughout the day. This attitude to RE is summed up in the words of the 1938 Spens report: '...no boy or girl can be counted as properly educated unless he or she has been made aware of the fact of the existence of a religious interpretation of life.' 5 Spens went on to say that this meant the Christian religion and therefore the study of the Bible.

One reason for this is the fact that for a long time it was the Churches that were the providers of education; indeed this tradition continues today in the voluntary aided system as well as within the independent sector. Thus education and religious faith have been experienced alongside each other in our history and without contradiction. Another reason is that education needs an underlying philosophy of what it means to be a human being and it has been natural to turn to the Christian faith for this philosophy. The fact that we have an established Church and institutions that derive from Christian faith has also meant that religious education has been able to take a place within our schools as a natural expression of our society.

But somehow different

At the same time RE has seemed different from other subjects. For many years it was the only compulsory subject of the curriculum. Separate legislation exists for RE even today. It is the only subject that is locally determined and for which rights of withdrawal are enshrined in law (apart from sex education)6. It is the only subject that teachers may exercise the right of conscience not to teach. A new term, the 'basic curriculum', was coined in 1988 to try to find a way of expressing the importance of RE alongside the National Curriculum (NC) following fears that RE would be seen as less important than these subjects. So the 'basic curriculum' consists of NC subjects and RE. This neatly expresses the paradox that RE is both part of the curriculum and yet different from other subjects. A further illustration of this is that OFSTED7 reports on RE in the same terms of national standards and grades. But there are no national standards for RE since it is locally determined.

The tradition of RE

So what we have is a tradition for the teaching of RE with the following features:

All pupils are now expected to acquire certain 'key skills' for example, in which they are to receive 'instruction'.

11 Now in the Education Act 1996, 376 ,2.

12 Understood, but not stated, to be the Christian religion in the 1944 Act.

13 Letter to Mr. Fred Naylor, dated 25 March 1997 (emphasis in the original). Mr.Naylor is hon.secretary of the Parental Alliance for Choice in Education. His address is 2 Kingsdown House, Kingsdown, Corsham, Wiltshire, SN13 8AX.

14 The National Society in a booklet called Religious Education (1989) is particularly harsh about the withdrawal clause and sees it as being in conflict with the spirit of tolerance lying behind the Act. However it is a civil liberties safeguard which allows RE to be required in schools attended by large numbers of pupils.

15 op.cit. p. 58

16 The sentence is now to be found in section 375 (3) of the 1996 Education Act.

17 Hansard, H.L. 21st June 1988, col 717.

18 Ibid, col 721.

19 He said: 'It is difficult for an agnostic or atheist to instruct children in religious education, as an atheist does not believe in any kind of theistic philosophy.'

20 Hansard, H.C. July 7th 1988, col 841.

21 Hansard, H.C. 23rd March 1988, col 421.

22 Hansard, H.C. July 18th 1988, col 827.

23 This stipulation is to be found in current law in Section 375 (2) of the 1996 Education Act.

24 Schedule 31, 4 (1) (a).

25 Schedule 5 of the Education Act 1944 as amended by the Education Reform Act 1988 and Education Act 1993, 2. (see Circular 1/94 p.50)

26 Hansard, H.L. 21st June 1988, col 719.

27 Circular 1/94, para 102, p.28.

28 op.cit. p.3.

29 Reforming Religious Education, the religious clauses of the ERA, E. Cox and JM Cairns, Kogan Page, 1989, London.

30 op.cit. p.26.

31 John Hull, The Act Unpacked, 1989, Birmingham, p.14.

32 Quoted in BJRE, vol 14, 1, Autumn 1991, p.1.

33 Circular 1/94, Religious Education and Collective Worship, January 1994, para 34.

34 Col. 1165.

35 On December 14th 1999.

36 It is significant that no such initiative was taken in the period following the passing of the Act in 1988-1989. At this point the law was not generally understood as requiring all LEAs to produce units of work on six religions.

37 Circular 1/94 para 35, p.16. Even this statement has been seen to contain an ambiguity. Some conferences interpret it to mean that Christianity should predominate over all other religions (and be given over 50% of the time) while others say that Christianity should predominate over any other one religion and be given whatever percentage will achieve this (perhaps 25%). Others quote the wording, and while not specifying percentages of time, make it clear by the amount of content specified for each religion which interpretation they are following. Hence Newcastle upon Tyne (1997) specifies six teaching blocks of which five are always devoted to Christian teaching.

38 This opinion may have influenced the creation of the model syllabuses which do exactly this.

39 The impact of new agreed syllabuses on the teaching and learning of religious education, OFSTED, 1997.

40 Although some teaching of Christianity was always expected. OFSTED reports that discussion on how to provide this was taking place between the local authority and the school.

41 It should be noted that the word worship is not transferable to all religions however. Hindus, for example do not worship, they do puja, an activity which has nothing to do with reverence for a divine being.

42 British Journal of Religious Education, Summer 1989, vol 11, 3, p.2-3.

43 Here I am dependent on Legal Philosophies, Harris, J W, 1997, Butterworths.

44 See my Occasional Paper no 3 Challenging RE, where I address this problem.

45 For an account of this shift see Challenging RE, Occasional Paper no 3 (details on back page of this booklet).

46 For example, Owen Cole, who has consistently argued against compulsory school worship, said 'I don't think the Act allows me to separate RE and school worship any more'. Forum, vol 32, no2 Spring, 1990, p. 48 and 49.

47 William Kay and Linnet Smith, Digest, vol 26, no1, Autumn 1999. A fuller report is contained in BJRE, Spring and Summer 2000.

48 Hansard, H.L. 3rd May, 1988, col 420.

49 Pepper vs Hart, (1993) 1 All ER 64 g, H.L.

50 op.cit. p. 6 and 7.

51 op.cit.

52 But see Faith and Criticism by Basil Mitchell, Clarendon, Oxford, 1994 for an excellent development of this argument.