Taking the Government to court is part of Scotland’s democracy growing up

By Fraser Sutherland, Campaigns and Communications Manager Humanist Society Scotland. Article originally published in Third Force News.

Would a charity ever consider taking the Government to court to get law changed or the rights of their members/clients respected? It might sound a daunting prospect but that’s exactly what we at the Humanist Society Scotland have done over the past six months and with some success.

Fraser Sutherland - Campaigns and Communications Manager

Fraser Sutherland – Campaigns and Communications Manager

Our members have long believed that the current status of religion in our education system does not respect the true make up of Scottish society. Let me be clear this is not about ending the educational understanding of the religious faiths, beliefs and practices. Humanists fully support and encourage a clear, balanced and informative Religious, Moral and Philosophical education that helps our young people understand and respect others views on belief and topical issues. But what is out of step with modern Scotland is mandatory attendance at Religious Observance.

Young people in Scotland, unlike senior pupils in England and Wales, have no right to opt out of Religious Observance. The current law says parents can opt their children out but young people themselves have no choice. Last year, young people at Taylor High School who dared to challenge this and refused to attend a religious service without parental permission faced detention as punishment.

When young people are entrusted to take up employment, get married, have children, vote in elections and commit to our armed forces how can we say they don’t have the capacity to decide what Religious preaching to attend?

We believe that not offering that choice is in conflict of Article Nine of the Human Rights Act. This view is supported by a UN Children’s Rights Committee review which called on the Scottish Government to extend the opt-out to young people.

picture of a classroom

Pupils should have right to opt out of religious observance

We tried and failed to get change through traditional campaigning methods and found ourselves frustrated and frozen out as the Scottish Government continued to ignore calls for change. By refusing to update guidance to head teachers on Religious Observance the Scottish Government were, we argued in court, acting unlawfully.

After our Judicial Review was allowed to proceed by the Court of Session in October 2016 the Scottish Government committed to consulting on and reviewing the guidance. We agreed to put our court action on hold until such a time as this was completed. This week that process has been completed and we can withdraw our court action on the issue of guidance to teachers.

For issues of principled differences in opinion over rights and interpretations of law, court battles are ultimately the forums our society has built to make such decisions independently. Scottish Ministers should recognise that Scotland now, after 18 years of devolution, has a mature policy development landscape.

As such strategic litigation isn’t something that Government should fear, it is ultimately what comes with being a grown up democracy. Courts are the proving ground where laws are tested and rights are enforced.

For campaigners this approach can be expensive and considered a “risk”, something HSS had to seriously consider. But through crowdfunding and a committed supporter base we knew we had the backing to make our challenge a reality. Ultimately our members share a desire to call out and challenge where we see the unfair status that some religion enjoys in Scotland. If we as a society, didn’t make a serious effort to challenge this then why exist in the first place?

But while this little victory in new guidance will offer a voice for pupils, it crucially does not allow that fundamental choice to opt out. A fundamental choice the society will continue to seek. The rights of Scotland’s young people deserve to be respected and this is a battle to be continued.

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