Lord Avebury: My Lords, it is a pity that the Minister’s amendment was not grouped separately so that we could have a discussion on these matters without becoming involved in all the other weighty discussions which have preceded it. The amendment in the name of the noble Baroness, Lady Turner, is distinct from all the others in that it is concerned with a fundamental issue of human rights, whereas whether you have 25 per cent of the places at a faith school allocated to people who do not belong to that religion is a matter of expediency. However, I agree with all those who have said that we need to consider very carefully how to avoid the divisiveness that may arise in our society through exclusive attendance at faith schools of only members of that religion. However, that is another argument. We are concerned here with the human rights of pupils whether to attend acts of collective worship or lessons of religious education.
I am delighted to see the right reverend Prelate the Bishop of Portsmouth back with us, although I, too, beg to differ with him on this matter. I say to him that it is not a question of having no religious education at all. That is not what the amendment says. It is proposed that only when the child reaches 16, or attains the sixth form, should he or she have a right to opt out of religious education. My youngest son took his GCSEs at 15. He took religious education as part of that course. If this amendment had been in force at the time, it would have made no difference whatever to his appreciation of the religious education which that school offered because he would already have received, in his opinion, all that was necessary of such education by the time he took his GCSEs. He did not go on to study RE at A-level, which was his absolute right. It should be the right of any child, as the noble Baroness said.
The noble Baroness is to be particularly congratulated on her deployment of the case to which the JCHR alerted us only at the end of last week. That in turn involved some very rapid footwork by
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the committee working during the Recess to pick up the fact that the Government’s amendment, giving a sixth-form pupil the right to be excused attendance at religious worship, is only a quarter of a human rights loaf, as the noble Baroness has explained.
Following amendments by my noble friend Lady Walmsley in Committee, the Government sent out a consultation document on 10 August asking recipients to respond by 25 August, breaking the normal rule of consultations that six weeks are allowed for reply. An explanation should have been given for the shorter timescale, but was not, although I understand from the Government that this was not a normal consultation at all but simply a request for views to be expressed by those immediately concerned. I should like to know who was immediately concerned. On the previous amendment my noble friend mentioned the right of children to express opinions. Did the Minister obtain the opinions of any children, or of organisations representing children? We should hear what they had to say.
It was even more unfortunate that although the noble Lord, Lord Adonis, said in response to my noble friend in Committee on 18 July that he would encapsulate “most of the spirit” of my noble friend’s amendments in the amendment that he would propose, the consultation document referred only to half of it, limiting itself to the question of attendance at collective acts of worship and leaving out altogether any reference to religious education. The noble Lord’s explanation for that in a letter to the executive director of the National Secular Society was,
“that there is a proper distinction to be drawn between participation in religious worship and attendance at religious education lessons on the grounds of the nature of those activities”.
He did not go on to explain the difference in the nature of those two activities. Even if there is such a distinction, as the noble Baroness, Lady Turner, has explained, the rights of parents to opt out of both on behalf of their children are the same, or they are similar if not identical. If there is a proper distinction to be drawn in this legislation, would it not have been right to explain in the consultation document how the Government saw it and get the views of the consultees rather than giving the impression that only the attendance at religious worship had been entered into in Committee, and that there had been no reference to the question of attendance at RE lessons?
I think that the Government were at fault in not expanding the consultation to include all the matters dealt with in the amendments in that group in Committee. The Minister’s excuse for not doing so was that my noble friend did not actually refer to this issue in Committee. That is disingenuous. As my noble friend explained, that was a monster group of amendments, and she would have been unpopular if she had spoken to every single one.
In tabling their amendments, the Government concede that a sixth-form pupil of whatever age is competent to decide whether to attend collective worship. As the noble Baroness has explained, the
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JCHR says that it is a denial of the rights of the child under both the ECHR and the United Nations Convention on the Rights of the Child to say that she can withdraw from collective worship but not from compulsory RE if she is of sufficient maturity, intelligence and understanding. If she is accepted as having reached that standard for the first, it follows that she is for the second purpose as well. The Government’s position is illogical in arguing that the parents ought to step aside on worship but to continue to decide for the child on RE. The two must go together, and the test for both must be the same.
The JCHR suggests that schools should apply the Gillick test, under which the High Court ruled that a girl of whatever age had the legal capacity to consent to medical examination and treatment, including contraceptives, if she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment. It says that schools are familiar with this concept and could be provided with guidance on how to apply it in the case of religious worship and RE. However, to avoid what I see as being unnecessary bureaucracy, and because the attainment of the age of 16 and reaching sixth form are objective tests that the Government recognise in their own amendment, it is appropriate to apply them in this context but with the difference that if either of them is satisfied the exercise of choice is triggered. Otherwise, 16 year-olds will be divided into sheep and goats; those who go to a decent school will qualify because they have reached sixth form by that time, while the 44 per cent of pupils who do not achieve five good GCSEs by age 16, as the noble Lord writes in an article in today’s Guardian, will be disqualified.
I agree with the JCHR that it is valuable for children to learn about spiritual and moral issues but, as it adds, there is no guarantee that in a particular school the way RE is taught may not infringe the pupil’s right to freedom of thought, conscience and religion. With the growth of faith schools, about which our Prime Minister is so enthusiastic even though it is an intrinsically divisive idea which is likely to cause untold harm, it is vital that children should be able to protect themselves. My noble friend and others have referred to the UK Government’s obligation to report to the UN Committee on the Rights of the Child in 2007. They will be asked on that occasion whether they have sought the views of children on these proposals and why, if that is the case, they did not accept the weighty advice of the JCHR.