Fraser Sutherland says taking the government to court is part of Scotland’s democracy growing up
Would your charity ever consider taking the government to court to get a law changed or the rights of your 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.
Young people in Scotland, unlike senior pupils in England and Wales, have no right to opt out of religious observance at school. We don’t agree with this. 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.
Our members want an education system that respects the true make up of Scottish society. Let me be clear this is not about ending the educational understanding of religious faiths, beliefs and practices. But what is out of step is mandatory attendance at religious observance.
When young people are entrusted to take up employment, get married, 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 a choice is in conflict with 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.
We found ourselves frustrated and frozen out as the Scottish Government continued to ignore calls for change. By refusing to update guidance to headteachers 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 reviewing the guidance. We agreed to put our court action on hold pending this. This week it has been updated and we are withdrawing the court action on guidance.
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.
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.
If you want to help us in our future campaigns on this issue and many others please see humanism.scot for details of how to join or follow our work. Also please have a chat with us @humanistsociety or fb.com/HumanistSocietyScotland.
Fraser Sutherland is communications manager at the Humanist Society Scotland.