CBRE Religious Education, the Law and the Courts in National and International Contexts -- Key Themes

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Religious Education, the Law and the Courts in National and International Contexts

Virtual Special Issue Article Summaries and Key Themes

Article Summaries

In the aftermath of the Butler Act 1944, three short articles appeared in the journal, all entitled “the Butler Act in Practice” (Harrison 1945, Yeaxlee 1945, 1944). In his two editorials, Basil Yeaxlee, the editor of the journal, 1934-1957, discussed the implications of the act on the curriculum, especially what a syllabus is and practical questions arising from the Act.  It is perhaps striking that what seems almost self-evident now was a radical innovation at the time.

Twenty years after the 1944 Education Act, the 1974 and 1975 Birmingham Agreed Syllabuses brought legislation to the fore again. Even though the new editor of the journal, John Hull, argued that the 1944 Education Act was ‘flexible’ and ‘still good in important aspects’ (Hull 1976, 123), some argued that it had already fallen into disuse.

Stopes-Roe, the chairman of the British Humanist Association and senior lecturer in Science Studies, discussed both the 1974 and 1975 syllabuses and their relation to the 1944 Education Act.  Stopes-Roe (1976) argued that the 1974 syllabus conformed to contemporaneous educational principles but not the 1944 Act, while the 1975 syllabus, which was dominated by different religions, conformed with the 1944 Education Act, but was not very up-to-date. As this is a short article (three pages in total), it can be read together with the theologian John Hick’s reply  (Hick 1976) in which Hick argued that the 1975 syllabus ‘is not nearly as bad, from a Humanist point of view, as Dr Stopes-Roe thinks’.  The article is of particular relevance in the light of current calls for the introduction of worldviews, in showing how this debate is not new, as well as the involvement of a major theologian.

After forty years of the 1944 Education Act, Earl, a former inspector for religious education, discussed churches and schools, agreed syllabuses, worship, compulsion and the right to withdraw in relation to the Act and evaluated the endurance of the Act. Earl (1984) argued that except the daily act of worship, with its ‘latent flexibility’ the Act ‘is working remarkably well and all governments prefer to let well alone’, ironically not foreseeing that just four years later, the parliament would not ‘let well alone’, with a major alteration of the law.  

Article Title Author(s) Volume Issue Year
Editorial J. M. Hull 11 2 1989

The journal’s editor between 1971 and 1996, John Hull wrote about the 1988 Education Reform Act extensively: according to Copley (1996) he devoted as many as twelve editorials to it. In this particular editorial, Hull (1989) discussed the content of religious education, what a broad and balanced curriculum is, and the agreed syllabuses in relation to the new legislation, implicitly echoing Yeaxlee’s work after 1944.

Harte, a barrister and lecturer in law, discussed the religious clauses of the 1988 Education Reform Act, particularly school worship and religious education, from a lawyer’s point of view. Harte (1991) claimed that this Act’s religious clauses not only mirrored educational and social trends, but also legal ones, arguing that the religious clauses of the act were ‘flexible and open-ended’, mirroring contemporary trends in law and legal interpretation, and highlighting how legal drafting and jurisprudence are themselves open to change.

So far, the articles have focused on the situation in the United Kingdom. Even though the journal has always had an international dimension and since the late 1970s international contributions to the journal have increased (Jackson 2008, 183), and it was a supranational court’s intervention into religious education (UNHRC 2004, ECtHR 2007a, b, 2010, 2014) which led to a series of articles in the journal which discussed religious education legislation, international human rights standards and judicial decision-making.

In the aftermath of the supranational court cases, a series of articles about Norwegian religious education appeared in the journal (Andreassen 2014, Hagesæther and Sandsmark 2006). Norway had essentially sought to replace a confessional Christian approach which included an opt-out clause with a more pluralistic approach without an opt-out clause; the latter is legally permitted under human rights law, but the Norwegian curriculum was considered to have remained too confessional. Lied (2009) presented the leading and dissenting judgements in the Folgerø case, reminding that the judges were divided 9-8 on the case. She then discussed how to create a common subject for teaching about religious and beliefs in Norway, taking both the applicants’ and Norwegian government’s arguments before the Court into account.

Relaño, a legal scholar, discussed the Zengin and Folgerø cases, two cases which stirred academic and public debates in Turkey, Norway and elsewhere. After describing and analysing these two cases, Relaño (2010) argued that there is a ‘convergence’ towards ‘criteria in the international sphere’ in religious education in state schools, to which these cases contributed, but she also discussed the paradoxes and insufficient analysis of the European Court of Human Rights (see also Fancourt 2017). In above cases, European Court of Human Rights found that both Norway and Turkey had violated the right to an education in conformity with the parents' religious convictions, partly because both countries refused to grant the applicant families the right to withdraw from religious education.

However, while for Turkey and Norway the issue was the lack of the right to withdraw, for others the issue was conversely the existence of the right to withdraw.

The right to withdraw has come to the fore recently and has been discussed in detail (Commission on Religious Education 2018, Clarke and Woodhead 2018). Four articles directly tackling the issue of the right to withdraw have appeared in the journal (Louden 2004, Nixon 2018). Richardson et al.’s (2013) article is one of them. This article reports the findings of a project established to examine the views and experiences of students, families and community leaders from minority belief background, including those of no religion in Northern Ireland and discusses the effectiveness of the right of withdrawal as a means of protecting the freedom of religion and belief of members of minority faith communities in relation to the teaching of religious education in schools. The writers made a case for inclusive and open-ended religious education which people of all beliefs could opt in.

Lundie and O’Siochru’s (2019) article is based on a survey of 450 headteachers and religious education coordinators in England on their views of the right to withdraw; the authors questioned whether this provision is still ‘coherent’ or ‘necessary’ for contemporary multi-faith RE. What they have found is considerable confusion, misapplications and misunderstandings regarding the right to withdraw, and the majority of their respondents favoured removing the right. While the article stopped short of calling for abolition, its findings suggest that there is a strong case for changing the legal settlement.

After the international dimension and the right to withdraw, the last article turns our attention to a different national setting - China.

Nai et al. (2020) focused on legislation and legislative regulations governing China’s diversified religious education, from limited religious education included in general education to missionary religious education conducted at designated venues for religious activities. The authors note that China currently does not have a specific law on religious education, and therefore they screened and classified thousands of legal documents to present and make sense of religious education provision in China.  The article is a reminder of the need for further research in global, non-European settings on these issues.

Key Themes

Six broad themes emerged from the articles. These themes are intended to be conceptually illuminatory, not systematic.

1. Contestation and Contentiousness

From the first articles onwards, one recurrent theme is that legislation is by nature contested and contentious. As Bell and Stevenson (2006, 37) suggest ‘there are inevitably struggles, because these are disputes about values in all their shapes and forms.’ Just after the 1944 Education Act, Yeaxlee described the support and fear amongst the religious education community towards the new requirement that every local education authority should  devise and adopt an agreed syllabus.

This is exacerbated by the fact that religious education is a contested subject (Matemba 2013). Clearly, an issue which is taken to court will by definition be contested and contentious. Lied (2009) described religious education in Norway as ‘a debated subject’ nationally, and (p. 265), and she pointed to the Folgerø decision where the ECtHR judges were narrowly divided on the case, which shows the difficulty even for the judges, let alone religious education stakeholders - who might have vested interest in a certain religious education model - in deciding whether religious education is objective, critical and pluralistic.

2. Confusion

Another theme was confusion. The articles reported that there has often been confusion about the legislation. This was especially evident with the right to withdraw. Both Richardson et al. and Lundie and O’Siochru argued that there has been considerable confusion, misapplications and misunderstandings regarding the right to withdraw and these were often compounded by the fact that some schools were unaware of the legal situation. Both papers therefore called for, at least, clear guidelines.

While even if legislation can be confusing, the lack of specific legislation on religious education could be more confusing. Since there is no specific legislation on religious education in China, Nai et al. had to screen and classify thousands of legal documents to understand and make sense of religious education provision in China. What they found was ‘segmentation, inadequacy and inconsistencies of legal provisions’ at the national and local levels (p. 9), and they argued that ‘there should be clearer and more unified regulations’ (p. 7).

Nai et al. also reminded their Western counterparts of the importance of having special legislations on religious education: they argued that religious education requires ‘legislation and policies to provide guidance regarding how it should be handled and conducted in educational settings’ (p. 1).

3. More questions

However, if legislation and court decisions did produce answers, these often create further questions. For example, Relaño argued that the European Court of Human Rights cases produced questions, as well answers, partly because the Court made ‘an insufficient analysis’ (p. 25). Some of the questions, Relaño raised were: ‘how to discern whether education is ‘neutral and objective’’ and how to carry out ‘objective and neutral’ religious education (p. 26), echoing wider concerns about the limitations of the courts for the development of policy (Heise 2002, 2004).

After the introduction of various Education Acts, there were also important questions that should be answered. After the 1944 Education Act, Yeaxlee argued that ‘Now, however, that the Act is on the Statute Book, a number of practical questions arise’ (p. 2). The questions were what a syllabus really was and what should happen to schools which had their own syllabuses (p. 4). These questions were sometimes answered by the authors which is related to our next theme.

4. Stimulating change

Some articles not only described what the law is, but also described how it should be understood – or what it should be - and this theme was particularly evident in articles appearing after the enactment of legislation or after court cases.

As the word ‘syllabus’ was not defined in the 1944 Education Act, Yeaxlee wrote extensively about what a syllabus is, what it is not, and what its aim should be. He argued that ‘The aim of the Syllabuses is to help teacher to do their own work in their own way, individually and as members of the school team’ (Yeaxlee 1944, 2). In other words, the syllabuses, citing the Preface to the Sunderland Syllabus, should not be ‘a rigid scheme’, but give ‘elasticity’ and ‘freedom’ to the teachers (p. 4) – recognition of teacher autonomy at that point in time.

Hull, who once was described by Copley (1996, 11) as ‘not merely keep[ing] pace with change but sometimes [leading] it’, was quick to describe what the 1988 Education Reform Act meant for religious education syllabuses. He argued that the Act’s description of the content of religious education, especially singling out ‘Christianity’ among other religions, ‘does not require any direct change in the content of religious education at all’ and ‘there is no absolutely no suggestion here that religious education should be ‘Christian-based’’ (Hull 1989, 60). Hull even argued that the Act ‘breaks the assumed Christian monopoly’ (p. 61), though he was thereby criticised by Thompson (2004) for proposing the very opposite of Parliament’s intention.

Lied’s article can be seen as another example of how the law and the courts stimulate change. Lied in her ‘search’ for a unified religious education aftermath of Folgerø case, discussed how to create a common subject for teaching about religious and beliefs in Norway, which would take both the applicants’ and Norwegian government’s arguments before the Court into account. One of Lied’s suggestions was to return to ‘a nationally programmed and a locally selected curriculum’ which allows teachers to present ‘professionally based and unbiased education about religions and beliefs to which the pupils present in the classroom and people in the local community relate’ (p. 273).

5. Legislation, courts and other factors

One can assume that legislation is not the arbitrary intervention of parliament. It mirrors wider developments in society, politics, culture and education (Fancourt 2015, Bereday 1964). For example, Harte claimed that the religious clauses of the 1988 Education Reform Act not only mirrored educational and social trends, but also legal ones, as they are ‘flexible and open-ended’, according with contemporary trends in the law.

It was also evident from these articles that legal interpretation changed as society changed. Forty years after the 1944 Education Act, Earl argued that the typical agreed syllabus of the eighties differed in three important respects from its predecessors of forty years ago: format, inclusion of non-Christian religions and aims. In terms of aims, Earl argued that the typical agreed syllabus of eighties was ‘certainly not say, like the Sunderland syllabus of 1954: “The school ought to do its positive best to guide children into Church membership”, but is likely to use some phrase containing the word “understand” [e.g.] “to help pupils to understand what religion is and what it would mean to take a religion seriously”’ (p. 90). He argued that ‘all this development has been achieved simply by exploiting the latent flexibility of the Act and without any legislative change’.  

In this respect, legislation and judicial decisions can simply consolidate existing practice, or impose change on practitioners by requiring them to act in new ways, or by prohibiting existing practices. Hull (Hull 1989, 61) points out how the 1988 Act consolidates, as it ‘represents a considerable acknowledgement of the work done in the last twenty years in turning the interest of religious education upon contemporary religion as a living reality’. However, teaching about humanism (or worldviews) is impliedly excluded, but which, as Stope-Roe (1976) showed, had been part of the Birmingham Agreed Syllabus in 1970s. The 1988 Act both built on one aspect of contemporaneous practice, but dampened another.

6. Calls for legal changes

Some of the articles not only discussed the legislation and its application in the schools, but also suggested possible changes in legislation; the different authors often adopt normative positions on current law or jurisprudence.. Thus, in his 1976 article, Stopes-Roe was critical of the 1944 Education Act, describing the 1975 Birmingham Agreed Syllabus which was in conformity with the Act, as biased, dominated by religion, and even ‘religious indoctrination’ (p. 135). On the other hand, Stopes-Roe seemed to support the 1974 Syllabus which, according to him, ‘was drawn up on the assumption that the Act had fallen into disuse, and therefore, that educational principles could be freely pursued’ (p. 135).

Richardson et al. argued that current opt-out mechanisms are not enough to protect the freedom of religious and belief of members of minority faith communities, if the religious education provided is not inclusive enough. They suggested ‘inclusive, open-ended and balanced religious education’ (p. 248) and also argued that international bodies should consider requesting states to ‘operate an opt-in rather than an opt-out mechanism’ (p. 247), as the opt-out mechanism itself is not enough to protect the rights of minorities.

Lundie and O’Siochru, by contrast, questioned whether the right to withdraw is still coherent or necessary for contemporary multi-faith religious education in England. While the authors did not openly call for ending the right to withdraw, they suggested that the legal settlement could be altered, which would include ‘clarity on the non-directive purpose of contemporary RE’. They also argued that ‘there remains no logically coherent argument for why [the right to withdraw] should exist exceptionally only in regard to contemporary RE in England’ (p. 11). This was also raised by Hull (1996, 132) who argued that the right to withdraw can be extended to any subject which parents might express ‘reasonable concern’.

Discussion and Conclusion

After presenting the key themes, three broad comments can be made about legislation, the judiciary and religious education. First, legal issues have become increasingly important within the journal. As seen above, in the early days of the journal legislation was only discussed after major developments such as the 1944 Education Act or the Birmingham Agreed Syllabus. Therefore, there are only two articles from the period when the journal was entitled ‘Religion in Education’ (1934-1961) and ‘Learning for Living’ (1961-1978); the remaining articles are from when it had become the ‘British Journal of Religious Education’. This might be partly because at the time the journal aimed at catering for more practical needs (Jackson 2008), or it might be because legislation and the courts have over time become a more pertinent issue: as five of the articles are from the last decade, it suggests that they have become increasingly relevant to religious education. This trend can also be seen in the proliferation of religious education reports which have tackled religious education legislation (Commission on Religious Education 2018, Clarke and Woodhead 2018, Commission on Religion and Belief in British Public Life 2015). Moreover, national debates such as Fundamental British Values in England, which triggered a debate over the right to withdraw, as well as international developments and court interventions all contribute to a renewed interest in religious education, legislation and the courts.

Second, there has been an increasing growth of international interest in scholarship and research on this issue. In this VSE, seven articles out of ten are UK-oriented, while only three articles are from outside the UK, all appearing after 2000. It can be said that the Journal has always had international dimension, even in its early days. For example, articles about Africa and India appeared in the journal as early as 1935 (Dougall 1935, van Doren 1935), and international contributions to the journal have increased over time, especially after the late 1970s (Jackson 2008, 183). Moreover, there has been increased attention to the international dimension and legislation (Hull 1992). After the Human Rights Act 1988, for example, Liam Gearon discussed the relationship between human rights and religious education (Gearon 2002) and in his various editorials Robert Jackson has paid attention to European developments (e.g. Jackson 2009). Supranational courts’ interventions in religious education legislation and increasing interest in global governance or standard setting in religious education all make the international dimension relevant to national religious education legislation and policy today. For example, the Commission on Religious Education, which was established to review the legal and policy frameworks of religious education in England ‘reluctantly’ recommended retaining the right to withdraw despite growing calls for abolishing it, partly because, the Commission argued, it is ‘protected’ the European Convention on Human Rights and partly because ‘so many of the challenges which have been brought [before the European Court of Human Rights] have been successful’ (Commission on Religious Education 2018, 63-67).

Third, religious education legislation and judicial decisions are inevitably related to religious education pedagogy and curriculum, as was evident from the first article onwards. Yeaxlee, for example, opted to discuss the impact of the 1944 Act on syllabus of religious instruction, instead of the issues of compulsion and the right to withdraw. He argued that the syllabuses which would be designed according to the 1944 Education Act ‘will be unhesitatingly Christian: in a Christian country we cannot substitute creative evolution or moralistic humanism for the God made known to men in Jesus’ (p. 2, emphasis added). However, the interpretation of legislation has changed according with social changes (theme 5), and after forty-four years, John Hull, in his discussion of the 1988 Education Reform Act, argued that religious education law in England has ‘never required’ a Christian monopoly (p. 61, emphasis added). Since then, articles, such as those appearing here, generally emphasised common, open or plural religious education, which would promote understanding, tolerance and peaceful coexistence, which was also the common theme in supranational court cases. Even though there are differences in details, it seems that religious education legislation today is expected to promote and require open and plural religious education, though the precise legal requirements for this remain contested and elusive.

In conclusion, this selection presents a wide-range of articles within this journal on legislation, judiciary and religious education, pointing to the longevity of the issues and the range of different themes within them. This introduction is intended as an invitation to and encouragement of new and different investigations, both in Britain and internationally on these issues, to be covered in the upcoming special issue, Religious Education, Law and the Judiciary: National, International and Supranational Perspectives.


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