Schools, Religious Education and the Law

Schools, Religious Education and the Law

Marius C. Felderhof, University of Birmingham

For a number of decades in Britain there has been much casual talk about living in a multi-faith, multi-ethnic and multi-cultural society without too much reflection on what this might mean or what this requires from us as individuals or as communities. We are learning rather slowly that the state of living in a plural nation state has implications for our social institutions and that there may be limits to this plurality for a stable society.

The furore over the so-called Trojan Horse affair (in which it has been claimed there was a Muslim conspiracy in Birmingham to seize control over schools with a predominantly Muslim in-take) is symptomatic of a realisation that some differences go deeper and that serious reflection and social debate is required to resolve or to allow for these differences. The fact that various arms of government are vying to set up enquiries to investigate the facts of the ‘Trojan Horse’ affair is indicative of the importance politicians attach to having some control over the narrative that accounts for our social state. If the state of affairs warrants blame, then where this blame is to be allocated cannot be left to chance.

One must stress the ‘IF’ in this account, since it is by no means certain that there is a problem on the scale indicated by ‘investigative journalists’. One might equally interpret the events in Birmingham as an attempt by Muslim activists to put to rights an earlier history of educational failure in their community. The difference in the academic performance of pupils from different communities, together with the relatively poor performance of Muslim Pakistani pupils in school in Britain, suggests urgency of that endeavor. Moreover, the schools at the centre of the furore have been successful, with many remaining ‘outstanding’ with regard to teaching and achievement in Ofsted reports that otherwise condemn them as ‘inadequate’ for failing to protect children from extremism.

That there is a committed religious dimension to this endeavour will surprise no-one who knows anything about the history of education or who understands the Muslim community. Prior to the late 19th century, religious institutions were the main providers of education. This was as true of other parts of the world and of other religious traditions as it was of Britain and its Christian institutions. The state came onto the educational scene rather late in the day, driven mostly by the needs for universal provision, which, in the absence of the powers of taxation, was beyond the resources of religious institutions to provide.

There is no space here to argue whether it is more or less preferable for religious institutions, the state, educational professionals, parents or (more recently) business to be the major provider of the governance of schools. Prima Facie, the state, the professionals and business ultimately appear to have some ‘self-interest’ at stake in education. Whereas, arguably, part of the motivation of religious institutions was at least to pursue education out of love for the other, underwritten by a love for the wholly (or transcendent) Other – in religious language – the pursuit of wisdom is done to the ‘glory of God’ and for the good of mankind. It is a matter of record, in Birmingham at least that, where they have had a choice, Muslim parents have often preferred to send their children to a ‘Faith’ school, whether that be of a CoE, RC or Jewish denomination, rather than to send them to a community school.

What is also evident is that Muslims, as befits a religious tradition governed by law (where Christians have theologians, Muslims and Jews, arguable, have ‘lawyers’), have tried to operate within the law. It is important, therefore, to understand British law as it relates to schooling and religious education. There are effectively three main statutes that determine the state of religious education today in England and Wales, the other intervening acts either left things as they were or made some very minor modifications. First, there is the 1944 Education Act (the Butler act); second there is the 1988 Education Reform Act (the Baker act) and lastly, there is Mr Gove’s 2010 Academies Act. The provisions of Article 2 to the protocols to the European Convention of Human Rights, to which the UK is a signatory also apply. These require states to recognise the rights of parents to school their children in their own religious and philosophical convictions.

The 1944 Act

The `44 Act is seen by many as a kind of educational settlement between the state and the churches on the running and financing of schools. Firstly, it provided for the continuance of religiously founded schools in the form of voluntary aided and voluntary controlled schools. Religious foundations were expected to contribute financially to the capital costs of these schools. Many parishes struggled hard to provide this capital in order to have their own school, though the proportion of this contribution changed over time. Secondly, religious instruction (sic) (and collective school worship) was to be provided in all schools with the proviso that teachers could not be required to teach it nor penalised in anyway for not teaching it. (Again there were some limitations on this freedom on the part of teachers specifically appointed solely to provide religious instruction in schools with a religious foundation.) Further, parents could exempt their children from having religious instruction or taking part in collective worship. Thirdly, the religious instruction in county or community schools was to be done according to an Agreed Syllabus. This syllabus was to be devised by an Agreed Syllabus Conference convened by the Local Authority.

By law these conferences were made up of four committees, each of which had a vote and each had an effective veto since agreement had to come from all four groups. These four committees represented 1/ the Local Authority, 2/ the teaching profession, 3/ the Church of England, and 4/ the ‘Free’ Christian churches and (later) other Faiths. Later acts required a review of the locally Agreed Syllabus for RE to take place (though not necessarily changed) every five years. After a syllabus was agreed, the Local Authority then had to formally adopt it and it could refuse to do so if it so wished and refer it back to the Conference. If in the end no agreement could be attained it fell to the Secretary of State for Education to impose a syllabus. If, after all this, particular religious groupings were still unhappy with what was proposed to be taught, they could under this Act provide for the religious instruction of their children at their expense after school and on school premises. Fourthly, the `44 Act encouraged each local authority to set up a Standing Advisory Council on Religious Education (SACRE) – later this became compulsory for Local Authorities. These SACREs were required to have the same structure as Agreed Syllabus Conferences in being made up of the same four committees for voting purposes.

A reflection on these provisions in the `44 Act show that legislators saw that there were different interests operating in education (the wider community concerns, educational concerns and various religious concerns). They saw the need for resolving any potential disagreements between these interests, including of course, religious differences, for educational ends, so they set up the above mechanisms to do precisely that. It also shows the interest that the legislators had in allowing maximum freedom for the expression and transmission of parental religious or philosophical convictions. The fact is that the very process of gaining a widespread agreement on what was to be taught in a course of religious instruction was also an important means of gaining moderation and social cohesion. While the Government of the time (under Prime Minister Eden) determined that the provisions of the European Convention of Human Rights would apply, providing they did not incur ‘unreasonable expenditure’, the arrangements through SACRE and the 1944 Act were regarded as meeting the requirements of the Convention.

One other observation is relevant. Community schools are not strictly, or appropriately, defined as secular schools, in that their educating activity is purposefully framed by a daily act of worship, complemented by the availability of religious instruction, albeit of a nature not reflecting any particular religious ‘formulary’ but of a form agreed collectively by key groups in our society.

1988 Education Reform Act (ERA)

This Act is most renowned for introducing the national curriculum. Up to this point only religious instruction was required by law, leaving the rest of the curriculum up to the judgement of teachers and schools. Now the different subjects in school fell into one of three groups: 1/ optional subjects, 2/ subjects required by law, defined nationally, and 3/ one subject required by law, defined locally (namely, Religious Education as it was now called). Further, as a correction to what was perceived as an increasing trend in schools and Local Authorities of treating religious instruction as a form of religious studies of the major religious traditions (as if they were all on a par in Britain), the ERA required Religious Education to be ‘in the main Christian whilst taking account of the other principal religions represented in Great Britain’. What is notable about this clause in the law is that it fails to define: what is meant by ‘in the main’, what is meant by ‘to take account of’. It also fails to state what, in law, are the ‘principal religions’ and finally, it is notable that no mention is made of secular philosophies.

The last point is also significant in that increasingly Agreed Syllabus Conferences and teachers had begun to include what they referred to as ‘non-religious worldviews’ to be a part of religious education. The 1975 Birmingham Agreed Syllabus, for example, had proposed a study of Secular Humanism and Marxism as a part of its Agreed Syllabus for RE. The City took legal advice on this matter in 1974 and received the opinion that Secular Humanism and Marxism might be taught within RE as critiques of religion but not in their own right. One concludes that RE must not be taught uncritically, but this did not extend to including any and every philosophical position taken by human beings throughout history and around the globe but solely those that were distinctly religious in character.

The ERA is also renowned for requiring Collective Worship in schools to be wholly or mainly of a Christian character, but in doing so also gave each local SACRE the power to lift this requirement (a so-called determination) at the request from a school where this requirement in law might be inappropriate e.g. in a school where the pupil population was wholly or mainly Muslim.

2010 Academies Act

Mr Gove has re-assured parliament more than once that he was not changing the law with respect to RE. These reassurances were necessary because of the various steps he had taken, which, in the eyes of many, diminished the significance and the role of religious education, e.g. the creation of the English Baccalaureate which omitted any reference to RE. Other changes such as those made to the provision and funding of teacher training and the inspection of schools also had a direct impact on RE.

In reality, the introduction of the 2010 Academies Act was changing the legal status of RE in school by stealth. In undermining the role of Local Authorities in school, the Act was undermining the one subject for which the Local Authorities in law were exclusively responsible. Academies and Free schools were not required to provide RE and Collective worship by law but by their funding agreements. They would not be bound by the Locally Agreed Syllabus for RE but could provide the RE they deemed best, except that they were bound by the provision that it must be ‘in the main Christian whilst taking account of the other principal religions represented in Great Britain’. Their collective worship must also be ‘wholly or mainly of a Christian character’ and if this was deemed inappropriate they could now apply to the Secretary of State for a determination to lift the requirement. This was a power that the DfE lamentably failed to exercise for, despite reminders from Birmingham SACRE, the DFE granted no determinations nor did they exercise any pressure on academies in Birmingham where this would and should have been appropriate.

With the ambition to turn all schools into Free schools or Academies one could see that the carefully devised arrangements for RE and Collective Worship (CW) set out by all previous Education Acts were being subverted or altered. The safeguards that set teachers and pupils free from RE and CW are not part of the funding agreements and the safeguard provided by a process of agreement and close community involvement that had delivered moderation and consensus was also absent.

Prior to the Academies Act, too, the Church of England had a role in determining the nature of the RE to be delivered in community schools but with the responsibility for RE now being totally in the hands of the governors of academies this benefit of establishment and moderating influence was also removed. These implications of the Academies Act were pointed out insistently to Mr Gove by members of Birmingham’s SACRE in an exchange of letters but he responded May 25th, 2012

“Nevertheless, beyond these basic requirements [of RE being in the main Christian whilst taking account of the other principal religions represented in Great Britain], I am committed to academy and free schools’ freedoms to choose whether they opt into local arrangements, and I see no reason why these freedoms should impact adversely on community cohesion or inter-religious cooperation.

Religious Education in Birmingham

An interesting feature of this whole ‘Trojan Horse affair’ is that it is focused on Birmingham. Already in 2007 the City adopted, and agreed, a Syllabus for RE which had concentrated on developing a religious consensus by emphasising the purpose of a broad and balanced curriculum. In law this is stated to be to contribute to the ‘spiritual, moral, social and cultural development of pupils and of society’. In the view of the Birmingham Agreed Syllabus Conference that met from 2005 to 2007, RE was not so much a form of Religious Studies as an exercise in personal and social development. It was what one could learn from religious traditions rather than what one should learn about them that mattered.

The Conference therefore endeavoured to set out the dispositions and values which they thought could be supported through RE. Using the treasury of faiths RE teachers were invited to cultivate such key dispositions in their pupils as being creative and imaginative, being fair and just, being compassionate, being thankful and so on. In fact they defined 24 dispositions as the essence of REincluding ‘being temperate’, ‘being joyful’, ‘being attentive to suffering’, ‘being fair and just’, ‘being accountable and living with integrity’,and‘cultivating inclusion, identity and belonging’. This approach does not give priority to so many supposedly alternative systems of belief but to the practice of living well, as widely understood and as historically transmitted by religious institutions.

Belatedly, the government and others are now speaking about ‘British’ values as something that schools should cultivate. It is perhaps not entirely clear that the 24 dispositions of the Birmingham Agreed Syllabus for RE qualify as specifically ‘British’ values ,since the Conference was thinking more about key universal human values found in all religious traditions and cultures. It is nevertheless ironic that the actions of the government through their Academies Act was undermining an approach to religious education that was being explored and established in Birmingham nearly ten years earlier. The Muslim community and leaders no less than the other Faith leaders in the City strongly supported the approach of the 2007 syllabus. It was clearly not the fault of policy or of the local authority and religious leadership that was the problem (if there is one). The narrowness of mind is not found in Birmingham, but if anywhere it may be found in London!


Marius C. Felderhof is Senior Honorary Research Fellow in the Department of Theology and Religion at the University of Birmingham. He is actively involved in the City of Birmingham’s Standing Advisory Council of Religious Education. He drafted the City’s 2007 Agreed Syllabus for Religious Education.