INTRODUCTION

This booklet is written for all those concerned in any way with Religious Education in the schools of England and Wales. It considers the law governing those schools which use the local authority agreed syllabus but it may be found helpful for all who have an interest in the future of the subject, whatever the school. It is hoped that teachers, church members, SACRE members, members of different faiths, parents and governors will all find it useful.

Why write about the law and RE? One reason is that it is an interesting topic in itself. Another is that the law is not always well understood, even by those in authority. It can also be a controversial topic; thus it is important for those interested in the subject to have a good grasp of what is and what is not allowed. My own interest in the subject was aroused when I began to discover, in the course of research for a book, that the 1988 Education Reform Act had been widely misinterpreted; or so it seemed. This booklet is an attempt to look at the law in order to assess what the law really says about RE. It begins with an historical survey which shows how current law has developed out of a particular tradition which is still in place today. It sets out basic features of the law and then shows how a particular interpretation has steered the course of RE away from that intended by the legislators of 1988. The question is then asked whether this matters. Weaknesses in RE revealed by OFSTED suggest that it does matter and that it is possible that the recovery of the original interpretation is the way forward for RE.

I would like to thank in particular the barrister JDC Harte, senior lecturer in law at Newcastle upon Tyne, for his patience in instructing me in legal matters. Lord David Renton Q.C. too gave me the benefit of his wisdom, and told me of a 'dark secret'. Thanks to Professor John Hull, who has been most supportive of my researches even though I would take RE in a different direction from that to which he is so passionately committed. Thanks to Mr. Guy Hordern and Mr. Fred Naylor who have both been an inspiration to me. I am grateful as always to Dr. William Kay who read and commented on earlier drafts and to Eileen Wynne who kindly read the final draft at short notice. Special thanks to Professor Basil Mitchell without whose support this booklet would never have been written. I am however responsible for the views offered.

WHAT THE LAW REALLY SAYS ABOUT RE

I begin by considering certain aspects of the legislation and show how current law on RE has its origins in earlier times.

A history of the legislation for RE in England and Wales

Minimum definition

The Elementary Education Act of 1870 allowed for non-denominational religious instruction to be given to all pupils subject to the right of parental withdrawal. The local Boards set up to provide education could decide both whether their schools would give instruction and what the nature of this instruction would be. So the London Board declared: 'The Bible shall be read, and there shall be given such explanation and such instruction therefrom in the principles of religion (the Christian religion - added 1894) and of morality as are suited to the capacities of the children.'¹ Here we see a precedent being set. The law does not attempt to go into detail about what shall be taught but rather authorises local bodies to do so. Religious instruction (as it was called then) is not defined in law, nor is anything said about how it shall be taught. The 1944 Education Act followed suit when it required as opposed to allowed that religious instruction be provided in all county schools along with a daily act of collective worship. The 1988 Education Reform Act (ERA) followed this tradition but added an important clause which defines the nature of RE, this being that a syllabus 'shall reflect the fact that the religious traditions in Great Britain are in the main Christian, whilst taking account of the teachings and practices of the other principal religious traditions represented in Great Britain'. ² This both departs from and adheres to the tradition of minimal definition. It departs from it in the sense that it does attempt to define what is to be taught. It adheres to it in the sense that it is left to local determination to work out the precise details. The attempt to define the nature of religious education in law has proved controversial; a fact that is considered shortly.

Local determination of RE

As we have seen, RE was to be determined locally right from the start. In fact all education was like this until the 1988 ERA.. RE from the first was often fought over at local level and while this served to make the subject a 'hot potato' it may have encouraged subsequent Governments to continue the tradition of local determination rather than attempt to court controversy by legislating for it in detail themselves. Local determination also however allowed for the teaching to take account of local factors, such as the balance of denominations, local saints and religious traditions of the area and this influenced the retention of local determination in the1988 ERA. These factors weighed against the arguments of those who argued at the time (and still do) that RE should be part of the National Curriculum (NC) and not subject to local determination.

Syllabus Conferences

In the 1920s an attempt was made to overcome the difficulties encountered by the school boards in specifying what should and should not be taught. Conferences of teachers and representatives of the different churches were set up to agree a syllabus to be taught in the schools. These conferences were a great success and enabled standards to be raised. They also had the benefit of allaying the fears of teachers who were often uncertain about whether or not their teaching was likely to be challenged. The 1944 Education Act made it compulsory for local authorities to set them up. They were to be made up of four committees representing the Church of England³, other churches, teachers and the LEA. The 1988 ERA continued this tradition while making specific changes to allow for inclusion of non-Christian representation (which generally took place anyway). The 1993 Act required a local authority to set up an ASC within five years of adopting a syllabus. Further details of both the ASC and the SACRE may be found in my booklet on the topic (see final page).

SACREs

The 1944 Education Act allowed local education authorities to set up standing advisory councils on RE (SACREs) which were to advise the authority on training for teachers, resources and teaching methods. These bodies were to be constituted similarly to the successful syllabus conferences with four committees or groups representing the same constituencies. Their task was to oversee the implementation of the syllabus agreed by the conference. However, at this stage they were optional and a survey in 1953 by the Institute of Christian Education showed that in 1952 only 31 out of 163 LEAs had set up a SACRE. The 1988 ERA strengthened this particular part of the legislation by requiring all LEAs to set up and fund SACREs and giving them the power to require the LEA to reconsider the agreed syllabus. The 1993 Education Act laid a requirement upon the LEA to set up an ASC to reconsider the syllabus within five years of adopting it, but did not rescind the power of SACRE to require a revision at any point.

Part of the educational system

Legislation has always fully integrated RE into the educational system. RE has always been part of the county school (now called community school) curriculum, alongside other subjects. It has a call on the budget for books and resources in the same way that other subjects do. Its teachers are trained and obtain qualifications alongside teachers of other subjects. They receive the same rates of salary⁴ as other teachers do. Originally certain restrictions were placed on schools. Lessons, for example, had to be timetabled at the beginning or end of each day so that withdrawal would be easier to handle. This stipulation no longer exists and RE is timetabled alongside other subjects throughout the day. This attitude to RE is summed up in the words of the 1938 Spens report: '...no boy or girl can be counted as properly educated unless he or she has been made aware of the fact of the existence of a religious interpretation of life.' ⁵ Spens went on to say that this meant the Christian religion and therefore the study of the Bible.

One reason for this is the fact that for a long time it was the Churches that were the providers of education; indeed this tradition continues today in the voluntary aided system as well as within the independent sector. Thus education and religious faith have been experienced alongside each other in our history and without contradiction. Another reason is that education needs an underlying philosophy of what it means to be a human being and it has been natural to turn to the Christian faith for this philosophy. The fact that we have an established Church and institutions that derive from Christian faith has also meant that religious education has been able to take a place within our schools as a natural expression of our society.

But somehow different

At the same time RE has seemed different from other subjects. For many years it was the only compulsory subject of the curriculum. Separate legislation exists for RE even today. It is the only subject that is locally determined and for which rights of withdrawal are enshrined in law (apart from sex education)⁶. It is the only subject that teachers may exercise the right of conscience not to teach. A new term, the 'basic curriculum', was coined in 1988 to try to find a way of expressing the importance of RE alongside the National Curriculum (NC) following fears that RE would be seen as less important than these subjects. So the 'basic curriculum' consists of NC subjects and RE. This neatly expresses the paradox that RE is both part of the curriculum and yet different from other subjects. A further illustration of this is that OFSTED⁷ reports on RE in the same terms of national standards and grades. But there are no national standards for RE since it is locally determined.

The tradition of RE

So what we have is a tradition for the teaching of RE with the following features:

• Minimal definition of the subject
• Local determination by groups representing different interests
• Part of the educational system yet distinct in important respects
• Linked in different ways with Christian faith

  These features remain in place today. I look now in more detail at these and other basic features of the law current today. These features are of different kinds. Some are broad principles which must be considered and applied by those charged with agreeing the syllabus. Others are rules to be applied; such as who should make up the conferences and how they should set about their work. The law on RE is characterised to an extent by the need to effect a compromise. Decisions are to be made by people who may differ considerably in their views as to the nature of RE, how it is to be taught and of course in their theology. The law is therefore to an extent tentative and flexible and it will not be easy to find agreement amongst all who have to interpret and apply it. This makes it all the more important to understand its basic features.

  The basic features of current Law on RE

  The basic curriculum

  As part of the basic curriculum, RE is tied firmly within the educational framework and thus RE shares in the general aim of education which is to 'promote the spiritual, moral, cultural, mental and physical development of pupils and society'.⁸ Clearly RE must show how it is going to develop pupils spiritually and morally. This would seem to mean that it will not be enough to present facts about religion , what is often called 'learning about' religion but rather pupils are expected to 'learn from' in the sense that some spiritual development is to be expected.⁹

  Religious Instruction becomes Religious Education

  In the 1944 Education Act, the subject to be taught in the classroom was known as Religious Instruction. The term Religious Education denoted the combined package of RI and collective worship. The 1988 Act retained the link between classroom teaching and worship but changed the name of the former to RE. For some this change was significant and was held to mark a radical change in the nature of the subject. A simpler explanation is that the term RI had fallen out of use, rather in the same way that the term Physical Instruction had by this time been replaced by the term Physical Education. The term 'instruction' became unfashionable in education generally in the 1960s and 70s but is today experiencing a comeback¹⁰. However, the law does not define the word education and no precise view can therefore be derived from this change. Education can have several meanings and while it may be a broader term than instruction, it does not exclude it. The important question is: 'Education in what and by what methods?' and the question is no different if one substitutes the word 'instruction' for 'education'. It does not seem to have been understood by Government as a major change and Circular 3/89, issued in January 1989, did not see fit to include it in the list of changes. The Secretary of State for Education, Kenneth Baker, and the promoter of the Bill in the Lords, the Bishop of London, Graham Leonard, both used the word instruction without embarrassment when speaking of RE.

  The requirement that RE be non - denominational

  Section 26 of the 1944 Act stated that 'an agreed syllabus shall not include any catechism or formulary which is distinctive of any particular religious denomination'. This stipulation, the famous Cowper Temple clause, was first inserted in 1870 because of the need to allay fears about denominational 'poaching'. The Forster Act of 1870 was the first to legislate for state education. Schools were to be set up with state funds by local boards (the forerunners of local education authorities). The question of religious education became controversial because such schools would serve children from all denominations. The solution agreed on was that RE must not be based on any particular denominational formulary. The syllabus was to be based on beliefs and practices that could be agreed by representatives of all the (Christian) denominations. The Cowper Temple clause was amended in the 1988 ERA to read: 'No agreed syllabus shall provide for religious education to be given to pupils at a county school by means of any catechism or formulary which is distinctive of a particular religious denomination (but this is not be taken as prohibiting provision in such a syllabus for the study of such catechisms or formularies)'. ¹¹

  The 1988 Act legitimised what had become common practice, namely teaching about denominational matters, but not with the intention that such teaching should be taken as true. At the same time however the Act envisages some teaching to be by means of other material which is not denominational. The implication of this is that there is some material which is common to denominations ¹², and that this material is to be given in a different way, presumably with more weight, than material which is distinctive of a denomination. The right is given, however, to parents for denominational teaching to be given on the premises if necessary provided no extra cost falls to the LEA. The phrase 'by means of' was introduced for the first time in the ERA. Equally for the first time a distinction is made in law between 'the study of' and teaching 'by means of'. The law expects both to take place.

  The SCAA model syllabuses, published in 1994 to help in the production of agreed syllabuses, originally misquoted this section of the law. It had been stated in the introduction to these syllabuses that an agreed syllabus 'must not be designed to convert pupils, or to urge a particular religion or religious belief upon pupils'. It was further stated that this sentence occurred in Section 26 (2) of the 1944 Act. This was incorrect. Following lengthy correspondence with Mr. Fred Naylor, Sir Ron Dearing, Chairman of SCAA sent a letter to all SACREs in March 1995, informing them of the mistake. The sentence itself was not withdrawn but rather stated to be the view of the DfE as to the way RE should be taught. However, following legal advice on a different matter, the Department for Education and Employment (DfEE) admitted in 1997 that 'no religious beliefs urged on pupils would fall foul of Section 376 (2) of the 1996 Act'.¹³ Again this letter stated that the idea that RE should not urge a particular religious belief on pupils represented the view of the department as to the way RE should be taught. The DfEE is therefore giving advice which is unsupported by the law. It is clear that what the law forbids is teaching which is based on, or accepts as true, aspects of Christian faith which are contested by the different denominations (the examples being catechisms and formularies). It does not forbid areas that are agreed by Christians to be presented authoritatively. In my view the advice, also contained in Circular 1/94, should be withdrawn. This is because the idea that no religious beliefs should be urged on pupils has been widely taken to mean that nothing may be taught to pupils as true, or presented to children as certain and authoritative. This is not what the law says; indeed it seems to be contrary to law and the confusion needs to be cleared up.

  To conclude this section: A basic feature of the law is that the agreed syllabus will make provision for teaching of a non-denominational nature to be given as the norm and with a degree of authority. Provision is also made for teaching about denominational matters to be given, but in a way that does not imply that it is true.

  The conscience clauses

  The conscience clause of 1944 allowing teachers to opt out from teaching RE has been preserved as has the right of parents to withdraw their child from RE and collective worship. These clauses suggest that the RE to be given is such that it will impart something as true that some parents will object to and which some teachers will be unable to subscribe to.

  They are often regarded as an unfortunate anachronism, out of keeping with the rest of the Act.¹⁴ Edwin Cox said of it: 'Is there a hidden assumption behind the legal provision for opting out that it is necessary to be religious in some way in order to teach it and that lack of a faith is in some way comparable to tone deafness in the case of music?' and 'the conscience clause for teachers suggests that its rationale as an ingredient of education has not been fully thought out'. ¹⁵

  The conscience clauses therefore may imply that a basic feature of RE is that it will impart religious views that are controversial in nature.

  Section 8 (3)

  'Every agreed syllabus shall reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain.' ¹⁶

  This sentence was introduced as an amendment to the 1988 ERA following debate in the Lords. It is now section 375 (3) of the Education Act 1996. For the first time the law prescribes a particular content to the teaching of RE. I now give the explanation of this sentence given in the Lords by those introducing the Bill.

  The meaning of section 8 (3) as explained in Parliament

  Section 8 (3) meant that the syllabus would be based on the Christian traditions of the country except where there were significant numbers of pupils who belonged to other religions. Where this was the case, account was to be taken of their teachings and practices in the syllabus. This was the explanation of the expression 'in the main' given in the House of Lords by the Bishop of London who had undertaken to find agreement on a wording which would ensure both that Christian teaching was undergirded and the needs of other religions provided for.

  The view of the Bishop of London

  The Bishop, speaking of the phrase 'in the main' on the 21^st June 1988 in the House of Lords said: 'It does not mean that there will be a percentage of Christian teaching spread throughout the country with a proportion of other faiths. …The norm will be Christian if one likes to put it that way. But there will be exceptions because of local areas and what is proper to them in the educational setting. That is what we mean by "mainly" - not "mainly" in the sense of two-thirds rice and one third tapioca or something like that.'¹⁷ Later on in the same debate he said: 'If one looks at the country as a whole, one will see that there will be areas in which it is 100% (Christianity) and areas in which it is less, and so on.'¹⁸ When pressed in the House on what this meant he replied: 'It is the purpose of that package (the amendments now in Law) that Christian children should receive teaching in the Christian faith. Secondly, it is the purpose that children of other faiths should be taught their own faiths.'

  The View of the Secretary of State for Education

  The Secretary of State for Education, Kenneth Baker, fully supported the Bishop of London. Mr. Baker believed that it was important to open up the spiritual dimension to pupils, so much so that he thought it difficult for an atheist to teach RE.¹⁹ He also considered that Christian teaching would help in the strengthening of society at large. He said: 'We believe that there must be a bedrock in the basic teaching of Christianity in our schools, in both religious education and worship, because in that way our society is strengthened in a tolerant, humane and spiritual way.'²⁰

  Kenneth Baker believed that RE should be determined locally so that it could meet the needs of the different communities. He said: 'We firmly believe that if religious education is to continue to be taught well in our schools in the longer term, what is taught must reflect the views and values of local religious communities.' There had to be flexibility to take account of local situations: 'Nor would we presume to require that religious education should be the same in county schools in Devon as in schools in Bradford.'²¹ He believed that in this way account could be taken of the needs of the non Christian children. The amendments, he said, 'take full account of the needs and aspirations of different faiths'.²²

  It is reasonable to deduce from this that it was the intention of parliament that Christianity should, in the main, be taught as true in the hope that it would shape children's spirituality and inform their morality. Account should be taken of the needs of non - Christian pupils and teaching given that reflected the different faiths where appropriate. What mattered was that children be helped to grow in faith and that the roots of society be strengthened.

  Provision within the legislation for this to take place

  A) Provision was made within the law for different syllabuses to meet the needs of different pupils. Schedule 5 of the 1944 Education Act²³ was amended by the 1988 ERA to read as follows: 'Where the local education authority propose to adopt more than one syllabus of religious education for use in schools maintained by them, the authority shall inform the conference as to the schools in which, or in the case of a syllabus intended to be used by certain pupils only, the class or description of pupils for which, the syllabus prepared by the conference is to be used.'

  B) The composition of the ASC was amended to include provision for representation of religious communities present in the area. Only communities present in the area may be appointed. Committee A is made up of a 'committee of persons representing such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions of the area'.²⁴ The situation is further restricted by the fact that the ASC may not co-opt members. The 1993 Education Act amended the law to make it clear that such appointments must reflect the numbers present in the area: 'the number of persons appointed to any committee...to represent each denomination or religion required to be represented shall, so far as is consistent with the efficient discharge of the committee's functions, reflect broadly the proportionate strength of that denomination or religion in the area'.²⁵ Clearly the purpose was that they could work on the syllabus for children of these communities. This was in fact stated in the House by Lord Elton who was supporting the Bishop. Speaking of the representatives of the minority faiths on Committee A he said: 'They are in a position to produce within the syllabus that part of it that will be applied for those children.'²⁶ It would seem that the ASC may either prepare different syllabuses for children of other faiths or sections to be included for these children within the one syllabus. There would be nothing to prevent these representatives helping to provide some teaching on their faiths for inclusion in the syllabus being prepared for other children.

  C) Any sub - committee set up by the ASC to work on the syllabus must include a representative of each of the four committees. This would mean that a syllabus, or section of a syllabus set up for children of a particular faith, cannot be prepared only by representatives of that faith. It also means that while help may be sought from experts who are not members of the ASC, appointed members of the conference are fully engaged in all aspects of syllabus making. This was interpreted by Circular 1/94 to mean that the work cannot be delegated: 'The task of producing a syllabus cannot be delegated except to a sub-committee which must include at least one member of each of the committees constituting the conference. This does not prevent a conference receiving advice or comment from outside groups or individuals.'²⁷

  I have set out certain basic features of the law together with some explanations of the meaning of the law given in parliament. I now show how a different view of the law became current within the RE profession in the months that followed its final reading in the House of Commons in July 1988.

  A different interpretation

  The different interpretation alleged that every syllabus should be based on Christianity and the other principal religions represented in the country. It was also alleged that the law affirmed a new understanding of religious education as being now 'educational' as opposed to 'instructional'. For example the National Society spoke of a 'new educational understanding of the subject' which it said was 'reflected in the change of name from 'religious instruction' to 'religious education'.²⁸ This interpretation understands the words 'take account of the teachings and practices of the other principal religious traditions represented in Great Britain' to mean teach or include. This was never the intended meaning, as a reading of Hansard confirms; indeed such a meaning was never expressed in either House although some peers warned that the wording of section 8 (3) was open to more than one interpretation.

  Significantly, this interpretation was not promoted by the Government following the passing of the Bill, whose circular published in draft form in September 1988 said nothing about all religions now being taught. The Circular quoted Section 8 (3) without attempting to explain it. It does not appear in the quality press either which reported the debates accurately. The first interpreters of the law from within the profession did not see this as the meaning either. Edwin Cox and Josephine Cairns,²⁹ writing in 1989, were unhappy about the fact that conferences could not have representation from all the principal religions and nowhere suggest that the law now required all religions to be taught. They also disagreed with the view that the change of name had brought about a fundamental change in the nature of RE. One problem with this view is that it requires one to argue that RE prior to 1988 was 'uneducational' by which is meant something like 'indoctrinatory'. Edwin Cox says that the term 'instruction' in 1944 was occasioned by the need to find another term since RE referred to both lessons and collective worship: 'Much has been made of this, perhaps too much, by commentators who have taken it to mean that teaching was to be authoritarian and indoctrinatory.'³⁰

  This new interpretation appears at a later date and seems to have been the creation of the RE profession. It emerges most clearly in the editorials of the British Journal of Religious Education in the months following the passing of the Bill. The editor at the time was John Hull, now Professor of Religious Education at Birmingham University. He also published a study of the law in early 1989 called The Act Unpacked. He insisted that the law now required all children to study all religions: 'The significant thing to note is...that it will no longer be possible for parts of the country which are predominantly Christian, or where there are no significant groups of religious adherents other than Christian, to claim that therefore the local agreed syllabus should exclude the other principal religions...For the first time therefore, the basic curriculum of children and young people in our schools will not be meeting the legal standards unless they are taught the teaching of the principal non - Christian religions in Great Britain.'³¹

  A significant boost to this new interpretation was given when a barrister's opinion was sought by the Department for Education in 1990/91 in relation to a parental complaint about the Ealing agreed syllabus. In language that echoed John Hull, whose work The Act Unpacked he acknowledged to have found helpful, counsel stated that an agreed syllabus: 'cannot exclude from its teaching any of the other principal religions represented in this country' and 'cannot confine itself exclusively to a religious education based on Christian traditions'.³² From here the next step is Circular 1/94 (which supersedes 3/89) where it is stated: 'The effect of the provisions in the 1988 Act is that a syllabus must be based on both Christianity and the other principal religions represented in this country….The syllabus as a whole must include all of the principal religions represented in this country'.³³ This is the position stated in the House of Lords by Lady Blatch who was under secretary of state for education responsible for the Circular quoted. In the House on 10^th May 1993 she said: 'The law at present requires syllabuses to include all principal religions'.³⁴

  SCAA Model Syllabuses

  On the basis that the law required the teaching of all principal religions, the DES set up working parties to prepare materials to help syllabus conferences with the task. In an interview with me³⁵ Lady Blatch said that this was in response to appeals from local authorities who were worried about the cost of writing syllabuses which had to include material on six religions³⁶. Under SCAA (the forerunner of QCA) these became the model syllabuses and gave details of what faith groups wanted taught about their religions. A particular six religions had been invited to produce material that would form an authoritative source of information as to what should be taught about their religion. These religions were Christianity, Buddhism, Hinduism, Islam, Judaism and Sikhism. Thereby the Government gave a view as to which were the principal religions of Great Britain. On this basis, ASCs up and down the country have assumed that they must include the teachings and practices of these particular religions, their only freedom being at which stages and in what depth each religion should be taught.

  The situation now

  As the new interpretation took over, the original interpretation became hidden from view. However the memory that the law intended to shore up the place of Christianity in the classroom served to guarantee that the Christian traditions have a large share of curriculum time. 'In the main', as we have seen, originally meant something like 'normally' and applied where children were largely from Christian backgrounds. It did not mean that only Christianity was taught, but it did mean that the faith would be taught with conviction whereas information would, perhaps, be given about other religions. It was understood that this would be inappropriate in areas where there were large numbers of non Christian children. Under the new interpretation, 'in the main' has come to mean something like 'mainly' and is thought to refer to the amount of time spent on Christianity in the lessons. The effect of the new interpretation has been to give Christian faith a majority share of the time on every syllabus, regardless of the religions of pupils in the classroom. This view finds confirmation in Circular 1/94 where it is stated that 'As a whole and at each key stage, the relative content devoted to Christianity in the syllabus should predominate'.³⁷ Other religions are guaranteed a place but they must be squeezed into the remaining time. There have tended to be strict limits on the flexibility allowed to teachers in different schools; this is because counsel's opinion³⁸ in the Ealing case was that a syllabus must give sufficient details as to what is to be taught. This has meant that conferences have specified what should be taught about each religion and at each keystage leaving only minimal room for flexibility according to the needs of pupils. It is rare for any authority to require different syllabuses for different pupils in their schools or for schools to teach different parts of the syllabus according to the faith of their pupils (but see the school in Kirklees below). A recent survey³⁹ of four very different local authority areas by OFSTED did not even mention this as a possibility. All four syllabuses required study of the six principal religions with an emphasis on Christianity. In Devon where there are few from non - Christian religions, pupils must study Christianity, Hinduism, Judaism and aspects of other religions at Keystage 1 and 2. In Birmingham where there are very many non Christian religions present, pupils study Christianity and two other religions at each of Keystages 1 and 2. This survey revealed that schools did however exercise discretion in the amount of time spent on each religion so that where there were less than 5% of pupils from another religion more time was spent on Christianity. One school in Kirklees with a predominantly Muslim intake was refusing to teach any of the non - Muslim sections of the syllabus, thereby falling into line with part of the intention of the legislators, perhaps unknowingly.⁴⁰

  Which interpretation is right?

  The question naturally arises as to whether one interpretation is the right one and the other wrong, or whether both are valid. I now look at each interpretation in turn with a view to answering these questions.

  The original interpretation

  This interpretation of the law maintains that the syllabus is to be in the main (normally) based on Christian traditions but should take account of the teachings and practices of the other principal religious traditions represented in Great Britain so that appropriate teaching is given to children of these faiths. The overall aim is to pass on a particular religious tradition to pupils.

  Advantages

  This interpretation fits well with the basic features of the law outlined above. It allows spiritual development to take place within a particular religion. It is based on education into a faith but by means of beliefs and practices held in common across different denominations. The structures of the syllabus conference provide a means of writing the syllabus since where there are religious communities from the non Christian principal religions in an area, they will have representation on the conference and recourse to outside experts is not required (see page 10-11). It fits in well with the received tradition of RE. The taking account of the needs of other religious communities may be seen as a graft onto the original tradition. It gives the right to these communities to have their children taught their own faith in much the same way as the legislation had enabled Christian faith to be taught to Christian children. It fits well with the care taken in other parts of the legislation to allow for other religions to have worship according to their own traditions⁴¹ where appropriate.

  Problems

  One problem is that the wording of section 8 (3) has been seen to rule out such an interpretation. This view rests on the fact that the law is to be judged not by what those passing it said it meant and was intended to mean, but rather by what the wording actually says. The law states that a syllabus must reflect the fact of Christian traditions '...whilst taking account of the teachings and practices of the principal religions represented in Great Britain'. John Hull asserts that the straightforward meaning of the words is that every syllabus must be based on both Christianity and the other principal religions and there is the end of the matter. He finds it difficult to believe that the Government could have been so incompetent and looks to divine intervention for a reason: 'Can it be that a government might be so incompetent as to produce legislation opposed to its own intentions? If those intentions were so ill-advised and uninformed, the fact that the legislation confounded the intentions of the legislators must be attributed to the overriding mercy of a benevolent deity.'⁴²

  John Hull's forceful point of view has been largely accepted, it seems, and perhaps explains the disappearance from view of the original interpretation which is now unknown to most people in the profession, never mind outside it. Against this however must be put the fact that the legislators did not see this as the straightforward meaning of the words. To them the straightforward meaning of the words was that 'account should be taken' of the teachings and practices of other principal religions in the country where appropriate. Dr. Graham Leonard and Lady Hooper, who acted as spokesperson for the Government in the Lords, expressed this understanding to me in personal interviews. They had been assured by parliamentary draftsmen that this was the meaning of the words. It made sense, particularly in the light of the debates which were concerned to find a way of undergirding both the teaching of Christian traditions and the aspirations of non Christian parents. What we have therefore is an ambiguity in the wording. What counts against the new interpretation is the fact that when interpreting statute⁴³ it is insufficient to take account of a particular wording alone. Account must be taken of the statute as a whole. This John Hull fails to do. Some note is also generally taken of the intention of the legislators and the mischief the statute is intended to counter. This also, Hull fails to take into account. If one accepts the meaning Hull assigns to the wording then the original interpretation is wrong, but this is not necessary. It would indeed be strange if it were the case that the wording ruled out the intentions of the legislators, even granting the possibility of divine intervention.

  A second problem stems from the difficulties brought about by the fact of mixed classes in schools so that decisions have to be made about which parts of the syllabus or which syllabuses are to be taught to which children. It is certainly a great deal easier to teach classes regardless of the faith of the children but this approach brings about problems of its own (not least that it does disregard the faith of pupils) but is not insurmountable.⁴⁴ A greater issue here is the difficult one of whether it is right to teach according to faiths and therefore divide up classes, or whether it is right to teach RE to classes together. This is the real issue and lies behind the commitment of John Hull to assert that the law requires the teaching of all religions to all pupils rather than dividing them up according to what he calls the 'ghetto mentality'. However interpretation A does not require that pupils always be separated for RE lessons, nor indeed that any separation take place. It is possible for some lessons to be given separately and others together. It is also possible, though perhaps not desirable, for pupils to follow separate syllabuses in the same lesson, again at times following a common syllabus. It is also possible that non Christian pupils will benefit from teaching based on Christianity even though they themselves are not Christian and vice versa. This is after all, the basic premise of much RE based on the new interpretation.

  The new interpretation

  This interpretation of the law maintains that all syllabuses must include the teaching and practices of the other principal religions represented in Great Britain as well as a study of Christianity. The overall aim is to learn about religions rather than to pass on a particular religious tradition.

  Advantages

  It appears to fit well with a society that is keen to affirm all its citizens and to welcome diversity. It offers a broad curriculum in line with the need for the curriculum as a whole to be broad and balanced. It promises inclusion rather than exclusion. It fits well with the way RE had been taught since the early 1970s when a considerable shift⁴⁵ in the teaching of RE took place. It finds considerable support within the profession.

  Problems

  The rest of the legislation does not support it.

  One might expect the principal religions to be named if they are now required to be taught but this is not the case. This lack of definition does not cause problems for the original interpretation since 'taking account of the teaching and practice of other principal religions' is a task for the local conference whose remit is to provide teaching material for those religions which are present in the area. The decision as to which religions are to be taken account of is largely determined for the conference by the LEA who appoints representatives to the conference. It is in keeping with the need for flexibility in the legislation in order to suit local needs. However it does cause problems for the new interpretation. This is because, according to this interpretation, a syllabus is to include the principal religions represented in Great Britain and this seems to mean that the local situation is not the determining factor. One might argue that this is in keeping with the tradition of minimal definition of the content of religious education. This is no doubt so, but it does immediately beg the question 'which are the principal religions of Great Britain?' The lack of definition of the principal religions did not appear to be a problem to those responsible for Circular 1/94. This Circular, as pointed out earlier, stated that a syllabus as a whole must include all of the principal religions represented in the country. The Introduction to the SCAA model syllabuses however stated, in bold type, that it is for the ASC to define the principal religions. This is clearly, from the point of view of the new interpretation, correct. If the law does not define the principal religions and it is the ASC that writes the syllabus, then the ASC has to define which they are. But if the ASC defines the principal religions then it is difficult to make sense of the view that the law requires 'them' to be taught. It can only require that the ASC decides which religions are to be taught. This is very different from saying that the law requires 'all' religions to be included on every syllabus.

  The legislation for the ASCs makes it clear that only those religious communities in an area may have representation on the ASC. This means that there will be areas where there will be no representatives on an ASC of most of the principal religions. This was the case in my own area of Sefton where for most of the review period only Christians sat on the ASC. The legislation supports rather the view that only religions present in the area should be included in the syllabus. It is significant that in practice ASCs either bring in other faiths from outside the immediate area on to the ASC (contrary to law) or consult experts. The latter is perfectly legal but it still means that the conference may find itself in a position of agreeing a syllabus parts of which it lacks expertise in and experience of. This became very obvious to me when my own ASC was attempting to check the glossaries. We had to go to the Baha'i representative for checking of the Muslim terms and the SCAA glossaries for the other religions. We were out of our depth. Surely if the law had intended the principal religions to be taught in all areas it would have made it possible, indeed mandatory that representatives of the religions held to be principal would be appointed to the conference. One would have to ask however where these people would come from. My own ASC has tried hard to get representatives from the small Jewish community but without success. A vacancy for the even smaller Muslim community has been declared. Will we be able to fill it ? The fact is that the law has to be 'bent' in order to fit this interpretation in a way that is not necessary with the original interpretation. The commissioning of the SCAA model syllabuses must be understood in the light of the need to provide expert advice which was missing in the local authority.

  The legislation for collective worship is of relevance since, as most commentators⁴⁶ argue, RE is closely linked with worship, even sharing language such as 'in the main' and 'mainly Christian'. Great care was taken with worship to allow appropriate worship for pupils of different faiths. Schools may have separate acts of worship or where appropriate have a single act of worship that is distinctive of a non - Christian faith. Is it not likely that RE was also intended to allow for difference and provide teaching that was appropriate for different pupils? (as indeed the provision for different syllabuses shows)

  The conscience clauses, as Edwin Cox noted, seem to imply that something more than mere teaching about different faiths is intended. They are anomalous for many who support this interpretation. The fact that some teaching at least is to be 'by means of' adds further support to this view.

  Other considerations

  There is the issue of the needs of minority religions. 'Taking account of other religions' by including them at some point in the syllabus does not allow for proper religious education in those religions. This is perhaps one of the strongest arguments in favour of the clarification given in Hansard. A reading of Hansard shows that the wording was intended to make full provision for the aspirations of other faiths. A mention on the syllabus alongside many other religions hardly does this. The new interpretation, in order to make sense of the requirement to reflect the Christian traditions 'in the main', has meant that Christianity is generally given not less than 51% of the teaching time. This too, can fail to fulfil the aspirations of other faiths. In the original interpretation there was a requirement that all pupils should study Christianity but not that it should be given emphasis where other faiths were more appropriate.

  There is a concern that pupils do not benefit from learning about numerous religions. A recent study⁴⁷ of more than 2,500 secondary pupils in 22 co-educational comprehensive schools in England provided evidence for the dangers of teaching pupils more than four religions. It showed that pupils who learn more than four religions are apt to confuse religious terminology more than those who have studied fewer than this number. Such an outcome must be damaging to the whole educational process in RE and cannot be a desirable aim. This same study sounded a warning about the thematic study of religions, showing that pupils who were taught this way had a less positive attitude to religions than those who had been taught each religion systematically.

  Finally, there is the issue of spiritual development and growing in faith. One may grant that it is possible to learn about six or even nine religions at school, but will it be effective in aiding spiritual development? The fact is that for most of us the faith that is most likely to resonate and attract us is that which is most close to home. It is necessary to give a sound introduction to it for it to make sense and it must be where possible given by those who know and live the faith. Lord Jacobowitz put it like this, quoting the present Chief Rabbi, Dr. Jonathan Sacks:

  It happens with the best of intentions. How else, in a multicultural society, should we promote tolerance than by teaching children something about every religious group with which they are likely to come into contact; a touch of Christianity; a dash of Judaism; a slice of Islam; and so on through a fruit cocktail of world faiths. But the whole that emerges can be less than the sum of its parts. For it misses out on the most crucial element of all: the fact that for each of us, there is usually only one faith that resonates with personal meaning; the faith of our community, our culture, our family, our past. In trying to teach all faiths, it's possible that we succeed in teaching none.⁴⁸

  To conclude this section

  It would seem that there are difficulties in making the new interpretation accord with the legislation. We might say that there is a 'bad fit'. The original interpretation on the other hand fits in well with basic features of the law. Is the new interpretation therefore invalid? The opinion of counsel in the Ealing case was that it was not. Counsel was however cautious and said that he found section 8 (3) difficult to construe. What is interesting is that counsel appeared to have no knowledge of the original interpretation. The new interpretation has come under no serious challenge within the RE profession. It seems to have been generally accepted as the only available one. But there are reasons for this. Not least of these reasons is the fact that the original interpretation is largely unknown and unheard of. The first time I became aware of it was when I interviewed Dr. Graham Leonard in November 1998. The only place I have found it discussed in the professional literature is in John Hull's editorials in BJRE where it is firmly rejected.

  An interesting question is the use or otherwise of the evidence of Hansard. It is difficult to see how if this evidence is accepted any court could not find in favour of the original interpretation . I now consider a case which has a bearing on the matter.

  The use of Hansard

  It has been customary for judges to make use of what is called an exclusionary rule in the case of evidence from Hansard. This is an unwritten rule, imposed on themselves by judges, first brought into use about 200 years ago. There are various reasons for this rule. One is that intentions may change during the course of a bill's passage through parliament. The original intentions of a bill may not be those that obtain at the time of passing. Another is the extra work involved in turning up the relevant and possible extensive pages of Hansard. Yet another is the tradition in English law of applying the exact wording to individual cases. However there has been a trend in recent years towards accepting Hansard as evidence in certain cases. This trend began with the case of Pepper vs Hart in 1993. In this case the Inland Revenue was charging tax on the benefit teachers received of subsidised fees for their children at the public school where they were employed. The revenue had discovered that the wording of the law was ambiguous and could be made to apply to teachers and others in this situation. Several courts had decided in favour of the tax inspectors. Appeal was granted to the Lords who found in favour of the teachers. They did so on the basis of Hansard, where it had been made clear by the minister that the new law was not intended to apply to teachers. Lord Justice Browne Wilkinson set out three conditions which must apply if Hansard was to be admitted. These were that the wording in question must be obscure or ambiguous or, if taken literally lead to an absurdity, that the intention behind the wording must be explained clearly by a minister or person promoting the Bill and apply to the particular situation in question, and that the explanation put forward by the minister must be a possible one. Lord Justice Browne Wilkinson also stated that if amendments were withdrawn on the basis of the explanation of a particular wording, this would add weight to the argument that Hansard should be admitted as evidence. This was the case in the 1988 ERA.

  Interestingly, in his judgement Lord Browne Wilkinson explained how it is that an ambiguity may not cause concerns to the legislators at the time. When members in both Houses are told that a form of wording will achieve the desired result they assume it will do that. They do not accept that there is an ambiguity: 'Parliament never intends to enact an ambiguity'.⁴⁹

  It would seem that the conditions set out by Lord Browne Wilkinson all apply in this case. Once the use of Hansard is admitted, it would appear to be a clear case of the original interpretation being the correct one.

  What difference would it make?

  But would it make a difference in practice? It is a particular syllabus which is to be judged legal or illegal, not an interpretation. Let us suppose that a syllabus is the subject of a legal challenge and that it is decided that the correct interpretation of the law is the original one. The syllabus should reflect the needs of the local communities. Where children come largely from Christian backgrounds that should be reflected in the syllabus but account should be taken of the needs of other children where there are significant numbers of them. Certain tests can be applied. For example, it may be that procedures have been wrongly followed. So, if the ASC has had co-opted members taking part in decisions and playing a key role in all meetings, if they have brought in members from outside the local authority area to guarantee membership of religions deemed to be principal, if they have delegated the writing of the syllabus to a group or groups not containing representation of the committees that make up the ASC, then it may be that the syllabus is void. These are important questions but it would not be very satisfactory to overturn a syllabus on procedural grounds. It evades the real issue of how far the syllabus itself is in conformity with the law.

  An interesting question is whether a challenge could be mounted on the basis that the conference proceeded on the assumption that they must include all the principal religions and would have written a very different syllabus had they known that this was not a legal requirement. This would be difficult however since it could not be known for certain that the ASC would have decided differently.

  The real test must be the provision that is made for the proper teaching of Christianity to Christian children, Muslim teaching to Muslim children and so on. Also important would be the provision of some teaching of the Christian traditions to non-Christian children. In fact most agreed syllabuses now are careful to allow for progression in the learning of faiths, taught as wholes, thus avoiding the mischief of mishmash. How would one judge whether proper provision has been made? There is an argument that at the primary level, the home tradition only should be taught and that this would be proper provision. Most syllabuses however, following advice based on the new interpretation, insist at all keystages there must be some teaching of other religions. Most now specify two at keystage one (infant) and up to four at keystage 2 (top primary). Some would argue that some knowledge of other faiths is necessary at primary level and would be unhappy at only the home tradition being taught. Such knowledge could of course be given in subjects like history and geography or even Maths. Muslim parents in the Kirklees school mentioned were unhappy at any teaching apart from Muslim teaching being given to their infant children and one has some sympathy with this. Can it be argued that syllabuses that specify more than one religion at primary level are contrary to law? This would seem difficult, even granting that one accepts the original interpretation. This is because the original interpretation envisaged some understanding of other faiths being given in some form or other. What about the intention to undergird faith in the original interpretation? One might apply a test to a syllabus that would find out whether or not a syllabus advocated neutrality. However it is very unlikely that a syllabus would actually do this. Yet the lack of a recommendation that faith should be encouraged would seem unlikely to convince a court that a syllabus was contrary to law.

  None of these tests seems entirely satisfactory. Does this mean that it really does not matter which interpretation one follows? There is another way of looking at proper provision. Let us assume that proper provision means something like this. By the time a pupil reaches school leaving age (16) he or she must have been introduced to a particular faith, its antecedents, its historical development, its effect upon societies, its effect upon other faiths, its strengths and weaknesses, its theology, its practices, its saints and sinners, the different ways it has been interpreted and enacted, its contribution to the present and the future, its problem areas and attempts to answer critics. Also to be included are festivals, fasts, rites of passage, prayer, sources of authority, types of revelation, attitude to suffering, justice, war and peace, faith and reason, realist and non-realist views of God, science and religion and so on. It could be argued that all this is too ambitious, but it could also be argued that pupils deserve nothing less and that the attempt must be made. If this is so, then a syllabus that does not provide this is failing to provide proper provision. I have argued here from a Christian point of view but where necessary, similar provision must be made for children from other religions. What this means is that a syllabus which attempts to provide for all children to learn six faiths, as the great majority attempt to do, cannot be giving proper provision in any one faith. At present the necessary flexibility is often written out of a syllabus, following the view that all religions must be studied.

  This test, if applied, would mean that very few syllabuses comply with the legal requirements. Newcastle (1994) is an exception. This syllabus has attempted to provide a detailed and thorough introduction to Christian faith. It has done this by not attempting progression in any other faith. Each of the other five religions is covered at only one point in the syllabus. These religions are given minimal coverage. Often syllabus conferences are unhappy with this and try to build in progression in the learning of the other five religions too. The attempt to give adequate coverage to other religions can only be achieved by sacrificing proper provision in one faith. There is not enough time. It is also doubtful whether children benefit from learning about so many faiths

  Conclusion

  The conclusion of this study is therefore that syllabuses that attempt to teach six religions are likely to be failing to provide proper provision in the teaching of a particular faith which is a legal requirement. Given that the law does not require such a number (indeed any number) of religions to be taught it seems advisable that the advice in Circular 1/94 that all principal religions should be included on every syllabus should be withdrawn, following a judicial review if necessary. The advice that a syllabus should not urge a particular religion or religious belief upon pupils should also be withdrawn. This advice is not supported by the law and has had the effect of making teachers nervous about teaching anything with authority or conviction.

  Does it matter?

  It appears that RE has developed in a different way from that intended by the legislators, but we must ask 'Does this matter'? If RE is in a healthy state and is meeting the needs of children and society does it really matter if it is not entirely in accord with law? Clearly in a democratic society it does matter if the law is being broken since the will of the people is paramount. If the way RE is being taught, following the new interpretation, is widely held to be correct then the law should be changed to bring it into line with RE as it is being practised. So the important question is whether RE as practised is working to the good of children and society.

  Factors which suggest that RE is working well

  There are many indicators here. OFSTED reports increasingly high standards in RE although with some reservations about Keystage 3 overlap with Keystage 2. Pupil attitudes in all schools visited in the 1997 survey were reported to be 'good or better'. The new agreed syllabuses have given primary teachers confidence and increased their subject knowledge and RE is well planned. An increasing number of schools follow Lord Dearing's recommendation of 5% of curriculum time at all keystages. The new short courses in GCSE are proving popular and may serve to increase the numbers of pupils taking the subject at A level. An array of well produced textbooks and resources are provided for teachers. RE resource centres exist in many areas and strong community links exist in many schools. QCA has a subject officer for RE and the Government has indicated continuing support for the subject.

  Factors which still give rise to concern

  Barbara Wintersgill, Chief Inspector for RE, has expressed concern that RE at Keystage 3 lacks depth and challenge. This is to some extent connected with the overlap between Keystages 2 and 3 found in the 1997 survey. She is worried that the sort of questions asked in history and in lessons on literature are not asked in RE. So while pupils grapple with questions about the role of guilt in Macbeth in English they learn about the facts of the life of Mohammed in RE. What is happening is that pupils are found to be secure in factual knowledge but not in evaluation or spiritual development. The OFSTED survey said this:

  There were weaknesses in pupils' abilities to relate what they had learnt to their own experience, and their ability to make reasoned judgements using evidence and argument. Religious education should make a significant contribution to the spiritual and moral development of pupils, but this was not always evident. Too often RE was reduced to the acquisition of facts about religions.⁵⁰

  The same concern formed a major part of the QCA review⁵¹, published in early 2000, in which attempts were made to help teachers with this. The QCA suggestions however do not help pupils to make critical judgements about what they are learning; rather they prescribe unguided reflections about such matters as ambitions, generosity, and personal beliefs, using the beliefs of religions as stimuli. What is conveyed to children is that the actual teachings and practices of the religions may be ignored. Hence is not surprising that this review makes no suggestions of how pupils might be helped to engage seriously with the truth-claims of the religions studied.

  A survey sent to all schools as part of the National RE Festival in autumn 1997 asked children to give their opinion on religious topics such as God, life after death and prayer. The results were published and clearly the survey helped pupils to address these important issues. What RE has to do however it not just to raise questions and invite opinions (an activity which in other subject areas might cause eyebrows to be raised) but to give some rational basis for making an opinion. This survey did not attempt to do this or even ask pupils to justify their opinions.

  A way forward?

  One must therefore ask how it is that pupils are going to develop spiritually and learn critical engagement in the matter of religion. Could it be that these matters are best achieved from within a religion rather than standing outside of them all? Could it be that the intention of the legislators in 1988 that pupils should learn largely from within their own home faith is the best way forward in these matters, as well as being a better fit with the law?

  The idea that critical engagement is best developed from within a faith may appear surprising⁵². However, it is perhaps only when a faith is taken seriously because it is believed to be true that one is required to defend it against attack. Indeed it is only by this means that one is likely to be aware of what the criticisms of a faith are. Modern RE often introduces several religions to pupils as what people happen to believe. This does not go far enough. Presenting religions in this way may not encourage a search for the truth since it may appear to children either that it does not matter which religion is true or that there is no way of knowing (since if there were their teacher would surely have shown it to them). The idea that religions are not competitors in the matter of how life should be lived has its attractions. But if they are not competitors in some respects at least, there is little point in critically engaging with them in order to work out which, if any, is to be followed.

  If this is so, then it does matter that we go back to the original intention of the law or at least make it possible for those schools and communities who wish to teach this way to do so. It is not likely to be productive to insist that all follow the original interpretation. My concern is that it is properly understood so that it may be given a fair hearing, and it may be, provide a proper challenge to the young.

  THE AUTHOR

  Penny Thompson has taught for fifteen years in comprehensive schools in Sefton and has served on SACRE and two ASCs since 1990. She is at present engaged in research for a book on RE and welcomes comments and discussion on this booklet. She is an Anglican.

  Mrs Penny Thompson

  pennyt@telinco.co.uk

  www.angelfire.com/pe/pennyt/

  There are now four Occasional Papers in this series. Occasional Paper no 1 is called SACRE and ASC a guide and explains how these bodies work. Occasional Paper no 2 is called The Law, Religious Education and Collective Worship and is a guide to RE for Schools' Workers in Sefton. It is also relevant to Schools Workers elsewhere. Occasional Paper no 3 is called Challenging RE and sets out a vision for RE based on the law as originally intended. Copies of all four papers may be obtained from the author at the price of £1.50 each including post and packing.

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  ¹ London at School, the Story of the School Board, H.B. Philpott, London, 1904, p.106, quoted in The Teacher and Religion, F.H. Hilliard, London, 1963, James Clarke, p.17.

  ² Education Reform Act, Section 8 (3). This is now section 375 (3) of the Education Act 1996.

  ³ In Wales there are three committees and the Church in Wales has representation on the 'other churches' committee.

  ⁴ In France, where RE is provided, it is offered by teachers on a voluntary basis. In Australia it is provided by the churches who pay their teachers or not as the case may be. In New Zealand schools have to be officially closed while voluntary religious education lessons take place.

  ⁵ Quoted in Hilliard, op.cit. p.19.

  ⁶ This right relates to any sex education that is provided outside the National Curriculum.

  ⁷ The 1944 Act allowed inspection of RE for the first time but the ERA 1988 made it compulsory.

  ⁸

  Circular 1/94 para 1, p.9.

  ⁹ This distinction and the importance of spiritual development is underlined by QCA in their recent review of the subject. See Religious Education, 2000, QCA, London.

  ¹⁰