Jack Russell is a parent, primary school governor, and member of the core team at Parents for Inclusive Education NI, a grass-roots organisation that advocates for the rights of all children and parents across Northern Ireland.
Following the Supreme Court’s judgment last Wednesday that RE taught in NI schools is unlawful and amounts to indoctrination, the Education Minister appears more interested in talking about witchcraft than meaningful reform. This distraction and deflection is unhelpful to schools seeking guidance, but it is no accident.
He is distracting from the findings of the Supreme Court, which – whatever other commentators may have claimed – are likely to represent what Darragh Mackin described as “probably the single most important legal decision for education, certainly in the last century”.
Perhaps the most embarrassing aspect of this case for the Department of Education (DE) is the money it has spent over the last four years and what it has got in return. By the Minister’s own admission, hundreds of thousands of pounds of taxpayers money has been spent on this case, funding that will not now reach other areas which desperately need it.
Whilst the overall bill is yet to be finalised, it will certainly have been inflated by the Department’s decision to appeal Justice Colton’s original High Court judgment. But what did the DE get for that additional spend?
As a result of Wednesday’s judgment, the DE must not only grapple with the original judgment reinstated in full, but also with the knowledge it comes with Supreme Court backing.
In addition to the original findings, the scrutiny given the case by five of the highest justices in the UK has brought to light legally dubious aspects of current law untouched by the original judgment. One example concerns the right for any minister to demand from a school in the vicinity of his church a list of its pupils who are recorded in the school’s census as belonging to his denomination. The fact that this would reveal their beliefs represents a likely breach of convention law.
Furthermore, the following critical principle was made concrete in UK case law: that a state which takes an approach that is not objective, critical and plural is one that is pursuing the forbidden aim of indoctrination, and that these are two sides of the same coin.
This principle, amongst other findings, promises to elevate the impact of the case law flowing from JR87. This case will now have implications across the UK, and likely result in fundamental changes to, or even the abolition of, collective worship laws affecting 30 times as many children across England, Scotland and Wales, as live in Northern Ireland.
Focusing on the specific impact on Northern Ireland for now though, let’s go through the judgment in detail. From this point on I will provide specific references to its paragraphs. For example, paragraph [13], which the Minister relies on to interpret the judgment as affirming (in his words) that schools “can and should maintain a Christian ethos”.
[13]… this case is not about whether Christianity should be the main or primary faith that pupils learn about in schools in Northern Ireland. Historically and today, Christianity is the most important religion in Northern Ireland. It is within the Department’s margin of appreciation in planning and setting the curriculum for the greater part of religious education to focus on knowledge of Christianity… [emphasis added]
The word “ethos” does not appear here or anywhere else in the judgment. It is clear that what the court was referring to above was the curriculum, which the Minister has recognised as the first key area that needs to be addressed.
In the paragraph above, the Supreme Court is clear that the Department’s margin of appreciation allows it to impart a greater part of knowledge about Christianity than knowledge about other belief systems. This margin of appreciation is strictly limited to relative focus and volume.
What is non-negotiable is that the curriculum must be objective, critical and pluralistic [23,54], which the Transferors Representatives Council (TRC) – representing the three largest Protestant denominations – has already conceded it is not [91]. Just as importantly, it must be conveyed in that manner [105].
The judgment goes on to flesh out these requirements in detail. With regard to pluralism, in addition to including diverse worldviews, contracting states to ECHR have a duty to be neutral and impartial [114]. This means that other religions and non religious viewpoints must be accorded equal esteem. This echoes the original judgment’s paragraph [60], which considered a key principle emerging from case law to be that the state must accord equal respect to different religious convictions and to non-religious beliefs. Alongside this pluralism there must be a commitment to objectivity and the development of critical thought [88].
While pluralism is a necessary quality for the new curriculum, one interesting wrinkle that emerged during this case was that it is currently unlawful for Controlled schools to explore the differences between Christian denominations [54]. This arises as an effect of the requirement that RE be non-denominational. So not only are children being deprived of knowledge of non-Christian belief systems, they are also being deprived of knowledge of the rich variety of Christian practice present in NI today.
In these circumstances, absent a change in the law it is hard to see a curriculum with a majority focus on Christianity being anything other than terribly bland.
Moving on to the process of curriculum redesign, the Minister has stated that he will pick the panel charged with this duty. Here again he will find himself constrained.
In another extension and clarification of the problem of indoctrination found in the lower court, the Supreme Court additionally found in [85] that this indoctrination was:
[85]…the inevitable consequence of leaving the drafting of the core syllabus to the four main churches. All four main churches seek to promote faith in Christianity as an absolute truth rather than knowledge about Christianity. [emphasis added]
This implies that the coming redesign must not be led by churches, but by independent and expert education professionals. Churches may naturally still be part of this process, but only in an advisory capacity.
Luckily for the Department, curriculum design is a hot topic across the UK right now. Earlier in the month, England’s Curriculum and Assessment Review panel recommended that Religious Education be included in England’s National Curriculum for the first time. This could turn out to be very relevant to the process and outcomes here. With significant resource likely to be spent on developing a world-class, inclusive curriculum for England, there will be an opportunity to piggyback on this process (with some minor adjustments made to reflect our particular situation in NI).
If the Minister spends substantial additional resource to diverge from England’s new curriculum, he will therefore have questions to answer. Firstly, he will need to justify why standards should not be harmonised across the UK, as his party is keen to do in other areas.
Secondly, he will need to explain any decision to resist change to the churches and other interested parties that welcomed the judgment. These included Anita Gracie of the TRC, who expressed frustration that the TRC’s long-standing desire to reform the curriculum had been stymied by the mothballing of the RE advisory committee. Bishop McKeown – a Catholic voice representing a sector that has otherwise remained relatively quiet so far – was sanguine, recognising the importance of understanding other people’s beliefs, practices and traditions. David Smyth of the Evangelical Alliance said this was not a moment to fear.
That word “fear” is worth addressing. It has been evident over the last week that many here do fear the introduction of other religions into our schools. I think this is related to how often the word “instruction” keeps coming up. Although “instruction” was purposefully changed to “education” by the Education Reform (Northern Ireland) Order (1989), and later legislation reinforces “religious education” as the formal term, it was telling that Jim Allister and Paul Givan amongst others continued to use the former word in their public statements.
In practice, they may have good reason to do so. Those who have grown up in this country since 1989 may not have noticed the change if in the classroom they continued to be “instructed” in the Christian faith as many still are.
And many of us who have been campaigning for change will be sympathetic to the argument that there could be something to fear in the idea of “instruction” in a religion you don’t hold yourself. But true education should hold no such fear.
Perhaps the quote that summed the moment up best came from Harbour Faith Community. Their facebook post is worth reading in full, but this passage sums it up well:
“as Christians, we welcome religious education that reflects the world we live in, that doesn’t pretend Christianity is the only voice in the room, and which trusts truth to sing without needing to be timetabled. If the Christian story is as rich and hopeful as we claim it is, it will shine just fine without the scaffolding of enforced religious privilege.”
Maybe politicians who claim to represent faith communities would do well to listen to the voices of those communities, like Harbour Faith, they claim to represent.
The second key area in which the Minister recognised a need for change was collective worship, and here the judgment was equally clear.
Looking at the issues in the judgment critically, it is clear that collective worship must also be objective, critical and plural, and must be conveyed in that manner [25]. This applies to any visitors who come in and means, thanks to the two-sides-of-the-same-coin principle, that they must not proselytise [26,73].
It is very hard to see how this requirement could be met by many of the organisations currently visiting our schools. For example, Child Evangelism Fellowship (CEF) were the most frequent non-church visitor discovered by a freedom of information request (FOI) conducted by Parents for Inclusive Education NI (PfIE) in 2023, with 710 visits to 123 schools. CEF’s purpose is plainly stated in their name. Many other organisations, visiting our schools every week across NI, have an equally explicit aim of evangelism.
The inherent contradiction here is the clearest indication that, thanks to the DE, compulsory collective worship laws not just in Northern Ireland but across the UK are now ripe for challenge. Many have long held that these infringe on basic freedoms. There is now a Supreme Court judgment that supports their argument.
Curriculum reform and collective worship were the two areas the Minister focused on in his response. But to assume this judgment’s implications are limited to those areas would be a mistake. For a start, in both of these areas, inspection is critical.
Both the High Court and Supreme Court judgments are clear that no inspection of RE currently takes place:
[30] Mr Dempster, the acting Principal Officer in the Curriculum and Assessment Team in the Department, states that religious education in schools is not inspected or evaluated by the Department, and the Department has no knowledge of the practice in individual schools. Therefore, the Department does not know whether grant-aided schools do in fact provide religious education which includes the core syllabus, or whether additional religious education is given and if so whether the additional teaching amounts to further indoctrination, evangelism, or proselytising. Also, the Department has no knowledge of the constraints, if any, on teachers saying prayers of thanks to God. Mr Dempster makes no mention of inspection of collective worship. Therefore, the Department does not know whether grant-aided schools comply with the statutory requirement to include daily collective worship, or whether the collective worship amounts to indoctrination or evangelism or proselytising.
In paragraph 101 of his original judgment, Justice Colton described this as “a damning admission”. It is hard to disagree.
Inspection is intimately linked to the positive obligation to provide a curriculum that is objective, critical and plural. This obligation cannot be guaranteed without inspection. Inspection is therefore required, and the fact that it must take place was repeated many times throughout the Supreme Court judgment [28-30,57,66,73]. Furthermore, the state has a positive obligation to act if, through such inspection, indoctrination is found to be occurring [107,108].
At Parents for Inclusive Education, one of our biggest demands is for transparency. Parents deserve to know what is happening in schools. This also implies a need for inspection, and relates particularly to external religious visitors. There are worrying parallels with recently documented issues surrounding safeguarding at the Presbyterian church here, which this case eclipsed in the news cycle last week.
Just two days before the JR87 judgment was delivered, William Crawley had Jacqui Montgomery-Devlin, the safeguarding lead at the Presbyterian Church in Ireland (PCI) from 2019-2024, on TalkBack. She described to him that when she first arrived in post, she found precisely zero records of safeguarding actions that had previously taken place. There were also failings with regard to safeguarding training and the level of resource devoted to safeguarding (she was the only central safeguarding officer for over 500 Presbyterian congregations).
This is a relevant conjunction to make, because the PCI is the largest single source of religious visitors to our primary schools, with over 2,500 visits to 280 schools during the period our FOI request surveyed. If our churches are failing at safeguarding, and failing to keep any safeguarding records, and our schools are not being inspected, then we have a serious transparency, accountability and safeguarding problem. This is another area which is not optional to address, and where bare minimum solutions won’t cut the mustard.
But can withdrawal act as a remedy? Here again, the Supreme Court delivered a further confirmation of the original High Court finding, served with a side. In short, the only legally acceptable withdrawal option is one that would be incapable of placing an undue burden on parents [116]. The court made it clear that such an option must be pre-existing and funded by the school or Department [33,37,60,61], that the Department must take the utmost care to see to it that parents’ beliefs are not disregarded, and must provide assistance to individual schools in relation to alternative arrangements for withdrawn pupils [109].
Schools will await guidance on this nervously. Classroom resources are stretched – the prospect of large numbers of withdrawn children for whom a meaningful alternative will have to be provided will stretch them further.
The Minister and others have made much of the fact that the Supreme Court didn’t quash the laws it supposedly found offensive. Yet it is clearly articulated in the judgment that:
[4] JR87 and G have not appealed against the judge’s refusal to quash the subordinate legislation so no issue arose before the Court of Appeal or before this court as to its validity.
In other words, quite apart from the fact that the Supreme Court under Lord Reed has taken a conservative approach to date, the issue of quashing legislation was not appealed and therefore didn’t arise before the Supreme Court. They were never going to quash.
What the Supreme Court has done though is to very carefully lay out pathways to several open doors through which cases could now be brought, supported by their observations. One example was highlighted by Sam McBride in his piece the day following the judgment:
The judges made clear that as long as schools provide the religious education mandated by the core syllabus, they are “at liberty to give additional religious education”. Going further than this, they said this education could “amount to indoctrination, evangelism, or proselytising… there is no requirement that the additional [lessons] are objective, critical, and pluralistic”.
Mr McBride presents this as evidence that schools will be allowed or encouraged to continue as they are. In doing so, to mix metaphors, he fails to see the wood for the trees and mistakes a red flag for a green light. Paragraph [57] is not an invitation to continue with more of the same but part of a wider body of evidence assembled by the Supreme Court – evidence of systemic failure that is part and parcel of their finding of indoctrination.
It is ironic that Mr McBride’s article starts with the statement “The 40-page judgment is far more complex than many people seem to have realised.”. Apparently so. In fact, a full understanding is only possible by reading both judgments and the addendum to the original judgment, as well as the various legislative instruments under examination. In particular, paragraph 11 of the addendum states:
[A11] One complication that arises in relation to relief is that the “impugned legislation” is complex and interlinked. The court has found that the outworkings of the various provisions set out in the judgment are in breach of the applicants’ rights. Declaring the entire provisions identified to be unlawful on a global basis goes beyond the findings of the court.
In other words, the laws are complex and interwoven, and Justice Colton felt it beyond his jurisdiction to bring the whole thing down. This decision was not appealed. He did go on however, in the next paragraph of the addendum, to refer back to his finding at [134]:
[134] The court does not propose to make any order with regard to the school. The unlawfulness established in this case flows from the obligation under Article 21(1) and (2) of the 1986 Order which requires RE and CW to be based upon the Holy Scriptures. This obligation is manifested via Article 21(3A) which provides that in grant-aided schools the religious education required shall include religious education in accordance with the core syllabus specified under Article 11 of the 2006 Order, which the court has found to be unlawful. [emphasis added]
Which was followed, pithily, in [135], with:
[135] That is the mischief which needs to be addressed.
This could be interpreted as meaning that the core syllabus is the mischief to be addressed, but also that this mischief necessarily flows from the requirement to base RE and CW upon the Holy Scriptures. This reading would suggest that Article 21(1) and (2) of the 1986 Order are inconsistent with convention rights and must therefore be amended.
Finally, Justice Colton delivers his remedy in [137]:
[137] The court recognises that it is dealing with a sensitive and nuanced area. It considers that the unlawfulness it has identified requires a reconsideration of the core curriculum and the impugned legislation in relation to the teaching of RE and the provision of CW. It notes that this matter is currently under review. The outcome of any reconsideration and a review is not a matter for the courts but ultimately for the Department and the Northern Ireland Executive. In carrying out a reconsideration and review it should ensure that the arrangements for the teaching of RE and CW in Northern Ireland are compliant with the provisions of A2P1 and Article 9 of the Convention.
The review referred to here is the Independent Review of Education, upcoming at the time but now concluded. It made clear recommendations on RE, which concur with previous points made in respect to curriculum:
[vol 2 4.100-101] It would now be desirable if [the four main churches], together with representatives of other faiths and of those with no religious affiliation, were to collaborate with the new curriculum body in devising a replacement course… It should be knowledge-based and separate from religious observance.
Critically, in addition to the curriculum, Justice Colton also made it clear that the impugned legislation must be also reconsidered. This reconsideration must take place in the Northern Ireland Assembly. As to which legislation needs to be changed, the Supreme Court again affirms, then goes beyond Justice Colton’s ruling. In addition to Article 21(1) and (2) of the 1986 Order, paragraph [130] lays out three additional parts of the law which the Assembly might care to look at:
[130] For the purposes of this appeal and absent full argument on these points it is not necessary to decide whether: (a) the Department was also in breach of A2P1 by failing to monitor, inspect and report on the standard of religious education being provided in schools (see paras 28-30 and 108 above); (b) regulation 21(5) of the 1973 Regulations breaches article 9 ECHR by requiring the Board to reveal pupils’ beliefs concerning spiritual matters to the relevant minister on request (see para 72 above); (c) the safeguards in relation to the qualification to the right of access to pupils under article 21(7) of the 1986 Order that “the parents do not object” is sufficient to protect the rights of parents and their children (see para 68 above).
We have discussed point (a), the lack of inspection, already. The Minister has promised to consider inspection and how this could be changed. The law will likely need to be amended to bring inspection of RE into the fold with all other subjects. As to (b), it is very hard to see that removing this regulation would be controversial, even in the current political climate. With regard to point (c), the legislative change required maybe a clarification of the ambiguity highlighted in [68].
In an ideal world, these legislative changes would progress through a functional Executive in an orderly fashion. However, if the pace of change is not quick enough it may be that further litigation will be required. Darragh Mackin and Phoenix Law will be waiting (other solicitors are available).
As so often happens in legal cases involving children, they can end up being the ones whose voices get forgotten. Indeed, the child’s perspective has not once been addressed in the Minister’s responses to date.
The arguments above may be long and dry, but at the heart of the issue here remain the human rights of young people in Northern Ireland.
As Parents for Inclusive Education, we think all of our children deserve to feel valued, included and respected in their schools. Every child, regardless of their religious or non-religious backgrounds, should have the right to an education that values and respects their individuality, personal beliefs, and background, and helps them develop the skills they need to understand, value and respect those from different walks of life.
We are calling upon Education Minister Paul Givan to urgently prioritise and ensure:
- Delivery of an updated ECHR compliant RE curriculum designed by a pluralistic and interfaith panel of suitably qualified and experienced educators;
- Inspection of RE by the Education and Teaching Inspectorate in line with the rest of the curriculum; and
- An immediate pause on access to pupils by external organisations in order to deliver religious education or collective worship during core school hours until a new, rights-respecting curriculum is in place.
No child should face stigma at school. No child should be othered. No child should be excluded. All of our children deserve better.
Please sign this petition to urge the Minister for Education to prioritise children’s rights and ensure an inclusive religious education for all.
https://my.actnowni.org/petitions/reform-religious-education-in-ni-now
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