Defeat for Morgan in High Court over GCSE religious studies

Janet Downs's picture

The High Court has ruled that Education Secretary Nicky Morgan made an ‘error of law’ when she omitted ‘non-religious world views’ from the new religious studies GCSE. Three families, supported by the British Humanist Association, had sought a judicial review claiming Morgan had taken a ‘skewed’ approach which was not reflecting the pluralistic nature of the United Kingdom. Mr Justice Warby ruled there had been ‘a breach of the duty to take care that information or knowledge included in the curriculum is conveyed in a pluralistic manner’. David Wolfe QC, for the three families, said there had been widespread concern ‘about the Secretary of State’s failure to comply with her duty of neutrality and impartiality as between religious and other beliefs.’ Lawyers acting for the SoS said there was no legal obligation under domestic law or the European Convention on Human Rights to give equal consideration to religious and non-religious views in the curriculum. They also said GCSE RS wasn’t the only way for schools to fulfil their duty to provide religious education although some did. There was provision for non-religious beliefs to be studied outside exam programmes and this was a matter ‘for local determination’. The Judge said it was not unlawful to have a GCSE RS which omits non-religious world views. However, in February 2015 when the new subject content was issued, an assertion had been made that such a GCSE ‘will fulfil the entirety of the state’s RE duties’. The Judge said this assertion would likely be accepted by schools and encourage them to ‘act unlawfully’. He concluded: ‘The assertion thus represents a breach of the duty to take care that information or knowledge included in the curriculum is conveyed in a pluralistic manner’. The Judge made it clear that his ruling related only to schools or academies which had no religious character. Schools with a religious character were covered by different rules laid down in the 1998 Schools Standards and Framework Act. The Department for Education responding by saying the new RS GCSE ‘ensures pupils understand the diversity of religious beliefs in Great Britain through the study of more than one religion’. It claimed it was ‘designed to ensure pupils develop knowledge and understanding of both religious and non-religious beliefs’. It’s unclear how the RS GCSE develops knowledge and understanding of non-religious beliefs when the syllabus does not cover them. The DfE spokesman said the judgement didn’t ‘challenge the content or structure of that new GCSE’ and that the judge had ruled the GCSE wasn’t unlawful. However, he seemed to have missed the conclusion that schools could be acting unlawfully if they relied on RS GCSE to meet religious education requirements. The RS GCSE alone would not do so. ‘We will carefully consider the judgement before deciding on our next steps,’ the spokesperson added.

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Arthur Harada's picture
Thu, 26/11/2015 - 09:31

Unfortunate the SofS's Oxford degree in Jurisprudence didn't cover the issue of pluralism in contemporary Britain.

Guest's picture
Thu, 26/11/2015 - 09:35

From my experience it seems that in relation to KS3 providing RE, PSHE and if taught Citizenship, would embrace non-religious groups and viewpoint. However, at KS4 the GCSE is Religious Studies and as such quite appropriately focuses on the chosen religious groups selected from the syllabus.

It strikes me that for humanist/atheist groups to clamour for inclusion in GCSE RS they are declaring themselves to be religious groups. Clearly they aren't and as such their position is untenable.

At this juncture it is also worth noting that for very many years to get grade A (and subsequently A*) to C in GCSE RS students were advised that the larger mark questions requiring a combination of K&U about the relevant religious teaching linked to articulating a personal opinion with reasons also had to include reference to what non-religious and/or other religious groups taught. For example:

Christians' believe / teach (citing the denomination where appropriate)
Islam/Judaism teaches
Atheists believe
I believe xxx because xxx

In this way although humanism/atheism was taught discretely their counter viewpoints were covered at appropriate points in the syllabus.

Taken across KS3-4 then it can be seen that there is balance and non-religious views/positions are not suppressed or ignored. At which point I have to admit being bemused by both the judgement and what could be understood as a trojan horse case used by non-religious groups to attack and diminish KS GCSE RS.

Janet Downs's picture
Thu, 26/11/2015 - 12:19

Guest - my understanding is that the Judge didn't say the new GCSE RS syllabus was unlawful. It was using it as the sole basis for the Key Stage 4 curriculum which was unlawful because GCSE RS did not cover non-religious world views. He said Morgan was acting unlawfully because an assertion had been made when the new syllabus was revealed that GCSE RS would be sufficient content for KS4 RS.

I understand that if non-faith designation schools offer GCSE RS and supplement this with teaching elsewhere (say, in Philosophy and Ethics) about non-religious viewpoints they would be adhering to the law. But if they taught GCSE RS only they would acting unlawfully.

It should be remembered that GCSE RS isn't compulsory - pupils who didn't follow it would get no RS at all if the school taught RS only within the context of a GCSE course.

My personal point of view is that all children (whether in faith designated schools or not) should be taught about a wide range of religious beliefs and non-religious world views.

Guest's picture
Thu, 26/11/2015 - 14:49

Apologies, I do seem to have gotten a crossed-wire on this one.

Here is the DFE response; undoubtedly with more to follow:

It is interesting to note the dissonance between BHA pronouncements on the judgement and the DFE's understanding.

I am minded to think that whoever either allowed the SoS Ed to push forward on this or who advised her fell well short of the mark. Yes, there is a clear difference between the GCSE syllabus and the non-examinable curricular coverage and that should have been self-evident within the DFE.

What mires the situation further is the divisive legacy left by one Michael Gove regarding LA schools and the statutory national curriculum v the Academies (including Free Schools) who outside the defined care subjects have to offer a broad and balanced curriculum. So whereas an LA school must, a minimum, offer non-examinable religious education in both KS3 and 4 they do not have to offer GCSE RS, and academies/free schools do not have to offer either. The latter might - and stress might - attract unwanted attention during an Ofsted inspection if say, there was no RE/RS in either KS. This situation is confusing and therefore unhelpful and SMW had to seek and issue guidance on what a broad and balanced curriculum should look like:
(see final link HMCI letter)

For all schools this led to a re-emphasising of SMSC but this does not explicitly cover teaching about beliefs whether religious or otherwise.

This is further complicated by the requirement within the national curriculum to teach citizenship but this has the same issues as religious education for academies/free schools. That is to say it is not compulsory and comes back to general coverage via SMSC but with the additional and much publicized focus on British values.

All in all a reet mess arising from political meddling and not doing ones homework properly for the task in hand :-)

Janet Downs's picture
Fri, 27/11/2015 - 09:54

Guest - thanks for the link to the DfE response to the court ruling. It rather plays down the Judge's opinion that relying solely on GCSE RS to fulfil a school's RS obligation in Key Stage 4 was unlawful. Instead, the DfE said relying on GCSE RS 'might not always' discharge a school's obligations for teaching RS and schools which 'might not always' do so were 'wrong'. That's a bit weaker than 'unlawful'.

Janet Downs's picture
Fri, 27/11/2015 - 09:41

Goldsmith's, University of London, has published a report, 'RE for Real' which argues for a complete overhaul of RE teaching to bring it up-to-date. Its recommendations include the development of a National Framework for Religion and Belief Learning, compulsory religious and belief learning until 16 and increased continuing professional development for non-specialists teaching the subject.

Guest's picture
Fri, 27/11/2015 - 11:56

Janet - I can only quote from the BBC article that itself quotes the judge himself:

"Mr Justice Warby ruled there had been "a breach of the duty" in reflecting the pluralistic nature of the UK.
The government said its new GCSE was found to be lawful and that it aimed to promote an understanding of all beliefs.
The judge said: "It is not of itself unlawful to permit an RS GCSE to be created which is wholly devoted to the study of religion."
But he added the February announcement had included the "assertion" the new GCSE "will fulfil the entirety of the state's [religious education] duties" and schools would interpret this to mean non-religious views need not be included in teaching.
"The assertion thus represents a breach of the duty to take care that information or knowledge included in the curriculum is conveyed in a pluralistic manner," he said.
And as a result, the education secretary "has made an error of law in her interpretation of the education statutes"."

It can be seen then that "a breach of duty of care" leading to the SoS Educ making "an error in law" is not the same or equivalent of "unlawful".

Of importance is that this ruling only affects KS4 where students only have the an offer of either GCSE RS (full or half and compulsory or optional) and/or no coverage of RS/RE at all: whether explicitly or indirectly via PSHE or Citizenship or other means (e.g. collapsed timetable events).

So, yes, the DFE/SoS are in error but so too the BHA and others are in error regarding their perception/interpretation of the judge's ruling.

Janet Downs's picture
Fri, 27/11/2015 - 12:45

Guest - sorry, I should have checked 'unlawful'. The Judge ruled the DfE assertion that GCSE RS would fulfil a school's obligations for teaching RS could have encouraged schools to ‘act unlawfully’ because GCSE RS didn't wholly fulfil its obligations. So, for 'was unlawful' read 'could encourage schools to act unlawfully' because if schools had taken the DfE's assertion as correct they would have been acting unlawfully.

Guest's picture
Fri, 27/11/2015 - 14:19

I have no view on the Goldsmith's proposals but would agree that this area of the curriculum is a quagmire. In broad terms;

1. The origins of the issue lie in teaching Christianity alone
2. KS 3 and 4 split
3. Different approaches to each KS:

a. KS3 generally speaking covering world religions framed by by local SACRE groups
b. KS4 GCE thern GCSEs

4. PSHE overlapped some aspects of RE/RS
5. Citizenship overlapped both RE/RS and PSHE
7. British values

What is clear is that education is the pathway to dispelling and overcoming misinformation and disinformation alongside exploring moral issues and extreme views, and on even this wafer thin description it is clear that there is a real and tangible need for our children and young people to be able to be equipped with the wherewithal to development discernment to enable them to arrive at balanced and informed positions and decisions. For me this also means ensuring faith badged schools follow a nationally recognised programme of study that underpins their faith/believe studies, and a crucial element of this must be the inclusion of Critical Thinking. Set against the backdrop of a multi-culturally diverse nation it is rather important that education is at the forefront of breaking down barriers to mutual understanding and playing a role in nurturing constructive local and national communities.

A huge obstacle to this is school performance being based exclusively on formal examination success that forms a veritable straitjacket for HTs and Governing Bodies whose leadership and management is judged and valued by the government on the basis of examination floor targets and not educating the whole child/person. Additionally, not only do we not have a truly national curriculum any more, we don't have a common curriculum.

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