The Possible Implications of the Judicial Review of Religious Education and Collective Worship in Northern Ireland

The High Court of Justice in Northern Ireland has ruled that the law there on religious education and collective worship is in breach of the rights under Article 2 of the First Protocol ECHR read with Article 9 ECHR (which provide respect for right for children to be educated in conformity with their parents philosophical or religious convictions and freedom of thought, conscience and religion).

The judgment can be read at:

A summary of the judgment can be found at:

The following explores some of the main implications of the judgment for Northern Ireland and other parts of the UK, in partial England and Wales. Although the laws on religious education and collective worship differ, there is much in this judgment that will question whether the law in England and Wales is human rights compliant.

There are five important aspects of the judgment:

1. Statement of General Principles

The judgment is important and useful in terms of its in-depth analysis of the Strasbourg jurisprudence and in particular the summary of ‘key principles’ it provides at paragraph 60, which merits quoting in full:

[60] The court considers that the key principles which emerge from the case law in relation to A2 P1 read with article 9 and which should be applied to this case are as follows:

(i) The setting of the curriculum in state funded schools falls within the competence of the contracting state.

(ii) In setting the curriculum the state enjoys a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.

(iii) Compliance involves questions of expediency, available resources and local conditions which vary considerably in respect of which the state enjoys considerable latitude and in respect of which it is not for the courts to rule.

(iv) Parents cannot require the state to provide a particular form of teaching or instruction.

(v) A2 P1 and article 9 do not prevent states from setting a curriculum which includes the teaching and instruction of religion.

(vi) In setting a curriculum for the teaching of religion the state may legitimately give priority to imparting knowledge of one religion above another where that religion is predominant or adhered to by a majority of its citizens.

(vii) If a state does set a curriculum for the teaching of religious education in order to comply with A2 P1 and article 9 it must respect parents’ convictions be they religious or non-religious. This is a positive obligation.

(viii) In fulfilling the function assumed by it in setting a curriculum for the teaching and instruction of religious education it must take care that the information or knowledge included is conveyed in an objective, critical and pluralist manner. It must accord equal respect to different religious convictions and to nonreligious beliefs. That is the limit which must not be exceeded.

(ix) In considering whether the state has exceeded the limit referred to above the court should take into account the possibility and extent to which parents can exempt children from religious education.

The key requirements here that should animate concern and reform are the requirements that religious education is ‘conveyed in an objective, critical and pluralist manner’ and accords ‘equal respect to different religious convictions and to nonreligious beliefs’.

As we will discuss, the High Court clearly found that these requirements were not met in Northern Ireland and reached this decision by detailed reference to the core syllabus for RE that has been created there and the practice of the school in question in relation to collective worship.

However, although the law on RE differs in other UK nations, it seems likely that the question of compliance with these requirements would be tricky there too.

In English law, the requirements objectivity and pluralism exist implicitly at best. In the recent reforms in Wales, it was stressed that these principles underpinned policy making but it was decided that they should not be underpinned in legislation. In terms of affording equal respect to non-religious beliefs, this is now explicitly provided in Welsh law but is not in primary legislation in regard to England.

A challenge to the English legislation and practice could therefore have a similar outcome to the Northern Irish judicial review – but it might need to happen soon before the Bill of Rights guts the protection and enforcement provisions currently found in the Human Rights Act 1998.

This is underlined by what the judgment says about how these requirements are not met in Northern Ireland.

2. The Core Syllabus

The law and guidance on teaching RE in Northern Ireland differs from elsewhere in the UK. Although it requires ‘undenominational religious education’ , it states that this means that it should be ‘based on the Holy Scriptures’ rather than ‘any tenet distinctive of any particular religious denomination’. So, this means that it must be Christian. In his careful close reading of the core syllabus, which was drafted by the Churches, Colton J noted how the syllabus of other world faiths were not mentioned at all in the core syllabus for primary schools.

The High Court held that ‘on any analysis the teaching of the syllabus can only have the effect of promoting Christianity and encouraging its practice’ [72] and so:

[74] In short, a fair analysis of the syllabus leads to the conclusion that under the curriculum RE is not conveyed in an objective, critical and pluralist manner.

While the agreed syllabuses developed at a local authority in England and Wales are obliged by law to take into account other religions (and in Wales, other beliefs), it is still possible that individual syllabuses may similarly be judged to have fallen short of these requirements. This is particularly true of schools with a religious character who in some cases are permitted to teach RE in accordance with their trust deeds.

3. Collective Worship

Colton J noted that it appeared ‘from the evidence that the only external persons invited to attend assembly are exclusively Christian’ [83]. He concluded that collective worship was ‘not conveyed in an objective, critical and pluralist manner. Furthermore, the lack of pluralism identified in each aspect is reinforced by the combination of RE and CW under the current arrangements’.

Although this finding is fact specific, it raises questions in relation to how collective worship is practiced in other schools not only in Northern Ireland but across the UK. There is nothing in primary legislation in England and Wales, for example, that requires collective worship to be pluralistic. It requires Christianity but permits other faiths. Whether this will be enough to render it human rights compliant will depend on what schools actually do.

4. Guidance

An important part of the High Court judgment is Colton J’s finding that the fact that guidance nuances the core syllabus does not mean that there is no breach. Paragraph 97 states:

There can be no doubt that the guidelines demonstrate an awareness of the types of criticism identified by the applicants in terms of the core syllabus. Guidelines seek to guide teachers away from any risk of religious instruction orindoctrination. However, these efforts ultimately flounder on the mandatory obligation to teach the core curriculum which by statute requires that religious education must be based upon the Holy Scriptures. The guidelines, whilst helpful, do not take away from the court’s analysis of what the core curriculum and CW requires.

Paragraph 98 continues:

It is no answer that the core curriculum is a minimum requirement if it has the effect of failing to provide religious education in an objective, critical and pluralist manner.

This again is not only relevant to the Northern Ireland context. In England, the wider interpretation of the law to facilitate the inclusion of non-religious beliefs is solely found in guidance and soft law. This judgment suggests that this will not be an answer to a similar case there

5. The Right to Opt Out

The judgment is also of importance in that it confirms that the right for parents to opt out does not provide a defence to the human rights breach.

Discussing the Strasbourg jurisprudence on this, Colton J commented:

[114] In all of these instances the court found that the exemption arrangements were insufficient to mitigate or balance courses which, as the court finds in this case, were insufficiently objective, critical or pluralistic.

It therefore followed that:

[122] The court considers that the concerns raised by the parents in relation to exclusion are valid. Whilst an unfettered right to exclusion is available it is not a sufficient answer to the lack of pluralism identified by the court. It runs the risk of placing undue burdens on parents. There is a danger that parents will be deterred from seeking exclusion for a child. Importantly, it also runs the risk of stigmatisation of their children.

Although this clearly recognises the distinct religious situation in Northern Ireland, it is also of wider interest since similar opt outs exist in relation to RE in England and collective worship in England and Wales. The right to opt out alone does not mean that the human rights of parents (and indeed children) are protected. This underlines that the new approach in Wales – where the opt out has been removed and where a more pluralistic approach is being taken – may be more likely to be human rights compliant, provided that the teaching is pluralistic and objective. Again, this raises questions in particular in relation to schools with a religious character.

Concluding Thoughts

This is a rich and at times complex judgment shaped by the particular laws and religious context of Northern Ireland. However, this judgment is not only important in that context. It has clear implications for elsewhere – especially England which now lags behind Wales in respect of religious education. A legal challenge of the situation in England – before the potential Bill of Rights could limit such a challenge – would be likely to underline that current law and practice is not human rights compliant.

For further analysis of the Welsh reforms and the historical development of the law in England and Wales as well as discussion of principles of reform , see my forthcoming book on Religion in Schools: Learning Lessons from Wales (Anthem, 2022):


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