sou · H7B364 · 2020-01-01 00:00:00 — It tran- spires from decisions in several cases that managers and school principals have difficulty in distinguishing between what constitutes education and what constitutes teaching and that there have been impermissible religious aspects within teaching in the school option subject. Other decisions show that religious aspects have occurred within the scope of teaching also in other subjects, for example in mother tongue tuition and biology. The inquiry has conducted nine school visits, mainly to schools that have notified a religious orientation. In conjunction with the visits, the inquiry has met representatives of the management, teachers and in most cases also pupils. In some cases, the management’s repre- sentatives have also been present. In several cases, school management, teachers and preschool teachers stated that it was difficult to delineate between teaching and education, not least in preschools where the work method is inte- grated. On one occasion, the inquiry observed that the personnel also failed to reflect over the way in which different religious texts are used and how the texts can affect children and pupils. This may, for example, involve reading out loud or other use of religious texts in teaching situations, where a denominational aspect is not allowed. The schools visited addressed voluntary participation by children and pupils in religious aspects in different ways. Some considered that pupils must attend all of the school’s activities, i.e. also those with a religious aspect, and that pupils may not, for example, decline to participate in a religious service without the approval of the pupil’s custodial parent. Another observation is that the teaching includes elements which mix together religious and non-religious aspects, a factor which can make it difficult for a pupil who wishes to refrain from religious aspects to actually do so. This may, for example, involve the school day beginning with a morning assembly in which religious aspects such as prayers are mixed with non-religious aspects such as infor- mation about field days, tests, homework or school parties. One variant is that such more general information is provided at weekly assemblies in denominational places of worship. In one case, a de- scription was provided that the pupils are given the possibility to receive the information at another place which is devoid of any reli- gious aspect. Also in conjunction with school visits, on several occasions issues arose regarding in-depth studies in the religion which constitutes the school’s religious orientation, e.g. extra teaching in religion within the scope of the school option subject. One observation sometimes made is that the person teaching the subject is also the children's religious leader in the local community, which may require specific positions to be taken as to how the school keeps religious aspects out of teaching. Survey of faith schools The inquiry has carried out a survey covering the 72 schools which, at the time of the study, were registered in the for Education’s register of schools as faith schools. The survey was aimed, inter alia, at obtaining a more comprehensive view of the various religious aspects that exist and any problems as regards regulatory compliance. In total, 50 schools answered the questionnaire. The questionnaire responses show that most of the schools that answered had religious aspects in their education. The most common features were morning assemblies and morning prayers, or other types of assemblies and prayers, aspects at the end of school terms and other festivities, prayers, songs and special aspects at mealtimes. It was common that religious aspects occurred on a daily basis. With respect to the pupils’ right to refrain from participating in religious aspects, one school answered that non-participation was not possible. Other responding schools stated that there was such a possibility. Information about the possibility not to participate was usually provided in writing or orally to the pupil’s custodial parent at the beginning of the school year, through oral information to children and pupils in conjunction with religious aspects, or at pro- gress discussions with custodial parents each term. Just over one half of the responding schools stated that they offer additional in-depth teaching in the religious orientation, primarily within the school option subject. Survey of municipalities regarding independent preschools and certain independent after-school centres The municipalities are responsible for approval and supervision of independent preschools and independent after-school centres that do not belong to independent schools. In order to survey regulatory compliance by these activities, the inquiry carried out a questionnaire survey focused on ’s 290 municipalities. In the questionnaire, the municipalities were initially required to answer whether there were any independent activities within the municipality and whether any of them had a religious orientation. Municipalities which answered affirmatively were then required to answer questions about super- vision of those activities and whether, in conjunction with the supervision, any particular observations had been made with respect to religious aspects, etc. The questionnaire was answered by 221 out of 290 municipalities, i.e. 76 per cent. In those municipalities, there were 242 independent faith preschools and 22 independent faith after-school centres, corre- sponding to just over 10 per cent of the independent preschools, and just over 17 per cent of the independent after-school centres over which the responding municipalities exercise supervision. The pre- schools were spread over 89 municipalities and the after-school centres over 18 municipalities. According to the questionnaire responses, it was quite rare for the municipalities to receive complaints or reports about religious aspects in preschools or after-school centres. During the peri- od 2014–2018 six complaints or reports with a bearing on religious aspects were received, divided over four municipalities. Two munici- palities stated that they had received a complaint or a report which did not primarily concern religious aspects, but where the munici- pality believed that the criticised shortcomings were based on the preschool’s or after-school centre’s religious orientation or the reli- gious aspects that occurred there. One example of a reported matter was that boys receive benefits that girls do not receive and that adult women and men are treated differently, e.g. when greeted. In the questionnaire, the municipalities had an opportunity to describe observations made in conjunction with supervision and in other contexts, e.g. shortcomings observed at faith entities. The obser- vations can be summarised in three main groups: •lack of clarity regarding religious orientation and religious aspects; •difficulties in distinguishing between teaching and education; and With respect to lack of clarity regarding religious orientation and religious aspects, several municipalities emphasised that it was diffi- cult to learn about any shortcomings in faith-based activities. It may be the case that activities provide insufficient information as to the religious aspects that occur or do not openly declare that they have a religious profile. One municipality considered that independent faith preschools have difficulty in separating religious values from their task regarding norms and values as set forth in the preschool curriculum, and thus multifaceted outlooks on life are not always elucidated. With respect to difficulties in distinguishing between teaching and education, several municipalities were of the view that it was difficult to delineate between teaching and education in preschools and that current legislation does not provide a sufficient basis for doing so, and clarification was sought. Several municipalities stated that they often receive questions about this from individual managers and they also noted that it can be difficult for the management to delineate between teaching and education – a boundary which the municipalities also considered can be difficult to draw in conjunction with supervision. Furthermore, it was considered that it was not entirely clear what constitutes a religious aspect and what such aspects entail in activities. Voluntariness for children and pupils to participate in religious aspects was raised by several municipalities. The municipality pro- vided advice and guidance as to how voluntariness can be ensured, and the municipality drew the attention of faith-based activities to the importance of ensuring voluntariness and verifying how to ensure that participation by young children is voluntary. One muni- cipality stated that voluntariness and the possibility to refrain from e.g. saying grace should always be raised in conjunction with super- vision. Municipalities’ supervisory decisions Based on the findings of the municipality questionnaire, the inquiry has requested and reviewed supervisory decisions from the munici- palities. Simply put, these decisions can be said to fall into two main groups: i) decisions that in some way address whether religious aspects have been deemed to occur not only in the education but also in the teaching at preschools or after-school centres; and ii)decisions which point out shortcomings as regards the fact that participation in religious aspects must be voluntary for children and Certain decisions address both issues. In the inquiry’s assess- ment, the reviewed decisions reinforce the impression gained from the questionnaire as to what constitute problem areas for indepen- dent faith preschools and after-school centres. According to the committee terms of reference, the inquiry shall conduct a comparative analysis of the regulation of religious aspects in the education system in other comparable countries and the way in which other countries have interpreted Convention on Human Rights and case law from Court of Human Rights. In this respect, the inquiry has compared circumstances in with , , , and . Our analysis shows that the countries in question have different educational systems with varying scope for religious aspects in the education system. It is, therefore, difficult to draw any far-reaching conclusions from the regulations of the various countries. It can, however, be noted that in none of the comparison countries is there an education system that does not allow faith schools. In addition, all comparison countries have acceded to Convention on Human Rights and to Protocol 1, Article 2 of the Convention. The inquiry has also conducted a general review of the countries that are members of which have acceded to Convention on Human Rights, Protocol 1, Article 2. In the review, we have not encountered any country that has acceded to the Protocol and which, at the same time, has prohibited the of faith schools. The provisions of the UN Convention on the Rights of the Child The Convention on the Rights of the Child (CRC) includes the child’s right to a comprehensive education as well as the right to religious and cultural identity. According to the CRC, the school environment should reflect a spirit of understanding, peace, tolerance, equality of sexes and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin, and the edu- cation shall prepare the child for a responsible life in a free society in this spirit. The education shall also aim at developing respect for the child’s parents, for the child’s own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilisations different from his or her own. The CRC provides scope for parental responsibility on issues involving religious aspects in the education system. According to the CRC, the child is entitled to freedom of religion and the parents are entitled to provide direction to the child in the exercise of this right in a consistent with the evolving capacities of the child when the child exercises the right to freedom of thought, conscience and religion. Direction and guidance by the parents must be exercised in accordance with the entire CRC, which inter alia means that the child’s right to be heard must be respected. The CRC supports the child’s right to adopt and exercise the parents’ religion. A child be- longing to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language. Pursuant to the CRC, the child also has an independent freedom of religion which is not automatically dependent on the parents’ religion. The child has an express right to an independent freedom of religion in terms of a negative freedom of religion, i.e. the right to freedom from religion and the right to have no religion. According to of the Child, this means that the child has a far-reaching right to be released from participating in religious aspects at school. According to the CRC individuals and bodies are entitled to establish and direct educational institutions. However, principles regarding human rights must be respected and the education at the institution must conform to certain minimum standards. The inquiry has analysed the provisions of the Instrument of Govern- ment as well as Convention on Human Rights and other international undertakings with respect to religious aspects in the education system. The perspective of the rights of the child and the Convention on the Rights of the Child have also served as important starting point for the analysis. To summarise, we have reached the following conclusions. Children and pupils are entitled to education pursuant to the Instrument of Government, Convention on Human Rights and ’s international undertakings. This right is en- shrined, inter alia, in Convention on Human Rights, Protocol 1, Article 2, first sentence, and entails a right for children and pupils to receive the education provided by the State. On the other hand, Protocol 1, Article 2 does not require that the State pro- vide a particular type of education or education on a particular level. Court on Human Rights has stated that the right to an education is of fundamental importance in a democratic society and that a restrictive interpretation of the right to education would be contrary to the purpose of the provision. However, the State enjoys a of appreciation in determining how the education system in general is to be organised in order to meet the require- ments of Convention on Human Rights. However, individuals, e.g. parents, are not entitled, based on the right to education, to demand that the content of education arranged by the public sector shall differ from that which is stipulated in the Education Act and other statutes. The parents’ right to ensure education and teaching in conformity with their own religious and philosophical convictions, as stated in the second sentence of Proto- col 1, Article 2 to Convention on Human Rights, does not thereby entail any restriction on the right of the State to deter- mine how the education system shall be organised in order for the right to education to be satisfied. Freedom of religion, as enshrined in the Instrument of Govern- ment and international conventions, entails inter alia a right for individuals to exercise their religion. For children and pupils, the right to exercise their religion applies also at school, preschool and after-school centre. Accordingly, a prohibition on the exercise of one’s own religion, e.g. banning the bearing of religious symbols during school hours, can take place only under certain conditions. Freedom of religion also entails a right to refrain from religion. This means that children and pupils are entitled to refrain from religious aspects at the school, preschool and after-school centre. Therefore, religious aspects in the education system must always be voluntary for children and pupils. However, based on international undertakings it is up to the State to determine the in which the right of children and pupils to refrain from religious aspects is to be guaranteed. However, the inquiry concludes that, from the per- spective of the rights of the child, it is important to emphasise that all measures within the education system must protect the child's right to live and develop in accordance with her or his own circum- stances and needs. Inter alia under EU law, there is a right to establish and operate private schools. Accordingly, it is not possible to prohibit certain natural or legal persons from being considered for approval as managers of independent preschools, schools or after-school centres. If indi- vidual natural or legal persons with a religious basis were denied consideration for approval as managers of preschools, schools or after-school centres, this might run the risk of constituting discri- mination under Convention on Human Rights. The freedom of movement and right of entitle natural or legal persons from other EU countries to apply for approval as managers of preschools, schools or after-school centres on the same terms as Swedish persons. The same rules must apply to all appli- cants. However, the State has the possibility to impose requirements for approval as a manager if justified by a compelling public interest and provided that such takes place in a non-discriminatory . According to case law and the preparatory works to Convention on Human Rights, Protocol 1, Article 2, there is a free- dom to establish private schools. However, the State is entitled to impose certain requirements, e.g. regarding the teachers' qualifica- tions and minimum number of pupils. According to Court of Human Rights, Protocol 1, Article 2 is also aimed at en- suring that there is a pluralistic education system and that the State has no intention to indoctrinate when providing education. Parents also cannot deny their children education or impose requirements regarding content of the education based on religious or philosoph- ical convictions, provided that teaching and education take place in an objective, critical and pluralistic . It is the inquiry's assessment that current legislation is in con- formity with 's international undertakings regarding respect for religious or philosophical convictions within the education system. The inquiry’s proposals and assessments The inquiry's assessments and proposals are based on the Instrument of Government, Convention on Human Rights, the CRC, EU law, and other international undertakings regarding human rights. The CRC provides that the best interests of the child are to be assessed taking into account primarily all measures that affect the child, whether undertaken by public or private social welfare insti- tutions, courts of law, administrative authorities or legislative bodies. Furthermore, the right of the child to freely express his or her views must be guaranteed and such views shall be given due weight in accordance with the age and maturity of the child. In relation to education, the equal treatment dimension of the perspective of the rights of the child has been emphasised, i.e. that all pupils and children had the same right to an education based on equality of opportunity. The inquiry’s remit includes proposing i) a way in which the delineation between education and teaching can be clarified, and ii) a definition of religious and non-religious orientation. Definitions of education and teaching are set forth in Chapter 1, Section 3 of the Education Act. On the other hand, there is no legislative definition of denomination in the education system, although certain state- ments are found in the preparatory works (Govt 2009/10:165 p. 225 et seq. The definitions of education and teaching must be adjusted The inquiry makes the assessment that the terms education and teaching are well established within the education system and there- fore should be retained in the education statutes. However, define- tions of the terms should be adjusted and simplified so as to clarify the difference between them. The inquiry’s proposal is that teaching be defined as processes led by teachers or preschool teachers in accordance with objectives stated in the Education Act and other statutes, which shall lead to development and learning through children or pupils obtaining and developing knowledge and values. It is thereby clarified that teaching is the learn- ing and development process that takes place between teachers or preschool teachers, on the one hand, and pupils or children, on the other. We propose that education be defined as activities pursuant to the Education Act and other statutes that are conducted by a manager and within which children or pupils are offered teaching. It is thereby clarified that education is an omnibus term for everything for which amanagement is responsible in a school, preschool or after-school centre, and that teaching constitutes a part of the education. Thus, the term ‘education’ also includes, e.g. school transport, school meals, school trips and breaks. Definitions concerning religion shall be inserted in the Education Act The inquiry has formulated definitions of the terms religious orien- tation and non-religious orientation. As part of this work we have also identified a need to define the term denominational aspects. The definitions are to be included in Chapter 1, Section 3 of the Edu- cation Act and should be structured in light of international under- takings, e.g. Convention on Human Rights and the Convention on the Rights of the Child. These undertakings include, inter alia, protection against discrimination and a right of children belonging to ethnic, religious or linguistic minorities or persons belonging to an indigenous population to have their own cultural life. Our conclusion is that a statutory definition of the term denomi- national aspects should be relatively narrow. We believe that the term should be defined in a which relates to a more exercise of religion and which is close to the core of religious freedom. The term denominational aspects should therefore be defined as elements which include confessional or declaratory aspects of a particular reli- gion. Professions of faith, prayers or worship may be mentioned as examples of denominational aspects. The provision does not extend to the performance of other acts that are merely inspired or moti- vated by a faith. Both religious orientation and non-religious orientation are sub- sequently defined based on the term ‘denominational aspects’. We propose that religious orientation be defined as an activity which may include denominational aspects initiated and performed by the manage- ment. This means that the key factor is that the management is responsible for deciding upon, and performing, the regularly occurring denominational aspects in the activity, although the management can, of course, engage some other person to actually perform the aspect. We propose that non-religious orientation be defined as activities which may not include denominational aspects that are initiated and performed by the management. Accordingly, this means that the management may not, on its own initiative, initiate or perform such aspects within the activity. However, there is nothing to prevent children and pupils within an activity with a non-religious orienta- tion from exercising their individual freedom of religion by, on their own initiative, e.g. saying grace over meals, or that a manager facili- tates the exercise of religious freedom by pupils through, e.g. the provision of a prayer room in which the pupils can pray.