sou · H7B364 · 2020-01-01 00:00:00 — The term ‘denominational aspects’ has led to a number of inter- pretation difficulties. One starting point for the inquiry’s proposal in this respect is that religion and creed are multidimensional phe- nomena. Another starting point is that the Swedish education system has been structured in, and is closely connected to, the Protestant tradition, which tends to constitute the basis for the understanding of denominational aspects in the form of declaration and confession. This may be explained by the fact that has had a state church and that a majority of the Swedish population are members of the Church of . A third starting point is that the view as to what is to be regarded as a secular tradition or a religious rite can differ, among other things from the perspective of the majority and minority. For example, that which may be regarded by the majority as a traditional advent celebration devoid of religious symbols may, to someone belonging to a minority religion, be regarded as a religious matter. By way of contrast, seasonal festivities which members of a minority regard as traditional, may be ascribed a religious meaning by outsiders. Thus, the same act can be imbued with both secular and religious meaning depending on context and the subjective approach to religious issues of those involved. Denominational orientation must be notified In accordance with the inquiry’s proposal, denominational aspects may occur at an independent school, an independent preschool or an independent after-school centre only if the manager of the activity has notified the supervisory authority that the activity has a religious orientation. An individual who applies for approval as man- ager of a preschool, preschool class, compulsory school, compulsory special school, upper secondary school, upper secondary special school or after-school centre must, correspondingly, state in the application whether the activity is to have a religious orientation. An application should merely state that the activity has a religious orien- tation – not which religion. The management of a faith-based activity must also notify the supervisory authority in the event the activity is no longer to have such an orientation. It is proposed that provisions in this respect be inserted in Chapters 1 and 2 of the Education Act (Chapter 1, Sec- tion 7 and Chapter 2, Section 5e). With respect to independent pre- school , compulsory schools, compulsory special schools, upper secondary schools, upper secondary special schools and after-school centres, the inquiry’s proposal regarding a stop to means that applications regarding a religious orientation can no longer be made with respect to such activities. Requirements that participation is voluntary should be strengthened Participation in parts of the education that include denominational aspects at an independent faith preschool, an independent faith school or an independent faith after-school centre must, as previously, be voluntary. The inquiry believes that demands placed on manage- ment of faith-based activities must be strengthened in two respects. •Firstly, the inquiry proposes that the manager must ensure that custodial parents and children or pupils are aware of the fact that participation in the denominational elements of the education is voluntary. •Secondly, the inquiry proposes, with respect to independent faith preschools, that denominational elements may only occur to the extent, and on the occasions of which, the management has notified the children’s custodial parents. Such information must be provided in writing. The inquiry believes that both of these proposals create increased clarity with respect to i) voluntariness and ii) the extent to which denominational aspects may occur in preschools. A provision in this respect should be incorporated into Chapter 1 of the Education Act (Chapter 1, Section 7a). End of school year ceremonies and other traditional festivities The inquiry’s remit has included studying whether there is a need to amend the Education Act in order to allow for exceptions from the prohibition on denominational aspects, irrespective of management and orientation, in connection with the celebration of the end of the school year and other traditional festivities. The definition of denominational aspects that we propose entails that denominational aspects shall be defined as, and be limited to, elements which include confessional or declaratory aspects of a particular religion. This means that the performance of other acts that are inspired or motivated by a belief is not to be regarded as a denominational aspect within the meaning of the Education Act. For example, this means that a visit to a church or another place of worship does not always constitute a denominational aspect within the meaning of the Education Act. The starting point for the inquiry’s proposal is that all schools, preschools and after-school centres must be able to use places of worship for celebrating the end of the school year and traditional festivities. No denominational aspects may occur when schools, preschools and after-school centres with a non-religious orientation celebrate the end of the school year or traditional festivities in places of worship. Furthermore, attendance by children and pupils at such activities in places of worship must voluntary. A provision to this effect should be inserted in Chapter 1 of the Education Act (Chap- ter 1, Section 7b). The proposal constitutes, in all essential respects, a clarification of governing law as interpreted by the Swedish Schools Inspectorate and the for Education. However, it is clarified that participation by children and pupils must be voluntary. Our proposal thus entails that no denominational aspects may be included when schools, preschools or after-school centres with a public sector management celebrate the end of the school year or traditional festivities, irrespective of whether the celebration occurs in places of worship or other premises. The aforesaid applies also to schools, preschools and after-school centres with private manage- ments who have not notified any religious orientation. We also believe that if schools, preschools or after-school centres with a non-religious orientation celebrate the end of the school year or traditional festivities in places of worship, the celebration should not be located in premises where the religious community requires that, on such occasions, visitors perform acts of a confessional nature or separate visitors based on gender. In light of the inclusive aspect required by the perspective of the rights of the child, school principals should also plan the celebration of the end of the school year and other festivities in such a that all children and pupils can participate. Children and pupils who do not wish to participate should, as far as possible, be offered an equivalent alternative. In order to clarify the voluntary nature of participation by pupils in denominational aspects, as well as attendance at activities held in places of worship, we propose that an informative provision of this nature be inserted in Chapter 7 of the Education Act, where the compulsory nature of school attendance is addressed (Chapter 7, Section 17). Proposal concerning a stop to and the consequences thereof According to the supplemental terms of reference, the inquiry shall submit such statutory proposals as required in order that a stop to the of independent faith schools might be introduced. We are also required to analyse and report on any consequences that such statutory proposals might have, inter alia in relation to the Swedish constitution, EU law and ’s international under- takings, as well as in respect of existing independent faith schools. It is proposed that the inquiry’s statutory proposals concerning a stop to be incorporated in Chapter 2 of the Education Act, adjacent to Chapter 2, Section 5 of the Education Act (Chap- ter 2, Section 5e). The stop to also be stated in the section in Chapter 1 of the Education Act, which provides that a management who wishes to conduct a faith-based activity must so notify the supervisory authority (Chapter 1, Section 7). Consequences of a stop to and which activities are covered The inquiry proposes that a stop to mean that, after a specific date, no approvals shall be granted to private manage- ments who wish to operate a faith preschool class, compulsory school, compulsory special school, upper secondary school, upper secondary special school or after-school centre. Thus, it is these activities which will be covered by the stop to . Existing independent schools and after-school centres that have not notified a religious orientation shall be afforded an opportunity to so notify the supervisory authority prior to the same date. Existing activities may continue under certain conditions As previously, an individual who has been approved as manager of a preschool class, compulsory school, compulsory special school, after-school centre, upper secondary school or upper secondary special school may conduct the faith-based activity also after the provisions regarding a stop to have entered into force. However, this may only take place on condition that, prior to 1 2023, the manager i) has notified the supervisory authority that the activity has a religious orientation; and ii) has actually begun the activity and accepted pupils for education. The inquiry has interpreted the supplemental terms of reference to mean that a stop to be just that, i.e. a stop to which will apply to all types of of inde- pendent faith-based educational activities. Accordingly, the stop to should cover also existing activities which apply for additions or changes to their currently applicable approvals, e.g. for new of an activity in a different locality, expansion of the number of grades or the upper secondary school courses that are offered, if such a change is not accommodated within an existing approval. The inquiry makes the assessment that, in light of the foregoing, no rules should be introduced which allow existing independent faith-based activities to expand their activity beyond that which is stated in their approval. A stop to may have long-term consequences The reasons on which a stop is based constitute a decisive factor as to whether or not a stop to is legally feasible. Our study of regulatory compliance by independent faith schools, and the inquiry’s work in general, shows that some of these schools have certain problems which may be connected with the school’s religious orientation. It is not, however, obvious that, from a legal perspec- tive, these problems are of such a scope as to constitute such a cogent public interest as required in order for there to be an accept- able restriction on fundamental freedoms and rights. A crucial factor as to whether a stop to is compatible with funda- mental freedoms and rights will be the reasons on which, in the future, the committee ultimately bases the stop to . A stop to entails challenges with respect to funda- mental freedoms and rights such as commercial freedom and religious freedom, and as regards equality of treatment and discrimination. To summarise, the inquiry has concluded as follows. As regards the issue of discrimination, a stop to for independent faith schools and after-school centres may run the risk of having a greater impact on persons who profess a religion which is not represented as a religious orientation of an existing activity. In addition, managers of existing faith-based activities will be treated differently from other managers when assessing approval, e.g. with respect to expansion of the activities. A stop to runs the risk of constituting an unlawful restriction on commercial freedom, since an individual who applies for approval as a manager of an activity regulated by the Education Act is restricted as regards her or his possibilities to structure the activity once a religious orientation is no longer allowed. With respect to respect for religious conviction, the stop to estab- lishment may run the risk of violating Protocol 1, Article 2 of Convention on Human Rights, pursuant to which custo- dial parents are entitled to have their religious conviction respected in connection with their children’s education. It is not possible to determine with certainty that a stop to is compatible with the Convention without the issue being considered by Court of Human Rights. In light of Protocol 1, Article 2 to Convention on Human Rights, a stop to runs the risk of violating the free right of under EU law, including the Charter of Fundamental Rights. It is not possible to determine with certainty that a stop to is compatible with EU law without the issue being considered by Court of . The stop to also appears to be problematic in relation to Article 29(2) of the Convention on the Rights of the Child, which also concerns of schools. The inquiry believes that the stop to does not have any immediate consequences for existing independent faith schools and after-school centres, since they may continue their activities in accordance with currently applicable approvals. However, in the longer term the stop to may have consequences for these activities since new approvals cannot be granted, e.g. for ex- pansion of activities or in the event of change of ownership, unless they cease the religious orientation. Proposals concerning owner and management assessment The inquiry has studied whether there is a need to impose special requirements in terms of owner and management assessment in order to be approved as manager of an independent faith school, preschool or after-school centre, in addition to the proposals presented by the Owner Assessment Inquiry (SOU 2015:7) and the Welfare Inquiry (SOU 2016:78). The inquiry’s assessment is that it is not appropriate to introduce special requirements that are imposed solely in conjunction with owner and management assessments of individual managers of inde- pendent faith-based activities. Such a solution would entail a deviation from the principle of equal conditions between managements, which for a long time has applied within the education system. It might also be regarded as unlawful discrimination under both domestic law as well as international undertakings, including the CRC. Democracy conditions shall be introduced Existing provisions regarding owner assessment of individuals who wish to be approved as managers pursuant to the Education Act provide for the possibility, in conjunction with the owner and management assessment, to consider questions concerning whether an private manager possesses conditions to provide an education in conformity with the values expressed in Chapter 1, Sections 4 and 5 of the Education Act. The inquiry believes that this assessment can be strengthened and deepened through supplementation with an assessment which focuses on certain key democracy principles. Therefore, the inquiry proposes that the owner and management assessment which is carried out prior to approval to conduct acti- vities within the education system in the capacity as managers, be supplemented as regards assessment of whether the individual is suitable to conduct the activity. The supplementation entails that the suitability of the individual must also be considered in relation to certain specifically adopted democracy conditions. The inquiry believes that a democracy condition for the education system should be formulated in such a as to protect the fundamental principles of a democratic society, which are of partic- ular importance within the education system. Therefore, the inquiry proposes that an individual shall not be granted approval as a manager for an activity regulated by the Education Act if there is particular reason to believe that the individual, or a representative of the activity as stated in Section 5a of the Education Act, may, within the scope of the activity: 1.engage in violence, coercion or threats, or otherwise improperly violate fundamental freedoms and rights of individual children or adults; 2.discriminate or otherwise violate the principle of the equal worth of all people; 3.engage in abusive treatment of children or pupils; 4.otherwise undermine the principle of the best interests of the child; 5.undermine the democratic system of government; or 6.justify, promote or encourage such behaviour as stated in 1–5. The Swedish Schools Inspectorate, and the municipalities as regards preschools and certain after-school centres, shall be responsible for the assessment as regards the democracy condition within the scope of the approval assessment that the authorities are obliged to con- duct pursuant to Chapter 2, Section 5 of the Education Act. A pro- vision regarding assessment of the democracy condition shall be in- serted in Chapter 2 of the Education Act (Chapter 2, Section 5f). Supervisory responsibility shall be expanded and the possibility to withdraw licences shall be expanded to include also democracy conditions In order to emphasise the importance of the adopted democracy conditions, the inquiry proposes that the supervisory responsibility of the Swedish Schools Inspectorate and the municipalities be expanded such that they shall also exercise supervision to ensure that private managements who have been approved regularly satisfy the democracy conditions. Therefore, it is proposed that amendments to this effect be incorporated in Chapter 26, Sections 3 and 4 of the Education Act. The inquiry also proposes that it shall be possible for approval of an individual as a manager within the education system to be with- drawn if the individual no longer meets the requirements for appro- val with respect to assessment based on democracy conditions and that such withdrawal may take place pursuant to all of the items set forth in Chapter 2, Section 5, second paragraph of the Education The proposal shall be implemented through an amendment to Chapter 26, Section 14 of the Education Act. A manager shall be introduced The inquiry proposes that a manager be introduced with respect to individuals who apply for approval as manager of an individually operated activity pursuant to the Education Act. This means that natural persons who apply for approval – and, if the appli- cant is a legal person, the individuals included in the group of per- sons set forth in Chapter 2, Section 5a of the Education Act – shall provide a written manager to the authority which assesses the application. Through a manager , the undersigned certi- fies that, within the scope of an activity regulated by the Education Act, he or she will not act contrary to the democracy conditions applicable to the activity, i.e. will not act in the ways described above under the heading ‘Democracy conditions shall be introduced’. The Government or the authority determined by the Government shall issue further regulations regarding the manager . Provisions regarding the manager shall be inserted into Chapter 2 of the Education Act (Chapter 2, Sections 7a and b). Support material shall be produced The inquiry’s proposal entails that the owner and management assess- ment to be conducted pursuant to Chapter 2, Section 5 of the Edu- cation Act shall be extended and deepened through the introduction of assessment concerning democracy conditions and the manager . This assessment shall be carried out by the Swedish Schools Inspectorate and ’s 290 municipalities. The Government should consider instructing a national education agency to produce support material for the municipalities with respect to owner and management assessments in relation to democracy conditions as well as the manager . Consolidated approval assessment and supervision should be considered According to current legislation, it is the municipality in which the activity is located which is responsible for issues relating to approval of individuals as managers of independent preschools and certain independent after-school centres. Municipalities in which activities are located are also responsible for supervision of those activities. Thus, this responsibility is borne by 290 municipalities with very varying conditions in terms of finances and personnel for carrying out approval assessments and exercising supervision. The inquiry’s proposal involves the addition of new, advanced duties in the form of an initial assessment regarding, and subsequent supervision of, democracy conditions, administration of the manager , as well as administration of applications regarding religious orientation. The inquiry believes that, in light of the aforesaid, there is reason to consider whether the task of approving individuals as managers of independent preschools and independent after-school centres that do not belong to an independent school entity, as well as the task of exercising supervision over such activities, ought not to be consoli- dated in a central authority. At the same time, the inquiry considers that this constitutes such a radical change that it should be the subject of further consideration. The inquiry proposes that the amendments to the Education Act shall enter into force on 1 January 2022. The provisions regarding a stop to be applied for the first time with respect to approval of managements for education activities that are to com- mence in the autumn of 2023 at the earliest. Managements of existing independent schools and after-school centres who wish to have a religious orientation after the stop to must notify the religious orientation to the supervisory authority, i.e. the Swedish Schools Inspectorate or the municipality, not later than 1 2023. 1.1Förslag till lag om ändring i skollagen (2010:800) Härigenom föreskrivs i fråga om skollagen (2010:800) dels att 1 kap. 3 och 7 §§, 2 kap. 5 och 5 d §§, 7 kap. 17 § och 26 kap. 3, 4 och 14 §§ ska ha följande lydelse, dels att det i lagen ska införas sex nya paragrafer, 1 kap. 7 a och 7 b §§ samt 2 kap. 5 e, 5 f, 7 a och 7 b §§, samt närmast före 2 kap. 7 a § en ny rubrik av följande lydelse. I denna lag avses med – elev: den som deltar i utbildning enligt denna lag med undantag för barn i förskolan, – fjärrundervisning: interaktiv undervisning som bedrivs med in- formations- och kommunikationsteknik där elever och lärare är åt- skilda i rum men inte , – fristående fritidshem: sådant fritidshem som bedrivs av en en- skild och som avses i 2 kap. 7 § andra stycket, – fristående förskola: förskoleenhet vid vilken en enskild bedriver utbildning i form av förskola, – fristående skola: skolenhet vid vilken en enskild bedriver ut- bildning inom skolväsendet i form av förskoleklass, grundskola, grund- särskola, gymnasieskola, gymnasiesärskola eller sådant fritidshem som avses i 2 kap. 7 § första stycket, 1 Senaste lydelse 2017:570. – undervisning: processer som leds av lärare eller förskollärare enligt mål som anges i denna lag och andra författningar och som ska leda till utveckling och lärande genom att barn eller elever in- hämtar och utvecklar kunskaper och värden, och– utbildning: verksamhet en- ligt denna lag och andra författ- ningar som bedrivs av en huvud- man och inom vilken barn eller elever erbjuds undervisning. –förskoleenhet: av huvudman för förskola organiserad enhet som omfattar verksamhet i en eller flera förskolebyggnader som ligger nära varandra och till enheten knuten verksamhet som inte bedrivs i någon förskolebyggnad, –icke-konfessionell inriktning: verksamhet där det inte får före- komma konfessionella inslag som initieras och genomförs av huvud- mannen, –konfessionella inslag: inslag som innehåller bekännande eller förkunnande delar som tillhör en viss religion, –konfessionell inriktning: verk- samhet där det får förekomma kon- fessionella inslag som initieras och genomförs av huvudmannen,