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'(1) The Secretary of State shall issue guidance under this section setting out how the provisions of part 2 in relation to school transport shall be implemented.
(2) Such guidance under subsection (1) shall have particular regard to—
(a) the obligations retained for all schools which are public authorities under the Human Rights Act 1998 to comply with the duty of non-discrimination irrespective of the exceptions which apply under this Act; and
(b) the duty not to discriminate on the grounds of religion or belief and to carry out public functions with due regard to the Human Rights Act 1998 in relation to school transport under sections 51 (2) (b) and 52 (4) (k) and (v).
(3) Part 2 of this Act shall not come into force until the guidance issued under subsection (1) has been issued.'. — [Dr. Evan Harris.]
Brought up, and read the First time.
Dr. Evan Harris: I beg to move, That the clause be read a Second time.
New clause 10, which is in my name, has the support of Liberal Democrat Members. It deals with guidance in relation to school transport and wider parts of the Bill. It seeks to ensure that the Secretary of State issues guidance setting out how the provisions of part 2 on school transport and wider matters will be implemented.
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We ask that such guidance as the Government are, I hope, planning to introduce shall have particular regard to the obligations retained for all schools, which are public authorities under the Human Rights Act 1998, to comply with the duty of non-discrimination, irrespective of the exceptions that apply under the Act.
Clearly, there are exceptions in respect of discrimination law, but there is an overriding provision to respect human rights, especially in relation to non-discrimination—that is not a free-standing provision—in relation to certain other rights covered in the Bill, and that exceptions as implemented have to be for a legitimate purpose and must be proportionate.
In particular, the new clause draws attention to the duty not to discriminate on the grounds of religion and belief and to carry out public functions with due regard to the Human Rights Act in relation to school transport under various sections of the Bill that deal with the subject. Crucially, the new clause suggests that this part of the Act should not come into force until the guidance under the new clause has been issued. The reason is that there are still major concerns about how the exceptions will be implemented in a way that is fair.
I want to spend the rest of my short remarks reading from the fourth report of 2005–06 by the Joint Committee on Human Rights, which deals with the Equality Bill. The report makes two important recommendations in this area. The first is in paragraph 41 and says that the Committee did
—it is clause 50 in the version of the Bill that we are considering—
"to be incompatible on their face with the Convention rights, they may in our assessment fail to prevent discrimination which would be contrary to the Human Rights Act."
The Committee drew attention to the recommendations made in its previous report—the 16th report of 2004–05—and went on to say that it hoped
"that the Bill would provide for statutory guidance to be produced before Part 2 comes into force, making clear that all schools that are public authorities under the Human Rights Act retain obligations to comply with ECHR rights of non-discrimination, irrespective of the exceptions which apply under the Bill. It is essential for any difference in treatment to be objectively justified in order to comply with Article 14 ECHR."
That is clear and speaks for itself. However, I would like to note a Government amendment that I presume we will reach, if not debate, later that recognises that, in this area, the Government have limited the exception available to faith schools in respect of their ability to discriminate on the ground of religion by subjecting a pupil to any other detriment and, indeed, to expulsion if, for example, the child changes religion, having been admitted to a faith school. I warmly welcome the fact that the Government have considered what was debated civilly in Committee and accepted that that was unnecessary and went too far. The need for guidance still applies and I want to hear how faith schools will apply their exceptions and what the Minister will say in respect of the time scale for guidance, as well as what that should cover.
On school transport, the Minister will remember that there is a long-standing thorny issue in respect of the appropriate guidance. In Committee, I set out my
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concern and that of successive Select Committees at the inadequacy of the current guidance, and the fact that that is reinforced, if anything, by the explanatory notes to the Bill, which talk only about denominational schools, as if those parents who have children who they do not wish to go to a denominational school do not have the same rights to help if they need it to go a further distance to a non-denominational school. The Minister knows that that is the nub of the point. I refer again to the fourth report of the Joint Committee on Human Rights, paragraph 49 of which states:
"We are concerned that this current Bill does nothing to dispel, and may reinforce, the apparent misapprehension of some LEAs that it is permissible to discriminate against children of parents with non-religious convictions in the provision of school transport. We reiterate the concerns of the previous Committee, that guidance for LEAs on this matter"—
it exists, as the Minister knows, in the form of a circular letter on school transport from the then Department for Education, dated 21 January 1994—
"is inadequate to ensure compliance with the Human Rights Act, and recommend that guidance should be produced under this Bill which should make clear that, as the Government has previously accepted, there is a duty under the Human Rights Act to make equal provision for school transport to support education in accordance with both religious beliefs and non-religious beliefs."
I stress that the Bill should make equal provision in accordance with both religious and non-religious beliefs.
5 pm
Provided that the education system involves denominational schools, we Liberal Democrats recognise the need to provide help with school transport for children whose parents have religious beliefs and who wish to send their children to a school further away than their nearest one. The Minister will be well aware, however, that the guidance and local education authority practice seem to imply that those who do not have a religious belief do not qualify for the school transport concession.
I hope that the Minister will repeat what she said in Committee by making it clear that the provision applies to those with, and without, religious beliefs, and that clear guidance will be produced in good time. Perhaps she might even ask the Joint Committee on Human Rights and the Education Committee—the latter issued a critical report on the School Transport Bill in respect of these matters—to consider the guidance before it is published, in order to ensure that it is absolutely right. I hope, too, that she will put on the record the need for guidance in both those important areas. That way, the problems that parents without religious beliefs face because of the unfair way in which the school transport system sometimes operates can finally be rectified, after many years of trying to rectify them.
Mr. Dominic Grieve (Beaconsfield) (Con):
I commend the hon. Member for Oxford, West and Abingdon (Dr. Harris) on his ingenuity in tabling this new clause, which touches on an important issue. However, my experience of the problems of home-to-school transport as operated in my county, where there is selective education and, therefore, the need—in a way perhaps
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similar to that which he described—to do a great deal of juggling to get children to the appropriate school, makes me think that his proposal would cause massive headaches for local education authorities with very little benefit. I am bound to say, moreover, that the Minister would find it difficult to draw up guidelines, and even harder to implement them.
If, as a result of this legislation, the Human Rights Act 1998 is infringed because of the way in which home-to-school transport is offered—and in a way that is unacceptable, even allowing for the exceptions provided for in the Bill—I have no doubt that somebody will take that case to court to get the situation clarified. I hope that the Minister is not encouraged by the hon. Gentleman's proposals, because they would cause intense muddle and land her and the Government with an impossible task.
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