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I start from the belief that it is wrong for children to be discriminated against in admissions to state schools on the basis of their race, sexual orientation or religion—that is in itself wrong. It is worse in respect of religion because often, although not all the time, it usually involves what is, in effect, indirect segregation, discrimination and selection on racial grounds. So, even though the selection is against religion, because of the association of religions with certain racial groups in this country, not exclusively but commonly, there is that consequence. On principle, given that education is
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a state function, the argument has to be made against the default of there being selection, discrimination or increased segregation on religious grounds.

The second problem over and above the principle of discrimination is that of segregation. I accept, of course, that the major cause of segregation, particularly in our cities, is people living in different places according to their race and, often as a consequence, their religious faith. We already have segregation in housing, and that is why in some areas there are only Asian children in a school. Indeed, that may sometimes be a Church of England school in a certain area where housing is mainly occupied by people from the Asian community who are often Muslim, possibly Hindu or from one of many other religions. There are some areas where housing is occupied by white people who will tend not to be Hindu or Muslim but are likely to be members of the Christian faith—Catholic or Protestant or of no faith at all—and they will go to a school in their area. That is unfortunate. We need to do something about that and nothing I say detracts from that.

It is also the case that some schools of mixed race and religion are faith schools. There is no doubt about that. However, as soon as a faith test is applied for an over-subscribed school, which enables 100 per cent. of the children selected for that school from the area to be of one faith, it cannot mathematically do anything other than tend to increase existing segregation. I am not saying that segregation is due in the main to discrimination in admissions, and I am not arguing that all schools that select or indeed all faith schools—many of which do not select because they are not over-subscribed or do not have a selective policy—are responsible for segregation. However, in a number of cases those schools will increase the segregation that exists as a natural consequence of applying a religious or faith test, which in the main aligns along racial grounds, to those who apply. That is a logical consequence.

I hope that that will be accepted. Hon. Members will argue that it is a price we have to pay and that ameliorative steps should be taken by schools to ensure that young people in schools that are 100 per cent. of one faith and often of one race are exposed to young people of other faiths and religions. I do not doubt the Government’s sincerity in seeking that, particularly given some of the amendments calling for a duty to act in favour of social cohesion which were tabled just this week to the Bill that is in the House of Lords. I understand that, but I argue that it would not be as necessary if there were not additional segregation and discrimination based on the religion or claimed religion of the children or parents applying for a school, particularly if it is over-subscribed.

Mr. Andrew Smith (Oxford, East) (Lab): I think the hon. Gentleman accepts what I am about to say, but I would like confirmation. Given that faith and ethnicity do not go together, what he describes as segregation in some instances could be a force for integration in others. For example, there is evidence that Roman Catholic schools have a higher proportion of people from a minority ethnic group, making up between 5 and 40 per cent., than state or non-Roman Catholic schools. Therefore,
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the faith school may be a force for racial integration. Does the hon. Gentleman accept that that can be the case?

Dr. Harris: No, I think that the right hon. Gentleman’s comparator is flawed. Many Catholic schools are in urban areas, and rightly so. I have no problem with that. The comparator for those schools is not all other schools, but non-faith schools also in urban areas that do not apply a religious selection test when they are over-subscribed. It is logical that if a school takes from its local catchment area A, segregated though it may be on a 70/30 per cent. split, then a faith school in area B, which is also split 70/30, would not take on pupils according to that split if people from area A were allowed, purely on the basis of their faith, to overtake minority children from area B in gaining admission to that school. In such areas, although there will still perhaps be a mix on racial or religious grounds, it would not be as great as it would be if there were no selection or selective pressure.

There is mathematically no alternative way of looking at the situation for those faith schools that select on the basis of religion, are over-subscribed, and can therefore select from a wider area and have bused across the district, town or city at the expense of the local taxpayer people of their religion to have in their school. That is why, in some northern cities, some faith schools are 100 per cent. white, even in a city where one would not expect that and even despite housing segregation, and some schools that are 100 per cent. or nearly 100 per cent. Asian are actually Church of England schools; they just take people from their local area.

My thesis is that there is no logical way to argue that a selection test for over-subscribed schools does not increase segregation. That is what they say they want to do. They say that they want to have a school where, for example, Catholic parents can send their children in preference to other local children who are not Catholic.

Mr. David Burrowes (Enfield, Southgate) (Con): The hon. Gentleman says “they”. No doubt in saying what “they” want we also include parents. Does he recognise the fundamental human right of a parent to choose to have their child educated in a faith school, and does he recognise that the admissions process should properly enable that right to be fulfilled?

Dr. Harris: The hon. Gentleman reminds me to declare my interest: I am an honorary associate of the National Secular Society. I should have said that at the outset. I am also a member of the Joint Committee on Human Rights. We have published a report on these issues, and I can assure the hon. Gentleman that there is no fundamental human right requiring the state to provide a faith-based education so that parents can have their children educated in that way. That point is misunderstood. Indeed, I believe that a Minister got it wrong in the House of Lords at an earlier stage in the passage of the Education and Inspections Bill.

Let us be clear: there is a human right for people to have freedom of religious belief, but upholding that human right does not require the state to provide a faith school. I would be interested to hear whether the Minister could confirm that. It does require the state to provide
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to parents—and, I would argue, children who are competent enough to make the decision—an opt-out from religious education where that is directional, or could be directional, and from compulsory prayer. Such opt-outs exist for the protection of religious belief, but there is no right of parents to have a school of their choosing. Otherwise, we would be in difficulty, because parents would say that they had a human right to be provided with a school for Scientology or another religion where there was not otherwise demand. That is a relief to the Government, I am sure, because even this Government would not be able to afford the growth in new schools that would be required.

The hon. Member for Enfield, Southgate (Mr. Burrowes) brings me to another point that I wanted to raise, which is the right to non-discrimination of people who are selected against. There is a group of people who do not have their own school. No school that I know of gives parents preference if they are not religious. Most religions have schools, and, with the new faith schools for Muslims, more religions will have schools, if they are available in the area, at which members of the religion could get preferential treatment in admissions. But for non-religious parents there is no secular school that says, “We’re not going to let this Christian child in; we’re going to take this child of an atheist, even though they live further away.” However, non-religious parents who cannot fulfil the church attendance test and the faith test required by some schools are being unfairly treated on admissions, and I hope that the hon. Gentleman will accept that that is a breach of their right to non-discrimination.

I believe that the Government will be in trouble on these issues, with cases brought under anti-discrimination law, unless they make the exemption so wide as to make it extremely difficult for such a case to be brought. I hope that hon. Members see the principle of what I am saying and will ask in response, “What is the solution? What is the remedy for a non-religious parent who would like there to be a school at which they are given preference?”

Mr. Nick Gibb (Bognor Regis and Littlehampton) (Con): Is not the hon. Gentleman seeking the perfect world of choice? Is not some choice, however imperfect, better than the limited choice that he is advocating?

Dr. Harris: We could get into a long debate about what is meant by choice. Obviously, many in the education world would argue that a diversity of schools offers a diversity of options for parents, enabling them to choose which school to apply to, but if those schools are selective, it is the schools that are choosing the pupils. All that the parents can do is express a preference or seek to apply, so we must be careful when we talk about choice in education. Clearly, I speak as someone who does not believe that there should be selection on the grounds of educational attainment either.

Dr. Ashok Kumar (Middlesbrough, South and East Cleveland) (Lab): Will the hon. Gentleman give way?

Dr. Harris: In a moment. The other response to the point made by the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb), to whom I am grateful for debating the issue in what is, after all, a debating
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Chamber, is that things are being offered that are of benefit to certain people, but the principle of anti-discrimination law is that things should be provided equally as far as possible. Sometimes, choice for a few people, while excluding automatically choice for others, is not better than no choice at all. I think that that is made clear by the Equality Act 2006, for which, I am pleased to say, the hon. Gentleman’s party voted. Indeed, article 14 of the European convention on human rights states that people are entitled to enjoy their human rights without discrimination. Therefore, public authorities in particular must be careful not to provide choices for the few at the expense of others, or the many; they must provide choices on an equal basis.

Dr. Kumar: I am listening carefully to the case that the hon. Gentleman is building for those who may have no religious faith. Has he seen the results of the Guardian/ICM poll that showed that 65 per cent. of people oppose religious schools? They do not support religious schools and are excluded from the argument that is being advanced.

Dr. Harris: Indeed. I am grateful to the hon. Gentleman. It is the case that a large number of people do not have a preference for faith schools. I do not believe that, simply because they do not have a preference, consideration cannot be given to providing options for those who do want faith schools, but that must be done on a fair basis. At the moment, it is not necessary, as I said. It has perverse consequences to do with segregation. It is in principle wrong to allow discrimination on the grounds of religion which we do not allow on the grounds of race or politics. Someone could say, “I want my child to go to a socialist school” or “I want my child to go to a white-only school.” The same arguments could be applied in that respect. Some people do feel that way, but we do not meet those preferences. Not every choice or preference of people needs to be met if that is bad for society or is at the expense of others. That is not in any way to question the intentions of those who provide faith-based education or those who wish for it. I am referring to decisions that the Government should make and I believe that the Government are making the wrong decisions in these areas.

Roger Berry (Kingswood) (Lab): I congratulate the hon. Gentleman on securing the debate. Does he agree that it would be difficult to justify non-faith schools discriminating against students on the basis of religion? Indeed, that would be unlawful. If that principle applies to non-faith schools, how does one reconcile that with the different principle applying in the case of faith schools?

Dr. Harris: It is difficult to justify it. It is a curious thing. It is difficult to justify any discrimination by state schools against local people on the basis of their parents’ private beliefs in favour of people who believe something else and go to a different building on a Sunday, or who claim to believe something else and feel that they ought to go to a different building on a Sunday in order to get their kid into the school of their choice.

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It is often argued that faith schools are popular because they are good. However, the evidence in that regard is not clear. The hon. Member for Bognor Regis and Littlehampton and I had discussions about this issue during a long Adjournment debate prompted by the hon. Member for Nottingham, North (Mr. Allen). It may well be that because of the preference of middle-class people for faith schools they will often have better results. I am not making a judgment; that is the case, although it does not apply to Catholic schools in inner-city areas, where faith schools are a working-class preference. However, when those results are compared to those of the right comparator of schools that are non-faith, and adjusted for free school meals or other proxies of social background, one does not find a significant difference in the educational attainment.

I do not think that there is anything in the spiritual nature of a school that says that its pupils will be better at maths because they pray. As I said in a debate in the main Chamber the other day, there is some evidence, from a large, controlled trial, that prayer does not affect recovery from surgery. It is therefore hard to believe that mere prayer alone is likely to produce better results—believe me, I tried it during my medical studies.

It is harsh to tell community schools that their ethos is so deficient and their discipline so awry that they are incapable of getting results as good as those of faith schools. If hon. Members pray in aid of faith schools and think that such schools will get better results because their ethos and discipline is better, they must show evidence that schools are struggling with results or discipline because they do not have such a religious ethos. That would be hard to prove, unfair on those schools and too much of a generalisation. We should accept that schools are neutral in that respect.

Before I move on to the second part of my speech, I must point out that in the free-for-all on the issues of selection on religious grounds and introducing quotas to encourage integration, one option that was not considered was that there should be no segregation or discrimination at all on religious grounds. I am sorry that that option has not been raised in the debate.

Mrs. Ann Cryer (Keighley) (Lab): Before the hon. Gentleman moves on, I want to mention the Roman Catholic diocese of Leeds, which includes Bradford metropolitan district and my constituency, which is in the process of reducing the number of Catholic schools because there is over-provision. If that happens, rather than there being a mix of Christians of other orientations and Muslims in those schools—Holy Family school in my constituency, for example, has a real mix—they will be more and more exclusive to Roman Catholics. Has the hon. Gentleman come across that phenomenon in other parts of the country?

Dr. Harris: I am sure that it happens in other parts of the country, and that is the point. Generally, segregation applies only in over-subscribed schools, because anyone can fill places that are not filled. I do not accuse schools of excluding people when there are unfilled places. Indeed, I believe that the Government recently made it
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clear that that is not permitted. The hon. Lady makes an important point, however: when schools are over-subscribed there is increased segregation and selection, and one can create that situation by deleting surplus and potentially surplus places and places that are not filled exclusively by people from the relevant faith. That might not be the intention of the diocese she mentions, but it is certainly a consequence, and politicians and the Government have to consider consequences.

On Third Reading of the Education and Inspections Bill in the House of Lords on Monday, Lord Lester referred to the Tengur judgment of the Privy Council. In that case, he acted for the Mauritius Government against the Bishop of Port Louis. There was a system for allocating places at Roman Catholic secondary schools whereby half the intake was Roman Catholic. The Privy Council, which I believe has a legal standing there equivalent to that of our Court of Appeal, unanimously decided that that amounted to discrimination in the public domain and was contrary to section 16 of the constitution of Mauritius. Lord Lester argued that a similar approach could be applied in an appropriate case under the Human Rights Act 1998. Have the Government digested the consequences of that case?

I am conscious of the time and I know that others want to speak, so I turn to the second prong of the debate, and employment practices in faith schools.

Mr. Gibb: Before the hon. Gentleman moves on, I want to ask him about article 2 of the first protocol to the European convention on human rights. Does it not state:

Dr. Harris: That is right. That is why there is an opt-out from religious education that is not in the national curriculum, because that is very much a do-it-yourself matter in faith schools and can be quite specific for certain religions. There is also an opt-out from worship. All that means that religion cannot be forced. That is what freedom of religious expression means. It does not mean freedom to practise at the state’s expense; it means freedom from the state imposing religion on children or their parents. That is clear. I do not have references from the Joint Committee on Human Rights report, but there is unanimity among public lawyers on that in relation to the Human Rights Act. There has never been a successful claim saying, “We must have a Muslim school to abide by that particular part of the protocol.” I hope that the hon. Gentleman is reassured, but I am happy to send him a legal opinion on that, for free, after the debate.

I am keen to move on to the question of discrimination. Hon. Members will know that sections 58 and 60 of the School Standards and FrameworkAct 1998 permit voluntary-aided schools to impose a faith test on teachers. Applicants can be appointed or not and teachers can be promoted or not on the basis of their personal religious beliefs and their conduct in respect of the ethos of that religion. That has always been controversial, and my party has always opposed
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it. I know that my hon. Friend the Member for Leeds, North-West (Greg Mulholland), who may not have agreed wholly with the first part of my speech, is now listening intently from the Front Bench. My party opposed those measures because we do not believethat it is appropriate for state schools to apply tests of private religious belief to teachers of maths, geography or history, to head teachers or even to teachersof religious education. They are teaching, not proselytising.

I understand why the Church of England might want to apply faith tests to people who wish to become priests—perhaps it does apply them—but that is a genuine occupational requirement. It is not a genuine occupational requirement for a teacher in a state school to have particular private religious beliefs, to go to a certain building on a Sunday or to sleep with a person of the opposite gender in their private life. They have a duty to obey the law and not to bring the school into disrepute—I understand that—but private is private. Freedom of religion should mean that one’s career and prospects of promotion will not be blighted because of the ability of a state school to impose a religious test. That is why the measures are controversial.

The legislation applies not only to voluntary-aided schools, but to voluntary controlled schools, in which 100 per cent. of the funding for running costs and capital is paid by the state, and a minority of governors are faith governors. In voluntary-controlled schools,20 per cent. of teachers can be reserved teachers, which means that they are qualified to teach RE to the ethos of that school. That can have serious consequences, particularly when such a school is the only school in town for teachers who wish to teach in that area, particularly teachers who are interested in teaching RE to a curriculum rather than in a proselytising way. I agree that it might be difficult for a teacher of the wrong religion or no religion to try to convert pupils, but that is not what state schools are for. Neither are they there to keep pupils on the straight and narrow as regards their religion.

The Government propose to expand those measures to enable voluntary-aided schools to apply a faith test to all staff, including non-teaching staff, but they have not adequately consulted the unions. I have had correspondence from the general secretary of the National Union of Teachers, from the GMB and Unison, and I have spoken to the general secretary of the National Association of Head Teachers. They all expressed concern about the proposals and the lack of consultation. Did the Minister write to the unions about this? What documentation was sent to them at general secretary level? With whom at the trade unions was this discussed? It is a serious matter for them.

Hon. Members may also be interested to know the view of Trevor Phillips, who was recently appointed to the chair of the Commission for Equality and Human Rights. In his evidence to the Select Committee on Education and Skills earlier this month, he said, at question 451 of the uncorrected transcript, that

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