Education Bill

Memorandum submitted by the British Humanist Association (E 111)

Increased religious discrimination against staff in schools ‘transferring’ to Academy status

Part 6, Academies

1. For voluntary controlled schools with a religious character that have transferred to academy status, t he Education Bill effectively imports the rules governing the employment of teachers at voluntary controlled schools with a religious character . These rules allow schools to discriminate on religious grounds and have ‘reserved teachers’, up to a fifth of staff including the principal.

2. Clause 58 (3)(2) introduces a new power for the Secretary of State to override by order those rules (which we believe are unnecessary and unjustified in any case) and permit new and wider discrimination, so that the Academy school may apply preference in the appointment, promotion or remuneration of all teachers at the school in accordance with the tenets of the religion or religious denomination of the school.

3. As 15% of primary schools in England and 3% of secondary schools are voluntary controlled schools with a religious character [1] , this clause has the potential to have profound implications on the employment situation of potentially thousands of teachers.

4. We do not agree that any state-maintained school, including Academies and free schools, should be able to discriminate against teachers or staff on grounds of religion and ideally would urge that the Bill be amended to prevent such unnecessary and unjustified discrimination.

5. We can see no legitimate justification for permitting potentially wide and new discrimination against teachers in an Academy school which has transferred from a voluntary controlled school with a religious character. The new power allows the Secretary of State for Education to grant permission to extend discrimination on religious grounds to many posts where such restrictions had never previously applied.

6. We are further concerned that Clause 58(3)(2) may be incompatible with Article 4.2 of the European Equal Treatment Directive (COUNCIL DIRECTIVE 2000/78/EC) which allows organisations with an ethos based on religion or belief, such as maintained schools with a religious character, to treat persons differently in recruitment and employment on the grounds of religion or belief where there is ‘a genuine, legitimate and justified occupational requirement.’

7. We believe that both the breath of the terms of the discrimination, tied as it is to the ‘tenets of the religion or religious denomination of the school’, and the extension to discriminate against all teachers permitted by Clause 58(3)(2) goes well beyond what is permitted by Article 4.2.

8. In March 2010, the BHA made a complaint to European Commission regarding the incompatibility of Sections 58 and 60 of the School Standards and Framework Act 1998 with the Directive. Although our complaint focuses on employment in state- maintained schools, the SSFA as amended by the Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations (2003) [2] grants to independent religious schools the same powers to give preference to teachers according to their religion or belief as apply to voluntary aided schools. Academies and free schools with a religious character are state-maintained but independent schools. We believe that the detailed criticisms that we make of the law as it applies to employment in maintained schools in our complaint would also apply to independent schools , and so to Academies and free schools . We have attached as an appendix that complaint for the Committee’s consideration.

9. We believe that the Bill must be amended urgently to revoke this power and protect potentially thousands of teachers from schools converted to Academy status against new, unnecessary and unjustified religious discrimination.

10. We recommend that Clause 58(3)(2) is left out of the Education Bill.

Proliferation of unaccountable ‘faith’ Academies and free schools

Schedule 10

11. The Education Bill amends the Education and Inspections Act 2006 to require local authorities which think a new school needs to be established to seek proposals for the establishment of an Academy. In effect, this introduces a presumption that when local authorities set up new schools they will be Academies or ‘free schools’.

12. This new requirement to prefer Academies and free schools is likely to aid a proliferation in the setting up of state-funded religious Academies and free schools. Academies and free schools are particularly attractive not only to mainstream religious groups but also to minority groups. This is because they are largely unregulated and there is nothing to stop groups with even extreme agendas from applying to run these state-funded schools.

13. The Department for Education (DfE) has begun to publish the names of applications to run free schools and, a high proportion of those have come from faith groups. In a recent tranche, seven of the ten 'Free School' applications have religious or 'spiritual' connections. Among the approved applications are a school which teaches 'consciousness-based education' including 'transcendental meditation', an Islamic boys' school, and a school run by a group set up by an 'Ordained Minister of the Free Church'. Whilst the Department of Education has stated that the Education Secretary, Rt Hon Michael Gove, is ‘crystal clear’ that the ‘teaching creationism is at odds with scientific fact’ they have not demonstrated how they will exclude creationist groups effectively from establishing schools [3] . The Secretary of State has stated as recently as January this year that applications from creationist groups to run free schools would be considered [4] .

14. Academies and free schools with a religious character are able to discriminate against students and parents in admissions, and against staff on the grounds of religion or belief. They can also opt out of the national curriculum and choose not to provide even the most basic sex education in biology or choose to teach creationism in science.

15. We are concerned that this new requirement on local authorities to prefer Academies and free schools when creating new schools will lead to a proliferation in largely unregulated and unaccountable state-funded religious schools.

16. We recommend that Schedule 10(2) is left out of the Education Bill.

Less scrutiny of admissions practices

17. The Education Bill does nothing to address the ability of state-maintained schools with a religious character, including Academies and free schools, to discriminate against prospective students on the basis of their parents’ religion.

18. In 2008 research by the Government found that at over half (55 per cent) of ‘faith’ schools that were their own admissions authority were in breach of the admissions code [5] . Allegations included families being asked questions about their family situation as well as being asked by the school for money. The ongoing need for scrutiny was demonstrated in evidence to the Education Select Committee in February 2011 by the Chief Schools Adjudicator that reported on continuing discrimination against poorer families [6] , as published in the Office of the Schools Adjudicator’s annual report in 2010, which was critical of the complexity of some ‘faith’ schools’ admissions criteria as favouring white middle-class families. [7]

19. Discrimination against pupils of the 'wrong' or no religion infringes their rights by assuming their beliefs are identical to their parents’. It is well evidenced and established that discriminatory admissions practices lead to segregation along religious and socio-economic lines – ‘faith’ school populations are often far from representative of their local communities. [8]

20. In light of the push by government to increase vastly the numbers of religious Academies and free schools, which can all discriminate in their admissions, it is particularly remarkable that the Education Bill contains provisions which will actually decrease scrutiny of school admissions policies.

Part 5, Clause 34

21. The Education Bill removes the duty of local authorities to report on the admissions criteria of schools in an area and to establish an admissions forum. It also curtails the powers of the schools adjudicator which can no longer make a modification to a school’s admissions arrangements, even in response to a complaint.

22. We believe that, at a time of a potentially large expansion in the numbers of state-maintained ‘faith’ schools, that there should be more scrutiny of admissions arrangements, and power for local communities to influence the admissions arrangements in schools, not less.

23. We recommend that the Committee takes on board these concerns, reviews this section of the Education Bill and considers amendments that would strengthen scrutiny of admissions.

Clause 40, Removal of duty for Ofsted to inspect community cohesion

24. It is disappointing that the Bill will remove the requirement for Ofsted to inspect on how schools contribute to community cohesion. Together with the reduced scrutiny in admissions, and the ability of ‘faith’ schools including Academies and free schools with a religious character to discriminate widely in admissions, we believe that removing this duty will cause real problems for social cohesion.

25. The Accord Coalition, of which the BHA is a founding member, has submitted a memorandum of evidence for the Committee’s consideration which focuses on cohesion and admissions. The BHA fully supports and endorses that memorandum, and recommends it to the Committee.

About the BHA

The British Humanist Association (BHA) is the national charity representing the interests of the large and growing population of ethically concerned non-religious people living in the UK. It exists to support and represent people who seek to live good and responsible lives without religious or superstitious beliefs.

The BHA is deeply committed to human rights, equality, democracy, and an end to irrelevant discrimination, and has a long history of active engagement in work for an open and inclusive society. In such a society, people of all beliefs would have equal treatment before the law, and the rights of those with all beliefs to hold and live by them would be reasonably accommodated within a legal framework setting minimum common legal standards.

Our expertise lies in the ‘religion or belief’ equality strand, which includes non-religious beliefs such as Humanism, and how that strand relates to and intersects with other protected characteristics. We also work closely with others on wider equalities issues in a range of forums.

March 2011

[1] DfE Statistical First Release: Schools, Pupils and their Characteristics , January 2010

[2] Source: . Last accessed 10th March, 2010. Last accessed 10th March, 2010.

[3] Guardian, Free schools will not teach creationism, says Department for Education 21 st March 2011,


[4] D epartment for Education, ‘Free Schools Conference’, 29 th January 2011

[5] Times Educational Supplement, Spot checks show faith schools broke rules , 4 th April 2008


[6] Hansard HC 782, 2 nd February 2011


[7] See Office of the Schools Adjudicator, OSA Annual Report 2010 and Guardian Faith school admissions 'unfair to immigrants' 1 November 2010

[8] Allen, Rebecca and Vignoles, Anna (2009) Can school competition improve standards? The case of faith schools in England . NCRM Working Paper. Department of Quantitative Social Science, Institute of Education