The need for guidance to LEAs
4.20 In our letters to Ministers we pointed out that
in the prospectus there is a suggestion that the Department itself
is not clear about the Article 14 obligation: it is said that
schemes "may improve provision for one or more of: …
pupils travelling to denominational schools".[42]
We welcome both the Government's and the Assembly's willingness
to revise the section in the prospectus to encompass some of the
points raised in our letter, and the confirmation that the JCHR
will be consulted on a draft of such guidance. We also welcome
the Assembly's intention to revise and reissue its guidance to
LEAs on home-school transport, and its assurance that this new
guidance will emphasise that any transport arrangements must be
non-discriminatory and for instance must not make provision for
parents who belong to one denomination but not for those of another.
4.21 However, we are disappointed that it is not
anticipated that the guidance given in the revised prospectus
will be comprehensive, and that there is no equivalent undertaking
from the Parliamentary Under-Secretary of State for Schools to
issue new general guidance to schools expressly addressing the
discrimination problem. The Government appears to be maintaining
the position taken in the prospectus accompanying the draft Bill
that it is for LEAs to decide for themselves whether their schemes
are discriminatory.[43]
The Draft Explanatory Notes are to the same effect—
… it will be for individual LEAs as public authorities
within the meaning of the Human Rights Act 1998 to ensure that
the schemes they make are compatible with Convention rights and
in particular to avoid discrimination contrary to Article 14 of
the Convention.
4.22 We
remain of the view expressed in our letter, that there is a clear
need for departmental guidance making the human rights position
clear, for at least three main reasons.
(1) First, in our view there is clear evidence that
LEAs are currently under a misapprehension about there being an
obligation to subsidise transport to denominational schools (an
impression which will have been reinforced by para. 8 of the Prospectus).[44]
We note that the Government does not agree that LEAs are under
any misapprehension about their obligations to provide free or
subsidised transport to denominational schools but rather understand
that this is discretionary. We were persuaded by the evidence
of the National Secular Society to the Education Committee that
LEAs are in fact under a misapprehension that they are under an
obligation to provide free transport to denominational schools,
contributed to by the current statutory framework and evidenced
in part by the very significant numbers of authorities which provide
such transport. This is ultimately a factual question which we
are not in a position to resolve, and will no doubt be the subject
of further discussion between the National Secular Society and
the Government.
(2) Second, the Secretary of State and Welsh Assembly
will themselves have to approve schemes put forward by LEAs, and
will therefore have to be clear about the compatibility of those
schemes with the Convention. It is therefore in the interests
of the Secretary of State and the Welsh Assembly that LEAs are
properly guided about the Convention compatibility of their schemes
before they are submitted for approval.
(3) Third, there is also arguably a positive obligation
under Article 14 (to secure the enjoyment of Convention
rights without discrimination), which requires the State to take
steps to ensure that there is no discrimination in the enjoyment
of Convention rights, particularly when there is clear evidence
of such discrimination taking place on a significant scale, as
there appears to be here.
4.23 We
therefore urge the Government to give serious consideration to
following the example of the National Assembly for Wales by issuing
new general guidance for LEAs including specific guidance on how
to avoid discriminating in the provision of transport. We do not
consider this to be giving "legal advice" to LEAs, but
providing guidance on the implementation of an important obligation
not to discriminate. Such guidance to LEAs, explaining what the
law requires and how to avoid the risk of behaving unlawfully,
is a standard function of central government guidance and we find
it difficult to understand the Government's reluctance.
Discrimination on grounds of
disability
4.24 As far as children with mobility difficulties
are concerned, the obligation to make provision for them in school
travel schemes, and not to rely solely on "walking distance"
as the determinant of whether transport should be provided free
of charge, arises because Article 14 ECHR requires not only that
like cases must be treated alike, but also that different cases
must be treated differently.[45]
4.25 In light of the obligation not to discriminate,
including on grounds of disability, we asked the Minister what
provision it proposed to make in relation to children with mobility
difficulties who are unable to walk the statutory walking distance
in a reasonable time or at all. We welcome the Government's response
that, because the draft Bill requires LEAs to make appropriate
travel arrangements for children, a child who has mobility difficulties
and is unable to walk, or walk 2 or 3 miles, "would have
to be provided with transport or appropriate transport assistance".
21 Third Report from the Education & Skills Committee,
Session 2003-04, The Draft School Transport Bill, HC 509-I. Back
22
See Appendix 4. Back
23
S. 509(1) Education Act 1996. Back
24
S. 509(2). Back
25
S. 509(3). Back
26
S. 509(4). Back
27
This is not an express statutory duty but is the result of the
interaction between s. 509(1) and s. 444(4) Education Act 1996,
which provides that it is a defence to the offence of failing
to secure a child's regular attendance at school if the parent
proves that the school is not within walking distance of the child's
home, and the LEA has not made suitable arrangements for the child's
transport to and from the school, boarding accommodation at or
near the school, or attendance at a school nearer to the child's
home. "Walking distance" is defined in s. 444(5) to
mean two miles for under-eights and three miles for eight year
olds and above. Back
28
Clause 1(1), inserting new s. 509ZAA into the Education Act 1996,
and clause 1(2), inserting new Schedule 35B into the same Act.
The power to make a scheme is contained in para. 1 of new Schedule
35B. Back
29
New Schedule 35B, para. 8. Back
30
New s. 509ZAA(2). Back
31
New Schedule 35B, para. 2(1).As well as schools, schemes must
cover further education institutions and any other place where
exceptional arrangements for education are made under s. 19(1)
Education Act 1996, e.g. pupil referral units: para. 2(1)(b) and
( c) of new Schedule 35B. Back
32
Ibid., para 2(2). Back
33
Statutory walking distance is 2 miles for pupils under 8, 3 miles
for pupils 8 and over: s. 444(5) Education Act 1996. Back
34
New Schedule 35B, para. 3(1). Back
35
Ibid., para. 4(1). Back
36
Ibid., para. 7. Children in respect of whom charges cannot be
made ("protected children") are defined, in England,
as those eligible for free school lunches and milk under s. 512ZB(4)
Education Act 1996; in Wales the National Assembly is given the
power to define the scope of the exemption by regulations. Back
37
In addition to Article 2 of Protocol 1 to the ECHR a number of
other human rights obligations concerning the provision of education
are also engaged: UDHR Art. 26(2); ICESCR Art. 13; ICCPR Article
18(4); CRC Art. 28(1); Covenant Against Discrimination in Education
(UNESCO 1960). Back
38
The words "or philosophical" were added to the wording
of the second sentence of Article 2 of Protocol 1 precisely in
order to extend the scope of its protection to those with agnostic
or atheist beliefs. Back
39
Belgian Linguistic Case (1968) 1 EHRR 252; W & DM
and M & HI v UK (1984) 37 DR 96. Back
40
Belgian Linguistics, ibid., para. 5. Back
41
Draft Explanatory Notes, para. 24. Back
42
Prospectus, para. 8. Back
43
Prospectus, paras. 21-23. Back
44
The evidence of the National Secular Society, Third Report of
the Education and Skills Committee, Session 2003-04, op cit.,
ST 30. Back
45
Thlimmenos v Greece (2001) 31 EHRR 15. Back
