Joint Committee On Human Rights - Seventeenth Report

Joint Committee On Human Rights Seventeenth Report

Appendix 4: Draft School Transport Bill

4a. Letter from the Chair to Stephen Twigg MP, Parliamentary Under Secretary of State for Schools, DfES

As you are aware, the Commons Education and Skills Select Committee is currently conducting pre-legislative scrutiny of the Draft School Transport Bill. The Joint Committee on Human Rights considers the compatibility of all draft Bills with human rights (including, but not restricted to, Convention rights under the Human Rights Act 1998).

The Joint Committee gave provisional consideration to the draft School Transport Bill at its meeting on 16 June 2004. I am writing to inform you of the Committee's provisional views about the human rights implications of the draft bill, and to ask some specific questions which will assist the Committee to reach a final view about the compatibility of the draft bill with human rights.

The human rights engaged by the draft bill

The draft bill engages a number of the UK's human rights obligations concerning both the provision of education and discrimination. Most of the principal human rights instruments by which the UK is bound[145] recognise the child's right to education, the parent's right to have their child educated in accordance with their religious or philosophical convictions, and the right of both not to be discriminated against in their enjoyment of those rights.

Article 2 of the First Protocol to the European Convention on Human Rights provides:

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

Article 14 ECHR provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Article 26 of the Universal Declaration of Human Rights provides:

"1. Everyone has the right to education …

3. Parents have a prior right to choose the kind of education that shall be given to their children."

Article 2 UDHR provides:

"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Article 18(4) of the International Covenant on Civil and Political Rights provides:

"The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions."

Article 26 ICCPR provides:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Article 13 of the International Covenant on Economic, Social and Cultural Rights provides:

"I. The States Parties to the present Covenant recognise the right of everyone to education …

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions."

Article 2 ICESCR provides:

"2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Article 28 of the UN Convention on the Rights of the Child provides:

"1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: …

(d) take measures to encourage regular attendance at schools ..."

Article 2 CRC provides:

"1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians or family members."

In addition to the above rights concerning education and discrimination, the UK has assumed certain obligations in relation to the protection of minorities and the protection and promotion of regional or minority languages.

Article 14 of the Framework Convention for the Protection of National Minorities 1995 provides:

"1. The Parties undertake to recognize that every person belonging to a national minority has the right to learn his or her minority language.

2. In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language."

Under Article 8 of the European Charter for Regional or Minority Languages 1992,[146] the UK has undertaken to make available in Wales pre-school, primary and secondary education in Welsh.[147]

The human rights issues raised by the draft bill

The Committee's provisional view is that the draft bill gives rise to the following human rights issues:

(I) Whether the replacement of current LEA policies which provide free or subsidised transport to denominational schools, with school travel schemes under which charges will be levied, will interfere with the right of parents, under e.g. the second sentence of Article 2 Protocol 1 ECHR, to have their children educated in conformity with their own religious convictions, because it will lead to parents not being able to afford to send their children the further distances to denominational schools. Religious schools have voiced the concern that withdrawal of free or subsidised transport to denominational schools will restrict access to such schools to those who can afford to pay for the transport, resulting in a much narrower social mix in denominational schools.

(2) Whether the continuation in the new school travel schemes of the current policy of many LEAs to provide free or subsidised school transport to children attending denominational schools is in breach of the non-discrimination provisions such as Article 14 ECHR in conjunction with the second sentence of Article 2 Protocol 1, because it discriminates, without objective and reasonable justification, against parents who wish their children to attend non-denominational schools so as to be educated in accordance with their secular philosophical convictions.[148] Representatives of secularist parents have voiced this concern.

(3) Whether the continued reliance on "walking distance" as the trigger to the duty to provide free school transport, without making any provision in relation to children with mobility difficulties who may not be able to walk the statutory walking distance either in a reasonable time or at all, is in breach of the non-discrimination provisions such as Article 14 ECHR in conjunction with Article 2 Protocol I, because it discriminates against such children without objective and reasonable justification.

The draft Bill does not in the Committee's provisional view give rise to any significant risk of a breach of any of the substantive guarantees of either the child's right to education, or the right of parents to have their children educated in accordance with their religious or philosophical convictions. It does, however, for the reasons explained below, give rise to a significant risk of discrimination in relation to the enjoyment of both of these rights.

Under the ECHR, parents who wish to send their children to a denominational school, or to a non-denominational school, or to a minority language school, do not have any Convention right to do so. There is no positive obligation on the State to provide or subsidise any particular form of education. There is therefore no right to attend either religious or nonreligious schools.[149] Nor is there any primary right under the ECHR to be educated in a particular language. The right to education in the first sentence of Article 2 Protocol 1 does not create a right to be educated in a minority language. Nor does the second sentence of the Article give rise to any such right: a preference as to the language of teaching, however strongly held, does not amount to a "religious or philosophical conviction" within the meaning of that phrase.[150]

The draft Explanatory Notes to the Bill are therefore correct in stating that the second sentence of Article 2 Protocol I ECHR does not of itself create any obligation to make arrangements for school transport or for free school transport to assist or enable parents to send their children to schools of their choice.[151] Even where such schools exist, there is no Convention right to attend them, and it follows that there can also be no Convention right to free or subsidised transport to such schools. In the Committee's provisional view, therefore, nothing in the draft Bill gives rise to any risk of incompatibility with the substantive guarantees of the child's right to education or parents' right to have their child educated in accordance with their own religious or philosophical convictions.

Discrimination

Where, however, the state assumes functions in respect of providing transport to schools in order to facilitate access to education, it must do so in a way which is non-discriminatory. This is a straightforward consequence of the non-discrimination requirement such as Article 14 ECHR, that the enjoyment of Convention rights must be secured without discrimination which cannot be objectively and reasonably justified. This obligation applies whenever the State acts in a way which is within the scope of a Convention right, even if in so acting it is going beyond what is required by the Convention right in question. So even though there is no positive obligation on the State to provide free school transport, if it assumes that function it is acting within the scope of Article 2 Protocol 1 and it must ensure that it makes provision in a non-discriminatory way.

In paragraph 8 of the Prospectus, it is said that school travel schemes "may improve provision for one or more of: ... pupils travelling to denominational schools." The Committee is concerned that this suggests that the requirements of the various non-discrimination obligations described above have not been fully appreciated by the Government.

Question 1: Does the Government agree that Article 14 ECHR and the other non-discrimination obligations referred to above require that where provision is made for pupils travelling to denominational schools it must also be made for pupils travelling to non-denominational schools so as to be educated in accordance with their parents' secular philosophical convictions?

The Prospectus accompanying the draft Bill appears to leave it to LEAs to decide for themselves whether their schemes are discriminatory.[152] 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."

In the Committee's provisional view, there is a clear need for departmental guidance making the human rights position clear, for at least three main reasons.

First, 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).[153]

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.

Third, there is also 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, as there appears to be here.

Question 2: What guidance is it proposed will be given to LEAs concerning their obligation not to discriminate in the provision of school transport?

Question 3: Can you confirm that the JCHR will be consulted on a draft of such guidance?

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.[154]

Question 4: What provision does the Government propose 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?

17 June 2004

4b. Letter from the Chair to Don Touhig MP, Parliamentary Under Secretary of State for Schools, Wales Office

The human rights engaged by the draft bill

The draft bill engages a number of the UK's human rights obligations concerning both the provision of education and discrimination. Most of the principal human rights instruments by which the UK is bound[155] recognise the child's right to education, the parent's right to have their child educated in accordance with their religious or philosophical convictions, and the right of both not to be discriminated against in their enjoyment of those rights.

Article 2 of the First Protocol to the European Convention on Human Rights provides:

Article 14 ECHR provides:

Article 26 of the Universal Declaration of Human Rights provides:

"1. Everyone has the right to education

…

3. Parents have a prior right to choose the kind of education that shall be given to their children."

Article 2 UDHR provides:

Article 18(4) of the International Covenant on Civil and Political Rights provides:

Article 26 ICCPR provides:

Article 13 of the International Covenant on Economic, Social and Cultural Rights provides:

"I. The States Parties to the present Covenant recognise the right of everyone to education

…

Article 2 ICESCR provides:

Article 28 of the UN Convention on the Rights of the Child provides:

"1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

…

(d) take measures to encourage regular attendance at schools ..."

Article 2 CRC provides:

Article 14 of the Framework Convention for the Protection of National Minorities 1995 provides:

"1. The Parties undertake to recognize that every person belonging to a national minority has the right to learn his or her minority language.

Under Article 8 of the European Charter for Regional or Minority Languages 1992,[156] the UK has undertaken to make available in Wales pre-school, primary and secondary education in Welsh.[157]

The human rights issues raised by the draft bill

The Committee's provisional view is that the draft bill gives rise to the following human tights issues:

(1) Whether the replacement of current LEA policies which provide free or subsidised transport to denominational schools, with school travel schemes under which charges will be levied, will interfere with the right of parents, under e.g. the second sentence of Article 2 Protocol 1 ECHR, to have their children educated in conformity with their own religious convictions, because it will lead to parents not being able to afford to send their children the further distances to denominational schools. Religious schools have voiced the concern that withdrawal of free or subsidised transport to denominational schools will restrict access to such schools to those who can afford to pay for the transport, resulting in a much narrower social mix in denominational schools.

(2) Whether the continuation in the new school travel schemes of the current policy of many LEAs to provide free or subsidised school transport to children attending denominational schools is in breach of the non-discrimination provisions such as Article 14 ECHR in conjunction with the second sentence of Article 2 Protocol 1, because it discriminates, without objective and reasonable justification, against parents who wish their children to attend non-denominational schools so as to be educated in accordance with their secular philosophical convictions.[158] Representatives of secularist parents have voiced this concern.

(3) Whether school travel schemes which charge parents in Wales who wish their children to attend a Welsh-speaking school but do not charge parents who send their children to an English speaking school would be in breach of the non-discrimination provisions such as Article 14 ECHR in conjunction with Article 2 Protocol 1, because they discriminate, without objective and reasonable justification, against parents who wish their children to be educated in a minority language.

(4) Whether the continued reliance on "walking distance" as the trigger to the duty to provide free school transport, without making any provision in relation to children with mobility difficulties who may not be able to walk the statutory walking distance either in a reasonable time or at all, is in breach of the non-discrimination provisions such as Article 14 ECHR in conjunction with Article 2 Protocol 1, because it discriminates against such children without objective and reasonable justification.

Under the ECHR, parents who wish to send their children to a denominational school, or to a non-denominational school, or to a minority language school; do not have any Convention right to do so. There is no positive obligation on the State to provide or subsidise any particular form of education. There is therefore no right to attend either religious or nonreligious schools.[159] Nor is there any primary right under the ECHR to be educated in a particular language. The right to education in the first sentence of Article 2 Protocol 1 does not create a right to be educated in a minority language. Nor does the second sentence of the Article give rise to any such right: a preference as to the language of teaching, however strongly held, does not amount to a "religious or philosophical conviction" within the meaning of that phrase.[160]

The draft Explanatory Notes to the Bill are therefore correct in stating that the second sentence of Article 2 Protocol 1 ECHR does not of itself create any obligation to make arrangements for school transport or for free school transport to assist or enable parents to send their children to schools of their choice.[161] Even where such schools exist, there is no Convention right to attend them, and it follows that there can also be no Convention right to free or subsidised transport to such schools. In the Committee's provisional view, therefore, nothing in the draft Bill gives rise to any risk of incompatibility with the substantive guarantees of the child's right to education or parents' right to have their child educated in accordance with their own religious or philosophical convictions.

Discrimination

It follows that if an LEA provides free transport to denominational schools, where there is a non-denominational school nearer to the child's home, it must do the same in relation to non-denominational schools where the only nearer school is a denominational one. Similarly, an LEA which provides free transport to an English speaking school where the school nearer to the child's home is a Welsh-speaking school must also provide free transport to a Welsh-speaking school for children who wish to attend such a school. In both cases, schemes which provide free or subsidised school transport in relation to one but not the other will be in breach of Article 14 unless there is an objective and reasonable justification for such a distinction.

In paragraph 8 of the Prospectus, it is said that school travel schemes "may improve provision for one or more of: ... pupils travelling to denominational schools;" .The Committee is concerned that this suggests that the requirements of the various non-discrimination obligations described above have not been fully appreciated by the Government.

The Prospectus accompanying the draft Bill appears to leave it to LEAs to decide for themselves whether their schemes are discriminatory.[162] The Draft Explanatory Notes are to the same effect:

In the Committee's provisional view, there is a clear need for departmental guidance making the human rights position clear, for at least three main reasons.

First 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).[163]

Question 2: What guidance is it proposed will be given to LEAS concerning their obligation not to discriminate in the provision of school transport?

Question 3: Can you confirm that the JCHR will be consulted on a draft of such guidance?

The Committee would be grateful for a reply by 5 July. I am writing in similar terms to Stephen Twigg about the situation in England. I will copy this letter to Jane Davidson AM, the relevant Minister in the Welsh Assembly Government.

17 June 2004

4c. Letter from Stephen Twigg MP, Parliamentary Under Secretary of State for Schools, DfES, to the Chair

Thank you for your letter of 17 June which poses a number of questions about the human rights implications of the draft School Transport Bill. We are confident that the Bill is compatible with the range of human rights legislation you set out in your letter, and hope that the answers to your specific questions show that we have considered the human rights implications of the Bill fully and carefully.

Question 1 Does the Government agree that Article 14 ECHR and the other non-discrimination obligations referred to above require that where provision is made for pupils travelling to denominational schools it must also be made for pupils travelling to non-denominational schools so as to be educated in accordance with their parents' secular philosophical convictions?

This is a question that we considered in drafting the Bill, and of course it also relates to our policies on school admissions which lie beyond the scope of the Bill. Subject to the point below we generally agree with the view of the Committee provided of course that the parent has a genuine secular philosophical conviction. However in some cases there may be an argument that there is objective justification for differential treatment between children attending denominational and non-denominational schools. This is because the observance of religion—where parents want their children to be instructed in, and practice religion in a school—might be distinguished from non-observance of religion (or observance of a non-religious belief) where parents simply wish their child to be excused religious education and collective worship. The legislation has provided for this possibility in section 71 of the School Standards and Framework Act 1998.

We do not agree that LEAs are under a misapprehension about their obligations to provide free or subsidised transport to denominational schools, and think there is good evidence that they fully understand that they are not under an obligation to provide free transport for all pupils adhering to the relevant faith, who attend a specific denominational school. We recently undertook a survey of practice across the country which varies considerably. A majority of LEAs provide free transport to denominational schools, but a significant and growing minority make subsidised or commercial charges for school transport, or else do not provide it at all, although we understand that in all cases there are provisions to ensure that pupils eligible for free school meals are provided with free or affordable transport. We think this is good evidence supporting our view that LEAs understand that making transport arrangements for pupils attending denominational schools is discretionary, and that they also take steps to ensure that there is no discrimination against pupils from low income families who are unable to afford high fares.

As the JCHR observes, it is up to LEAs to decide whether or not their schemes are discriminatory, but on the other hand the Secretary of State will not approve any scheme which appears to him to be discriminatory. We anticipate that there will be a process of negotiation before any schemes are submitted to the Secretary of State for approval, and that HRA issues will be one aspect that we would want to engage in discussion about well in advance of any firm decisions on schemes being made. We think this covers your third point, about the positive obligation under Article 14 to ensure that the State takes positive steps to ensure there is no discrimination in the enjoyment of Convention rights.

Question 2: What guidance is it proposed will be given to LEAs concerning their obligation not to discriminate in the provision of school transport?

We state in the prospectus that 'Schemes … must ensure that if pupils from low income families whose parents adhere to a particular faith or philosophy, and who have expressed a preference for a particular schools as a result of their philosophical beliefs … are treated differently from other pupils from low income families, the different treatment does not amount to discrimination which cannot be objectively justified. So LEAs must consider carefully the position of these pupils. Provided it is economic and practical to arrange for them to attend the school of their parents' choice, LEAs would ensure that transport arrangements support the denominational or linguistic preferences their parents have expressed'

We will revise the section in the prospectus to encompass some of the points raised in your letter, although we do not anticipate that the guidance will be long or comprehensive. We do not usually offer legal advice to LEAs. We think that in this—as in other areas—it is for LEAs themselves to determine whether or not there is any discrimination and if so whether it can be objectively justified.

Question 3: Can you confirm that the JCHR will be consulted on a draft of such guidance?

Yes.

Question 4: What provision does the Government propose to make in relation to children with mobility difficulties who are unable to walk the statutory walking distances in a reasonable time or at all?

The purpose of the statutory 'walking distances' in para 3 of the Schedule is to maintain the link with s444 of the Education Act 1996 and preserve a LEA's ability to prosecute cases of children of compulsory school age who fail to attend school regularly. The Bill (para 2 of the Schedule) requires LEAs to make appropriate travel arrangement for children. Therefore 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.

There are two further, related, issues. First, children with severe mobility difficulties may have statements of Special Education Needs, which may include provisions relating to transport. LEAs have a responsibility to arrange the provision specified in these statements. Secondly, children with severe mobility needs will be eligible for a mobility allowance which can contribute to the cost of getting to school and elsewhere, and their parents or carers may have a 'Motability' car which is provided in part for the purposes of getting the child to school. The LEA will want to take all these factors into consideration in making appropriate arrangements for children with severe mobility difficulties.

7 July 2004

4d. Letter from Don Touhig MP, Parliamentary Under Secretary of State for Schools, Wales Office, to the Chair

Thank you for your letter of 17 June which poses a number of questions about the human rights implications of the draft School Transport Bill. I have been in consultation with the National Assembly for Wales, and as Stephen Twigg has also said in his reply to you, we are confident that the Bill is compatible with the range of human rights legislation you set out in your letter and that the human rights implications of the Bill have been fully and carefully considered.

You raise four potential human rights issues (on page 4 of your letter) including one about access to Welsh speaking schools. Although you have not asked a specific question about this I imagine you had in mind a question which paralleled your Question 1, along the lines:

Does the Government agree that Article 14 ECHR and the other non-discrimination obligations referred to above require that where provision is made for pupils travelling to Welsh speaking schools it must also be made for pupils travelling to English speaking schools so as to be educated in accordance with their parents' language preference ?

I understand from the Assembly that it is already well understood in Wales that (subject to the usual walking distance criteria) if free transport is provided to a Welsh medium school when there is an English medium school nearer to home, then the reverse must also apply. Thus if the most local school is Welsh medium, and that is not the parents choice, transport will be provided to the nearest English medium school.

Most of the 22 Welsh LEAs do provide free transport to Welsh medium schools on this basis and, where appropriate, to English medium schools. However a small number of authorities where Welsh medium or bilingual schooling is the norm do not provide transport on the basis of language medium at all, or do so only at secondary level, where there are usually both types of school available. In these areas primary age pupils generally attend their local school, regardless of the language of the home and the schools aim to ensure that all pupils are bilingual by the time they leave the primary phase. Any family wishing education to be delivered through the medium of English must arrange their own transport to the nearest school which offers that. We believe both these approaches are compatible with the European Convention on Human Rights.

The Assembly assure me that it is expected that any travel schemes in Wales developed under the provisions of the School Transport Bill would adhere to a non-discriminatory approach and either not base transport provision on language medium at all, or ensure that it is made equally available to English medium and Welsh medium schools, with a charging regime which does not discriminate on the basis of language.

It is not envisaged that a travel scheme would exist where transport is provided to a Welsh medium school on a fare paying basis but is free of charge for pupils attending an English medium school, unless the difference arises from the lower income level of the families. That would then appear be an objective and reasonable justification for the difference in treatment.

In response to your original Question 1:

Does the Government agree that Article 14 ECHR and the other non-discrimination obligations referred to above require that where provision is made for pupils travelling to denominational schools it must also be made for pupils travelling to non-denominational schools so as to be educated in accordance with their parents 'secular philosophical convictions?

The Assembly further advises me that they would accept that the discrimination arguments are similar in relation to the provision of transport to denominational schools as to Welsh medium schools, although it much less common for parents to positively seek a non-denominational education.

They would have no reason to believe that LEAs are under any misapprehension about their obligations to provide free or subsidised transport to denominational schools. Although almost all of the LEAs in Wales do so, they believe they fully understand that this is matter of discretion and not a requirement.

The extent to which LEAs in Wales recognise the discrimination issue and would therefore provide transport to non-denominational schools at the request of parents who particularly want a community school education with no specific religious character is largely untested. Several LEA's have indicated to the Assembly that they would in theory do so, but the question has never arisen. This is either because there is an alternative community school available within walking distance of. the church school, or because parents simply do not seek such arrangements. If the local village school is a church school then parents are generally content to use it.

Question 2: What guidance is it proposed will be given to LEAs concerning their obligation not to discriminate in the provision of school transport?

The Assembly intends later this year to revise and reissue their guidance to LEAs on the provision of home school transport under the existing legislation (in addition to the guidance in the prospectus in relation to pilot travel schemes). They reassure me that they will ensure that this emphasises that any transport arrangements must be non discriminatory and for instance do not make provision for parents who belong to one denomination but not for those of another.

Furthermore, there is no mechanism for approval of LEA's existing school transport arrangements and it is up to LEAs to ensure that they are not discriminatory. It will also be the responsibility of LEAs in devising new travel schemes to carefully consider the discrimination implications. The Assembly will not approve any scheme which appears to be discriminatory. I believe that this covers your point about the positive obligation under Article 14 to ensure that the State takes positive steps to ensure there is no discrimination in the enjoyment of Convention rights.

The Assembly will revise the section in the prospectus to encompass some of the points raised in your letter, although they do not anticipate that the guidance will be long. The Assembly does not usually offer legal advice to LEAs. They tell me that they believe that in this—as in other areas—it is for LEAs themselves to determine whether or not there is any discrimination and if so whether it can be objectively justified.

Question 3: Can you confirm that the JCHR will be consulted on a draft of such guidance?

Yes.

I have nothing to add to the reply Stephen Twigg has given you on this question and which I hope has offered sufficient reassurance.

5 July 2004

4e. Memorandum from Action on Rights for Children

The Draft School Transport Bill has the aim of reducing traffic congestion around the start and finish of the school day. It is proposed that LEAs can apply to test out different schemes that will reduce car use for school journeys, funding such schemes without any increase in their existing budgets.

Although we are aware that the Education and Skills Committee is undertaking a major scrutiny of the Draft Bill, we do have some specific human rights concerns, in particular about school pupils whose families are on low incomes.

In the prospectus that accompanies the Draft Bill, the Government acknowledges that lack of free transport provision can restrict the rights of some parents (under Article 2 Protocol 1 ECHR) to choose schools that conform to their religious and philosophical beliefs. LEAs are advised that they should address this issue. However, the Draft Bill itself only provides that pupils from low-income families who are attending their nearest school ('protected child' as defined at clause 7) should receive free transport.

This does not appear to improve the position with regard to school choice for low-income families, nor put them on an equal footing with families who are belier off.

We are aware that the UK's reservation to Article 2 Protocol 1 ECHR states that its provisions should not lead to 'unreasonable expenditure', but if even transport costs are viewed as unreasonable, then it is difficult to envisage what might be considered 'reasonable'. There would appear to be a danger that families on low incomes might be denied any rights under Article 2 Protocol 1.

It is arguable that the UK's reservation cannot in any case apply to new legislation. In Campbell & Cosans the ECtHR held that: "Under Article 64 of the Convention, a reservation in respect of any provision is permitted only to the extent that any law in force in a State's territory at the time when the reservation is made is not in conformity with the provision.[165]

Paragraph 24 of the prospectus appears to be saying that the State's duty to 'respect the right of parents to ensure [such] education in accordance with their own religious or philosophical convictions' does not imply a positive obligation to subsidise a particular form of education.

In Campbell & Cosans, the ECtHR held that: " … in the course of the drafting of' Article 2 (P1-2), the words 'have regard to' were replaced by the word 'respect' … the latter word means more than 'acknowledge' or 'taken into account'; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State."[166]

In Valsamis v Greece, the ECtHR reiterated the above, and held that the duty to respect parents' convictions " … is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the 'functions' assumed by the State."[167]

We are further concerned that clause 7(b)(i) makes provision for the LEA to offer a place at a school nearer home in order for a child to qualify for free transport. If a child is already settled at a school further away, we do not believe that it would foster her right to education under Article 28 UNCRO, or be in her best interests, to disrupt her education and bonds of friendship by moving her.

If the school were a specialist college that offered expertise in a subject for which a child had particular aptitude, then removing her to another school, or restricting her opportunity to attend there in the first place, may infringe her rights under Article 29 of the UNCRC. It would also create a conflict with parents' duties under s7 Education Act 1996.[168]

Even if free transport were provided to enable existing pupils to continue at their schools, difficulties could arise for families if a younger child were prevented by transport costs from starting at the same school as her older sibling.

Clause 7(2) provides that the appropriate condition for qualifying for free school transport is that a child is in receipt of free school lunches. A recent report by the LibDems[169] quotes LEAs as saying that the stigma of claiming free school meals deters a significant number of pupils from doing so. It would seem that this problem is recognised by schools, some of which go to great lengths to ensure the privacy of such pupils.[170] Figures indicate that over 10% of eligible children do not claim free school meals, although the Government asserts that this is mainly due to lack of awareness of their availability.

If free school travel were to be dependent upon take-up of free school meals, we are concerned that some families might face a difficult choice between coping with yet more strain on family finances on the one hand, and exposing their children to possible humiliation on the other.

We would stress our belief in the importance of affordable school transport. Although we are not aware of any systematic study of the correlation between the availability of transport and regular school attendance, we do have anecdotal evidence that demonstrates a link.

LEAs will run a variety of pilot schemes for a period of five years. This represents a child's entire primary or secondary school career. We would hope to see a high level of supervision exercised by central government, as inadequacies within pilot schemes could have serious implications for the right to education of children affected by them.

23 June 2004

145 The European Convention on Human Rights ("ECHR"), the Universal Declaration of Human Rights ("UDHR"), the International Covenant on Civil and Political Rights ("ICCPR"), the International Covenant on Economic, Social and Cultural Rights ("ICESCR") and the Convention on the Rights of the Child ("The CRC"). Back

146 Signed by the UK on 2 March 2000, ratified on 27 March 2001 and entered into force on 1 July 2001. Back

147 Declaration contained in a Note Verbale from the Foreign and Commonwealth Office of the UK, handed at the time of deposit of the instrument of ratification on 27 March 2001. Back

148 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

149 Belgian Linguistic Case (1968) 1 EHRR 252; W & DM and M & HI v UK (1984) 37 DR 96. Back

150 Belgian Linguistics, para 5. Back

151 Draft Explanatory Notes, para. 24. Back

152 Prospectus, paras. 21-23. Back

153 The evidence of the National Secular Society, Third Report of the Education and Skills Committee, Session 2003-04, op cit., ST 30. Back

154 Thlimmenos v Greece (2001) 31 EHRR 15. Back

155 The European Convention on Human Rights ("ECHR"), the Universal Declaration of Human Rights ("UDHR"), the International Covenant on civil and Political Rights ("ICCPR"), the International Covenant on Economic, Social and Cultural Rights ("ICESCR") and the Convention on the Rights of the Child ("The CRC"). Back