The need to amend current practice
6.7 The Government still does not, however, propose
to issue any other guidance to LEAs concerning the position under
the current law, notwithstanding its acceptance of the Committee's
main concern about the discriminatory provision of such transport.
The reasons for this are explained in the DfES memorandum accompanying
the letter dated 6 September from the Minister.
6.8 The Government says that its general approach
to guidance for LEAs and schools is to provide guidance relating
to specific areas (e.g. admissions, school organisation and governance)
and to integrate advice on human rights issues into that guidance.
It believes that this is the most helpful approach for LEAs and
others as decision-makers and individual members of staff administering
specific policies will use the guidance.
6.9 We endorse the Government's approach of integrating
advice on human rights issues into guidance relating to specific
areas. It is an approach in keeping with the objective of mainstreaming
human rights and therefore conducive to building a human rights
culture in which human rights issues are both considered and understood
by all decision-makers and not seen as the inaccessible domain
of legal experts. We do not understand, however, how this can
be a reason for not issuing guidance to LEAs giving them specific
guidance on how to avoid discriminating in the provision of school
transport.
6.10 Specific guidance already exists in relation
to school transport, in the form of DfES Circular Letter on School
Transport, dated 21 January 1994. That guidance deals specifically
with transport to denominational schools and colleges at paras
29-31. It provides—
"29. Many LEAs exercise the discretion afforded
by section 55 [Education Act 1944][87]
to provide free transport or assistance with fares for pupils
or students who attend the nearest school or college of their
parents' religious denomination, even though they could have attended
a non-denominational institution nearer home.
30. From 1 October 1993, section 55(3) was amended
by paragraph 15 of Schedule 19 to the Education Act 1993. In considering
whether or not transport is necessary —and therefore should
be free—under section 55(1), LEAs must have regard, in the
exercise of their discretion, to all relevant factors. As amended,
section 55(3) provides that LEAs shall have regard to (amongst
other things) not only the age of the child or young person and
the nature of his route to school or college, but also 'to any
wish of his parent for him to be provided with education at a
school or institution in which the religious education provided
is that of the religion or denomination to which his parent adheres.'
Thus while Parliament has continued to leave LEAs discretion in
their assessment of this factor, it has made explicit the requirement
to consider it.
31. The Secretary of State hopes that LEAs will continue
to think it right not to disturb well-established arrangements
of the kind referred to in paragraph 29, some of which have been
associated with a local agreement or understanding about the siting
of denominational schools. He continues to attach importance to
the preservation of the opportunity to choose a school or college
in accordance with religious convictions."
6.11 In our view these paragraphs in the current
guidance on school transport are now positively misleading for
LEAs in light of the Government's welcome acceptance, in its letter
to us dated 7 July 2004,[88]
that free or subsidised school transport must be provided without
discrimination on grounds of religion or belief. The Government
agrees that Article 14 ECHR and other non-discrimination obligations
require that where transport 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' genuinely held secular convictions. It has
made this very clear in the draft prospectus to accompany the
School Transport Bill,[89]
and in its Response to the Report of the Education and Skills
Committee.[90] We cannot
see any reason for not making the position equally clear to LEAs
by amending the current guidance on school transport to the same
effect. Unless it is made clear we think there is a significant
risk of LEAs being misled by the guidance into adopting or maintaining
discriminatory policies and practices,[91]
and of the current guidance itself being subjected to legal challenge
on the ground that it is not an accurate statement of the legal
position.
6.12 We therefore
recommend that the DfES amend the guidance contained in circular
letter 21 January 1994 so as to include specific guidance on non-discrimination
of the kind contained in the draft prospectus accompanying the
proposed Bill, and to reflect accurately the position accepted
as correct in the Department's letter to the Chair dated 7 July
2004 and in the Government Response to the Education and Skills
Committee's Report on the draft School Transport Bill.
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