7. EDUCATION
201. Part 6 of the Bill[252]
makes it unlawful for education bodies to discriminate against,
harass or victimise a school pupil or student or applicant for
a place, subject to a number of exceptions which we consider in
this Chapter. Much of this Part is designed to replicate the effect
of provisions in current legislation. However, in a number of
previous reports we have raised questions about the human rights
compatibility of some of the existing provisions being replicated
in this part of the Bill, including in our ongoing work on Schools
and Religion, in which we have considered the Equality Act Guidance
for Schools on Discrimination on Grounds of Religion or Belief,
school admissions, the curriculum, collective worship, school
transport and school uniform.
202. In July 2008, we issued a call for further
evidence on the issues we had been considering in this area of
our work, including from faith schools or faith organisations.
Five further submissions were received, from the Christian Schools'
Trust,[253] Christian
Education Europe,[254]
the United Synagogue Agency for Jewish Education,[255]
the Catholic Education Service for England and Wales,[256]
and the Archbishops' Council Board of Education and the National
Society.[257] Evidence
was also sought from Muslim and Hindu organisations, but none
was received.
The Scope of Protection
203. The Bill prohibits discrimination, harassment
and victimisation in the field of education in schools.[258]
It makes it unlawful for the responsible body of a school to discriminate
against, harass or victimise a pupil or prospective pupil in relation
to the terms on which it offers him or her admission, by not admitting
him or her, or in the way it treats the pupil once admitted.[259]
We welcome the extension of the scope of protection from discrimination
to transsexual pupils.
204. However, the protection against discrimination,
harassment or victimisation in education in schools does not apply
to those discriminated against, harassed or victimised on grounds
of age, marriage and civil partnership, or pregnancy and maternity.[260]
We asked the Government why it is justifiable to exclude discrimination
on these grounds from the scope of the Bill's protections in the
field of education in schools.
205. The Minister replied that it would be both
inappropriate and unnecessary to extend the marriage and civil
partnership discrimination provisions to education, but provided
no further justification in support of this assertion. As far
as the pregnancy and maternity discrimination provisions are concerned,
the Government considers that the current system - where schools
are encouraged to work with any pupils who become pregnant, and
those pupils are encouraged to seek help and support inside and
outside school, including to help them get back into education
- is the best way of ensuring that very young mothers and their
children receive the best support. The Explanatory Notes to the
Bill similarly state that the non-applicability of the pregnancy
and maternity provisions means that it is not unlawful discrimination
for a school to organise a different timetable for a pupil who
has a baby, to help her fit her education with her parenting responsibilities.[261]
206. In the PBC, the Minister mainly relied on
the fact that there is an absolute bar on pregnancy being a ground
for exclusion.[262]
The exclusion of pregnancy or maternity from the scope of Part
6 of the Bill, however, means that it would not be unlawful for
a school to refuse to admit a girl pupil who was pregnant or already
had a baby. The Minister said that this would be facilitated by
reintegration officers and referred to there being "plenty
of law that covers this matter, as well as policies and guidance",
without specifying any. In the absence of a more detailed justification
from the Government, we cannot be so sanguine about the possible
dangers involved in excluding from the scope of the Bill's protection
such a vulnerable group as those school-age children who are pregnant
or already have children. In view of the relatively high rate
of teenage pregnancies in the UK, we are not persuaded that it
is justifiable to exclude discrimination on grounds of pregnancy
and maternity from the scope of the Bill's protections in the
field of education in schools.
207. A further limitation on the scope of the
Bill's protection against discrimination in schools is the exemption
of harassment relating to gender reassignment, religion or belief
and sexual orientation.[263]
We asked the Government for its justification for not including
in the Bill protection against harassment in schools relating
to those three protected characteristics, and it replied that
it does not consider that a real need for such protection has
been demonstrated in education.[264]
In relation to harassment relating to religion or belief, the
Government has two main concerns: first, that schools might find
it difficult to operate effectively in the interests of all their
children if claims could be made by people of certain faiths that
the mere existence of certain practices, such as sex education,
co-educational classes or the use of IT constitutes a hostile
or offensive environment; and, second, that academic freedom and
freedom of expression and debate could be undermined by such claims.
In relation to sexual orientation and gender reassignment, the
Government considers that the evidence suggests that bullying
and harassment in relation to these characteristics comes from
pupils rather than teachers and that any behaviour by school staff
amounting to harassment on those grounds would be caught by the
provisions prohibiting discrimination by schools against pupils.
208. We remain of the view we expressed in our
Report on the Sexual Orientation Regulations: that while harassment
on grounds of religion or belief raises concerns about the impact
on freedom of speech, including academic freedom, for the reasons
the Government gives, we consider sexual orientation to be different,
because, like race and sex and unlike religion or belief, it is
an inherent characteristic. We believe that the same applies to
gender reassignment, which is really concerned with protecting
gender identity. We therefore consider that harassment on grounds
of sexual orientation and gender reassignment should be included
in the forms of discrimination prohibited by the Bill in education
in schools, albeit with a narrower definition of harassment as
explained earlier in this Report.[265]
School Admissions
209. The Bill makes it unlawful for the responsible
body of a school to discriminate against a person in its admission
arrangements, in the terms on which it offers to admit the person
as a pupil, or by not admitting them.[266]
However, the Bill also provides for some exceptions to the prohibition
on discrimination on grounds of religion or belief, allowing schools
which have a religious character or ethos ("faith schools")
to discriminate on grounds of religion or belief in relation to
admissions.[267] The
Bill also provides an exception from the prohibition on religious
or belief-related discrimination in the provision of services[268]
in relation to anything done in connection with admission to a
school which has a religious ethos.[269]
These exceptions mean that a faith school may have admissions
criteria which give preference to members of its own religion
when it is oversubscribed. A Church of England school with more
applicants than places, for example, can give priority to Church
of England pupils when choosing between applicants for admission.
210. This exception to the prohibition on discrimination
on grounds of religion or belief is designed to replicate the
effect of existing provisions in Part 2 of the Equality Act 2006.[270]
We have been considering for some time the difficult question
of whether the provisions of the Equality Act 2006 and the School
Admissions Code which permit schools to prefer one applicant for
admission over another on grounds of their religion are compatible
with the right not to be discriminated against in the enjoyment
of the right of access to education (Article 14 ECHR in conjunction
with Article 2 Protocol 1).
211. In our view, the law's permission for publicly
funded maintained schools to use faith-based admissions criteria
amounts to differential treatment on grounds of religion in the
sphere of education, which requires an objective and reasonable
justification in order to be lawful under the Human Rights Act.[271]
The question we have been considering is whether we are satisfied
that the Government has shown such a justification to exist and
to this end we have corresponded with the Secretary of State a
number of times[272]
and also sought evidence from faith schools themselves and other
interested organisations.
212. This is an issue on which there is, to the
best of our knowledge, no directly relevant case-law of the European
Court of Human Rights. There is a decision of the Privy Council
in a case from Mauritius,[273]
in which the Privy Council held that the admissions policy of
the publicly funded "Catholic colleges" of Mauritius,
which was to ensure that 50% of their intake every year was always
Roman Catholic, was in breach of the provision of the Constitution
of Mauritius guaranteeing protection from discrimination.[274]
There is, also, one relevant decision of the UK courts, the JFS
case, in which judgment is pending from the Supreme Court.[275]
In the JFS case, the Court of Appeal held that the admissions
policy of the JFS, a maintained Jewish school in London, was unlawful
because the requirement that to qualify for admission a pupil's
mother must be Jewish, whether by descent or by conversion, is
a test of ethnicity which contravenes the Race Relations Act 1976.
One of the issues in that appeal is whether the decision of the
Court of Appeal results in discrimination against Jews compared
to other groups, contrary to Article 14 ECHR in conjunction with
Article 2 Protocol 1 and Article 9 ECHR, because it prevents them
from giving preference in admissions to those they regard as members
of their faith while the religious schools of other faiths can.
In view of that pending appeal, it would not be appropriate for
us in this Report to comment on the issues which arise for decision
in that case. We may return to this matter in the light of
that judgment.
Curriculum
213. The Bill provides that the responsible body
of a school must not discriminate against a pupil in the way it
provides education for the pupil.[276]
However, it also provides that none of the prohibitions apply
to anything done in connection with the content of the curriculum.[277]
According to the Explanatory Notes, "this ensures that the
Bill does not inhibit the ability of schools to include a full
range of issues, ideas and materials in their syllabus and to
expose pupils to thoughts and ideas of all kinds".[278]
The Bill also provides an exemption from the prohibition on religious
or belief-related discrimination in the provision of services
in relation to anything done in connection with the curriculum
of a school.[279]
214. The current law already provides a broad
exemption for the content of the curriculum from the prohibition
on discrimination on grounds of religion or belief, in the Equality
Act 2006.[280] The
exemption covers the National Curriculum. It also covers Religious
Education ("RE") which is not part of the National Curriculum
but which is required by law to be taught in maintained schools.
The Guidance for Schools on Part 2 of the Equality Act explains
that the purpose of the exemption is "to ensure that all
schools can continue to deliver the broad-based and inclusive
curriculum to which children are entitled without fear of challenge
based on the religious views of particular parents or children".
One of the examples given by the Guidance is that parents of pupils
whose religion discounts evolution cannot claim that their child
is being discriminated against on grounds of their religion or
belief because theories which are not in accordance with their
religion are being taught, or because alternative views such as
creationism are not given equal weight. The Guidance urges that
schools should therefore continue to teach evolution theories
in science classes.[281]
215. The new curriculum exemption contained in
this Bill is much wider than the current exemption, however, because
it extends the exemption to other protected characteristics. All
of the faith organisations which responded to our call for evidence
supported the current exemption of the curriculum from the prohibition
on discrimination on grounds of religion and belief, on the basis
that this is necessary in order to enable schools of a religious
character to maintain their distinctive ethos. Others, such as
the National Secular Society, argue that the prohibitions on discrimination
should apply to the curriculum, on the basis that this is a justifiable
limitation on the right to manifest religious belief in Article
9 ECHR, justified by the need to protect the rights of others
not to be discriminated against.
216. In our Report on the Sexual Orientation
Regulations, we were of the view that the prohibition on sexual
orientation discrimination should clearly apply to the content
of the curriculum.[282]
We were particularly concerned by the risk that, if the prohibition
on discrimination did not apply to the curriculum, homosexual
pupils would be subjected to teaching, as part of the religious
education or other curriculum, that their sexual orientation is
sinful or morally wrong. We pointed out that applying the prohibition
on sexual orientation discrimination to the curriculum would not
prevent pupils from being taught as part of their religious education
the fact that certain religions view homosexuality as sinful:
In our view there is an important difference
between this factual information being imparted in a descriptive
way as part of a wide-ranging syllabus about different religions,
and a curriculum which teaches a particular religion's doctrinal
beliefs as if they were objectively true. The latter is likely
to lead to unjustifiable discrimination against homosexual pupils.[283]
217. We are concerned that the risk of the exemption
for the content of the curriculum leading to unjustifiable discrimination
is even greater under the broader exemption contained in the Bill.
The Explanatory Notes to the Bill respond to such concerns by
pointing out that "the way in which the curriculum is taught
is
covered by the reference to education in clause 80(2)(a)
[prohibiting discrimination against a pupil in the way it provides
education for the pupil], so as to ensure issues are taught in
a way which does not subject pupils to discrimination".[284]
However, the breadth of the exemption for the content of the curriculum
in Clause 86(2) of the Bill ("Nothing in this Chapter applies
to anything done in connection with the content of the curriculum")
calls this assertion into question. It is difficult to see how
a gay pupil, for example, who felt that they were being taught
that they are of less moral worth because of an inherent characteristic,
could invoke any of the protections in the Bill in the face of
such a wide exemption.
218. We asked the Government for a further explanation
of why it considers such a wide exemption for the content of the
curriculum is really necessary in order for religious schools
to maintain their distinctive ethos, and to explain the reasons
why our preferred approach in our Report on the Sexual Orientation
Regulations (that the duty not to discriminate on grounds of sexual
orientation should apply to the curriculum) should not be followed.
219. The Government replied that the purpose
of the exemption is not to enable religious schools to maintain
their ethos, but to ensure that all schools cannot be challenged
over curriculum matters. In the words of the Minister to the PBC,
the purpose of extending the exemption for the curriculum to other
protected characteristics, as well as religion and belief, is
to clarify the full educational freedoms of schools to decide
what resources to use so that they will not have to justify or
defend themselves from accusations of discrimination when they
are following a reasonable and balanced approach to the curriculum.[285]
220. We understand and are sympathetic to the
Government's reasons for exempting the content of the curriculum
from the duty not to discriminate. We agree that schools ought
not to be distracted by having to justify in legal proceedings
the inclusion in the curriculum of particular works of literature,
for example. However, we continue to have the concerns we expressed
in our report on the Sexual Orientation Regulations, that exempting
the content of the curriculum from the duty not to discriminate
means, for example, that gay pupils will be subjected to teaching
that their sexual orientation is sinful or morally wrong. The
Government's response to our questions has not reassured us on
this score. It says that in Personal, Social and Health Education
(PSHE), faith schools will be able to teach the tenets of their
faith including the views of that faith on sexual orientation
and same-sex relationships. What they cannot do, it says, is present
these views in a hectoring or harassing or bullying way which
may be offensive to individual pupils or single out individual
pupils for criticism. As we said in our report on the Sexual Orientation
Regulations, however, there is an important difference between
a curriculum which imparts to pupils in a descriptive way the
fact that certain religions view homosexuality as sinful and morally
wrong, and a curriculum which teaches a particular religion's
doctrinal beliefs as if they were objectively true.[286]
We remain of the view that this is likely to lead to unjustifiable
discrimination against gay pupils, even if it is not presented
in a hectoring, harassing or bullying way. It is the content
of the curriculum (the teaching that homosexuality is wrong),
not its presentation, that is discriminatory. We therefore
recommend that the exemption for the content of the curriculum
be confined to the scope of the existing exemption, and not extended
to other protected characteristics.
221. We also see the force of the argument that
there should be no exemption for the content of the curriculum
from the obligation not to discriminate on grounds of religion
or belief. A religious education syllabus which teaches a particular
faith as truth is likely to lead to unjustifiable discrimination
against pupils of other faiths. Indeed, this is already acknowledged
in the existing statutory right to withdraw. A religious education
syllabus which teaches about religions and faiths in an objective,
critical and pluralistic manner, rather than instructs in one
particular religion as the true faith, is unlikely to discriminate
against pupils who are not of the particular faith of the school.
We note that the UN Special Rapporteur recommended that the UK
should pay specific attention to the contents of RE syllabuses
in publicly funded schools and that a non-discriminatory membership
of the relevant local authority committee preparing such syllabuses
is vital to ensure that the various theistic, non-theistic and
atheistic approaches are presented.[287]
222. However, we recognise that if the duty not
to discriminate on grounds of religion or belief were to apply
to the content of the religious education curriculum, a number
of further difficult questions would arise. For example, would
it be justifiable for faith schools to offer religious instruction
on an opt-in basis? Would there still be a justification for a
right to withdraw from this part of the curriculum? We therefore
draw this issue to the attention of both Houses.
Collective Worship
223. The Bill disapplies the prohibition on religious
or belief-related discrimination[288]
from anything done in relation to acts of worship or other religious
observance organised by or on behalf of a school, whether or not
it is part of the curriculum.[289]
This provision in the Bill is designed to replicate the current
exemption in the Equality Act 2006.[290]
The exemption applies to any school, not just faith schools.
224. The purpose of the exemption in the Bill,
according to the Explanatory Notes, is to avoid any conflict with
the existing legislative framework in respect of religious worship.[291]
Existing education legislation requires that pupils in maintained
schools participate in a daily act of collective worship, the
majority of which in any term must be wholly or mainly of a broadly
Christian character. Parents have the right to withdraw their
children from collective worship and, since the Education and
Inspections Act 2006, sixth-form students also have the right
to withdraw themselves. However, schools are under no obligation
to provide opportunities for separate worship for the different
religions and beliefs represented among their pupils. The provision
in the Bill is designed to maintain the position of the current
law.
225. The full range of possible views on this
question were represented in the evidence we received. The Church
of England's evidence to us supported the current law on collective
worship. The United Synagogue Agency for Jewish Education was
more ambivalent, referring to collective worship as "an area
where there could be more difficulties". It said "whether
it is appropriate now, in the multi-cultural Britain of the 21st
century, to require the daily act of collective worship to be
'mainly of a broadly Christian character' is not one on which
I would wish to comment", observing that it is impossible
for non-Christian faith schools to adhere to this requirement,
but that in practice it has never caused any difficulty because
schools can obtain permission to modify their worship arrangements
from their local Standing Advisory Committee on Religious Education
("SACRE"). The National Secular Society argued for an
amendment to the Education and Skills Bill removing the requirement
on pupils to take part in collective worship at any age.[292]
The British Humanist Association goes further and argues for the
abolition of collective worship and its replacement with inclusive
assemblies.[293]
226. We asked the Government to explain how maintaining
the legal requirement that collective worship in schools must
be of a broadly Christian character is consistent with the Government's
commitment to "a plurality of provision" and whether
it is justifiable to do so in view of the religious diversity
of the UK today. The Government replied that the law on collective
worship reflects the fact that the religious traditions in Great
Britain are, in the main, Christian, citing in support the evidence
from the 2003 Census that 73% of the population identify themselves
as "Christian". The Government also points to a number
of ways in which the rigour of the legal requirement that collective
worship in schools be "broadly Christian" is mitigated.
First, the law allows schools to provide an experience of collective
worship that is relevant to all pupils, no matter what their background
or beliefs, so that collective worship is presented in an inclusive
and positive way that benefits the spiritual, moral and cultural
development of children and young people. Second, if the head
teacher feels it is inappropriate to have Christian collective
worship, the school can apply for a determination from the local
authority to have the requirement lifted. Third, parents can withdraw
their child from collective worship and pupils in the sixth form
can withdraw themselves, if they choose.
227. We also asked the Government to provide
a more detailed explanation of why collective worship should continue
to be exempt from the duty not to discriminate on grounds of religion
or belief. The Government's response is that the exemption is
necessary in order to make clear that the Bill is not intended
to require schools to provide equivalent worship for children
of other faiths. Although schools are free to do so as resources
permit, they are not legally required to, and the Bill is not
intended to change that. Without the exemption, the Government
says, schools may be forced to answer in the courts claims by
some parents that being subjected to the teachings of another
religion is discrimination or that the failure to provide equivalent
collective worship for other faiths is discrimination.
228. We understand and sympathise with the Government's
concern that schools should not be at risk of legal challenge
for failing to provide collective worship for other, non-Christian
faiths. That risk is created, however, not by the existence of
the legal duty not to discriminate on grounds of religion or belief,
but by the legal duty on schools to ensure that pupils participate
in a daily act of collective worship of a broadly Christian character.
As the United Synagogue Agency for Jewish Education pointed out,
it is simply impossible for non-Christian faith schools to comply
with that legal requirement. So long as that legal duty remains,
schools are vulnerable to legal challenge under the HRA, by children
for failing to secure the enjoyment of their right to freedom
of thought, conscience and religion without discrimination,[294]
and by parents for failing to secure their right to respect for
their religious and philosophical convictions in their children's
education.[295] Exempting
collective worship from the duty in the Equality Act does not
remove that underlying problem of vulnerability to a HRA challenge.
We therefore recommend that, instead of exempting collective
worship from the duty not to discriminate on grounds of religion
or belief in this Bill, the Government revisit the justification
for legally requiring all maintained schools to ensure that pupils
participate in a daily act of Christian worship.
229. The UN Special Rapporteur on freedom of
religion or belief, in her recent report on the UK,[296]
welcomed the extension of the right to opt-out from collective
worship to sixth-formers, pointing out that the right to freedom
of religion or belief also includes the right not to manifest
a religious belief, and that as well as parents and guardians
having the right to organise the life within the family in accordance
with their religion or belief, children themselves also enjoy
in their own right the freedom of religion or belief. She recommended
that the children's views should be given due weight in accordance
with their age and maturity, in line with Article 12(1) of the
UN Convention on the Rights of the Child (UNCRC).[297]
230. We have consistently recommended that children
of sufficient age and maturity should have the right to withdraw
from collective worship. We recently recommended such an amendment
to the Education and Skills Bill, for example.[298]
The Government remains opposed, mainly on the ground that such
a provision would be too administratively burdensome because it
would require schools to make a judgment in relation to each child
who sought to withdraw. In the Government's human rights memorandum
accompanying the Bill, however, it acknowledges that "administrative
difficulties would not normally suffice as a justification"
for differential treatment under Article 14 ECHR.[299]
In view of this acknowledgment, and the UN Special Rapporteur's
recent recommendation, we asked the Government why children who
are not in the sixth form, but are of sufficient age and maturity,
are not permitted to withdraw themselves from collective worship
and RE classes.[300]
231. The Government's response is that there
is sufficient provision to allow for the enjoyment of Convention
rights by all pupils, but it considers it appropriate for parents
to exercise these rights on behalf of their children, as their
legal guardians and the rightful guardians of their well-being,
in this case below the age of 16. The choice of 16 as the relevant
age is defended on the basis that this is the age when young people
are deemed to have the maturity to assume a number of responsibilities,
for example, to determine their own career path in the world of
work or further education.[301]
232. The Government's response proceeds on the
mistaken premise that children over the age of 16 are entitled
to withdraw themselves from collective worship. In fact, it is
only sixth form pupils who have that right. All sixth form pupils
will have reached the age of 16 in the year before they start
in the sixth form. This means that the right to withdraw from
collective worship is not available to most children until they
are over the age of 16, and for a significant number of children
(the older ones in their year group) it will not be available
until they are nearly 17 years of age. We cannot see a justification
for the current position that young people who are almost 17,
who are recognised to be of sufficient age and maturity to be
entitled to access sexual health services without their parents'
knowledge, are not entitled to withdraw themselves from compulsory
collective worship. Although in the PBC the Minister correctly
identified the dividing line as being in the sixth form, not aged
16, she merely expressed the Government's view that "we do
not have a problem with that boundary".[302]
She did not provide any reason for distinguishing between a young
person's competence to consent to medical treatment on their own
behalf and their competence to consent to compulsory worship.
233. We welcome the Government's acknowledgment,
in its response to our letter, that "modern RE should be
taught in an objective and pluralistic manner, and not as indoctrination
into a particular faith or belief".[303]
We agree with the Government that it is important that pupils
learn about the concept of religion and belief and the part it
plays in the spiritual, moral and cultural lives of people in
a diverse society. If the legal framework were in place to ensure
that RE is always taught in an objective and pluralistic manner,
the argument that human rights law requires children of sufficient
age and maturity to have the right to opt out would be much weaker.
We are not confident, however, that the legal framework is in
place to ensure that compulsory participation in daily acts of
collective worship and attendance at religious education classes,
subject only to limited rights to opt out, does not amount to
indoctrination into a particular faith or belief. Until such
time as sufficiently robust legal safeguards are in place to ensure
that religious education and collective worship in schools are
approached in the objective and pluralistic spirit required by
human rights law, as opportunities to reflect on moral and ethical
issues and to explore the concept of belief, we remain of the
view that we have consistently taken in previous reports, that
children of sufficient age and maturity should have the right
to withdraw from collective worship and from religious education
classes.
School Transport
234. Under the current law, the provision of
free or subsidised home to school transport by local authorities
is exempted from the duty not to discriminate on grounds of religion
or belief.[304] This
is continued in the Bill.[305]
The Guidance to Part 2 of the Equality Act explains that the purpose
of exempting local authority functions in relation to school transport
was "to prevent local authorities from being inundated with
claims of discrimination as a result of their decisions in relation
to individual requests for free or subsidised home to school transport".
235. We have reported a number of times on the
question of the discriminatory provision of school transport to
faith or non-faith schools.[306]
Our concern has been that the exemptions from the Equality Act
duty would permit local authorities to discriminate by providing
transport to faith schools for children of parents with a particular
religious conviction which is not catered for at a local school,
but refusing transport to children of parents with non-religious
or atheist convictions where their local school had a religious
character. Given that in practice it appeared that some local
authorities had failed to make equal transport provision for children
of parents with non-religious convictions, we emphasised the need
for guidance to clarify the duty under the HRA to make equal provision
for school transport for those with both religious and non-religious
beliefs.
236. Both the Guidance for Schools on Part 2
of the Equality Act and the recent School Transport Guidance now
make this clear. The Equality Act Guidance, for example, states
that:
The Act neither creates any new law in the area
of free home-to-school transport nor exempts local authorities
or any other public authority from their obligations under the
Human Rights Act. It merely allows local authorities to make decisions
based on individual cases - as is the position now.
The
exemption in relation to school transport is not intended to operate
to excuse or encourage anything less than even-handed treatment
by local authorities of parents with non-religious, as distinct
from religious convictions.[307]
237. Although the Guidance is very clear, the
question remains whether the continued existence of the exemptions
will encourage authorities to treat the religious and the non-religious
differently.
238. We therefore asked the Government whether,
given the clarity of the legal position, as correctly reflected
in the Guidance, the continued exemption for the provision of
school transport is justified, and if so why. The Government replied
that it believes the exemption to be still justified because it
ensures that local authority policies on providing transport are
not challenged on religious grounds simply because they decide
that it is necessary to provide transport to faith schools. It
is concerned that, without the exemption, local authorities could
be challenged on discrimination grounds if they provided transport
to a particular faith school but failed to provide transport for
pupils at a non-denominational school. Removing the exemption,
the Government fears, may make local authorities play safe by
not putting on any buses to faith schools, for fear of a discrimination
challenge.
239. In our view, the Government has not demonstrated
the necessity for this exception from the prohibition on discrimination
on grounds of religion or belief for school transport. The
possibility of challenging local authority policies on providing
school transport on the ground that they are discriminatory already
exists under the HRA (Article 14 in conjunction with Article 2
Protocol 1). The Government has not referred to any evidence that
spurious discrimination claims have been brought against local
authority transport policies under the HRA, or that the possibility
of such claims has made local authorities unduly cautious in providing
transport to faith schools. In our previous Reports on this subject,
we were concerned by the evidence that the opposite was the case:
that, notwithstanding the HRA, some authorities had failed to
make equal transport provision for children of parents with non-religious
convictions. Given this background, we therefore remain concerned
that maintaining this exemption from the Equality Act duty may
encourage local authorities to continue to treat those with religious
and those with non-religious beliefs differently in the provision
of school transport.
252 Clauses 81-96 and Schedules 10-13. Back
253
Ev 195 Back
254
Ev 197 Back
255
Ev 199 Back
256
Ev 192 Back
257
Ev 190 Back
258
Part 6, Chapter 1. Back
259
Clause 82. Back
260
Clause 81. Back
261
EN, para. 280. Back
262
PBC Deb, 23 June 2009, cols 466-7. Back
263
Clause 82(10). Back
264
Ev 63; Ev 81 at Q 44 Back
265
See paragraphs 109-118 above. Back
266
Clause 82(1). Back
267
Schedule 11, para. 5, disapplying Clause 82(1), so far as it relates
to religion or belief, in relation to schools with a religious
character or ethos. Back
268
Clause 28. Back
269
Schedule 3, para. 11(b). Back
270
EN, para. 825. Back
271
Article 14 ECHR in conjunction with Article 2 of Protocol 1. Back
272
See e.g. Letter from Chair to the Secretary of State, 29 July
2007; Letter from the Secretary of State, 5 August 2007. Back
273
Bishop of Roman Catholic Diocese of Port Louis v Tengur
Privy Council Appeal No. 21 of 2003 (3 February 2004). The Judicial
Committee comprised Lords Bingham, Slynn, Lloyd, Steyn and Hope. Back
274
Section 16(2), which provides "
no person shall be
treated in a discriminatory manner by any person acting in the
performance of any public function conferred by any law or otherwise
in the performance of the functions of any public office or any
public authority". Back
275
R (on the application of E) v The Governing Body of JFS [2009]
EWCA Civ 626. The appeal to the Supreme Court was heard by a panel
of 9 Supreme Court Justices on 26, 27 and 28 October 2009. Back
276
Clause 82(2)(a). Back
277
Clause 86(2). Back
278
EN, para. 291. Back
279
Schedule 3, para. 11(a). Back
280
Equality Act 2006, s. 50(2)(b). Back
281
The Equality Act 2006 Part 2: Discrimination on Grounds of Religion
or Belief: Guidance for Schools. Back
282
Sixth Report of Session 2006-07, Legislative Scrutiny: Sexual
Orientation Regulations, HL Paper 58, HC 350, at para. 67. Back
283
Ibid. Back
284
EN, para. 291. Back
285
PBC Deb, 23 June 2009, col 469. Back
286
Above, note 282, at para. 67. Back
287
Report of the Special Rapporteur on freedom of religion or
belief, Asma Jahangir, A/HRC/7/10/Add.3, 7 February 2008,
para. 69. Back
288
In Clause 82(2)(a)-(d). Back
289
Schedule 11, para. 6. Schedule 3, para. 11(c) provides a similar
exemption from the prohibition on religious or belief-related
discrimination in the provision of services. Back
290
Equality Act 2006, s. 50(2)(b). Back
291
EN, para. 828. Back
292
Second Report of Session 2008-09, The Work of the Committee
in 2007-08, HL Paper 10, HC 92, p. 52. Back
293
Ev 201 Back
294
Articles 9 and 14 ECHR. Back
295
Article 2 Protocol 1 ECHR. Back
296
Above, note 287. Back
297
Above, note 287, para. 70. Back
298
Nineteenth Report of Session 2007-08, Legislative Scrutiny: Education
and Skills Bill, HL Paper 107, HC 553. Back
299
Ev 29, para. 66 Back
300
Ev 58 Back
301
Ev 67 Back
302
PBC Deb, 23. June 2009, col 474. Back
303
Ev 84 at Q 52 Back
304
Equality Act 2006, s. 51. Back
305
Schedule 3, para. 11(e). Back
306
See e.g. Fourth Report of Session 2004-05, Scrutiny: First Progress
Report, HL Paper 26, HC 224, paras 5.2-5.3; Fourth Report of Session
2005-06, Legislative Scrutiny: Equality Bill, HL Paper 89, HC
766, paras 43-49. Back
307
Above, note 281. Back
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