Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


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   IbidBack

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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