Memorandum submitted by the United Synagogue
Agency for Jewish Education
The JCHR, in calling for evidence, has asked
"whether organisations are content with the provision of
the School Admissions Code and the Equality Act 2006 which permit
schools to prefer one applicant for admission over another on
grounds of their religion. The Committee is interested in whether
this is compatible with the right not to be discriminated against
in the enjoyment of the right of access to education (Article
14 of the European Convention on Human Rights (ECHR) in conjunction
with Article 2 Protocol 1)."
It further asked "Whether organisations believe
that the requirement under the Equality Act not to discriminate
on grounds of religion or belief should apply to the school curriculum
(currently this is an exemption)."
In looking at the ECHR, I was particularly concerned
to examine the first protocol of Article 2 which notes that: "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." This would seem to directly
infer that there is the opportunity for positive discrimination,
in that it clearly notes that States shall (my italics) respect
the rights of parents to ensure education and teaching in conformity
with their own religious and philosophical convictions. In producing
the Guidance for Schools, under Part 2 of the Equality Act 2006,
the DCSF has made enormous strides to ensure that schools and,
by extension, faith school providers, understand their rights
and responsibilities, in particular with reference to Sections
44 and 45. Indeed, it can be fairly said that the United Kingdom
has been regarded internationally as a leader in the provision
of faith school education to such an extent that probably 20 million
people in this country today have either direct experience of,
or experience at one generation removed, faith schooling. When
discussing the level of commitment to state education with a religious
underpinning in England, many colleagues from around the world
are amazed and impressed.
Turning to the provisions of the School Admissions
Code, I would submit that the, now revised, School Admissions
Code is a document which seeks to reconcile the specific requirements
for faith schools with the general legal duties to ensure the
equity and fair access to education, embodying as it does the
underlying provisions of Every Child Matters. It would seem to
me that selection by ability, still retained in Section 39 of
the Education and Inspections Act 2006 for grammar schools or
schools with partial selective arrangements which already had
such arrangements in place during the 1997-98 school year, could
be held to be far more discriminatory than membership of a religious
body, which cannot confer any academic ability or aptitude. Certainly,
within the Jewish community, there are no schools which employ
any selection—whether total or partial—on academic
ability, save for fair banding arrangements. One of the particular
concerns of faith schools, and certainly of Jewish schools, is
to ensure that the distinctive ethos of the school is maintained
by those wishing to attend. Indeed, this could be perhaps fairly
be said for all schools, whether they are sport academies, specialist
schools, or faith schools. It was of a particular disappointment
to me that the original provisions of paragraphs 2.30 and 2.31
of the Code have now been significantly abandoned and this is
undoubtedly a source of concern to those running schools with
a distinctive ethos of any sort. The first protocol of Article
2 of the ECHR requires that "no person shall be denied the
right to education". Undoubtedly, I would uphold this right
as fundamental, but I also contend that it is similarly undeniably
fundamental that such education and teaching shall be in conformity
with the religious and philosophical conviction of parents. Provided
that there are sufficient options in any one local authority,
then I cannot see how the Admissions Code can be in any way incompatible
with Article 14 of the ECHR. That there have been local difficulties,
where there are local authorities in which there is only one type
of provision, is a matter for regret. This could perhaps be seen
to be discriminatory, unless the local authority was prepared
to pay for sufficient school transport to take children of another
or no faith to their nearest appropriate school, or to open schools
with different or no faith provision.
The development of the Faith in the System document
in 2007 cemented the links between the faith school community
and the wider school community. It noted: "the dual system
of voluntary schools supported by faith organisations and schools
without a religious character is therefore at the heart of the
schools system in England." It further states: "The
government continues to support the benefits to society that this
system brings for parental choice and diversity and we recognise
that with the changes in society it is only fair that pupils of
all faiths and none have the opportunity to be educated in accordance
with the wishes of their parents." It goes on to say: "The
government and providers of schools with a religious character
also recognise that many parents who are not of the faith of a
particular faith school seek places in those schools because they
value the ethos and character of the schools." Some faith
schools open a number of places each year for children whose parents
are of other or no faith, but many feel that they are fully able
to discharge the requirements of Community Cohesion by linking
cross-faith and between-faith in a variety of ways. The "Shared
Futures" project being developed by the Board of Deputies
of British Jews is just one example amongst many of this type
of programme, which seeks to break down barriers and to build
respect. Indeed, it can be contended that the barriers to Community
Cohesion by way of social class, academic aspiration and housing,
are far greater than those that could be perceived as being developed
through faith schooling.
Turning to exemptions under the Equality Act
for the content of curriculum, I am delighted that this has been
designed to ensure that all schools can continue to deliver the
broad based and inclusive curriculum to which all children are
entitled. There are undoubtedly particular issues concerning Sexual
& Relationship Education, PSHCE and other subjects where it
is possible that religious teaching and ethos may not necessarily
accord with the law of the land. This has particular resonance
in teaching about same sex relationships and the use and mis-use
of drugs and alcohol. The advice notes wisely that, where there
are cases where parents believe that aspects of the school curriculum
conflict with their own religion, belief or philosophy or, indeed,
lack of it, schools should always discuss the matter with parents
first in order to reach a compromise with which both parties are
happy. I am always firmly of the belief that a discussion with
parents is far better than resorting to legal remedy, unless all
avenues for discussion have been exhausted. However, parents should
always be able to maintain the right to withdraw children form
any SRE lessons where these conflict with their religion, belief
or philosophy.
I note that the JCHR has not asked for views
on collective worship, but this is, perhaps, an area where there
could be more difficulties. As the Committee will know, Circular
1/94 requires all pupils in maintained schools to 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 always had the right to withdraw children from this
activity; a right originally enshrined in the Education Act 1944.
I speak from personal experience with both myself and my children
that schools have always complied with this request and, indeed,
have made opportunities available where there are significant
numbers of pupils from non-Christian faith background to worship
in their own ways. 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. It is, of course,
impossible for non-Christian faith schools to adhere to this requirement,
but has never created any form of difficulty as far as I am aware,
as such schools can obtain from their local SACREs a determination
to modify the worship arrangements. It is further noted that Section
50 of the Equality Act 2006 allows for collective acts of worship
to be exempted from the prohibition of discrimination.
In short, I do not believe that there is any
evidence to show that there are adverse implications for individual
pupils or their family's rights to freedom of religion, thought
or belief in the School Admissions Code, the Guidance for Schools
on the Equality Act 2006 Part 2, or the general desire of the
government to provide the best possible education for our children
for the next generation in an increasingly multi-cultural and
diverse Britain.
February 2009
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