1 Equality Bill
| Date first introduced to first House
Date introduced to second House
Current Bill Number
Previous Reports
| 24 April 2009
3 December 2009
HL Bill 35
26th Report 2008-09
|
Background
1.1 This is a Government Bill which was first introduced in the
House of Commons on 24 April 2009. It was carried over into the
current parliamentary session and completed Commons consideration
on 2 December 2009. The Leader of the House of Lords, Baroness
Royall of Blaisdon, has made a statement of compatibility under
s. 19(1)(a) of the Human Rights Act 1998. The Bill has recently
been reported from Committee in the House of Lords and its Report
stage is due to begin on 2 March.
1.2 We reported on the Bill in our 26th
Report of the 2008-09 session.[1]
We return in this report to two issues which we discussed in our
previous report and in relation to which there have been significant
subsequent developments.
Employment by organisations based
on religion or belief
1.3 Schedule 9(2), which permits a requirement to
be of a particular sex, sexual orientation, marital or partnership
status or not to be transsexual to be applied to employment for
the purposes of an organised religion, was amended at Committee
stage in the House of Lords on 25 January. The Government has
since announced that it does not intend to seek to reverse these
amendments in the Commons. We welcomed the original wording of
the Schedule in our earlier report because it clarified the law
in this area.[2]
1.4 The effect of the amendments was a) to delete
the express requirement in Schedule 9(2)(5) that the application
of any such requirement must be shown to be a 'proportionate means
of complying with the doctrines of the religion' and b) to delete
the definition of what will constitute employment for the purposes
of an organised religion set out in Schedule 9(2)(8).
1.5 These amendments appear to restore the wording
used in Paragraph 7(3) of the Employment Equality (Sexual Orientation)
Regulations 2003, which made similar provision. Paragraph 7(3)
was interpreted by Richards J in the Amicus case as compatible
with the requirements of Article 4(2) of the Framework Equality
Directive 78/2000/EC, but only on the basis that this exemption
would be applied subject to a requirement of proportionality in
order to conform to the requirements of the Directive.
1.6 The removal of the express proportionality requirement
in Schedule 9 (2)(5) does not remove the legal requirement recognised
by Richards J that this exemption must be subject to the proportionality
requirement, as the obligation to read this legislation in conformity
with EU law remains.
1.7 However, the removal of the express requirement
of proportionality, inserted by the Government to clarify the
scope of this exemption, will have the effect of ensuring that
the scope of the exemption set out in Schedule 9(2) will not be
clearly defined on the face of the Bill. It runs the risk of generating
legal uncertainty and misleading organisations who wish to make
use of this exemption as to the true nature of the test to be
applied in law, and the current wording may not be sufficiently
clear and precise to satisfy the requirements of EU law.
1.8 The removal of the definition of employment for
the purposes of organised religion either as originally set out
in Schedule 9(2)(8) or as set out in a Government amendment defeated
in Committee in the Lords again represents a loss of clarity from
the face of the Bill.
1.9 In its reasoned opinion infringement No. 2006/2450,
paragraphs 15-20, which is usually confidential but which has
found its way into the public domain,[3]
the European Commission takes the view that Article 4(1) of the
2000/78/EC Directive:
Contains a strict test which must be satisfied if
a difference of treatment is to be considered non-discriminatory:
there must be a genuine and determining occupational requirement,
the objective must be legitimate and the requirement proportionate.
No elements of this test appear in Regulation 7(3) of the Employment
Equality (Sexual Orientation) Regulations 2003 ... [The] Commission
maintains that the wording used in regulation 7(3) of the Employment
Equality (Sexual Orientation) Regulations 2003 is too broad, going
beyond the definition of a genuine occupational requirement allowed
under Article 4(1) of the Directive.
1.10 The Commission further stated that:
The wording of the 2003 Regulations contradicts the
provision under Article 4(2) of the Directive which provides that
permitted differences of treatment based on religion "should
not justify discrimination on another ground".
This is not reflected in Schedule 9(2)(8) of the
Equality Bill.
1.11 In
the absence of any narrowing or clarification of either Schedule
9(2) or 9(3) we share the view of the European Commission that
UK law does not comply with the Framework Equality Directive.
1.12 We note
that further issues exist in respect of sections 58 and 60 of
the School Standards and Framework Act 1998 (SSFA), which in reserving
a certain proportion of posts in state-maintained or aided 'faith
schools' for individuals who adhere to the religious beliefs and
ethos of the school in question may be in breach of the Framework
Equality Directive 200/78/EC, on the basis that the reservation
of such posts is not restricted to circumstances where it can
be shown that a genuine, legitimate and justified occupational
requirement to adhere to a particular religious belief can be
said to exist.
1.13 It is also worth noting that the provisions
of s. 37 of the Education and Inspections Act 2006, which repealed
original s. 58(4) of the SSFA, have made it possible for all headships
in faith schools to be designed as Reserved Teacher posts, except
where the current incumbent objects. Other
provisions of Section 37 of the 2006 Act have also widened the
ability to reserve certain posts filled by non-teaching staff.
These provisions may constitute a breach of the principle of non-regression
in EU law.
1.14 We question
why sections 58 and 60 of the School Standards and Framework Act
1998 are exempted from the Equality Bill.
School admissions
1.15 In our earlier report, we said that 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.[4]
We had corresponded with the Government and taken written evidence
from faith schools themselves and other interested organisations,
but we did not consider it appropriate for us to comment on the
issue pending the judgment of the Supreme Court in the JFS case
which might address this issue. In the event the decision of
the Supreme Court in that case[5]
did not purport to determine the issue of whether faith-based
admissions criteria are in breach of 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) and we therefore
return briefly to this question.
1.16 In correspondence with us the Government's principal
justification for permitting faith schools to discriminate on
grounds of religion or belief in their admissions policies is
that it is necessary in order to protect the Article 2 Protocol
1 right of parents to access education for their children in accordance
with their religious convictions:
As you know, Article 2 of the First Protocol …
protects parents' rights to access 'education and teaching in
conformity with their own religious and philosophical convictions'.
The government is of the view that the duality of provision within
the maintained sector - faith and non-faith - in this country
supports the Article 2 rights of all parents, whether they have
a faith or not. Allowing faith schools to give priority to children
of their faith over others further underpins the Article 2 right.
Unless faith schools are allowed to prioritise applicants based
on their faith, parents with religious convictions will find they
are increasingly unable to access faith schools as places will,
instead, be taken up by children who are not of that faith group.[6]
1.17 To the extent that the Government is arguing
that it is necessary to allow faith schools to discriminate in
their admissions on grounds of religion and belief in order to
avoid a breach of the parents' rights under Article 2 Protocol
1, we do not find the argument persuasive. Article 2 of the First
Protocol to the ECHR does not give parents a right to a place
for their child at a school of their faith.[7]
Article 2 of the First Protocol contains a right of access to
such educational establishments as exist; it does not impose a
duty on the State to establish faith schools. If no faith schools
existed, Article 2 Protocol 1 could not be relied upon to require
the State to establish them. It cannot be relied upon by Muslim
parents, for example, to require the State to establish Muslim
schools in areas where only schools of other faiths exist. The
right in Article 2 Protocol 1 is a much weaker right to respect
for parents' religious and philosophical convictions in the exercise
of any functions which the State chooses to assume in relation
to education and teaching. Avoiding breaches of parents' Article
2 Protocol 1 rights is therefore not a good justification for
allowing faith schools to prioritise applicants for admission
on the basis of their faith.
1.18 The Government's justification, however, may
be that the purpose of the relevant part of Article 2 Protocol
1 is to ensure "a plurality of provision", in which
a choice is available to parents and children. That plurality
of provision - faith and non-faith schools - is only possible,
in the Government's view, if faith schools are allowed to prioritise
on the basis of their faith. The evidence we received from the
faith school organisations all argues in favour of the exception
on a very similar basis: that it is necessary in order to maintain
the distinctiveness of religious schools and so maintain the plurality
of provision which, it is argued, is required by both Article
9 ECHR and Article 2 Protocol 1.
1.19 In her oral evidence to us, the Solicitor-General
regarded it as "a principle" that, if we are going to
have faith schools, they have to be entitled to protect their
ethos by selecting pupils on the basis of their religion or belief
if they see fit to do so.[8]
In our view, however, the "plurality of provision"
justification raises an evidential question: what evidence is
there that faith schools must be able to discriminate in their
admissions in order to maintain their particular religious ethos?
The Government acknowledges that not all faith schools give priority
to children of their faith and that others reserve a proportion
of places for children of other faiths or none.[9]
The examples it gives of such schools are mainly Church of England
primary schools. The evidence received from the Church of England
itself stressed that Church of England schools are committed to
providing schools that are both distinctive and "inclusive",
and stated that such schools "continue to be for those of
no faith, those of other faiths and those of the Christian faith".[10]
1.20 The evidence therefore seems to suggest, in
relation to Church of England schools, that the plurality of provision
has been preserved even where those schools do not have faith-based
admissions criteria. Church of England primary schools which
do not have such faith-based admissions criteria, or which have
reserved a proportion of their places for children of other faiths,
are still Church of England schools. We think that this at least
calls into question the cogency of the Government's justification
for permitting Church of England schools to discriminate on the
basis of religion in their admissions.
1.21 We accept, however, that the Government's "preserving
the plurality of provision" justification for allowing faith
schools to prefer those of the same faith carries more weight
in relation to other faith schools such as Jewish, Muslim, Hindu
or Catholic schools, than in relation to Church of England faith
schools. Whereas parents who wish their child to be educated
in the established religion have a relatively large number of
schools of that faith from which to choose, parents of other faiths
are much less likely to have other such schools from which to
choose. In consequence,
the exemption permitting faith schools to discriminate in their
admissions on grounds of religion or belief may be overdrawn in
this Bill.
1 Legislative Scrutiny: Equality Bill, HL Paper
169, HC 736 (hereafter, first Equality Bill report). Back
2
Paragraphs 164-76. Back
3
http://www.secularism.org.uk/uploads/ec-reasoned-opinion.pdf Back
4
First Equality Bill report, paras 209-212. Back
5
[2009] UKSC 15. Back
6
Letter from the Secretary of State for Children, Schools and Families,
5 August 2007, written evidence, page 24. Back
7
Belgian Linguistic Case (No. 2) (1968) 1 EHRR 252. Back
8
Vera Baird QC, oral evidence, 24 June 2009, Qs 97 and 101, first
Equality Bill report. Back
9
Letter from the Secretary of State for Children, Schools and Families,
5 August 2007, written evidence, page 24; letter from Solicitor-General,
19 June 2009, Ev 67, first Equality Bill Report; Q42, first
Equality Bill report. Back
10
First Equality Bill report, Ev 190 Back
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