Legislative Scrutiny: Equality Bill (second report); Digital Economy Bill - Human Rights Joint Committee Contents

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


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 reportBack

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 reportBack

10   First Equality Bill report, Ev 190 Back

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