2. Letter to the Chair of the Committee
from Rt Hon Ed Balls MP, Secretary of State for Children, Schools
and Families, dated 5 August 2007
Thank for your letter of 26 July, which raised a
number of questions in relation to Equality Act guidance to schools
and faith school admissions. I will respond to each of your questions
in turn.
Equality Act Guidance to Schools
We carefully considered the guidance made available
to schools on the Equality Act Part 2 and consulted with a variety
of stakeholders prior to publication to ensure that it struck
the right balance. As you pointed out in your letter, we have
made reference to not over-riding the rights of non-discrimination
under the Human Rights Act in respect of school transport since
this was an area of particular concern throughout the passage
of the Bill, and we also covered school duties under the Human
Rights Act with regard to school uniform issues. We did not give
a blanket assurance with regard to all of the exceptions, as was
suggested in the letter from Harriet Harman in January 2006. However,
we are currently in the process of reconsidering guidance for
schools in respect of equality legislation and will use this as
an opportunity to make any necessary changes.
Faith Schools which do not give priority for
admission to children of their faith
While the Department does not routinely collect data
on the type of oversubscription criteria adopted by schools, we
do not know that not all schools with a religious character give
priority in admissions to children of their faith. Others reserve
a proportion of places for children of other faiths or no faith.
A number of faith schools, particularly voluntary
controlled faith schools, adopt criteria that give no priority
based on faith. For example, Hertfordshire voluntary controlled
primary schools adopt the same admission criteria as the county's
community schools. A number of voluntary aided schools, where
the governing body is admissions authority, such as Christ Church
CE VA Primary School in North Somerset, also adopt criteria which
have no reference at all to faith.
Other faith schools include criteria which ensure
that children of other faiths or no faiths obtain places in the
school. Most of North Somerset's VA Church of England primary
schools, for example, give priority to local children above faith
applicants.
Whether the plurality of provision in the maintained
sector would be undermined if faith schools were not permitted
to give priority to faith applicants
As you know, Article 2 of the First Protocol to the
Human Rights Act 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 the 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.
However, that is not to say that we do not welcome
the moves of both the Catholic and Anglican Churches to open up
more places in new faith schools to non-faith applicants, as this
can help the broader community to access a wider choice of good
quality schools. Rather, we accept that a balance needs to be
struck which allows both the wider community to access the full
range of quality school places in their area and protects the
rights of parents to access schools where the ethos conforms with
their own religious and philosophical beliefs.
How often is the statutory power to direct
used by local authorities?
We do not collect data on how often local authorities
use their powers of direction to admit pupils under sections 96
and 97 of the Schools Standards and Framework Act 1998. However,
we are aware that they do frequently use these powers as, prior
to the enactment of the Education and Inspections Act 2006, admission
authorities could appeal against such directions to the Secretary
of State. The Education and Inspections Act now requires the Schools
Adjudicator to consider such appeals. The Act also gives local
authorities new, fast-track powers, to direct foundation and voluntary
aided schools to admit looked after children. We have anecdotal
evidence of local authorities' use of these powers through local
authority officials contacting my officials to discuss them.
What measures do we take to ensure that faith
based criteria do not discriminate directly or indirectly on racial
grounds?
The School Admissions Code makes clear "the
Race Relations Act 1976 makes it unlawful for admission authorities
to discriminate against applicants on the basis of race, colour,
nationality or ethnic origin. That Act, as amended by the Race
Relations (Amendment) Act 2000, imposes on public bodies, including
local authorities and schools, a duty to promote racial equality".
The Code also requires faith schools to have regard
to the advice of their faith organisations in setting admission
arrangements and this is an important regulating process that
will help to ensure that schools do not adopt unfair or unlawful
practices.
Any admissions arrangements, faith or otherwise,
which do unlawfully discriminate are subject to the remedies available
under the Race Relations Act 1976 (RRA). For example, on a formal
complaint, the Commission for Racial Equality (CRE) could take
enforcement action if it found there to be race discrimination
and once the CRE is wound up in September the Commission for Equality
and Human Rights (CEHR) will assume this responsibility.
However, there are other safeguards built into the
system. Admission authorities are also required, by law, to consult
locally on their admission arrangements on an annual basis. Once
arrangements have been finalised (or 'determined') the local authority,
admissions forum, other schools and parents have a statutory right
of objection. Any of these could lodge objections arguing that
arrangements were racially discriminatory. If the Adjudicator
were to find this to be the case, he would amend the arrangements
to remove the discriminatory provisions and his decision would
be binding. Of course, any of these consultees could also complain
directly to the CEHR which could also take compliance action.
Finally, I could also exercise powers of intervention
under provision in sections 496 and 497 of the Education Act 1996
if, following a complaint, I was to find that an admission authority
had acted either unreasonably or unlawfully.
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