Clause 49 - Section 48: exceptions
Equality Bill [Lords]
12:00 pm
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I am grateful for the opportunity to introduce this group of substantive amendments. I knew that I could rely on the hon. Member for Beaconsfield to subject other clauses to the forensic examination that they require. Indeed I saw him drafting his amendments in Committee, while also paying great attention to proceedings and intervening, which is a skill that I have yet to learn. This is an important group of amendments, and I hope that I can make some progress with the intention behind them, if not necessarily being able to change the drafting today.
Clause 48 (1) reads:
“It is unlawful for the responsible body of an educational establishment ... to discriminate against a person—
(a)in the terms on which it offers to admit him as a pupil,
(b)by refusing to accept an application to admit him as a pupil, or
(c)where he is a pupil of the establishment—
(i)in the way in which it affords him access to any benefit, facility or service,
(ii)by refusing him access to a benefit, facility or service,
(iii)by excluding him from the establishment, or
(iv)by subjecting him to any other detriment.”
Clause 49 exempts certain schools from those general provisions not to discriminate. The current wording of clause 49(1) states that the whole of clause 48(1) shall not apply in relation to a list of various schools, which I shall abbreviate to “faith schools”. I hope that the Committee will bear with me, as the category is perhaps a little more complex and wider than that. Clause 49(2) creates an exemption in respect of some of the provisions that I have just quoted in relation to the content of the curriculum or acts of worship, which I think are taken to be acts of worship organised by the school or educational establishment itself following an amendment to clarify that in the House of Lords.
There is a strong case for saying that those exemptions go too wide. They go beyond what is required to maintain the character of faith schools—that is the term that is used—and it would be better if they were drawn more narrowly to prevent breaches of human rights and occasions of discrimination. There is no good reason why these provisions need to be drawn so widely. Things would be somewhat easier if clear guidance—preferably statutory guidance; I suspect that we will come on to guidance questions later—as to how schools should operate in this respect were provided for all schools, to help them to stay within the Human Rights Act 1998 and avoid discrimination. It would be easier if there were any guidance in this respect—or, indeed, if there were ways to ensure that the Government were being vigilant about unreasonable discrimination, or discrimination that could not be objectively justified.
It is quite difficult for pupils and/or their parents to bring actions. Pupils are just trying to get on with being in school. Therefore, the onus in drafting legislation is to ensure that as there is such a big discrepancy between the power of the school authorities and that of the pupil, great care is taken about discrimination.
My amendments seek to narrow the provision. If we are to have discrimination in admissions on religious grounds, which is a subject for debate another day—we ought to debate it, although we do not do that very well in this House—the exception for subsection (1)(a) of clause 48 should be kept in respect of faith schools, as should the one for subsection (1)(b), which deals with refusing to accept an application, but two provisions should be removed from subsection (1)(c):
“(iii)by excluding him from the establishment, or
(iv)by subjecting him to any other detriment.”
I shall deal with each of those in turn.
Making an exemption from the general duty of discrimination not to expel someone or exclude them on the basis of their religion raises serious issues. Some pupils may decide that they want to change their beliefs while a pupil of a school. I am speaking generally. It is easier in this context to discuss a publicly funded school carrying out a public duty that admits someone on the basis that they are, say, a Catholic. If that person then states that they do not, in fact, subscribe to those religious views and that they must have the freedom to make up their own mind, as indeed must their parents, is it right that they could be excluded or expelled on the basis that they no longer complied with the religious requirement for admission? I do not understand how it would be made clear to both parties that that would not be permitted, but to deprive someone of their education in such an establishment simply on the basis of their changing or losing their religion seems not to be objectively justified.
I do not believe that that would necessarily be a frequent occurrence. One of the arguments about the appropriateness or otherwise of faith schools involves the question of how many children have particularly deep religious beliefs or affiliations. Clearly some do, as do their parents, but that is the sort of thing that we would expect our state education to provide for, so that children feel free and not encumbered by a requirement to change their religion or how they observe it.
The second way in which amendment No. 154 seeks to narrow the exception for faith schools concerns the
“subjecting him to any other detriment”
provision. I am not the only person who believes that that goes too wide. I refer the Committee to the 16th report of Session 2004–05 of the Joint Committee on Human Rights, on the Equality Bill. The report is on the previous Bill in the previous Committee, in the form of Bill 72, which came before the House of Commons. The Joint Committee states in paragraph 49:
“The Bill’s legitimisation of such activity may fail to satisfy the positive obligation, in particular under Article 8 ECHR, to take steps, including adequate legislative provision, to prevent breaches of Convention rights.”
The Joint Committee then makes the following recommendation:
“Whilst we accept that certain differences in treatment on the basis of religion are likely to be justified in the interests of maintaining the character of faith schools and protection of the Article 9 rights of religious bodies, we do not accept that all of the discriminatory treatment which would be permitted under clause 52(1)—
that is clause 49(1) of this Bill—
“including measures imposing ‘any other detriment’ on a pupil because of their religion or belief, could be so justified.”
That report was produced towards the tail end of the last Parliament, so there was not a Government response to it, and because the House of Lords was so busy dealing with the issue of harassment—rightly so, and the Government took the decision to solve that debate by taking it out of the Bill—we have not had sufficiently detailed scrutiny in the House of Lords of the Government’s response to that clear recommendation of the Committee as it was then formed.
Amendment No. 153 is analogous, and seeks to amend clause 49(2), which relates to the exemption given from responsibilities under section 48 to anything done under the content of the curriculum or acts of worship. Already, the Government have seen that it is appropriate to exclude the exclusion provision from the exemption, so that schools will not be able to rely on clause 48(1)(c)(iii) to exclude anyone from the establishment
“in relation to anything done in connection with ... the content of the curriculum, or ... acts of worship”.
I am arguing again that subjecting a pupil to any other detriment on the basis of the content of the curriculum or acts of worship would also be inappropriate. It is not necessary, and runs the risk of making schools believe that they can discriminate disproportionately and in a manner that is not objectively justified. Rather than relying on case law, or long arguments about any guidance that might be produced, we should seek to have narrow exemptions in that area, when talking about publicly funded bodies that carry out public functions.
Amendment No. 155 seeks to probe why, in clause 49(2)(a), the Government talk about the content about the curriculum generally, rather than just
“in relation to religious restriction or religious education”.
I hope that the amendment that I have tabled inserts that phrase after “curriculum” and before “or”—it is not in the marked-up version of the Bill from which I am reading—because it is in the religious instruction and education parts of the curriculum that a school might seek to say that it was going to teach and have certain emphases on certain religions, and that that might apply generally, or in particular to faith schools. That is a matter for the curriculum, but in relation to other parts of the curriculum, the Government will have to explain why they seek provision for subjecting someone to any other detriment, and not just refusing access to a benefit, facility or service, or for discriminating in the way in which they afford any pupil access to any benefit, facility or service covered by clause 48(1)(c)(i) and (ii).
Those are serious matters, which are subject to a recommendation from the Joint Committee On Human Rights. The Minister and his colleague the Minister for Women and Equality paid due attention to the concerns of that Committee about the Bill. That is right, as the Bill will set up the Commission for Equality and Human Rights—something on which the Joint Committee has a particular focus. I would be grateful if the Minister could provide some reassurance about the points that I have raised.