Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I beg to move, That the clause be read a Second time.

I shall indeed talk about guidance and I am conscious of the fact that we do not want to rehearse the principles of non-discrimination. In reading from the reports on guidance by the previous Joint Committee on Human Rights and the Education and Skills Committee, therefore, I shall seek to be brief and to keep strictly to the issue. The point that I seek to make with the new clause is that the current guidance is unsatisfactory and has been found to be so by both those Committees. If the Minister cannot assure me that guidance will be expedited to deal with the point, I fear that there will be continued discrimination.

I shall not go into this issue, but, as I said previously, there is discrimination against the non-religious on the basis that they are not provided with the same transport—to go the extra mile, as it were. The law on the issue is in section 509 of the Education Act 1996, which permits local education authorities to discriminate on the basis of religion or belief.

The current Government guidance on school transport takes the form of a departmental circular dated 21 January 1994. Paragraphs 29 to 31 deal specifically with transport to denominational schools and colleges. Those paragraphs are highly relevant and I shall explain what they say, because I want to argue that the guidance is unsatisfactory. Paragraph 29 says:

''Many LEAs exercise the discretion afforded by section 55 [Education Act 1944]''—

now section 509 of the 1996 Act—

''to provide free transport or assistance with fares for pupils or students who attend the nearest school or college of their parents' religious denomination, even though they could have attended a non-denominational institution nearer home.''

Paragraph 30 continues:

''From 1 October 1993, section 55(3) was amended by paragraph 15 of Schedule 19 to the Education Act 1993. In considering whether or not transport is necessary—and therefore should be free—under section 55(1), LEAs must have regard, in the exercise of their discretion, to all relevant factors. As amended, section 55(3) provides that LEAs shall have regard to (amongst other things) not only the age of the child or young person and the nature of his route to school or college, but also 'to any wish of his parent for him to be provided with education at a school or institution in which the religious education provided is that of the religion or denomination to which his parent adheres.' Thus while Parliament has continued to leave LEAs discretion in their assessment of this factor, it has made explicit the requirement to consider it.''

Paragraph 31 states:

''The Secretary of State hopes that LEAs will continue to think it right not to disturb well-established arrangements of the kind referred to in paragraph 29, some of which have been associated with a local agreement or understanding about the siting of denominational schools. He continues to attach importance to the preservation of the opportunity to choose a school or college in accordance with religious convictions.''

The problem is that the Joint Committee on Human Rights report on the draft School Transport Bill—the 17th report of the session 2003–04—called for the guidance, which was then in the guise of the draft prospectus on school travel schemes, issued by the DFES, to be amended, as it had recommended that the extant guidance be amended, because it referred only to pupils travelling to denominational schools. It was pleasing that the Government amended the draft prospectus when they formally introduced that Bill.

In the 20th report of the session 2003–04, the Joint Committee on Human Rights also recommended, notwithstanding the then impending introduction of the School Transport Bill and a more satisfactory revised prospectus, that the extant guidance be amended to ensure that it was right. The report referred at paragraph 6.11 to the key recommendation that the Government need to address:

''In our view these paragraphs in the current guidance on school transport are now positively misleading for LEAs in light of the Government's welcome acceptance . . . that free or subsidised school transport must be provided without discrimination on grounds of religion or belief . . . We cannot see any reason for not making the position equally clear to LEAs by amending the current guidance on school transport to the same effect. Unless it is made clear, we think there is a significant risk of LEAs being misled by the guidance into adopting or maintaining discriminatory policies and practices, and of the current guidance itself being subjected to legal challenge on the ground that it is not an accurate statement of the legal position.''

It continued in paragraph 6.12 with a short recommendation:

''We therefore recommend that the DfES amend the guidance contained in circular letter 21 January 1994 so as to include specific guidance on non-discrimination''.

That has not happened, and there was no Government response to the 20th report. That issue was picked up by the Education and Skills Committee in its report on the draft School Transport Bill, which said something similar at paragraph 66:

''A parent who expresses a strong philosophical view that a denominational education would not be appropriate for their child is in a similar legal position to one who expresses a strong preference for denominational education. Guidance issued to LEAs should clarify that different treatment in this case could amount to discrimination . . . In order to reduce the potential for discriminatory practices, and to clarify the legal situation under the Human Rights Act, guidance to LEAs must make clear that where transport arrangements exist to support parents'  denominational preferences, they must also cater for strongly held philosophical preferences.''

Finally, paragraph 67 stated:

''The human rights implications of school travel schemes are complex and we have found evidence of existing confusion over legal obligations.''

It is important to note that another Select Committee considered the issue and found evidence of problems, so we should add that it is important that evidence be shown, otherwise the argument is purely theoretical.

The report continues:

''In this context, the guidance given to LEAs in the draft Prospectus is woefully inadequate. It is unacceptable simply to state that local authorities should take legal advice before submitting their applications. The Government should provide clearer guidance to LEAs on those school transport practices which it considers would be discriminatory, particularly as the Secretary of State could be subject to legal action for approving any discriminatory scheme. The Government should pay heed to the recommendations of the Joint Committee on Human Rights on the draft Bill when drawing up this guidance.''

The School Transport Bill did not complete its passage, so it was never tested under scrutiny. The problem, therefore, remains. Meanwhile, the 20th report did not receive a Government response, perhaps because we ran out of parliamentary time.

The fact that the problem still exists is shown by the explanatory notes. I dealt with them on Tuesday, so I shall not repeat the argument, but they continue to be positively misleading. In light of what I have said, I hope the Government will recognise that there is a problem with the extant guidance. Unless they can show evidence that problems are not caused by that guidance, which would contradict the Education and Skills Committee's view that there are problems, something must be done now, as well as in relation to the Bill.

The Joint Committee on Human Rights has raised this concern three times. We have not had a report on this Bill, so it remains to be seen whether the concern remains. I am not saying that the problem is being repeated, although it may well be if the Government are being consistent. Even before consideration of the Bill, the Joint Committee called—three times—for adequate guidance to ensure that there is not discrimination against non-religious parents of the sort that appears to exist at present, and that is encouraged, albeit unintentionally, by the Government's current guidance.

I hope that the Minister can offer reassurance on this issue. The Government's pronouncements will be examined closely by people who are suffering from what they consider discrimination. They might be persuaded not to bring legal action if they receive a satisfactory assurance that the Government are aware of the problem and are going to tackle it.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

The hon. Gentleman has raised an important issue. I agree that there is a problem, and he explained it very well—I do not usually pay him that compliment. This issue has a long history. Many Committees and Governments of different political persuasions have examined it, but there is still a problem. The issue has not been properly tackled.  

There can be little doubt that discrimination exists. Some children whose parents choose for them to go to a denominational school have to travel further than they would if they did not go to such a school, so their school transport is paid for, while other children, who might live less than half a mile under the limit for receiving free school transport to a non-denominational school, are disadvantaged because they cannot benefit.

In my constituency, there is a suggestion that children who attend a school for children with special needs should not have their school transport paid for if their parents' income is above a very low threshold. It is right for there to be limitations on budgets. However, because of that—these matters always come back to taxpayers' money—children whose parents follow a particular religion and choose a particular school and type of education for their offspring, which they have every right to do, get a financial advantage over parents whose children have special needs. Those children might even need to be transported in a wheelchair or by another costly means, but they do not benefit.

I have no precise and perfect solution to this problem, and I am not certain that new clause 16 would solve it perfectly either, but it would open the way for discussion, and I am sure the Minister will appreciate that. Like the hon. Member for Oxford, West and Abingdon, I ask her to give the Committee an assurance that the Government are aware of the problem and intend to address it in the near future.

Roger Gale (North Thanet, Conservative)

I cannot recall whether the Minister was present on Tuesday afternoon, but I know that the hon. Member for Beaconsfield (Mr. Grieve) was on the Front Bench when I ruled that we should discuss the matter of guidance. We had a considerable debate at that time. I appreciate that these are important issues that probably affect the constituents of every Member of Parliament. I ask the Minister to stick strictly to the matter of guidance, but if she wants to write to hon. Members on the broader issues, that is of course entirely a matter for her.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I shall do my best, Mr. Gale. As has already been said, the Bill contains exemptions from the provisions on discrimination for local education authorities and public authorities on the grounds of religion or belief in relation to school transport. LEAs have a statutory requirement to provide free home-to-school transport for pupils who live a certain distance from their nearest school. They also have some scope to decide when transport is necessary in any other circumstances, and they consider each pupil's case on its merits, taking account of all relevant factors.

There is discretion, which means that LEAs often provide subsidised transport for pupils of a particular faith school that is outside the local area, although I stress that the discretion is not limited to transport to faith schools. LEAs may also—it is our clear belief that they should—provide subsidised transport to a non-faith school for a child whose parents are strongly opposed to their attending a faith school closer to   home. The exception is needed to protect such special arrangements, whether they benefit those of a particular faith or those who for philosophical reasons seek an alternative to a faith school. I emphasise that LEAs can, and do, offer pupils free or subsidised transport in various circumstances.

The hon. Member for Oxford, West and Abingdon discussed this matter earlier this week, and I know that he understands the need for the transport exemption and has not sought to remove it. By seeking to require the Secretary of State to issue guidance on the provision of home-to-school transport—guidance that must have particular regard to the duty not to discriminate on the grounds of religion or belief, and to the duty on local authorities to carry out their functions relating to school transport with due regard to the Human Rights Act 1998—the hon. Gentleman is pointing it out that there is uncertainty about the provision of free school transport. I agree, and acknowledge that the home-to-school transport legislation is out of date. That is why we have included proposals to extend rights for home-to-school transport in the White Paper ''Higher Standards, Better Schools for All''.

The proposals will be included in the forthcoming School Transport Bill, and as a result of those proposals, the Secretary of State for Education and Skills will issue new guidance relating to the provision of home-to-school transport, a draft of which will be published alongside that Bill. The guidance should clarify the duties of LEAs with regard to the provision of school transport and their obligations to ensure fairness. I believe that that will be a more appropriate place in which to deal with the issues raised by the amendment.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I am listening carefully to the Minister, and I note her comment about an alternative way of issuing guidance. Will she ask her ministerial colleagues to ensure that that guidance is consulted on, that it is taken seriously and that the concerns expressed in Committee are passed on? Will they also ensure that the Select Committees that have expressed concern about the existing guidance get the chance to comment on an early draft of the new guidance to prevent more public authorities from disagreeing about its appropriateness? Perhaps that is one way in which to deal constructively with the matter of the guidance.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I am a big fan of joined-up government, and I am certainly happy to pass on the hon. Gentleman's comments.

Kitty Ussher (Burnley, Labour)

I agree that the current guidance is quite confusing. I have a constituency case on which I would appreciate a response from the Minister, now or in writing, on what the current law would advise. A mother who is not Catholic but who nevertheless wanted her child to go to a Catholic school visited my surgery. She succeeded in her application, and so an atheist child attended a Catholic school. The school was some distance from her house and when she applied for free transport, the local education authority official told her that it would not be provided because she was not a Catholic parent. I believe that to be clearly wrong and discriminatory against that individual. Will the Minister say whether my assumption is right?  

Roger Gale (North Thanet, Conservative)

Order. In the spirit of Christmas, I allowed the hon. Lady to ask her question, but I fear that the Minister will have to write to her with the answer.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

Indeed, I fear that it may be outside my competence to do so, but I shall certainly consider the matter.

The hon. Member for Oxford, West and Abingdon managed to interrupt me with slightly more than three words to go, as he tended to do to my hon. Friend the Under-Secretary. I hope that the hon. Gentleman is willing to withdraw the amendment.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I am willing to withdraw the amendment. I shall carefully consider the timings of the alternative approach. I was not sure whether the Minister meant that guidance would be produced under the Bill and that, in respect of school transport, it would refer to other guidance, or whether it is proposed first to enact the Bill, in which case there would still be a gap in respect of part 2 before the new guidance was formalised. Perhaps the Minister will write to me about the timing, as it is a legitimate point.

The hon. Member for Burnley (Kitty Ussher) raised a fascinating case. I do not propose giving a view on it because it is a complex matter. However, it underpins the need for clearer guidance, and I am sure that it is not the only case.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Roger Gale (North Thanet, Conservative)

Once again, I remind the Committee that on Thursday last, we had a considerable debate on clause 35. I therefore expect a fairly narrow debate on new clause 17.