New clause 16 - Guidance on application of prohibition in relation to school transport
Equality Bill [Lords]
2:00 pm
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and 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.