Schedule 11
Equality Bill
7:30 pm
Evan Harris (Oxford West and Abingdon, Liberal Democrat)
As the Member’s explanatory statement says, amendment 253 is an attempt to argue that there should be no discrimination on the ground of religion in admission to state schools—and to academies, which are state schools for the purposes that concern us here. I wish to question the Government’s justification for allowing schools to discriminate on the basis of religion. My concern is that the legislation would breach the human rights of individuals—pupils and their parents—to gain access to education without discrimination.
The Minister will be aware that the Bill generally puts a bar on discrimination. However, the exception provided in schedule 11 enables schools with a religious character or ethos to discriminate on the ground of religion or belief in relation to admissions. A similar exception is made to the prohibition on discrimination for those with a religious or belief strand in respect of the provision of services. As a result, faith schools, particularly those that are oversubscribed, can give preference through additional admission criteria to members of their own religion. For example, it means that Church of England schools can give priority to pupils or parents who are members of the Church when choosing applicants for admission, and can therefore reject the children of parents who are not members.
I do not know of any school that rejects pupils because their parents are religious and gives preference instead to pupils whose parents are not. This is not a balanced or reciprocal form of discrimination. The consequence, in areas where there are a lot of religious schools, is that parents who are not religious have fewer choices of school for their children, if those religious schools discriminate against them, than parents following the religion of the school concerned.
If an area has five schools, four of which are religious, and if those four schools discriminate against people who are not religious, only one school will not discriminate against the non-religious person, whereas the religious pupils, assuming that they are not discriminated against by other religions, will have a choice of five schools. Indeed, if the last non-faith school was closing in an area—I believe that there are such areas—it would have serious implications for fairness to pupils of parents who are not religious.
The question is whether that is a clear breach of the Human Rights Act 1998. There is no doubt that admission criteria that give preferential treatment to children of one religion, if I may use a shorthand phrase, and detrimental treatment to children of another religion or none, require objective and reasonable justification in order to be lawful under article 14 of the convention, taken with protocol 1 of article 2. The problem is whether that justification is met.
The matter has been explored by the Joint Committee on Human Rights in correspondence with the Government, which has been published, and in notes that were provided. The Government’s arguments rest on two grounds. The first is that such a provision is a way to meet the human rights of parents under article 14 and, in particular, protocol 1 of article 2, but that is a wrong assertion in law. We know that parents cannot rely on that protocol to get a school that is in line with their religious ethos. They cannot rely on it to force the state to provide a school of their religious ethos, so one cannot justify the provision by claiming that they were exercising that right.
The other argument that the Government have used is that plurality of provision is maintained by allowing schools to discriminate on the basis of faith. There are two problems with that, to which I would like the Minister to respond. One is that there are plenty of faith schools that do not discriminate, yet they are still faith schools. It is hard to identify why it is that if schools maintain their ethos without discrimination, they rely on discrimination to maintain their ethos.
Secondly, even if that is shown to be correct, is it appropriate to consider the allegedly positive public policy in isolation from the detrimental public policy implications of a school admissions system that discriminates, because systems that discriminate against pupils on the grounds of religion will tend to exacerbate the segregation that often already exists? I am not arguing that segregation in our cities is solely or even wholly due to faith school discrimination. There is clearly segregation in housing and communities, but it cannot make sense, particularly in those settings, to segregate further by allowing pupils from further afield to get into a school to the detriment of pupils from the local area who might otherwise be the only non-white or the only white pupils in that school. That is a public policy problem and I do not think that it has ever been recognised by the Government. It needs to be balanced with any public policy benefit that they seek to cite to legitimise and give objective justification for detrimental treatment that clearly exists under the Human Rights Act.
My and my party’s view is that faith schools exist—no one is arguing that they should be closed down or even transferred to community status, or indeed that there is no call for new schools with a religious ethos. However, there should be no justification for segregation and further discrimination against pupils who happen to have parents of the wrong religion or no religion. Sooner or later, the matter will be tested in human rights law, and it seems only appropriate to use discrimination law, which exempts schools, to challenge the Government’s justification for the provision.
The second amendment relates to the exemption under clause 80(2) for acts of worship. My party and I think that requirements for a daily act of collective worship in schools, mainly Christian in character, are inappropriate. Schools are not the place where pupils should be forced to pray, and although the Government have provided a limited exemption for sixth form pupils not to be forced to pray, the Joint Committee on Human Rights does not believe—as the Government know—that that goes far enough in respecting the rights of pupils to have regard to their freedom of religion themselves.
It seems wrong to force a child who is otherwise competent—Gillick and Fraser competent—to make decisions about their personal and sexual health without reference to their parents to rely wholly on a parental opt-out from being forced to pray to a god they might not believe in. There is a parental opt-out but not an opt-out for the child. The way round this would be for collective worship in schools to be entirely optional.
I am all in favour of there being Christian unions and other religious clubs in schools where religious pupils can seek comradeship and worship together, but to make it a compulsory part of the school day with no injunction on schools forcing it on pupils seems wrong. The purpose of the amendment is to see what justification the Government can give for using state schools to impose worship, and therefore in effect religion, on pupils. The Minister knows that some schools find that extremely hard to deliver, and Ofsted often overlooks it in order that the status quo—the comfortable compromise—can be maintained. We have seen instances in the media of individual pupils objecting to being forced to pray at school and not being able to avail themselves of a parental opt-out. In any event, why should the onus be on the pupil to opt out of compulsory prayer, when the job of the school is to educate them, including in religious education, but not to force them to pray against their will?
My party has long been opposed to what has often been described, and what can often be, a mass act of hypocrisy every morning, when people do not really participate in prayers but simply go through the motions. Many religious people feel that collective worship is no longer appropriate in schools because it breeds insincerity, as does the religious test in admissions—sometimes, parents pretend to be religious to get their child into a good school.
Finally on amendment 253, do the Government recognise that when parents attend church just to get their child into a faith school, given the evidence that faith schools are no better than non-faith schools once one adjusts for proxies of poor educational background such as free school meals, essentially social selection is taking place as well? That is another public policy detriment that needs to be weighed against any public policy justification that the Government can give for what would otherwise be unlawful discrimination under the Human Rights Act.