Schedule 11

Equality Bill – in a Public Bill Committee at 7:30 pm on 23rd June 2009.

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Schools: exceptions

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 253, in schedule 11, page 198, line 31, leave out paragraph 5 and insert—

‘5 (1) Section 80(1) and (2)(a) to (d), so far as relating to religion or belief, does not apply in relation to—

(a) a school, other than an academy, registered in the register of independent schools for England or for Wales, if the school’s entry in the register records that the school has a religious ethos;

(b) a school in the register of independent schools for Scotland if the school admits only pupils who belong, or whose parents belong, to one or more particular denominations;

(c) a school registered in that register if the school is conducted in the interest of a church or denominational body.

(2) Section 80 (2)(a) to (d), so far as relating to religion or belief, does not apply in relation to—

(a) a school designated under section 69(3) of the School Standards and Framework Act 1998 (foundation or voluntary school with religious character);

(b) a school transferred to an education authority under section 16 of the Education (Scotland) Act 1980 (transfer of certain schools to education authorities) which is conducted in the interest of a church or denominational body;

(c) a school provided by an education authority under section 17(2) of that Act (denominational schools);

(d) a grant-aided school (within the meaning of that Act) which is conducted in the interest of a church or denominational body.’.

This amendment would ensure that discrimination in admissions by religion or belief in state maintained schools and academies with a religious character is subject to the general prohibition on discrimination in education admissions.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss amendment 254, in schedule 11, page 199, line 7, leave out paragraph 6.

This amendment would remove the exemption for acts of worship from Clause 80(2)(a) to (d), which makes it illegal for schools to discriminate in their treatment of pupils.

Photo of Evan Harris Evan Harris Shadow Science Minister

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.

Photo of David Drew David Drew Labour, Stroud 7:45 pm, 23rd June 2009

I am aware of the hour, but I can take only so much from the hon. Gentleman. The notion of a faith school to which people of that faith are effectively the only people who cannot go is a complete contradiction. There need not be a discriminatory process because, from all the evidence I have seen, faith schools tend to want to take children of different faiths. Certainly, they want to take children of different classes, but they are too often prevented from doing so because of numbers.

The hon. Gentleman’s argument is illusory if not delusional. Some of us hold faith as important and it is wrong to segregate and marginalise it. If people do not want to go to a school, they are not forced to go there. There are ifs, buts and maybes, but I am dealing with the reality on the ground. Of course, people have a perfect choice to vote for people who want to increase the secular provision, as they do to vote for those of a religious faith, be that Christian, Muslim, Jewish or whatever.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am listening carefully to the hon. Gentleman. I want to make it clear to him that the amendment does not say that faith schools must deny admission specifically and only to children of their own faith; it is saying that there should be no religious discrimination in admissions. There should be a level playing field for everyone. The status quo means that a school can say to a child, “You can’t come to this state school next door to where you live because you are a Jew. We are over-subscribed and we are only going to take children of parents who are Christians in this school.” That cannot be right. Does he think it is right? That is the status quo in some schools at the moment.

Photo of David Drew David Drew Labour, Stroud

From my experience, that is not the status quo. I think that schools are exceedingly careful with their admissions. If they are discriminatory, they can be hauled over the coals accordingly. I am arguing that there is not a level playing field. If someone wishes to send their child to a faith school, and they are of that faith, it is perfectly reasonable for them to feel that that argument should be advanced and understood within the education system.

I come to my other point about collective worship. We all know that very few schools meet the requirement in the Education Act 1944 for daily, collective, Christian worship. In some schools, that is impossible because the dominant faith is not Christianity, even though it might be a Christian school. As I have said before, we need tolerance. If a child has no faith, or their parents wish them to have no faith, they can be withdrawn from particular assemblies or religious gatherings. I think that is the best way to proceed. I worry that we seem to be going to the other extreme: anyone who wants to do anything religious is so hamstrung and fettered—even if they are notionally in a faith establishment—that a ridiculous situation might arise in which they will feel so intimidated that they are unable to do anything. That would be a sad day. I am in favour of people having choice, but that should include having the choice to hold a faith, as well as a choice not to have one.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Probing the Government’s thinking is fairly redundant, because we did it two years ago on the 2006 Act. Nothing has changed in our stance, and there is nothing different in that of the hon. Member for Oxford, West and Abingdon.

The position simply is that, in order to maintain their special ethos, faith schools need to be able to teach in a way, and have an admissions policy, that reflects that ethos. We are comfortable that the European convention on human rights is, if anything, buttressed by the Bill. Some people might not like faith schools, but they are here to stay. The key exception is that they have admissions that allow them to operate as they currently do. We do not think that amendment 254, on worship, is appropriate. As the hon. Gentleman well knows, parents can remove their children from worship, and the children can remove themselves if they are in the sixth form. We do not have a problem with that boundary.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Let me finish. The only point of the amendment might be to make it obligatory for faith schools to provide an alternative act of worship, so that if, for example, a Jewish or Muslim school did not provide a Christian facility, an allegation of discrimination could be brought against it. We do not think that that is appropriate, so we invite the hon. Gentleman to withdraw his amendment. He has an opportunity to speak now, so I do not need to give way.

Photo of Evan Harris Evan Harris Shadow Science Minister

The Minister does not have to give way ever. It is just scrutiny as we know it. It is up to her, if she chooses not to give way all the time, although she has generally been very good at doing so. She has been very patient with us asking questions, whether difficult or otherwise. I wanted to ask her—I guess I shall not  have the chance now—in what way she feels that this discriminatory exemption buttresses human rights. She did not show that to be the case; I do not think that she can point to any convincing Strasbourg case law that shows that people can exercise the right to have a school open in their area that matches their religious convictions. On the other hand, there is clearly the right for a person not to be discriminated against in accessing education for their children. She did not address the point about the inequality for children of a minority religion when there is no faith school in their area or for children of parents with no religion who have less choice than others.

I also wanted to ask the Minister how she can justify telling a 16-year-old girl who is not in the sixth form, who does not want to take part in prayer—if prayer is to mean something, such a person ought not to take part, otherwise they could be disruptive—who has control of her fertility and who can access sexual health services without her parents’ knowledge, that she is powerless, unless in the sixth form, to excuse herself from compulsory prayer. The Government have never satisfactorily answered that point—not now, not during the passage of education Bills and not during the passage of this Bill. The Minister is not minded to rise, but the record will show that that question, and others, remain unanswered. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 11 agreed to.

Clauses 85 to 89 ordered to stand part of the Bill.