The
Chairman: 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.
Dr.
Harris: 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. 7.45
pm 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.
Mr.
Drew: 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.
Dr.
Harris: 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.
Mr.
Drew: 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.
The
Solicitor-General: 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.
Dr.
Harris: Will the Minister give
way?
The
Solicitor-General: 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.
Dr.
Harris: 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.
Schedule
12Further
and higher education
exceptions Question
proposed, That the schedule be the Twelfth schedule to the
Bill.
Dr.
Harris: I rise to raise one point about the schedule,
which is listed on the amendment paper as amendment 270.
Amendment 270 has been starred and has not been selected. It seeks to
insert—
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