Posts tend to provoke more thoughts than they resolve, especially if I discuss them with Steeldust.

I’ve just found a letter on the net (from the Chair of the Joint Committee on Human Rights to the Education Secretary) which sets out the Committee’s concerns about school admissions policies and equality – the subject of my previous post. 

I feel several things.  First, a bit smug for having identified the problem all by myself.  But then allow me that, for all that I know it is an unattractive emotion:  I’m a lawyer at heart, frustrated that I cannot find a job which really uses my skills and that combines with my desire to be a good mother.  Secondly, frustrated generally.  Why has it taken the Joint Committe on Human Rights so long to get round to this point of view?  I feel a letter to my MP coming on.  Thirdly, a bit relieved.  I hated to think that the government of my country was getting away with such a shoddy document as “Faith in the system”. 

The Joint Committee on Human Rights is, as it says, a joint parliamentary committee comprised of five members from the House of Commons and six members from the House of Lords and is charged with considering human rights issues in the United Kingdom.  It issues on average just over twenty reports a year, the majority of which deal with the compatibility of legislation.  The legal adviser to the committee is a very well known administrative lawyer, Murray Hunt.  It has expressed reservations and made criticisms which have sometimes led to the law being changed but have sometimes – in relation to the detention provisions for terrorist suspects – been ignored.  The letter refers to the Education Secretary’s predecessor.  At the relevant time this predecessor was Ruth Kelly.  I deleted the reference to her (and the previous prime minister’s Catholic wife) in my previous post because I thought I was being uncharitable.  I’ve changed my mind. 

Ruth Kelly is a fervent Catholic, a member of Opus Dei (read the da Vinci Code?) and a mother of four young children.  Amazingly enough she still managed to do all her ministerial work and go to Mass at 8am every morning.  I was never going to like her very much…

Here, then is the letter that the Chair of the Joint Committee on Human Rights sent to the present Secretary of State responsible for Education:

“From Andrew Dismore MP, Chair  

The Rt Hon Ed Balls MP

Secretary of State for Children, Schools and Families

Sanctuary Buildings

Great Smith Street

Westminster

London

SW1P 3BT 

26 July 2007   

Equality Act Part 2 Guidance for Schools

School Admissions Code 

The Joint Committee on Human Rights is currently scrutinising for human rights compatibility two documents recently published by your predecessor Department, the Department forEducation and Skills: Guidance for Schools on the Equality Act 2006 Part 2: Discrimination onGrounds of Religion or Belief and the School Admissions Code.

I would be grateful for your answers to the following questions. 

Equality Act Part 2 Guidance for Schools 

In the Committee’s scrutiny of the Equality Bill, it made clear that the content of the Guidance on Part 2 would be extremely important in making sure that the exemptions for schools do not lead in practice to breaches of Convention rights.

The Committee expressed its concern about the breadth of the exceptions for schools from the duty not to discriminate on grounds of religion and belief, and drew attention to the risk that such broad exemptions would permit pupils to be subject to a range of detriments which might not be objectively and reasonably justified and might therefore be in breach of the right in Article 14 not to be discriminated against in the enjoyment of Convention rights. It expressed the hope that before Part 2 of the Equality Act comes into force the Government would produce guidance making clear that all schools which are public authorities under the Human Rights Act retain obligations to comply with ECHR rights of nondiscrimination, irrespective of the exceptions which apply under the Bill.

The Government, in its response to the Committee’s Report on the Bill, said that it would be providing non-statutory guidance for schools “and this will make clear that exceptions under theBill do not override rights of non-discrimination under the Human Rights Act.”  The Guidance does not, however, with one exception, say anything at all about the right not to be discriminated against under Article 14 ECHR, let alone make clear that the statutory exceptions in the Equality Act do not override rights of non-discrimination under the Human Rights Act.

The one exception is the specific exemption for the provision of home to school transport, inrespect of which the Part 2 Guidance explains at LEAs are not exempt by the Equality Act provision from their Human Rights Act obligations. Those obligations are the subject of separate guidance contain in Home to School Travel and Transport Guidance, issued in May 2007 (seePart 5, dealing with “Religion or Belief’). 

The Committee is concerned that this omission from the guidance gives rise to a risk that in practice the exemptions in the Equality Act will lead to breaches of the Article 14 right of pupils not to be discriminated against in the enjoyment of Convention rights, as the Committee feared when it scrutinised Part 2 of the Equality Act itself. 

1. Please explain why the Government has not kept its undertaking to make clear in this Guidance that the exceptions under the Equality Act Part 2 do not override rights of nondiscriminationunder the HRA. 

2. Is other guidance in preparation which will fill this gap?

School Admissions Code 

The Committee is considering whether the provisions of the Admissions Code and the EqualityAct which permit schools to prefer one applicant for admission over another on grounds of their religion are compatible with Article 14 ECHR in conjunction with the right to education in Article 2 Protocol 1. To be compatible with Article 14, differential treatment on grounds of religion must have an objective and reasonable justification: it must have a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and theaim sought to be achieved.

The Committee is therefore considering whether the justifications offered by the Government for treating applicants for admission to schools differently on grounds of their religion amount to an objective and reasonable justification for such differential treatment. One of the justifications offered by your predecessor, in his letter of 20 April 2007, is that allowing schools to treat applicants differently on grounds of their religion helps to secure a“plurality of provision” which satisfies parental demand for schools with a particular faith ethos.He acknowledged in his letter that “not all faith schools choose to give priority for admission to children of their own faith.” 

3. Please provide more information about which faith schools do not give priority for admission to children of their own faith. 

4. Please provide the evidence on which the Government bases its position that the plurality of provision will be undermined if faith schools are not allowed to give priority to faith applicants. 

Your predecessor also relied on the fact that local authorities have a duty to ensure that all children of compulsory school age have access to education and powers to support them in meeting that duty, e.g. powers to direct the admission of a child to any school if they cannot otherwise secure a school place within a reasonable distance of their home.

5. How often is the statutory power to direct admission in fact used by LEAs? 

6. What measures do you take to ensure that faith -based criteria do not operate in practice

in a way that discriminates directly or indirectly on racial grounds? 

I would be grateful for your response by 21 September 2007. 

Andrew Dismore MP

Chair, Joint Committee on Human Rights”

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