The Parliamentary Joint Committee on Human Rights (JCHR) has today published another report which considers the Equality Bill. Read the report starting here, or there is a PDF version here. For their earlier report, see over here.
Here is the summary of their latest findings on the Equality Bill:
In this Report, we return to two issues raised in our autumn 2009 report on the Equality Bill: employment by organisations based on religion or belief and school admissions.
Employment by organisations based on religion or belief
The Bill as introduced (and as passed the Commons) permitted a requirement to be of a particular sex, sexual orientation, marital or partnership status or not to be transsexual to be applied to employment for the purposes of an organised religion, but only if it could be shown to be a proportionate means of complying with the doctrines of the religion. The Bill also included a definition of what constituted employment for the purposes of an organised religion. Both of these qualifications have been removed in the House of Lords and the Government has stated that it will not try to restore them when the Bill returns to the Commons. The original wording of the Bill would have ensured that statute law accurately reflected case law, in the light of the Amicus judgment. The Lords amendments run the risk of generating uncertainty about the law and may mean that this provision does not comply with the relevant EU directive.
We also note further issues concerning the School Standards and Framework Act 1998 and the Education and Inspections Act 2006 and question why sections 58 and 60 of the former Act are exempted from the Equality Bill.
School admissions
We do not find persuasive the argument that it is necessary to allow faith schools to discriminate in their admissions on grounds of religion and belief in order to avoid a breach of the parents’ rights under Article 2 Protocol 1 of the European Convention. Another argument is that discrimination is necessary in order to maintain the distinctiveness of religious schools and so maintain the plurality of provision which, it is argued, is required by both Article 9 and Article 2 Protocol 1. This argument is weakened by evidence which suggests, in relation to Church of England schools, that plurality of provision has been preserved even where those schools do not have faith-based admissions criteria. It carries more weight in relation to other faith schools, however. In consequence, the exemption permitting faith schools to discriminate in their admissions on grounds of religion or belief may be overdrawn in this Bill.
In their subsequent detailed discussion of the first of these issues, they refer to the recent EC Reasoned Opinion and in a footnote provide a link to the complete text of it as a PDF. The concluding paragraphs of that discussion say:
1.11 In the absence of any narrowing or clarification of either Schedule 9(2) or 9(3) we share the view of the European Commission that UK law does not comply with the Framework Equality Directive
1.12 We note that further issues exist in respect of sections 58 and 60 of the School Standards and Framework Act 1998 (SSFA), which in reserving a certain proportion of posts in state-maintained or aided ‘faith schools’ for individuals who adhere to the religious beliefs and ethos of the school in question may be in breach of the Framework Equality Directive 200/78/EC, on the basis that the reservation of such posts is not restricted to circumstances where it can be shown that a genuine, legitimate and justified occupational requirement to adhere to a particular religious belief can be said to exist.
Their Conclusions and Recommendations state:
Employment by organisations based on religion or belief
1. In the absence of any narrowing or clarification of either Schedule 9(2) or 9(3) we share the view of the European Commission that UK law does not comply with the Framework Equality Directive. (Paragraph 1.11)
2. We note that further issues exist in respect of sections 58 and 60 of the School Standards and Framework Act 1998 (SSFA), which in reserving a certain proportion of posts in state-maintained or aided ‘faith schools’ for individuals who adhere to the religious beliefs and ethos of the school in question may be in breach of the Framework Equality Directive 200/78/EC, on the basis that the reservation of such posts is not restricted to circumstances where it can be shown that a genuine, legitimate and justified occupational requirement to adhere to a particular religious belief can be said to exist. (Paragraph 1.12)
3. Provisions of Section 37 of the 2006 [Education and Inspections] Act have also widened the ability to reserve certain posts filled by non-teaching staff. These provisions may constitute a breach of the principle of non-regression in EU law. (Paragraph 1.13)
4. We question why sections 58 and 60 of the School Standards and Framework Act 1998 are exempted from the Equality Bill. (Paragraph 1.14)School admissions
5. The exemption permitting faith schools to discriminate in their admissions on grounds of religion or belief may be overdrawn in this Bill. (Paragraph 1.21)