Meeting documents

Dear Sirs

Review of Home to School Transport Consultation

We act for the Department of Schools and Colleges of the Clifton Catholic Diocese and have been instructed to respond on behalf of the Diocese to the above Consultation.

We enclose a copy of an Opinion of Counsel, Professor Conor Gearty. Professor Gearty is a member of Matrix Chambers and is also Rausing Director of the Centre for the Study of Human Rights and Professor of Human Rights law at the London School of Economics.

Please acknowledge receipt and confirm that Professor Gearty's Opinion will be taken into account.

Yours faithfully

Stone King LLP

Enc

In re Clifton Diocese Department of Schools and Colleges: Denominational Transport

OPINION

1. The Consultation Paper issued by Bath and North East Somerset Council (`the Consultation Paper') proceeds on the assumption that there is no legal requirement to adhere to its current policy, namely to provide free transport to `the nearest appropriate denominational school ... provided that the statutory distance criteria are met and that proof of baptism in the relevant faith is given' (Consultation Paper, para 3). In Counsel's Opinion, various legal provisions need to be taken into account, the combined effect of which is to make it highly arguable that the policy is not a discretionary one at all but is rather one that is required by law, and therefore is one cannot now be altered in the way being suggested as possible in the Consultation Paper.

2. The key provision is section 509 of the Education Act 1996. There is an obvious interplay between s 509 and s 444 of the same Act, with s 444, as interpreted, being the basis for the obligation to provide free transport for children under eight who live more than two miles, and for other children who live more than three miles, from their school. However it is important to recognise that s 444 does not exhaust the range of potentially necessary action under s 509. Section 509 is of wider application than this.

3. Insofar as is material for present purposes, s 509(1) provides that a local authority `shall make such arrangements for the provision of transport and otherwise as they consider necessary ... for the purpose of facilitating the attendance of persons ... receiving education - (a) at schools ...". Furthermore `[a]ny transport provided in pursuance of arrangements under [this] subsection ... shall be provided free of charge': s 509(2). Note that there can be separate arrangements for the defraying of `reasonable travelling expenses' where the obligation under s 509(1) does not apply, but that this is under a separate provision: s 509(3).

4. The discretion in s 509(1) is less discretionary than it appears: the arrangements have to be `as they consider necessary' and they have to be oriented towards the purpose of `facilitating .. attendance' at school. But once necessity is established the provision of free transport is mandatory.

5. As indicated above one necessity has been partly identified by reference to s 444, with the effect referred to above. The question in relation to the Consultation Paper is: does the necessity to provide free transport extend also to children who could be registered at a school within the s 444 limits but whose denominational school of choice is outside those limits, ie the two and three mile distance points for under- and over- eight year old children respectively?

6. As already indicated, Counsel believes that this question can be answered in the affirmative. Necessity needs to be construed in light of the present law. The thrust of the education legislation in general, and the scheme of the Education Act 1996 in particular, supports an affirmative answer to the question at the end of para 5, above. The same answer is also suggested by the content of UK human rights law.

7. As regards the first of these, it is clear that in designing its education law, Parliament did not intend to facilitate the attendance of persons at any school at all, but that at the same time every effort would be made to accommodate parental choice. Thus s 9 of the 1996 Act obliges local education authorities to have regard to the general principle that `pupils are to be educated in accordance with the wishes of their parents'. Now it is immediately acknowledged that this does not require a scheme of free transport to ferry pupils across this or that county to schools of choice wherever they might be. There is also the caveat against unreasonable public expenditure to be taken into account, on which see further below. But in the particular context of the present enquiry, that of facilitating attendance at denominational schools by bona fide members of a particular faith, s 9 is, it is submitted, of the first importance.

8. Echoing the 1996 Act, the School Standards and Framework Act 1998 also emphasises the need to satisfy parental preference, again subject to economic constraints.

9. Section 509 itself carries the s 9 principle into effect in subsection (4): `In considering whether or not they are required by subsection (1) .. to make arrangements in relation to a particular person, a local education authority shall have regard (among other things) - ... (b) to any wish of his parent for him to be provided [with education or training at a school or institution in which the religious education provided] is that of the religion or denomination to which his parent adheres.'

10. As regards human rights law, the key legislation is of course the Human Rights Act 1998, in force across the United Kingdom since 2 October 2000. This measure incorporates into UK law (in schedule one) a number of rights that are to be found in the European Convention on Human Rights and Fundamental Freedoms. Four such rights are relevant to the situation under discussion here.

11. It is helpful to note the way in which these provisions are brought into effect in UK law. The relevant provisions of the Human Rights Act are as follows:

12. Two further provisions of the Act are of particular relevance to the situation under discussion.

13. It is the view of Counsel that the combined effect of these provisions in the education and human rights legislation is that a reasonable local authority, properly directing itself as to its legal obligations, and having regard to all relevant considerations, must find it `necessary' under s 509 to provide the relevant free transport so as to facilitate attendance at denominational schools.

14. Counsel draws attention in particular to the following points:

(i) Parliament's intention, set out in s 509 itself and evident also in s 9, is that the wishes of religiously minded parents should be taken into account. It is true that there is a reference in the relevant subsection (see above) to `among other things' and this would, for example, mean rightly that no especially lavish scheme can be required to be put in place. But no such scheme is being sought here: rather all that is desired is to avail of a current scheme in a way which causes minimum disruption while allowing the wishes of parents to be properly regarded.

(ii) The relevant provisions of the Education Act need to be read in light of human rights law - s 3(1) of the Human Rights Act (see above) - and the combined effect of the rights set out above is to confirm the interpretation of necessity that has already been reached at (i) above as a matter of the statutory construction of section 509 itself.

(iii) The right to respect for family life in Article 8 extends to a family's religious observance. The manifestation of a religious belief in `practice', guaranteed by Article 9, can extend to schooling in appropriate faith circumstances.

(iv) Article 2 of the First Protocol is directly relevant, and while there is a reservation, that reservation is limited, inter alia, to the avoidance of unreasonable public expenditure. The public expenditure required here to meet the needs of parents under that Article, the other articles of the Convention as set out above and the provisions of the Education Act itself, is not unreasonable. Relatively small sums of money are involved. The benefits to the parents - and to the children - are great. While some parents may make alternative arrangements if the free transport facility is withdrawn, others may not be able to do so, for financial or other reasons, and may as a result find themselves unable to secure the kind of religious education for their children that their faith and their conscience is believed by them to require.

(v) According to Clayton and Tomlinson, The Law of Human Rights (Oxford University Press, 2000), para 19.85 `[i]t could .. be argued that, as a result of the right to education, a local educational authority is under a duty to provide transport which reflects parental preferences for schools, in particular, because section 509(4) expressly obliges the authority to take account of their religious views' (citation omitted).

(vi) The position of the religious organisations to which parents in this position belong should not be lost sight of. The Roman Catholic Church for example puts great store by the education of its members in faith schools. So while s 13 of the Human Rights Act is not directly involved, in that the faith organisation is not directly affected and a court is not (yet) seised of the matter, it does provide a background against which the substantive Convention rights fall to be considered, a background moreover which demonstrates the extent to which Parliament in enacting the Human Rights Act was conscience of the need to respect religious associations. In the course of the Commons proceedings on this provision in 1998, the then Home Secretary Jack Straw specifically acknowledged the relevance of Convention rights, and therefore of s 13, to the `provision of education in Church schools': Official Report, 20 May 1998, vol 312, c 1015.

15. Counsel's opinion is that in the end the issues here resolve themselves as a matter both of education and of human rights law essentially into a single test, that of proportionality. On the one hand, there is the strong desire of parents to have their children educated at a denominational school appropriate to their faith. This is a desire that is buttressed by human rights legislation and recognised and respected in the Education Act itself. Furthermore, it is reasonably clear, that for some parents - perhaps even for a large number - the withdrawal of free transport will make it impossible for them to secure the education for their children that their faith community suggests is required. On the other hand is the desire of the local authority to secure some savings so as to allocate the resources thereby saved in a more effective manner. But the amounts involved are uncertain and are in any event rather low. The expenditure entailed in the provision of the free transport to denominational schools is not extensive: see paras 3.1, 3.2 and 3.3 of the Consultation Paper. It is certainly not so great as to render it unreasonable when viewed from the perspective of the parents' deeply held and entirely bona fide religious beliefs.

16. The upshot of this proportionality test rooted in human rights law (in particular the articles referred to above), and informing the interpretation of s 509(1) as the Human Rights Act 1998 ss 3(1) and 6(1) require it to do, is to establish the provision of free transport as presently provided for by the local authority as an obligation under that subsection, ie as something which all local authorities in the position of the subject authority in this case, suitably informed as to the law and acting reasonably and rationally, would regard as necessary `for the purpose of facilitating the attendance of persons ... receiving education - (a) at school.'

17. It follows that, in Counsel's respectful submission, the local authority should maintain the policy as it is, on the basis that it is required by law and is not open to change in the way that the authority appears to assume.

Professor Conor Gearty

Matrix Chambers

22 February 2006