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Legal Issues for Faith Schools in England and Wales

  • Philip Petchey (a1)

Faith schools are controversial. There is nothing new about this. State funding for the schools of the established church was historically objectionable to those who dissented from that establishment. Funding for any religious school has always been objectionable to secularists, who have increased in number and influence as society has become increasingly secular. More recently, the Muslim, Hindu and other faiths of the ethnic minorities of England and Wales have begun to utilise provisions that came into being with the Christian churches in mind. This had led to objections from those who are critical of the multicultural approach which has evolved since the Second World War as a response to extensive immigration from the New Commonwealth. This paper examines whether any of the political criticism of faith schools might give rise to legal challenges, now that rights under the European Convention on Human Rights are directly enforceable. In order fully to appreciate the legal arguments, it is necessary to have some understanding of the background. Accordingly, this paper begins by summarising the history of the matter before outlining the current position. An examination of the main criticisms of faith schools follows, and the paper concludes with consideration of a variety of legal arguments.

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1 The Oxford English Dictionary (online) first records use of the term faith school in 1990. In this paper, faith school is used to refer to a maintained school (ie, maintained by the state) of a religious character. Although there have long been a small number of Jewish schools, before 1990 generic reference to maintained schools of a religious character would have been to church schools. The change in usage, which is controversial in some church circles, reflects the increasing number of schools of a religious character where that character is not Christian.

2 See J Lawson, Mediaeval Education and the Reformation (London, 1967), cited in the Report of the Commission on Religious Education in Schools (London, 1970).

3 See E Gaskell, My Lady Ludlow (London, 1859), Chapter 1.

4 See E Churton, Memoir of Joshua Watson (Oxford and London, 1861), p 114.

5 Ibid, p 122.

6 The figures are in M Cruickshank, Church and State in English Education (London, 1964), p 190.

7 The British and Foreign School Society, which provided schools for dissenters, had been established in 1808 and the Catholic Poor School Committee was formed in 1847: see Cruickshank, Church and State in English Education, pp 2, 8. Note that the Methodist Church provided schools separately from the British and Foreign School Society.

8 The first state grant for education (of £20,0000) had been made in 1833, to the two school societies. By 1857, the state was spending £500,000 per year on educational grants in this way: see Cruickshank, Church and State in English Education, pp 3, 10.

9 There were some. Among the principles of the radical Education League was that the teaching of religion should be left to Sunday schools: see S Gwynn, The Life of the Rt Hon Sir Charles Dilke (London, 1917), p 95.

10 See the Elementary Education Act 1870 (33 & 34 Vict, c 75), s 14(2).

11 Eg in Cruickshank, Church and State in English Education.

12 The number rose from 6,382 in 1870 to 11,416 in 1880.

13 An interesting twist to the history relates to the schools of the protestant dissenters. These were mainly provided by the British and Foreign School Society and from the start they provided non-denominational religious education. When the state itself undertook to provide such religious education, their raison d'etre disappeared, and in due course they withered away. Schools maintained by the Methodist Church (which at their peak in 1880 numbered 569) have also now largely disappeared.

14 See Department for Children, Families and Schools, Schools and Pupils in England: January 2007 (Final) (Tables 8a and 8), available at <>, accessed 12 February 2008. As regards geographical spread, figures produced by the Church of England and Roman Catholic Church show that church schools are particularly strong in London and Lancashire. Comparable data for Wales is not available. In 1998–1989, there were 1,404 primary schools in Wales maintained by the state. Of these, 173 (12 per cent) were Church in Wales schools and 78 (5 per cent) were Roman Catholic schools. Of a primary school population of 291,712, church schools educated 36,808 (13 per cent). There were 229 secondary schools maintained by the state, of which 5 were Church in Wales schools and 16 Roman Catholic schools. Of a secondary school population of 204,158, church schools educated 16,294 (8 per cent). The statistics are in Welsh Assembly Government, Schools in Wales: General Statistics 2007 (Tables 3.5 and 4.6), pp 28, 38 (available at <>, accessed 12 February 2008). In the account of faith schools in this section, the complication that some faith schools are foundation schools is ignored. Note that not all foundation schools are faith schools.

15 Every school pupil is required each day to take part in an act of collective worship: see the School Standards and Framework Act 1998 (c 31), s 70. In the case of a non-faith school, this must be of a broadly Christian character: see Sch 20, para 3(2). In the absence of this requirement in respect of a faith school, worship in a faith school obviously reflects the tradition of the sponsoring faith and/or denomination.

16 Ibid, Sch 19, para 4.

17 Faith schools are exempted by the Equality Act 2006 (c 3), s 50, from most of the provisions of s 49. However, a faith school cannot keep a place empty if there is not a faith candidate available: this is the effect of the School Standards and Framework Act 2006, s 86(2).

18 See the School Standards and Framework Act 1998, s 60(5).

19 The LEA control as regards admissions is by virtue of ibid, s 88(1). No statistics are available and the number of voluntary controlled schools giving such preference is thought to be tiny.

20 The position is complicated, and what is said above is a simplification. By virtue of the School Standards and Framework Act 1998, Sch 3, para 3, the governing body has a liability for all capital expenditure. However, the majority of this is recoverable from the state by way of grant. In Wales, the faith sponsor must provide 15 per cent of relevant expenditure.

21 Ibid, Sch 19, para 2.

22 See note 15 above.

23 Apparently, 76 per cent of secondary schools do not observe the requirements of the law as regards collective worship: see speech by David Bell, Chief Inspector of Schools, 21 April 2004, available for download at <>, accessed 12 February 2008. The school roll of Denbigh High School, Luton (see note 56) was 79 per cent Muslim. Accordingly, the school was exempt from the requirement for a daily act of collective worship. This was by virtue of dispensation issued under the Education Act 1996 (c 56), s 394.

24 The Way Ahead, namely the Report of the Schools Review Group appointed by the Archbishop's Council (London, 2001, also available at <>, accessed 12 February 2008) (often called the Dearing Report after its chairman, Lord Dearing), para 4.44.

25 See Department for Children, Schools and Families, Faith in the System: the role of schools with a religious character in English education and society (London, 2007, also available at <>, accessed 12 February 2008, p 17. Faith in the System is a joint vision statement (so described) of the Department and the providers of faith schools.

26 Ibid.

27 Ibid, p 3.

28 Even though a parent could require his child to be withdrawn from religious instruction: see the Elementary Education Act 1870, s 7(1). Interestingly, by 1887 only 2,200 out of 2,000,000 children had claimed the exemption: O Chadwick, The Victorian Church (London, 1970), vol 2, p 189.

29 The free churches are now reconciled to the dual system as it currently operates: the Free Church Federal Council is a signatory to Faith in the System.

30 For a sensible discussion, see BG Mitchell, ‘Indoctrination’, appendix B in IT Ramsey (ed.), The Fourth R: report of the Commission on Religious Education in Schools (London, 1970), pp 353–358.

31 See Faith in the System, p 7.

32 See The Way Ahead, p 11, para 3.11. But note p 15, para 3.28: ‘Church schools will not actively seek to convert children from the faith of their parents …’.

33 See R Williams, Church Schools: a national vision, a speech made on 14 March 2006, available at <>, accessed 12 February 2008.

34 Ibid.

35 The Archbishop says ‘No-one expects that [a faith basis] will or should be the norm for every institution’ (emphasis added), but does not explain why. One guesses that this is because he recognises that his view expressed above is unlikely to commend itself to secularists.

36 It is an interesting comment on the possibility that church schools might indoctrinate their pupils that the present Chief Rabbi's parents (described by him as ‘reasonably religious Jews’) were happy to send him and his brothers to Church of England schools. This is because they saw the schools' ethos as ‘profoundly congruent with Jewish values’. See Jonathan Sacks, The Home We Build Together: recreating society (London, 2007), p 82.

37 See R Williams, Church Schools. The Archbishop made it clear that he did not accept the criticism and expressed concern about what he called anecdotal evidence. The problem here is that the evidence of hypocrisy (if it exists) is likely to be anecdotal. The charge is widely made: see, eg, Polly Toynbee writing in The Guardian on 6 November 2007, available at <>, accessed 12 February 2008.

38 Eligibility for free school meals is widely used as a proxy for social deprivation.

39 Church Times, 29 September 2006, available at <>, accessed 12 February 2008.

40 This is its phrase. It means admitting pupils with the effect that the proportion of those admitted with reference to the identified criteria does not reflect the proportion of those with reference to those criteria who would otherwise have been admitted on the basis of geographical proximity. It becomes apparent that the point at issue is not one capable of simple analysis.

41 One of the more interesting is by the Pastoral Research Centre Trust, which showed (in relation to the Roman Catholic Church) a significant increase in the proportion of ‘late’ baptisms between 1958 and 2005 (‘late’ baptisms being those of children between the ages of 1 and 13). The suggestion was that this reflected the desire of the children's parents to qualify their children for entry into Roman Catholic schools. The Director of the Catholic Education Service accepted that this was a factor in the increase.

42 The Cantle Report (2001) (so-called after the commission's chairman, Ted Cantle, an Associate Director of the Improvement and Development Agency for Local Government), available at <>, accessed 12 February 2008, p 33.

43 Ibid, pp 33–34.

44 Ibid, pp 34–35.

45 See Hansard (HL) 17 October 2006, col 704.

46 See the Education Act 2002 (c 32), s 21(5), inserted by the Education and Inspections Act 2006 c(40), s 38(1). As will be apparent, the 25 per cent quota proposal reflects the approach of the Church of England to the matter. However, speaking in the debates, the Bishop of Peterborough made it clear that the Church of England opposed mandatory quotas (see Hansard (HL) 30 October 2006, col 117).

47 An argument often made with reference to the provision of schools in Northern Ireland.

48 See Williams, Church Schools.

49 See Belgian Linguistic Case (1968) 1 EHRR 252: ‘In spite of its negative formulation, this provision uses the term “right” and speaks of a “right to education”. Likewise, the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of “rights and freedoms”. There is therefore no doubt that Article 2 does enshrine a right’ (para 3).

50 Note also that the Treaty of Lisbon will require the EU to promote the protection of the rights of the child: see the Treaty on European Union, Article 2, as amended by the Treaty of Lisbon (December 2007) Cm 7294, Article 2.

51 Ie, ‘teaching students Christian doctrine as if it were the exclusive means through which to develop moral thinking and behaviour [which] amounts to religious coercion in the classroom’.

52 See Canadian Civil Liberties Association v Ontario (Minister of Education) (1990) 65 DLR (4th) 1. The quotation is from the judgment of the court at p 24. The right of parents to exempt their children from the lessons did not rectify the situation since they would still be under pressure to conform.

53 See, eg, Re Agar-Ellis (1883) 24 Ch D 317 (protestant father entitled to prevent his child seeing her Roman Catholic mother, from whom he was separated).

54 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, [1985] 3 All ER 402, HL, p 186.

55 [1993] 2 FLR 163, CA.

56 Purchas LJ described the conditions of the fellowship of the Brethren as ‘stifling’ (p 173).

57 Ie, R (SB) v Governors of Denbigh High School [2007] 1 AC 100, [2006] 2 All ER 487, HL.

58 A jilbab is a long, shapeless, black gown.

59 See para 98 of her speech, endorsing the views of Professor Frances Raday in ‘Culture, religion and gender’, (2003) 1 International Journal of Constitutional Law 663, 701.

60 Lord Scott in the Denbigh High School case was troubled that the approach to the matter of the claimant's guardian did not reflect that which would have been done by the pupil herself: see R (SB) v Governors of Denbigh High School, para 80.

61 Ibid, para 88.

62 Lord Scott cited Kalac v Turkey (1997) 27 EHRR 522, Ahmad v United Kingdom (1982) 4 EHRR 126 and Karaduman v Turkey (1993) 74 DR 93.

63 See pp 179–180 above.

64 [2004] MR 197; [2004] UKPC 9. This case is also reported in (2004) 7 Ecc LJ 498.

65 Bishop of Roman Catholic Diocese of Port Louis v Tengur, para 16. Lord Bingham seems to have assumed without stating it that the claimant's right to education for his child was a fundamental freedom conferred by the constitution.

66 See, eg, Police v Rose [1976] MR 79 and R (Carson) v Secretary of State for Work and Pensions [2003] 3 All ER 577, CA (see now also [2006] 1 AC 173).

67 If there were racial discrimination it might be objectively justifiable: see Mandla v Dowell Lee [1983] 2 AC 548, at 566C–567C (per Lord Fraser of Tullybelton), [1983] 1 All ER 1062, HL.

68 Even though the courts are plainly reluctant to accept arguments of this kind, as the Denbigh High School case showed. In this regard, Copsey v WWB Devon Clays Ltd [2005] ICR 1789, CA, is instructive. Mummery LJ held (following Commission rulings) that a change in working hours so that a Christian employee was required to work on Sunday did not involve interference with his rights of religious freedom, because the employee was free to resign (para 37). In the absence of authority he would have held otherwise (para 36). He went on to say that he thought that the question raised required a political solution, and that ‘neither judges nor lawyers had relevant knowledge or experience’ to decide it (para 39).

69 (1978) 14 DR 179, E Comm HR.

70 The case provides a legal answer to the secularist who objects in principle to the state funding of faith schools. The state is not unfairly subsiding faith schools (at least, not in terms of Convention rights) but granting a degree of autonomy to faith schools in return for funding from the faiths. The history of the current arrangements (see pp 174–176 above) supports this analysis.

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Ecclesiastical Law Journal
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