Commentary on Sections Part 2: Discrimination on Grounds of Religion or Belief Section 50: Section 49: exceptions
191.Subsection (1) of this section exempts maintained schools which have a religious character (often referred to as faith schools) from the prohibition on discrimination in subsection (1) of the previous section (apart from two subsections: (1)(c)(iii) which makes exclusion from a school unlawful, and (1)(c)(iv) which prohibits the subjection of a pupil to any other detriment). It also exempts to the same extent independent schools if such schools have a religious ethos, schools conducted in the interest of a church or denominational body, and, in Scotland, independent schools that admit only pupils who belong – or whose parents belong – to one or more particular denominations. The provision will therefore allow all such schools with a religious ethos to admit pupils or set admission terms for pupils based on the religious character or religious ethos of the school. It will also allow such schools to conduct themselves in a way which is compatible with their religious character or ethos.
192.Subsection (2) provides that the discrimination provisions in section 49 that relate to pupils’ access to benefits, facilities and services will not apply to anything done in connection with the school curriculum or to acts of worship or other religious observance organised by or on behalf of an educational establishment. The reference to curriculum bears its ordinary English meaning and accordingly is to the basic curriculum as delivered in educational establishments, which includes the National Curriculum, together with elements such as Religious Education which is not part of the National Curriculum but is required by legislation to be taught in state schools. It also includes elements such as the provision of school library books, which are aimed at the delivery of a broad-based and balanced education to pupils. This particular exemption reflects the need to avoid any conflict with the existing legislative framework in respect of the content of the curriculum and religious worship. Existing education legislation allows for parents to withdraw their children from sex education and religious education, but not from other parts of the curriculum covered by subsection (2)(a). While parents can remove their children from collective worship, educational institutions are under no obligation to provide opportunities for separate worship of different religions and beliefs represented among its pupils. The exception in subsection (2)(b) maintains that position.
193.Subsection (3) provides for an order-making power by which the Secretary of State for Education and Skills can amend or repeal an exception set out in this section, or can create a new exception from the prohibitions in section 49. The subsection also permits the Secretary of State to make provision about the construction or application of the defence of objective justification to a charge of indirect discrimination. Subsection (4) specifies the conditions required for the Secretary of State to make any such order, including the need for consultation with appropriate bodies and the approval of both Houses of Parliament.