Education Bill

Lord Avebury Excerpts

Wednesday 14th September 2011 Grand Committee

[Baroness Turner of Camden]

All I can say is that the legal advice I had on the text before us is that it would be better to say in the Act that a head teacher did not have to be a reserved teacher. But if the right reverend Prelate says that that is not so, I am quite happy about that.

Amendment 130 sets out the arrangements in regard to voluntary aided schools, but an important piece has been put into the bottom of this text. Proposed subsection (5A) in Amendment 130 states that,

“nothing in this section shall be taken to permit discrimination which would be prohibited by the Equality Act 2010 other than in relation to religion or belief”.

I understand that that wording is in compliance with the European text to which I earlier referred.

Most of the other amendments deal with what we are trying to achieve, which is a situation in which the arrangements that have been introduced by the previous Government in relation to academies are applied throughout the educational setup. In other words, there should be arrangements for people who are regarded as reserved teachers, but the rest of the teaching population should not be restricted in any way, and they may or may not be religious or may have no belief at all. I am asking the Government to consider seriously what is proposed here.

The amendments, as I understand it, do not interfere with the rights of religiously designated schools. All they do is ensure that the basic non-discrimination law protects teachers. They should be appointed on the basis of their ability to teach their subject. Their religion or non-religion should be a private matter, unless of course they are specifically appointed because of their ability to teach RE and deal with religious instruction. That is met by the proposed amendments, which are in line with the EU directive. I had very detailed legal opinion here, which is in full support of what I have been saying. As I said earlier, the intention is to give protection to people who have religion which is not the same as the designated one, or have no belief at all. I hope therefore that the Government will consider seriously what has been said because, if the amendments are not regarded as suitable but they accept the concept, they can come back with different wording. I beg to move.

[Lord Avebury]

My Lords, I begin by declaring an interest as an honorary associate of the National Secular Society, which has been instrumental in securing that these amendments are before your Lordships today. There have been herculean efforts to get the matter considered, first, by the Equality and Human Rights Commission and now by your Lordships in Committee. The noble Baroness, Lady Turner, has made reference to the Council’s opinion, dated 24 March, which had been sought by the Equality and Human Rights Commission as a result of persistent representations by the National Secular Society about the unlawfulness of certain provisions in Section 60 of the School Standards and Framework Act 1998, and of amendments to that and other sections of the 1998 Act which are included in this Bill.

Yesterday, I alerted the Minister’s office to my intention of following the noble Baroness in referring to the 90-paragraph opinion by Mr David Wolfe of Matrix Chambers—he a distinguished lawyer in one of the leading chambers in the whole of England—which was deposited in the Library of your Lordships’ House following a Question for Written Answer dated 11 August 2011, col. WA 433.

If I were to go through the whole list of alleged violations and potential violations of the European directive 2000/78/EC, which were identified by counsel, we should be here all night. However, it might help if I begin by explaining that Articles 4(1) and 4(2) of the directive provide a partial derogation from Article 2 which says that direct or indirect discrimination on grounds of religion or belief is proscribed in the field of employment. The derogation, which must be narrowly construed, provides effectively that a difference in treatment on grounds of religion or belief shall not constitute discrimination where the characteristic is a genuine and determining occupational requirement, provided that it is proportionate. Whether that derogation applies to reserved posts in the present context is arguable but in counsel's opinion it cannot go beyond that.

To pick up on just a few points of detail, counsel says that SSFA,

“section 60(5) (and by parity also section 124A) falls foul of the Directive”,

for which he gives several different reasons. This section applies to all voluntary-aided schools, religiously designated academies and to up to a fifth of teacher posts in voluntary-controlled schools. He expresses concern about the,

“(potentially flawed) assumption that all voluntary aided schools fall within Article 4(2) for all relevant purposes”.

If this assumption is wrong they would not be able discriminate against all staff on religious grounds, as the law currently allows in voluntary-aided schools.

This concern is repeated about religiously-designated new academies or free schools and independent schools with a religious character. If they do not fall within Article 4(2), which as I have said must be narrowly construed, it is illegal for them to discriminate in the way the law at present purports to allow, and I dare say that this could be the subject of unnecessary litigation.

The opinion supports the proposal that Section 59 of the SSFA protections of staff in community schools should be continued when they convert to academies so that teachers cannot be required to teach RE, and of course staff should not be required to worship or believe. In the Minister’s Written Answer to me of 15 March, he said that the Government were satisfied that their approach was compatible with the directive, but at that time he had not seen this counsel’s opinion. When the NSS had a meeting with Minister Nick Gibb, some time in June, he appeared to be sympathetic to the amendment which counsel suggests.

There is support for conditions to be attached to the exercise of the Secretary of State’s discretionary power in Clause 58 and Section 124AA(2) of the SSFA to convert VC schools to voluntary-aided academies so that they have power to discriminate against 100 per cent of staff rather than a maximum of 20 per cent.

Having reviewed the several alleged violations and potential violations of the directive which he shows as contravening the limits on derogation from Article 2, counsel concludes that,

“the problem discussed above is far greater than even the NSS has contemplated so far. In particular, it would mean that schools which did not meet the Article 4(2) requirements would nonetheless be gaining a right to discriminate which Article 4(2) does not permit”.

He goes on to note that although he had not been asked to deal with Human Rights Act matters,

“there may be significant Article 14 and Article 9 issues particularly when it comes to the position in voluntary aided schools (in relation to section 60(5)) and in Academies falling within section 124A (after the introduction of section 124AA, namely the ex voluntary aided schools) which are all clearly public authorities”.

I just remind your Lordships that Article 14 ECHR prohibits discrimination on grounds of religion as well as other characteristics, and Article 9 confers the right of freedom of religion or belief. These are extremely serious matters. Given that the EHRC, as the Government’s statutory equality watchdog, had this hugely damming advice about legislation and proposed legislation being unlawful, one would have expected it to warn the Government immediately and to call for corrective amendments to be brought forward. However, predictably, it sat on counsel's opinion for nearly three months. It was on the desk of the chair, Trevor Phillips, while the Bill went through another place.

--- Later in debate ---

[The Lord Bishop of Hereford]

They are precisely what I want to address, as well as the debate that has just happened. I was here on Monday, when it seemed to me that the debates reflected a common purpose. Although they came from slightly different slants and slightly different views, they were not very far away. It is difficult not to regard the speech by the noble Lord, Lord Avebury, in a rather different way. Indeed, it is difficult for me to sit here without regarding it, perhaps mistakenly, as more akin to a full-frontal assault on the dual system as we have it.

I observe that the noble Lord began by saying that he is a member of the National Secular Society.

[Lord Avebury]

I said I was an honorary associate of the National Secular Society.

--- Later in debate ---

[Lord Elton]

The right reverend Prelate has not made the request but I make the suggestion that it might expedite things were he to be engaged in conversations between the Minister and the noble Lord, Lord Avebury, with suitable support.

[Lord Avebury]

Perhaps I should answer the criticisms which have been made about my contribution to this debate by the right reverend Prelate. He seemed to be suggesting that there was something improper in my raising these amendments and talking to them this afternoon or in the manner in which I raised them, which he contrasted with the proceedings that we enjoyed on Monday. He was suggesting that because I was an honorary associate of the National Secular Society, I was in some way trying to undermine the dual system, when all I am trying to do is to ensure that the trusts which administer faith schools do so in conformity with both European directives and with the European Human Rights Act. I think that the Minister's proposal is an excellent one, but as there is a fundamental dispute between us on whether these provisions are compatible with European law and with the Human Rights Act, we should sit down with our legal advisers and the Bill team to try to resolve them as best we can. I suggest that that is the best way in which we can move forward, if my noble friend Lady Turner agrees.

[The Lord Bishop of Hereford]

My Lords, may I just say that in no way was I suggesting—indeed, in no way was I saying—that any of the comments were improper. I was rather pointing out that they were not neutral. Like the noble Lord, I would be very happy for the lawyers to be able to sit down, as has been suggested by the Minister.