Education Bill

Lord Deben Excerpts

Tuesday 1st November 2011 Lords Chamber

[The Lord Bishop of Oxford]

My Lords, Amendment 85, proposed by the noble Baroness, Lady Turner, seeks to make it plain that religious criteria may not be used to employ staff in academies without religious designation or to make it obligatory to teach RE in such a school. That seems to me to be unexceptionable and I wonder why the amendment is needed. If it seeks to achieve a result that we would all agree with, it does not seem to me to be necessary. Like all independent schools, academies may use religious criteria in employment only when they are designated as a school of religious character or when a genuine occupational requirement, such as being a chaplain, is shown. Amendment 85 seems to me to be unnecessary at best and potentially confusing at worst.

In my view, Amendment 86 is more serious because it seeks to impose the genuine occupational requirement regime on to voluntary-aided schools, although strangely not on academies, as I read it. The occupational requirement is a substantially lesser power than that which currently pertains for VA schools and I believe that it is inadequate to protect these schools’ faith-based ethos. Noble Lords will appreciate that the faith-based ethos of the school is central to its character and to its performance, which are closely linked. It is particularly important that the leadership of the school is on board with the foundation of faith, because from the leadership flow the shape and character of the school and from that character flow the performance and the standards of the school. We might also note that the commitment to the religious character of the school is necessary in order to fulfil the terms of the trust, which lies behind the school operating on that particular land. That is basic trust law, so we need to keep in line with that.

I assure noble Lords that the governors’ powers of appointment are used with considerable flexibility, sensitivity and discretion. It is far from the case that all staff are from the relevant faith background. Schools want the best person—the best teacher—and the faith commitment of a teacher is only one of many criteria. Local factors are always relevant. I also think that the risks of discrimination are much exaggerated or overstated. I have been able to find hardly any evidence of discrimination in practice. Why would a teacher entirely opposed to the faith basis of a school want to teach in that school? The dual system ensures that, for teachers and other staff, there is always a choice of schools of a different character.

Amendment 86 also seeks to prevent religious reasons being used as a proxy for other kinds of discrimination. Sexual conduct is what the noble Baroness, Lady Turner, will have in mind. I am shocked at the very thought. Let me be absolutely clear: sexual orientation is not relevant and may not be taken into account in employment in a Church of England school. Sexual conduct can surely be taken into account in cases of alleged misconduct, and absolutely in the same way in relations between the opposite sex as the same sex. I therefore believe that Amendment 86 should be resisted.

Amendment 87 seeks to impose a consultation if Section 124AA is to be disapplied by the Secretary of State, thus enabling a VC converter academy to have the employment powers of a VA converter academy. We understand that the Secretary of State will require a consultation anyway as a matter of guidance or of regulation. That is surely fine. There would have to be a consultation if a voluntary-controlled school wanted to become a voluntary-aided school. However, I suggest that it would be better to leave that matter for guidance rather than for legislation, especially in the light of the requirement by the noble Baroness, Lady Turner, that the Secretary of State have regard—that strange phrase—to the consultation, because goodness knows what that will be seen to mean in later years. I believe that this amendment should also be resisted.

[Lord Deben]

My Lords, I believe that these amendments should be resisted because they are discriminatory. I was fortunate enough to be able to pay for my children’s education. I did so because I wanted my children to go to Catholic schools. I do not think that we should discriminate against poorer people who cannot make that choice. It is perfectly reasonable to choose that you do not want your child to go to a faith school, but to deny the right of people without the resources to choose a school in which the fundamentals are faith-based seems to me a retrograde action that is entirely unacceptable.

It is perfectly reasonable to have some categories of school in which this issue does not arise. These amendments seek to limit even more those categories that exist at the moment. I say to those who put them forward that there is a new kind of illiberalism, which is very determined to remove from parents what for many of us is the most important element in education: we want our children brought in the fear and love of our Lord. We should have that right whether we are rich or poor. After all, it is the church that started education in this country and it is the church that has upheld that education. It is a historic agreement between state and church that has enabled us to have a society in which secular people and religious people can live together in harmony. The increasing demand of those who want a society in which their particular—I have to say—arrogant determination that everybody shall be educated in their way is wholly contrary to the liberal society that we have created.

There used to be a very nasty phrase, “Scratch a liberal and you find a totalitarian”. I am afraid that this is increasingly true in our society. People who claim to be liberal are determined that their liberalism shall—

[Baroness Whitaker]

I am in some difficulty, because I cannot find where in this group of amendments the right to choose which school children go to is taken away, to use the noble Lord’s words, and where it is said that certain children have to be educated in their way rather than in the way the parents choose. Could he tell me which text he finds that in?

[Lord Deben]

I listened with very considerable care to how the amendments were introduced by the noble Baronesses. In both cases, the suggestion was that the kind of schools where teachers’ religious beliefs were taken into account, apart from the chaplain or the like, would be schools of which they disapproved because they felt that it was better for children to be educated in circumstances in which there was a wide range of teachers with a wide range of views. I am merely saying that I want a society in which parents can choose and do not have that dictated to them by those who think it would be better for them to have a particular kind of circumstance. I am pleading for that on the basis of discrimination. I do not wish to discriminate against the poor. I am pleading for it also on the basis of liberalism.

In a free society, people should have the choice to the widest possible degree. It is illiberal to say that a person’s belief that a faith-based school is in some way—I think that the word was used, but I will not use it myself; I shall just say “restrictive”, as it makes people unable to share in the rich variety of life. That is an unacceptable position in the sort of society that we have. Young people have a difficult enough time in any case in maintaining standards and values. They have a difficult enough time in any case upholding the faith in a society which is dedicated to its destruction, and parents and religious organisations, either Catholic or Anglican, wanting to make sure that they have the best possible opportunity, should be encouraged. These amendments make it more difficult and I therefore believe that they should not be supported.

[Lord Avebury]

My Lords, I have seldom heard a more hysterical and inaccurate speech than the one that we have just listened to from the noble Lord, Lord Deben, which is clearly based on a total misunderstanding of the amendments and of the motives of the people who tabled them. I do not think he can have heard what the noble Baroness, Lady Whitaker, said in her intervention—that Amendment 85 and the other two amendments have nothing whatever to do with the choices that parents make of the schools that their children will attend. I hope that he will think carefully about the remarks that he has made and, perhaps, hesitate on future occasions to leap in with the wild assertions that he made today.

[Lord Deben]

Will my noble friend give way as he has made a specific—

[Baroness Garden of Frognal]

I apologise to my noble friend, but under the rules of Report noble Lords may speak only once in the course of each amendment.

--- Later in debate ---

[Lord Avebury]

I had no objection to the noble Lord intervening, if that is what he was doing.

[Lord Deben]

I merely say to my noble friend that the point that I was making is that parents may wish to choose a school in which the restrictions on the choice of teachers expected under these amendments are not ones that they would wish. It is perfectly reasonable for them to choose those schools.

[Lord Avebury]

No one is suggesting that there should be any restriction on the right of parents to choose whatever school they think is best for their children. The noble Lord’s remarks are based on a total misunderstanding of the amendment and what the noble Baroness, Lady Turner, said. But perhaps I may move on to the remarks of the right reverend Prelate the Bishop of Oxford, who I thought said that these amendments were fine but unnecessary. I am hoping that he is in support of the amendments proposed by the noble Baroness, Lady Turner, because surely there may be teachers who are not entirely opposed to the faith basis of a school who belong to other religions or none but have a particular aptitude for mathematics, say, or geography, and are therefore suitable for those subjects in the school, although it has a religious ethos. He said, rightly, that the schools would want to choose persons who were best capable of teaching the non-religious subjects and that they would not wish to discriminate in making choices when appointing those persons.

I am afraid that we have made no more progress on the issues covered by the noble Baroness on religious discrimination than we did on collective worship since Committee, although, with the noble Baroness, I was grateful to the Minister for writing to us and entering into a detailed discussion with us in the interval between Committee and Report. The Minister will remember that he was handed a dossier of legal opinions, which the noble Baroness, Lady Turner, mentioned, including one commissioned by the Equality and Human Rights Commission that challenged the compatibility of the Schools Standards and Framework Act 1998 with the European Union employment directive. The focus of these opinions was Section 60(5). Looking back at the passage of this subsection through this House in 1998, I see that the original wording of the equivalent part of the Bill, then Clause 58(4), was entirely benign and unobjectionable. It provided that in a voluntary aided school of a religious character, no teacher of subjects other than religion would receive any less remuneration or be deprived of, or disqualified for, any promotion or other advantage by reason of his religious opinions or of his attending religious worship.

The amendments to that clause, to which we are now objecting, turned the original words on their head by saying that preference may be given, in connection with the appointment, remuneration or promotion of teachers at a voluntary aided school which has a religious character, to persons whose religious opinions are in accordance with the tenets of the religion or religious denomination of the school. Those amendments were drafted following a delegation to the Home Secretary led by the then right reverend Prelate the Bishop of Ripon and Leeds, who acknowledged in the House that the amendments had been,

“prepared in consultation with the Churches”.—[Official Report, 4/6/98; col. 576.]

He understandably expressed his delight that the churches were “completely satisfied” with the amendments then inserted. No other amendments were made by any other noble Lord.

Those proposals were made by the Church of England and accepted by the Government at the same time as the employment directive was being drafted in Europe to combat precisely that sort of unfair discrimination. They are the basis of the formal complaint lodged by the National Secular Society earlier this year to the European Commission, which I understand is still under consideration. If Section 60(5) is left alone, they may yet be the subject of litigation by teachers who consider that they have been treated less favourably than others in terms of their appointment, remuneration or promotion to posts involving the teaching of history, English or mathematics, for example, because they do not subscribe to the particular religion or denomination which gives the school its religious character. I suppose that the same would apply not only to Christian but also to Muslim schools, where a teacher might be discriminated against in the same way because he belongs to the wrong brand of Islam.

The then Government compounded the offence of undermining the directive by insisting, at the 11th hour, as a condition of their acceptance of the directive, that previous legislation, including in particular the School Standards and Framework Act, should be regarded as being in effect exempt from the new directive. The Government were so desperate for unanimous agreement, as was required, that they were able to force the Council of Ministers to accept their demands.

The noble Baroness, Lady Turner, has, on the grounds of pragmatism, gone only a modest way today to reverse these discriminatory 1998 amendments. I therefore appeal to the Government to recognise that these privileges granted to religious bodies create, as do all privileges, victims—those who would otherwise not have been disadvantaged. The innocent and undeserving victims of Section 60(5), which the noble Baroness seeks to replace in her Amendment 86, are teachers—there may be thousands of them—who are not of the faith of the publicly funded school or academy where they teach or apply to teach subjects other than religious education.