Education Bill

Lord Touhig Excerpts

Tuesday 1st November 2011 Lords Chamber

[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.

[Lord Touhig]

My Lords, I have some concerns about these amendments, in particular Amendment 86 in the name of my noble friend Lady Turner of Camden and Amendment 88 in the name of my noble friend Lady Massey of Darwen. Amendment 86 would dilute the existing legislative protection which allows Catholic schools to give priority to Catholics when recruiting to any post, without the need to provide justification for doing so. That has been a long established practice and it is essential that such preference is given to ensure that the Catholic ethos, which is the whole basis of having a Catholic school, is allowed to continue and to be maintained and developed. I suggest to my noble friend that the proposed subsection (5A) in her Amendment 86 is unnecessary since schools with a religious character are already obliged to comply with the Equality Act 2010, which includes appropriate exemptions for such schools.

Amendment 88 in the name of my noble friend Lady Massey of Darwen relates to voluntary controlled schools only. There are no voluntary controlled schools in the Catholic sector but this amendment would affect Church of England voluntary controlled schools which convert to academy status. These schools, which currently admit only a certain proportion of children of faith, would be prevented from increasing that quota except in specific circumstances. My fear is that if my noble friend's amendment was incorporated into the Bill it would pave the way for imposing quotas on all schools of a religious character. I do not think that is reasonable, right or just. From the point of view of the Catholic sector, this would certainly limit the ability of Catholic parents to send their children to Catholic schools. For that reason, I could not support my noble friend’s amendment.

[Baroness Garden of Frognal]

My Lords, this debate allows us to return to the topic of faith schooling. As we have made clear in previous debates, the Government believe strongly in the role of faith schools in this country. As we have heard from my noble friend Lord Deben, faith schools existed before there was a state education system and have contributed a great deal to its development. As the right reverend Prelate the Bishop of Oxford set out, it is vital to faith schools that they are able to maintain their particular religious ethos and their ability to deliver the form of education which they have historically provided, and which parents want. We think the long-standing arrangements that provide for this are working well. The Government are therefore seeking to ensure that faith schools which seek academy status continue to have the freedoms they have previously enjoyed, subject to the same protections.

Turning first to the issue of faith staffing, I am aware that the noble Baroness, Lady Turner of Camden, and indeed my noble friend Lord Avebury continue to have concerns with aspects of Clause 60, which seeks to replicate the staffing regime in voluntary controlled schools on their conversion to academy status. We are grateful for the discussions which the noble Baroness had with my noble friend the Minister on these issues and hope that the detailed letter sent to her and to my noble friend Lord Avebury on 5 October provided some reassurance on this matter. My noble friend referred to that letter in the course of his comments. We agree with many of the sentiments expressed by noble Lords today. The issues are really therefore more technical ones, about how these sentiments can best be given effect in law.

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89ZZDAA: After Clause 71, Line 118, leave out from beginning to “may” in line 122 and insert—
“(3A) A statutory instrument which contains (alone or with other provision) an order under section 532B(1) (direct payments: pilot schemes)”

[Lord Touhig]

My Lords, by introducing these new clauses into the Bill the Government will allow local councils to test the use of direct payments for meeting special educational needs. I certainly welcome and support the greater personalisation of educational provision for young people as does the noble Lord, Lord Low, and the noble Lord, Lord Rix, who I know had some very fruitful and useful meetings with the Minister and his officials. Both noble Lords wished to be here this evening, but are unavoidably unable to be with us; they have asked me to mention to the Minister how much they appreciate the courtesy and the assistance he and his officials have given.

Direct payments have played an important role in allowing disabled people to have choice and control over the services they receive. Nevertheless, there are some significant risks in the use of direct payments in education, particularly in schools. The Department for Education has been working closely with the Special Education Consortium to mitigate these risks, and I know that the Special Education Consortium has certainly welcomed that collaboration and consideration. The matters they are still concerned about include ensuring that the pilot schemes must be set up by an order by the Secretary of State. Establishing the details of the pilot scheme within the legislative framework is a necessary safeguard if these significant changes to the way education is delivered are to be properly scrutinised by Parliament.

The order which establishes the pilots was originally to be the subject of a negative resolution. The noble Lord, Lord Low, and I tabled amendments to ensure these important changes were properly debated through an affirmative resolution procedure. We have withdrawn these amendments because the government amendment means the pilot schemes will be subject to the affirmative resolution procedure as the Minister told us this evening. This is very welcome, and we are grateful to the Government, particularly as the initial amendment on direct payments in education was tabled at such a late stage, as the noble Lord has explained.

The noble Lord, Lord Low, and I also tabled further amendments concerning the details of the scheme. However, as the order will now be subject to the affirmative resolution procedure, we believe these concerns might be more usefully spelt out and discussed in detail during that debate. These too have been withdrawn. Nevertheless, we would still like to put on record some of the issues we hope will be addressed by the order.

We need to know how to measure the reaction of education providers to individuals holding direct payments for special educational provision. This may interact with school and college finances and employment policies, and will affect the ability of schools to plan for all children with special educational needs. Perhaps the Minister will say what steps will be taken to ensure that the viability of specialist SEN services is not threatened where direct payments are taking money out of the system. We also need to know how decisions about the amount of direct payments will be made, particularly if statements are poorly written—there are examples of that as I am sure we all know—and how parents can appeal those poorly written statements. Finally, we need to know whether there will be a thorough evaluation of direct payments in education in particular before Parliament is asked to renew the order in two years’ time.

The noble Lords, Lord Low and Lord Rix, and I welcome the Government’s new position, but we urge the Minister to make debating this order a priority in the parliamentary timetable so that these proposals, which are rightly being tested, can be given the fullest opportunity to show their worth. Great progress has been made, and I have been asked by my colleagues—who are not able to be with us this evening—to say to the Minister in particular how much they and I and especially the Special Education Consortium have appreciated the fact that he has genuinely worked with us to try to resolve our concerns. This seems to be a better way to make law.

[Lord Lingfield]

My Lords, I particularly welcome this new clause because one of the most important items in it allows a continuation of funding post-16 and 18 to the age of 25. Many parents are dismayed that their “special education offspring”—as one put it to me—fall off the end of a funding cliff when they reach early adulthood, and this pilot will help us see much more accurately how this can be done. I hope, however, with the noble Lord, Lord Touhig, that the Government will set out very clearly how these experiments are to be monitored, so that best practice may be observed and reported. It is also important for the Government to make clear to parents what they should do if they want to challenge the amount of payments, and contend that the health or social service elements are too little. My view is that the clauses are necessarily restrictive, in that as I understand it parents frequently agree part-funding with local authorities, but are not to be allowed to supplement the amount of the direct payment to purchase the provision set out in a beneficiary statement. Perhaps the Minister would look at this again. However, I welcome this step in the right direction—albeit it is a small, pilot step—to alleviate the great problems that there are in the special needs sector. I look forward eventually to seeing the careful evaluation when it is published.