Education Bill

Baroness Turner of Camden Excerpts

Wednesday 14th September 2011 Grand Committee

Moved by

[Baroness Turner of Camden]

127: Clause 60, page 48, line 28, at end insert—
“( ) In section 59(1) of SSFA 1998 (religious opinions etc. of staff), after paragraph (b) insert—
“(c) an Academy that is not religiously designated”.”

--- Later in debate ---

[Baroness Turner of Camden]

My Lords, I will speak to the amendments in this group in my name. They seem complicated, which is because reference needs to be made to previous legislation. However, they have been drafted with a view to protecting teachers and ensuring that they have legislative cover in line with the European employment directive and our equality law.

When the previous Government introduced academies, they stipulated that teachers did not have to be adherents to a stated religion unless they were involved in teaching RE or religious instruction. The concept was introduced of reserved teachers, selected for their fitness to give religious education in line with the precepts of the designated religion. However, they did not constitute the majority of the staff—they had to be no more than one-fifth of the staff—and other teachers were in no way required to adhere to the religion or its precepts. However, the opinions of several legal and academic lawyers contend that the Bill does not provide adequate protection for non-religious teachers. They say that it falls far short of the standards required by the European directive. The aim of my amendments is to ensure that this protection is available.

I turn to the first of my amendments. Amendment 127 —and Section 59 of the SSFA to which it refers—protects non-religious staff in community schools from discrimination on the grounds of their religion or lack of it. This includes not being required to take religious education or to conduct collective worship. I commend the Government for transferring to the Bill existing protections for non-religious teachers in voluntary controlled schools that are transferring to academies, but unfortunately this has not been carried through to teachers in community schools. The amendment does this. I do not accept that it is reasonable for teachers, some of whom may be of many decades' standing, to lose their protection for not teaching RE. This regression is in contravention of the employment directive.

Amendment 128 also deals with aspects of previous legislation, in particular Section 60(5) of the SSFA. For a long while, this section has been regarded as draconian and the amendment states that it should be omitted. Among other things, Section 60(5) states that,

“preference may be given, in connection with the appointment, remuneration or promotion of teachers at the school, to persons … whose religious opinions are in accordance with the tenets of the religion or religious denomination specified in relation to the school … or … who attend religious worship in accordance with those tenets, or … who give, or are willing to give, religious education at the school … and … regard may be had, in connection with the termination of the employment of any teacher at the school, to any conduct on his part which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination so specified”.

That is pretty draconian and a number of lawyers who were consulted believed it to be a bit over the top. The suggestion of the amendment is that it should not be applied.

There is also the issue of head teachers. It has been suggested that the head teacher of a school should be a reserved teacher. Amendment 129 states:

“The head teacher of such a school shall not, while holding the post of head teacher of the school, be a reserved teacher”.

That seems reasonable, because the head teacher is the head of a staff only one-fifth of whom are necessarily reserved teachers. Therefore, it is reasonable that the head teacher should not have to be a reserved teacher. If this were insisted upon, it would mean that it would be somewhat of a problem for teachers who had career aspirations, because they might find it difficult to become head teachers in a situation where they were required to be a reserved teacher.

Amendment 130 sets out a reasonable arrangement.

[The Lord Bishop of Hereford]

It is my understanding that the head teacher does not have to be a reserved teacher, but that they may be. I thought that the noble Baroness said that the head teacher had to be a reserved teacher. My understanding is that that is not correct.

[Baroness Turner of Camden]

I am glad to hear that.

[The Lord Bishop of Hereford]

But others will know better.

[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]

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.

[Baroness Turner of Camden]

I would like to reply to the debate, which has been very interesting, and to make very clear that I also am a secularist. I have never disguised that fact. However, like most secularists, I also believe in equality. We also believe in freedom of religion. All we object to is that beliefs that we and other people do not share are simply imposed on us whether we like them or not. That is really what a lot of this is about. These amendments seek to protect the position of people who do not share a religious point of view but who nevertheless may be very good teachers and are appointed to teach their subject because they have training in their subject and are good teachers. However, they may not be participants in the religion that is designated to run a particular school.

Of course, we also support what the Government tried to do originally with academies. In fact, what we are trying to do in this Bill is to transfer that system throughout the education system. In the case of academies the Government established that there should be reserved teachers. What they could and could not do was precisely defined; and if teachers were not reserved, no pressure could be exerted on them to join a religion or be bound by any of its precepts. The advice that we have had, which was clear, was that unless we amended it in some way, there was a danger that the Bill now before us would not be regarded as complying with the EU directive. It was for that reason that we put down our series of amendments.

I am grateful for the Minister’s response because I understand that he is going to look at some of these things again. We are happy to hear what he has to say. Of course, we are in Committee; we still have Report to go through, and we will take careful note of what has been said. I thank my noble friend Lord Peston for his support. In reply to his comment about who is breaking the law, as far as we can see, unless this Bill is amended, the green light will be given to people on the floor, so to speak, in education to apply what they want to apply because the law that we will then have will not prevent them doing so. If people objected, the only thing to do would be to go to Europe with it, and that is not a good idea. That is the situation and that is one of the reasons we wanted amendments before the Bill leaves this House.

In the mean time, I thank the Minister for what he has said. I thank the noble Lord, Lord Avebury, and other noble Lords for their comments. I beg leave to withdraw the amendment.

Amendment 127 withdrawn.