Marriage (Same Sex Couples) Bill

Lord Dear Excerpts

Monday 8th July 2013 Lords Chamber

Moved by

[Lord Dear]

46: After Clause 7, insert the following new Clause—
“Protection of teachers
(1) For the avoidance of doubt, nothing under or in consequence of this Act shall—
(a) affect the right of teachers to express their personal views about marriage in an appropriate way, or(b) mean that any teacher will be under any obligation to endorse a particular view of marriage.(2) Subsection (1) does not apply to a school designated as having a religious character by an order made by the Secretary of State under section 69(3) of the School Standards and Framework Act 1998.”

[Lord Dear]

My Lords, in moving the amendment, which seeks to protect the rights to conscientious exclusion for schoolteachers, I draw attention to the fact that teachers who have a conscientious objection to same-sex marriage are prevented from endorsing same-sex marriage, just as they are not required to give religious education or attend religious worship.

A ComRes poll conducted in January this year found that a quarter, 26%, of teachers said that they would either probably refuse to teach children about the importance of same-sex marriage or do so only reluctantly. More than half, 56%, were concerned that colleagues who expressed support for traditional marriage could harm their career prospects. The Government’s response to concerns expressed in this House about teachers’ concerns in this regard has so far been somewhat less than enthusiastic, despite being encouraged by the Joint Committee on Human Rights to,

“to consider whether specific protections are required for faith schools and for individual teachers who hold a religious belief about same sex marriage”.

The Minister, the noble Baroness, Lady Stowell of Beeston, said in Committee that,

“no teacher is under any obligation to endorse a particular view of marriage or would be in the future as a result of the Bill. Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]

Amendment 46 simply seeks to place those promises in the Bill.

It is vital that teachers know that their freedom is protected. They are particularly concerned that they may be asked by senior staff or head teachers to promote same-sex marriage against their conscience. As Mr John Bowers QC, a leading counsel in this field of law, has indicated, a refusal to obey a lawful instruction could, in his opinion, be grounds for dismissal of that member of staff.

In Committee, I referred to a current case, the circumstances of which were set out briefly in Hansard on 19 June at column 336, in which a long-serving teacher at a girls’ school in south London is facing disciplinary proceedings for refusing to teach a presentation which stated, in effect, that any disagreement with same-sex marriage is homophobia. The Government have said:

“There is a significant difference between expecting a teacher to explain something and expecting them to endorse it”.—[Official Report, 19/6/13; col. 351.]

I ask Members of your Lordships’ House to put themselves into the position where a classroom of 13 year-olds are being taught about same-sex marriage and ask whether the line can be drawn between endorsement on the one hand and a pure explanation on the other. It is easy to imagine that class of 13 year-olds pressing their teacher to give his or her personal opinion.

That is particularly the case when the issue of same-sex marriage arises in contexts which are outside sex education. For example, should a primary school teacher with a conscientious objection to same-sex marriage be expected a read a book such as King and King, which is well known and endorsed and published by Stonewall, about two princes who get married? The teacher could well consider such a book to be an endorsement of same-sex marriage. She should have the freedom to decline to read the book without suffering detriment, a freedom that has already been denied to one such teacher who stopped reading a book about two male penguins raising a chick because she felt it conflicted with her beliefs. She was subsequently restricted from having her own class.

The amendment does not apply to schools designated as having a religious character in order to ensure respect for the values that underpin those schools. Schools with a religious ethos may well want to endorse the particular view of marriage upheld by the tenets of that relevant religion and should be left free to do so.

A further related issue is how the Bill, once enacted, will interact with sex education. Under the Education Act 1996, pupils are taught that the importance of marriage and family life should be encouraged. That is set down in Section 403. It applies to all state schools, both with and without a religious character. Church schools have a special protection but there are concerns for teachers and pupils across the state system. Clause 11 of the Bill redefines marriage for the purposes of all legislation, as we know, so teaching about the importance of same-sex marriage will be inherent in Section 403. As John Bowers QC stated in a legal opinion on Section 403 that the section,

“provides no exception for conscientious beliefs. Unless this were amended I envisage that there will be a duty on the teacher to promote marriage as newly defined”.

He went on to say:

“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.

He added:

“The stark position in my view is that a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive”.

He goes on:

“Section 403(1A) of the Education Act would also in my view provide a legitimate basis for schools or LEAs which wish to promote a particular vision of equality to require all teachers to teach materials which endorse same sex marriage. The position of teachers who manifest a conscientious objection to doing so is not enviable”.

--- Later in debate ---

[Baroness Stowell of Beeston]

I am grateful to the noble Lord, Lord Dear, for moving Amendment 46. This amendment obviously reflects the concerns he expressed about the potential effect of the Bill on teachers’ ability to express personal views about marriage, their employment rights and how they are expected to approach this topic in class. Noble Lords who have followed the passage of the Bill will know that these issues have been discussed at length in Committee, not only in this House but also in another place.

Before I respond to those three separate issues, I make the point that the way in which some contributions have been made to the debate this evening suggests that we are starting to confuse these three issues. I think it is important to see them as separate points. I start by addressing the point about freedom of expression generally. On this point I can be absolutely clear in response to my noble friend Baroness Barker, who asked about whether anything had changed in this Bill. Teachers are and will continue to be free to express a personal view about marriage or any other matter, provided they do so in a balanced and sensitive way. There is nothing in the Bill which will restrict anyone’s right to express the view that marriage should be between a man and a woman.

Amendment 46, put forward by the noble Lord, Lord Dear, aims to offer additional protections in this regard. This is unnecessary for exactly the same reasons that I spelled out in response to debates earlier this evening. I will not repeat them, but I just signpost for noble Lords Article 9 of the European Convention on Human Rights and the Equality Act 2010. Everything I have said previously applies here. People, including teachers, have the right to believe whatever they wish to believe, and nothing about this is changed.

The noble Lord, Lord Dear, referred to the specific case of a teacher whom he said had been told that it is homophobic to disagree with the belief that same-sex couples should be able to marry. Obviously I do not know the details of that case, but I can be absolutely clear, because of everything that is in the Bill and what we are legislating to bring about, that it is absolutely legitimate to have a belief that marriage should only be between a man and a woman. I can say categorically that, if somebody holds that belief, it is not homophobic.

I move on to how the Bill affects teachers’ employment rights. Like any other employee, teachers are protected from being discriminated against or harassed because of their religion or belief. Discriminating against someone because they hold or express a belief about marriage is unlawful under the Equality Act. I add that the noble Lord’s amendment risks casting doubt on that existing protection by discriminating against a teacher applying for a job in a non-faith school, because his or her belief about marriage would already be unlawful under the Equality Act. The point, which I have made in other debates, is that, if we start being specific on the face of the Bill about such things, we dilute the protections to which teachers, as indeed any other employee, have the right, and we put them at risk.

Subsection (2) of the noble Lord’s amendment would also cast doubt on the ability of teachers in faith schools who are not covered by this provision to express their personal views about marriage in an appropriate way. I am sure that he would agree that such an outcome would be undesirable, and harmful to the ability of teachers in faith schools to present their own views in an appropriate manner and in the broader context of that school’s faith ethos.

The noble Lord, Lord Curry of Kirkharle, referred to the Government’s response to the Joint Committee on Human Rights, and the point it makes about considering an amendment which relates directly to faith schools. I point out to the noble Lord that that is very different to the amendments we are discussing right now. That particular amendment, which the Government refer to in their response to the Joint Committee on Human Rights, is a very specific one, which we will debate on Wednesday. It is not this amendment.

Then we move on to the issue of the requirements and demands on teachers in the classroom and the content of their lessons. First, I must remind the House again that, although I know that this is not just related specifically to sex and relationship education, none the less sex and relationship education is not compulsory for primary schools. It is compulsory only for secondary schools. When the noble Lord referred to particular materials and the effect they may have on younger children, there is no demand or requirement on primary schools to teach sex and relationship education.

No teacher is under any obligation to endorse a particular view of marriage, or would be as a result of the Bill once it is in force. The noble Lord, Lord Dear, quoted me from earlier stages of the Bill. I will repeat myself briefly again because I am afraid there is no other way for me to make this point. I said:

“There is a significant difference between expecting a teacher to explain something and expecting them to endorse it”.

Those are two separate things, and by expecting a teacher to explain something, there is no requirement for them to say that what is the law of the land is something they personally support. They are at liberty to have their own personal views. As I said—and as the noble Baroness, Lady Farrington, made clear in her contribution in Committee and as my noble friend Lord Deben said in his contribution tonight—teachers,

“are required to explain the world around them in a way that is appropriate to the age and level of understanding of their pupils. This includes explaining some things which may be controversial and with which they may not necessarily agree”—

such as divorce and contraception. Teachers,

“are already very experienced in dealing with such issues and do so admirably and professionally”.—[Official Report, 19/6/13; col. 351.]

We would expect them to be able to handle this kind of change in the law as they already have done in the past with changes, for instance, that allowed civil partnerships.

The noble Lord, Lord Dear, referred to some specific material. I make the point to him that the Government do not specify the materials that any school should use to support teaching. The main point I make is that schools are required to maintain a policy on their approach to sex and relationship education and to make that available to parents because it is important that they consult with parents about their approach to education in this context.

The noble Lord, Lord Dear, and my noble friend Lord Eden asked about guidance. The Equality and Human Rights Commission guidance that we have talked about in the context of other debates includes technical guidance for schools in England dealing with the areas of the Equality Act 2010 which deal with the provision of education in schools. That will be reviewed as part of the work that the EHRC has committed to do to review its guidance in the context of this Bill when enacted. We are working with the EHRC to agree the plans and timetable for this work.

I understand the concerns behind the noble Lord’s amendment and the strength of his feeling in this area. I can only reassure him as clearly as I can that the protections are there for teachers in the context of their own employment rights, their own personal beliefs and their ability to express them, and also the requirement for them to teach the law of the land: they are under no obligation to promote or endorse anything that they do not agree with. As we have said at earlier stages in the passage of the Bill, to achieve the kind of tolerance, courtesy and generosity that we all talk about as being so important, it is incumbent upon teachers to be able to explain very clearly that there are many types of families and that same-sex couples will be able to marry in future. We want our children to be able to learn about the whole difference of views that there are in this country so that they can themselves ensure that we have the kind of society that we all feel strongly and passionately about. I hope that on that basis, the noble Lord feels able to withdraw his amendment. If he decides to press it to a Division, I will of course be voting not-Content.

[Lord Dear]

My Lords, first, I thank the Members of your Lordships' House who have spoken in favour of the amendment. I must say that I am a little confused by the statements made by the Minister.

I beg your Lordships’ indulgence to read very quickly what the amendment sets out. It states that,

“nothing under or in consequence of this Act shall … affect the right of teachers to express their personal views about marriage … or … mean that any teacher will be under any obligation to endorse a particular view of marriage”.

That sets out exactly what the Minister said in Committee. She also said:

“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]

That is fine, but 40,000 of them—more than 10% in the ComRes poll, when extrapolated, means 40,000 teachers in this country—have said that they would probably refuse to teach children about same-sex marriage, and 56% have said that they fear that this will lead to teachers being disciplined if they find themselves in that position.

I also beg the indulgence of the House in drawing attention to the fact that I have quoted extensively from John Bowers QC, leading counsel. I repeat:

“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.

That is from leading counsel eminent in this field. His view has not been challenged by either of the noble Lords, Lord Lester of Herne Hill or Lord Pannick, so I take it—

[Lord Pannick]

I made a speech in Committee. I have not repeated the points I made in Committee because I did not think that it would help the House.

[Lord Dear]

I am grateful for that.

The fact is that there is a division of opinion between leading counsel—the noble Lord, Lord Pannick, on the one hand and John Bowers QC on the other.

[Baroness Farrington of Ribbleton]

My Lords, I have not repeated any of the comments that I made in Committee, but I am concerned whether leading counsel was asked whether teachers would be against endorsing same-sex marriage, because that has not been the tenor of any of the contributions, including those from the Minister. We are not talking about endorsement, we are talking about teaching the facts. I have been in politics a long time, and I have to tell the noble Lord, Lord Dear, that I know how to phrase a question to get the answer that I want.

[Lord Dear]

With the greatest of respect, I am not too sure what that point is set out to achieve.

The amendment states in paragraph (a) that nothing affects,

“the right of teachers to express their personal views about marriage in an appropriate way”.

That means that, if the amendment were carried, teachers can say what they like. The noble Lord, Lord Framlingham, made very much the same point: teachers, when pressed, can say “I do” or “I do not” endorse it under that protection. Under the clause, if teachers say, “I do not agree with it”, according to the opinion by John Bowers QC and others, they lay themselves open to disciplinary action or disadvantage. He continues:

“The stark position in my view is that a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive”.

I am not going to weary the House by speaking any longer. However, if one believes the ComRes poll, 10% of teachers, which if extrapolated is 40,000 teachers in this country, are deeply concerned about this and have said that they will either refuse to teach it or find to do so abhorrent—that is my word, not theirs. It seems that there is so much doubt in that 10% of the teaching staff that we need to cover this. All that we are asking is simply to take the words that the Minister expressed on 19 June:

“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]

At the moment, it seems to John Bowers QC and others that if they express their own personal views on this, they are open to discipline and action. I therefore beg leave to seek the opinion of the House.

Amendments 47 and 48, as amendments to Amendment 46, not moved.