Statutory provisions

Amendment proposed: 88, in schedule 22, page 233, line 42, at end insert—

‘( ) a college of further education within the meaning of section 36 of the Further and Higher Education (Scotland) Act 1992;

( ) a university in Scotland;’.—(The Solicitor-General.)

This amendment would ensure that the exception to Part 5 in paragraph 3(1) of Schedule 22 will apply to institutions providing further and higher education in Scotland and that an order may be made under paragraph 3(5) in respect of such institutions.

I would be grateful if the Solicitor-General gave a further explanation of the implications of the amendment. It might be obvious, but given that we will be debating another part of the schedule, it would be useful.

We missed out a bit about further education and higher education provision in Scotland, by failing to make reference to the appropriate statute. We have added that.

Amendment 88 agreed to.

I beg to move amendment 255, in schedule 22, page 234, line 4, leave out sub-sub-paragraphs (a) and (b).

With this it will be convenient to discuss the following: amendment 256, in schedule 22, page 234, line 10, at end insert ‘except in relation to academy schools’.

Amendment 257, in schedule 27, page 247, line 18, at end insert—

‘School Standards and Framework Act 1998

Section 58(6) and (7). Section 60(4) and (5).’.

These sections of the School Standards and Frameworks Act relate to paragraph 4 of Schedule 22.

The amendments are all of a type. Amendment 257 is consequential to amendment 255, and amendment 256 is also consequential to make it clear that all maintained schools, including academy schools, should be dealt with in this way. The amendments seek to probe the Government’s understanding of the  extent to which sections 58 to 60 of the School Standards and Framework Act 1998 comply with article 4(2) of the relevant Council framework directive, are an interpretation of it, or were designed to go further than it in some way. They seek clarification that article 4(2) is not the ultimate restriction on the extent of the powers available to schools, particularly faith schools, under those sections.

We are dealing with the potential for conflict between the rights secured under the directive—which I believe the Government must have regard to—and either what is available to schools under sections 58 to 60 of the School Standards and Framework Act, or what schools believe is available to them, which might go beyond what is actually available. I understand that there has been some correspondence.

I am slightly troubled that the hon. Gentleman raises in this debate the question of compliance regarding a provision in the School Standards and Framework Act that has absolutely no connection with the Bill. Whatever the compliance of that Act with the directive, it will not be changed by this Bill. Where is the relevance?

I will go on to explain the relevance, but to briefly answer that question, in the Bill we are dealing with the rights of people to not be discriminated against on one of the protected grounds. Section 60 of the School Standards and Framework Act arguably gives state schools the right to dismiss someone on the basis of their belief, their attendance at worship or their conduct. It is alleged by faith schools that conduct that is not consistent with those tenets, including private conduct related to sexual orientation, comes within sections 58 to 60. The Solicitor-General will know that when hon. Members debated the 2003 employment regulations, which are reproduced in the Bill, there was a long debate about the paragraph in those regulations that said that, notwithstanding the regulations, sections 58 to 60 of the Schools Standards and Framework Act 1998 will apply. Therefore, this is very much a live issue; that is what the provisions say. I shall explain what I mean.

It is important to look at article 4(2) of the Council framework directive, because everything depends on whether it is legitimate for the schedule to say that sections 58 to 60 are acceptable and can stand even though the Bill is supposed to implement the directive. It is important to see what article 4(2) says, because it is critical to this debate. It states:

“Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where”, and it goes on to explain where.

I will accept that voluntary aided schools certainly are

“public or private organisations the ethos of which is based on religion or belief”, and I will accept that the religious discrimination that is permitted in those schools predated, by statute of 1998, the adoption of the directive, and that there were practices  around at that time that predated it. Therefore, it is the relevant exemption, and I do not think that there should be any difference between us.

However, article 4(2) goes on to explain the basis of the conditions that must be met in order for sections 58 to 60 to be complied with. It states:

“where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles”.

The article then goes on to say, in a second paragraph:

“Provided that its provisions are otherwise complied with, this Directive shall thus”—

I draw attention to the word “thus”, which refers to the conditions laid down in the previous paragraph—

“not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”

My first question to the Solicitor-General—I would be grateful if she could answer this—is whether she believes that article 4(2) contains two separate exemptions: one that relates to a genuine, legitimate and justified occupational requirement, and a second one in the second paragraph that does not require that, despite the “thus” that says that the directive shall not

“prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”

I accept that any employer can have that as a term of employment. The question is, where that would involve discrimination on the grounds of religion or belief or, indeed, conduct related to sexual orientation, whether an exemption is provided for such a contract to be lawful when it otherwise would not be. Is it the Government’s opinion that those are separate, or is it one? If they accept, as I believe they do, that it is one, it does not mean that I am right and the Government are wrong, but it would be helpful in framing our discussion.

I would also be grateful if the Solicitor-General confirmed that article 4(2) is there only to

“maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive”.

In other words, brand new practice cannot rely on the dispensation.

My third question is whether ethos alone can constitute the genuine, legitimate and justified occupational requirement. Will the Minister comment on the words,

“by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos”?

In other words, could—if all other requirements are met—an employer with such an ethos say, “You are not in compliance with our ethos ab initio, regardless of the work that you do”? I have asked that question previously in discussions on the Bill.

The matter is important because I accept that there will be cases where someone’s job requires them to do something that they cannot do. If the organisation has an ethos and meeting those needs is an occupational requirement, that will fall within the exemption. I accept that, but I would like the Minister to clarify whether compliance with an ethos alone is sufficient, or whether some impact on the way in which the person carries out the job should also be part of the case. In addition, is it the case that that cannot just be assumed and that it has to be shown to be part of the case?

My fourth question is about what is meant in the School Standards and Framework Act 1998 by the reference to ethos. I am not an expert on this—perhaps the hon. Member for Glasgow, East is—but a religious school’s ethos might be that they want to encourage children to be brought up and learn in a Christian environment with regard to Christian standards of conduct. Such an ethos might relate to the way that a Christian society operates vis-Ă -vis charity to all and respect for everyone. I believe that that is separate from a school ethos that is based on the virgin birth, the resurrection and certain other tenets—in other words, the ethos of a school is not necessarily the same as the doctrine of the religion.

If I am right—and I believe that I am—is it the duty of the teacher to have regard to the ethos of the school or to have regard to the tenets of the religion? The tenets of some religions state that homosexuality is a sin. I do not expect that the ethos of a school would contain that. If the exemption is to essentially punish people in employment terms by preference or dismissal on the basis of their allegiance to the ethos, are we talking about the ethos of the school or the tenets of the religious organisation?

I stand to be corrected by those who understand our dictionaries better than me—perhaps the Minister can help on this matter—but my understanding of ethos in, for example, a Catholic school is that it relates to the whole teaching of the Catholic Church, which would include things such as the virgin birth and so on. I would have thought that in a Muslim school, similarly, that would include the whole teaching, including the Prophet and so on.

That is the question I am asking. I am interested in the hon. Gentleman’s view, and I am even more interested in the Government’s view. I am not keen to get into the issue of dictionaries at all.

I have raised the issue because section 60 of the School Standards and Framework Act 1998 does not talk about the ethos of the school. I shall set out section 60(5), because it is important to the point I am making and to a point that I am going to make:

“If the school is a voluntary aided school—

(a) preference may be given, in connection with the appointment, remuneration or promotion of teachers at the school, to persons—

(i) whose religious opinions are in accordance with the tenets of the religion or religious denomination specified in relation to the school under section 69(4)”.

My question is whether that relates to the ethos of the school or the tenets of the religion. I think that the hon. Gentleman would have to say that the tenets of some religions are that homosexuality is objectively disordered  and a sin, and that practising homosexuals will, unless they repent, be punished in the after-life in some way. That is separate from what we would expect to see in the ethos of a school. I think even those who strongly support faith schools do not expect pupils and teachers to sign up to homophobia in the ethos, even if that is for historical and doctrinal reasons.

I find that difficult to distinguish. Let us take a faith—the one that I am familiar with in Glasgow would be Catholic schools, which are the main type of faith school. The people would look on it as the whole teaching of their religion. For example, I am sure that the hon. Gentleman is familiar with something like the ten commandments, which is a whole package. To start taking one part of the package and not other parts, and to say that some part is ethos and some part is something else strikes me as a bit artificial.

I am aware of the hon. Gentleman’s view. I am raising the question because I believe that there are many people who run faith schools who believe that the ethos equals all the tenets of the faith, including ones that I know are held sincerely and are not designed to create a humiliating or degrading atmosphere. But if someone’s parents are gay, and they are told in the ethos of the school that that is sinful, objectively wrong, and that they will be punished in the after-life, that raises an issue—the hon. Gentleman must accept that that is the case. I am interested in the Government’s view. Is the ethos to which teachers must have regard under section 60 the tenets of the religion, or are the two different? Are they required to be different in order to avoid some of the problems that I have identified, such as the ones related to homosexuality?

I return to the hon. Gentleman’s specific example. Fortunately, the Committee will be pleased to know that I am not going to get into debating the virgin birth and any other biblical matters.

Or the resurrection.

As the Minister said, certainly not the resurrection. Let us take the hon. Gentleman’s specific example where two parents are gay—presumably they have adopted a child. If that child went to a school where they were taught that homosexuality is sinful, it would be difficult for the child. Why on earth would parents in that position have chosen to send their child to a faith school where that was the belief of that religion? That would be completely crackers. Why would parents do that? With his example, given that the point of legislation is to deal with real harm—I am thinking back to the evidence that we had from Ben Summerskill from Stonewall—it cannot be drawn into the matter. I do not think it is realistic.

Order. There is no objection to hon. Members making comparisons, but the debate has gone a little wide of the margin, to be quite honest. Please come back to the amendment.

Gay people can be Catholic. There may only be one primary school in their village—there are all sorts of reasons why the example might occur. Teachers may want to teach in a school where they live; should they have to go elsewhere? To that extent, I  believe that the intervention by the hon. Member for Forest of Dean was in order, as I think there is a real problem—it has an impact on the choices made. Why should someone have to choose to do something they would not otherwise do for fear of something happening like the example I have described?

I think it is perfectly legitimate for a Catholic school to teach children that Catholics believe that practising homosexuality is sinful—I have no problem with that. The school should teach that in those terms—not “it is”, but “Catholics believe that it is”. That is information and knowledge, but that is different from having it in the ethos.

I will return to what I was saying. My question was whether there is a distinction between a school ethos in practice and tenets of religion. The second part of the provision, section 60, states that

“preference may be given...to persons”— in terms of teachers—

“who attend religious worship in accordance with those tenets”.

I am interested to know whether the Government believe that that simply means “attendance at”, or whether it means “participation”. Does attendance imply joining in the prayers, or does it simply mean a need to turn up and essentially not be disruptive? If it is merely a question of attendance and does not require participation, that would be less objectionable. It is important that we understand on what basis the Government intend to allow people to be discriminated against. That was my fifth question.

My sixth question relates to section 60(5)(a)(iii) of the 1998 Act, which states that preference can be given to people

“who give, or are willing to give, religious education at the school in accordance with those tenets”.

Does the Minister think that only practising and believing Catholics can teach religious education in a Catholic school? Is such religious education so doctrinal and instructional that it would be difficult for someone who is not a Catholic to teach it? I accept that it would be difficult for such people to teach pupils with sincerity that certain things are wrong, that certain things happened and what they should believe. People who are not Catholic can be competent. For example, some professors of theology at Oxford are Catholic and are canons of Christchurch cathedral. However, they teach Anglican theology at professorial level in higher education. Is religious education in voluntary-aided schools so instructional that it cannot be taught successfully by people who are not sincere believers in the faith, even though they may know the curriculum and be good teachers?

Finally, section 60(5)(b) of the 1998 Act states that

“regard may be had, in connection with the termination of the employment”— sacking—

“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.”

First, is that supposed to mean conduct that is incompatible with the stated ethos of the school or can it mean conduct that is incompatible with the tenets of the religion? That is a key question if we are to understand the scope of that exemption under the 1998 Act and whether it is compatible with the Bill.

Secondly, can such conduct include private sexual conduct stemming from sexual orientation? I seek the Minister’s reassurance that she will be consistent with her earlier support for Justice Richards’s clear statement in the Amicus judgment, which he stated twice, that it is impossible to separate discrimination on the grounds of sexual orientation from discrimination on the grounds of conduct that stems directly from that sexual orientation under the directive. That statement stands because the judgment has not been overturned on appeal. It is therefore not possible for schools to say that they are not discriminating against somebody on the basis that they are gay, but because they are in a civil partnership, are living with someone of the same gender or are felt to be having lawful sexual relations with someone of the same gender. Justice Richards’s judgment did not even get into whether such discrimination would be permitted under the rights of privacy and non-discrimination in the Human Rights Act 1998 because it relied on the directive.

Hon. Members may correct me if I am wrong, but I believe it is the assumption of many schools that they will be entitled to consider sex outside marriage—which is the only kind of sex a gay person can have in this country—as conduct that is

“incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination so specified.”

My view is that paragraph 2 of article 4 of the directive requires a justified and legitimate occupational requirement that relates to the job, not a free-standing requirement that relates to the beliefs of the employer. Does the Minister think that a school can sack somebody, or not prefer them in some way, on the basis of their private conduct outside the school?

Schools ask how someone can deliver religious education according to the tenets of a religion that talks about sex within faithful marriage when that person’s private life is not consistent with that. One can see where schools are coming from, but the Minister has said previously, I believe, that discrimination based essentially on sexual orientation is discrimination based on sexual orientation. Even if the discriminator’s intention is that the discrimination should be based on religious belief because the person’s conduct is not consistent with the religious beliefs required, it is still discrimination on the grounds of sexual orientation. My final question, therefore, is whether she agrees that that is the case.

I hope that I have been able to explain why it is important, given the number of teachers who fall subject to sections 60 and 58 of the School Standards and Framework Act, that we do not require teachers to claim unfair dismissal in relation to their private lives when that would be a burden on them. We should not expect teachers to live in fear of being discovered to be gay by schools or to have difficulties finding employment in areas where most schools are faith schools. When we pass such legislation, we therefore need to be clear about its boundaries. In introducing the amendments, I look to the Minister to give us some reassurance on the issue. I am grateful for the patience of the Committee.

The UK negotiated the inclusion of article 4(2) of the framework directive with the intention of preserving the provisions in the School  Standards and Framework Act, and we are satisfied that they are compliant. That provides for future legislation to allow differential treatment on religious grounds, where that reflects national practices and where there is a genuine, legitimate and justified occupational requirement. Nothing in the Act can be used to discriminate against someone because of their sexual orientation, which would be unlawful in employment law.

Let me add—this is all that I intend to add—that we do not intend to override substantive education legislation in the Bill. There is no problem whatever, and we will not mend something that is not broken.

It is extremely disappointing that the Minister will not engage with eight straightforward questions that are within the scope of the Bill. If they were out of order, I would have been called out of order by you, Mr. Benton. What we have is a Committee in which the Minister simply will not answer questions that have been legitimately raised. It is the Committee’s job properly to scrutinise the implications of employment discrimination legislation, which affect hundreds or thousands of people, but she has said practically nothing. I look to you for advice on what we can do raise questions that are in order and to have them answered.

Let us get one thing absolutely straight. If the hon. Gentleman had been out of order, I would have ruled him out of order. I have to ask at this point whether the Minister has replied.

Yes.

The Minister has replied. It is not my position to give advice on the matter. It is up to the hon. Gentleman what he wants to do. He has the choice of withdrawing the amendment or pressing it to a vote. I invite him to comment on that.

I am still extremely surprised by the Minister’s unwillingness to answer questions that are in order as part of the scrutiny of the Bill in Committee. The amendments have been on the amendment paper—

Order. I am sorry, but we cannot pursue that. The Minister has indicated that she has replied. As far as I am concerned, that is her response. It is now up to the hon. Gentleman to press the amendment or withdraw it.

I am responding to what the Minister did—or did not—say. It is difficult to know what to do at this point. Normally, one has a debate, and one’s questions are at least addressed and preferably answered. That enables one to determine—[Interruption.] I am not asking a question. I am just reflecting on the response.

Order. I am sorry to do this, but my ruling is quite clear. I advise the hon. Gentleman to press his amendment or withdraw it. What he is doing now is pursuing what he interprets to be a lack of response from the Minister. The Minister has indicated  clearly that she has responded as far as she is going to. Frankly, this is becoming a little bit negative in terms of Committee procedure and the sake of good order. I advise the hon. Gentleman either to press his amendment or withdraw.

Given that we have not been able to have a debate or proper scrutiny, I do not see how I can press the amendment, because Committee members will not know on what terms they are voting. On that basis alone, in bitter disappointment at the Government’s failure to respond, I beg to ask leave to withdraw the amendment.

Is it the Committee’s wish that the amendment be withdrawn? [Interruption.] I ask again. Is it the Committee’s wish that the amendment be withdrawn?

Amendment, by leave, withdrawn.

Schedule 22 agreed to.

Clause 185 ordered to stand part of the Bill.