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Paul Holmes: Will the Minister clarify the position of support staff? I was a teacher for 22 years and I have been racking my brain trying to remember which of the support staff whom I worked with in those years would have needed to be of a particular faith to do the job.
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My colleagues tell me that things have changed and that the pastoral support side of the job that I did at various times—I was assistant head of year 10, and head of a sixth form for many years—has been given to what are now termed support staff. In a faith school such as a Catholic school, the head has to be a practising Catholic and the member of the support staff giving pastoral care must also be a practising Catholic. Are we therefore saying that when a child comes to that member of staff—as they used to come to me—to discuss their concerns about issues such as homosexuality, AIDS, sexually transmitted diseases, contraception or abortion, they will not be given such advice because of the legislation that we propose to pass today?

Jim Knight: I am not necessarily saying that at all. Our concern in introducing this provision is that there may be schools that are reluctant to carry through the agreed work force reform because there are certain pastoral functions that they believe should be performed by people of the faith of the school in question, and that they therefore continue to appoint qualified teachers to those roles because they are allowed to appoint them on the basis of faith. They want the flexibility to appoint support staff where there is a genuine occupational requirement, in order to carry out those functions within the school. This provision eases the implementation of our work force agreement.

Judy Mallaber: Further to the previous intervention, will my hon. Friend clarify what will count as a genuine occupational qualification? Secondly, why does the Bill not make it clear what such a qualification might be? We are passing a provision into law today, but we do not know exactly what will be in the regulations. Could such a qualification be the giving of pastoral care, including dealing with social issues and pupils’ concerns about their sexuality, for example? Potentially, the giving of such advice could be deeply affected by the religious faith of the person to whom we are granting this occupational qualification.

Jim Knight: I will come to the genuine occupational requirement in a moment, when I am allowed to return to my prepared remarks. It is important that my hon. Friend and the hon. Member for Chesterfield (Paul Holmes) reflect on what I have said about schools that are not currently appointing support staff because they are appointing teachers of the faith in question to carry out exactly those pastoral functions. So I should point out that if there are concerns about advice being informed by faith, such advice is taking place at the moment, and nothing will change if it is thought that faith is informing such advice. All that we are seeking to do is to allow schools some flexibility.

2.45 pm

Our proposal conforms to the EU employment anti-discrimination directive, which was brought into law in the Employment Equality (Religion or Belief) Regulations 2003. It has always been our intention that some “non-teaching” roles— such as that of pastoral care—should attract this freedom. Historically, pastoral roles were carried out solely by teaching staff, and it was considered neither necessary nor desirable
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for the freedom to discriminate to extend to non-teaching staff. However, since the relevant provisions were enacted, work force remodelling has enabled schools to focus teachers’ attention on teaching. Pastoral and other non-teaching roles are now often more appropriately carried out by non-teaching staff.

Let me now deal with the point that my hon. Friend the Member for Amber Valley (Judy Mallaber) raised a moment ago. Existing guidance specifies when the genuine occupational guidance would not apply. It states:

That is particularly relevant to occupations such as a school secretary, a school caretaker or a dinner lady. It is important to note that this provision will not automatically extend the degree of freedom available to those schools; it will simply allow them to make a case for having regard to the religion or belief of an individual member of staff in certain cases, in accordance with existing anti-discrimination legislation.

Judy Mallaber rose—

Jim Knight: I detect my hon. Friend’s desire to intervene.

Judy Mallaber: Can my hon. Friend assure me that the regulations will be written in a comprehensible form, because I did not understand the wording that he just read out? Will they specifically exclude groups such as school dinner ladies, caretakers and cleaners? Because those groups have contact with children, a particular school might prefer to take somebody who, for example, it knew because they went to the local church. Will the regulations specifically exclude some of those jobs on the ground that they are not a genuine occupational qualification, and will they clarify exactly what is a genuine occupational qualification? Will my hon. Friend make that clear to us now?

Jim Knight: We will obviously seek to make the regulations as clear as we possibly can. I am not a lawyer, and sometimes the language of the lawyers who draft these provisions can be a little confusing, but I will seek to ensure that the regulations are as clear as possible. I have discussed this issue and we can look at whether specific roles can be identified as carrying, or not carrying, a genuine occupational requirement. In my constituency, for example, support staff have been taken on to perform a number of different functions. Such a person might carry out the crossing patrol first thing in the morning and then work as a teaching assistant at some point before becoming a dinner lady. Such flexibility of working in schools might mean that it would be difficult to rule certain functions in or out, because that might adversely affect some support staff.

Jeremy Corbyn: In a former life I used to be a union organiser, dealing with the school meals service and
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school cleaners. We had these debates then and, as I recall, all the education authorities with which I dealt took the view that all ancillary staff were ancillary staff and should be treated as ancillary staff should be treated in any other educational establishment. I am slightly concerned that my hon. Friend appears even to be thinking about the right to discriminate in the case, for example, of school meals workers or other support staff because they may have contact with pupils. I hope that I have misunderstood, but I would be grateful if my hon. Friend would clarify exactly what he is proposing.

Jim Knight: I may have confused the House and I apologise if that is the case. I said that we would have to have particular regard to occupations such as dinner lady, school secretary and school caretaker in respect of how we interpret what is a genuine occupational requirement, because normally there would be no such requirement. However, if someone appointed to one of those posts was, as part of their duties, also required consistently to lead acts of collective worship or carry out religious instruction, it might be reasonable for the school, in appointing that person to perform a range of duties, to make a case for a genuine occupational requirement. That would be testable at an employment tribunal, and one would hope that individuals would belong to trade unions that would help them to fight that case.

I look forward to working closely with the support staff unions—which are members of our social partnership and part of the work force agreement monitoring group—on how we take forward this legislation, the secondary legislation and the transitional arrangements. We have assured the GMB, Unison and the Transport and General Workers Union that we will work with them and ensure that they are fully consulted. I accept that consultation has not been at the level to which they have grown accustomedof late.

Dr. Evan Harris: Can the Minister explain why he did not refer to the genuine occupational requirement in the Bill? The amendment would just insert “in Wales” to achieve the change. Why does he believe that a school would have recourse to the exception under genuine occupational requirement for a secretary who was asked to lead prayers, when it would not apply to a maths teacher who had to be Catholic, say, to work at a certain school? At the moment, voluntary aided schools are allowed to appoint all their teachers on the basis of their faith, with a specific right to do so under the employment regulations, which specifically mention sections 58 and 60. As the amendment amends those sections, how can the Minister be confident that there will be any access, post facto—after someone’s career is wrecked—to this legislation?

Jim Knight: We certainly do not envisage anyone’s career being wrecked by the amendment. The governing legislation—the employment anti-discrimination directive defines the genuine occupational requirement—is the reason why we do not specify the genuine occupational requirement in statute.

Judy Mallaber: It is unfortunate that this issue has not been discussed and agreed with the unions before we reached this point. My hon. Friend implied that this issue would end up being tested in an employment
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tribunal, but we clearly wish to avoid reaching that situation. Can he assure me that the regulations will be tightly defined so that the issue is not left to employment tribunals, and that they will be defined in such a way that it will not be open to schools to redefine jobs so that a small element of a job qualifies for the genuine occupational qualification and therefore affects a post for which 90 per cent. of the work does not qualify?

Jim Knight: We will certainly seek to define the matter as carefully and closely as we can in regulation. I agree that it would not be desirable to rely on the tribunal process because of the problems that some people would have in taking a case, especially if they were not members of a trade union. However, it is important that that sanction exists, so that it can be used if governing bodies make the wrong judgment about genuine occupational requirement.

I hear what my hon. Friend says about the trade unions, but I have received letters today from various unions. Brian Strutton, the national secretary of the GMB, says:

Christine McAnea from Unison says:

We look forward to doing that with the trade unions, to ensure that we go forward on a consensual basis. We will revise the school staffing regulations to include the new provisions relating to the employment and dismissal of support staff in voluntary aided faith schools. They will be cross-referenced with the employment regulations and the genuine occupational requirement provisions. We will also include strong guidance in the statutory staffing guidance as to what genuine occupational requirements are, and the circumstances in which they apply.

I repeat that no existing staff will be affected by either of the proposed changes. Our transitional provisions will state that the amendment to section 60(6) of the 1998 Act does not apply to any individual in post on or before the commencement date—that is, that such individuals may not be discriminated against, even in the event of a reorganisation. It will not be lawful to discriminate against any member of support staff at the date of commencement of the new provisions.

Dr. Evan Harris: Will the Minister make available to the House the letters that he has received from the GMB and Unison? Moreover, did he quote the whole text of the letters? The public documents that the unions have put out make it clear that they remain opposed to the proposal, and they may have decided merely to ameliorate something that the Government were determined to introduce. Finally, has he received a similar letter of support from the NUT?

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Jim Knight: I shall certainly put the letters in the Library of the House, so that everyone can scrutinise them. They only arrived today, and so are hot off the press. We do not have the same level of discussion with the NUT, as it is not a member of the work force agreement monitoring group. It is not one of our social partners, although perhaps it will see the light one day so that we can include it in more detailed discussions.

Roger Berry: I acknowledge that the Minister has been candid about the consultation process and I respect him for that, but I am slightly alarmed that none of the teaching trade unions appears to have been part of the consultation exercise to date. Will they be included in the future, as the proposals have implications for teaching staff? Will he reassure me that the NUT and other teaching trade unions will be able to present any concerns that they may have to Ministers? Some of the concerns that they have expressed over the past few days have been significant, so will they be taken seriously?

Jim Knight: We certainly treat the views of thework force very seriously. The work force agreement monitoring group has been discussing these matters for some considerable time, but I readily agree with those critics who say that those discussions have been neither extensive enough nor sufficiently clearly flagged up so that people with a particular interest in the subject can make sure that they are present. However, we will proceed on the basis of full discussion, and I advise my hon. Friend that the National Association of Schoolmasters Union of Women Teachers supports the changes. Moreover, the Association of Teachers and Lecturers, the Association of School and College Leaders and the Professional Association of Teachers are on the work force agreement monitoring group. We will be working with them to agree any regulations and guidance that we produce.

Jeremy Corbyn: Is my hon. Friend proposing to have one-to-one discussions, so to speak, with the NUT? He has not listed that union among the bodies that have responded to the consultation, or among those that he proposes to consult.

Jim Knight: We proceed on these matters through our social partners on the work force agreement monitoring group. We should be delighted if all the representative work force unions belonged to the partnership and were fully in support of the work force agreement. We are not at that point, but it would be great if we could get there.

Jeremy Corbyn: Will the Minister talk to the NUT?

Jim Knight: We occasionally have discussions with the NUT, but everyone must acknowledge and accept that there is a discipline attached to our social partnership. We sit equally around the table with partners in the work force agreement monitoring group, and they agree with our position on the issues—for example, we collectively gave evidence to the statutory School Teachers Review Body during September—which means that they have much greater access to us as Ministers and more detailed conversations with us. It does not mean that we never
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talk to the NUT and NAHT; I meet them regularly, with others, to discuss issues such as behaviour, but not in the same detail as with our social partners.

3 pm

Jeremy Corbyn: I am grateful to the Minister for that reply, but he leaves me slightly puzzled. The NUT is the largest teaching organisation. I am not a member of that union—I never have been and probably never will be—so I have no particular brief for it. However, not to discuss an issue as sensitive, important and serious as this with the largest teaching union seems likely to create problems for the future, at the practical level if nowhere else.

Jim Knight: We could have a long debate about the social partnership. We shall certainly discuss the issue with the support staff unions and the rest of our social partners, but I can give my hon. Friend no guarantees at this point about what sort of discussions we might have with those who choose not to be inside the social partnership.

Dr. Evan Harris: The NUT represents head teachers and teachers applying for headships, so the union is certainly engaged with the issue. Is the Minister saying that the only table to which unions can come for discussions about new Government policy on discrimination—whether religious, racial or gender—has to do with work force remodelling? So if they do not like work force remodelling, or do not otherwise form part of that group, they cannot expect to be engaged with the Government in matters to do with religious, racial, gender, sexual orientation or disability discrimination.

Jim Knight: No, I am not saying that. Those organisations would certainly be a part of the formal consultation on such matters, which will take place when we introduce the orders and transitional provisions to which I have been referring.

Judy Mallaber: I am sorry to keep labouring the point, but I want to return to support staff. There are not many support staff in small schools and as the whole point of the remodelling agreement is to achieve flexibility, one member of staff may carry out several roles, so what assurances can my hon. Friend give me about the percentage of their work that needs to be covered by something that could be regarded as an occupational qualification before the whole post will be covered? If it is less than 10 per cent., will that prevent it being classed as a genuine occupational qualification? Secondly—

Mr. Deputy Speaker (Sir Michael Lord): Order. I think that will do for the time being.

Jim Knight: I cannot give my hon. Friend the Member for Amber Valley a definition now; I do not want to prejudge the outcome of the discussions that she and others have been urging me to hold with the support staff unions about the implementation of the measure. I ask her to recall what I said previously about the need for a significant, genuine occupational
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requirement. The chances are that 10 per cent. will not meet it, but I do not want to prejudge the result of the discussions.

We shall consult fully and I urge the House to support the motion.

Mr. Gibb: I thank the Secretary of State for making available the letter he sent to the hon. Member for Wolverhampton, North-East (Mr. Purchase) about the matter. It is a helpful letter, which explains how the simple technique of inserting the word “Wales” in legislation changes the law relating to England.

Amendment No. 29 relates to the employment of staff at a school. At present, as the Minister so ably explained, the head teacher of a foundation or voluntary controlled faith school cannot be included among the 20 per cent. of teachers who can be selected for their fitness and competence to give religious education and specifically appointed to do so. The Government have argued, and we agree, that it should not be necessary for a foundation or voluntary controlled faith school to convert to voluntary aided status simply to be able to appoint a head teacher who will also lead religious education at the school.

The amendment also removes a restriction in section 60 of the School Standards and Framework Act 1998, which prevents voluntary-aided schools from employing support staff on the basis of their religious beliefs. It is designed to ensure that faith schools are able to appoint non-teaching members of staff, such as pastoral assistants, who follow the religion and ethos of the school. One of the key features of a faith school is its ethos and it is important to protect it. One thing that always strikes me on visiting faith schools is that a school is a community with shared values that permeate it, so where a school considers it necessary, it should be able to appoint teachers who reinforcethat ethos.

The religious aspect of faith schools is not something that stops outside religious education lessons or collective worship: it lies at the very heart of every activity that the school engages in. In the words of the canon law of the Catholic Church:

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