The
Solicitor-General: My answer to the hon. Gentleman is that
I do not know whether the rationale will be put into communications
following the granting of an exemption or the imposition of a
condition, although it obviously should, for the reason that he
mentioned. I am glad that such important practical points are being
raised. Exemptions to such provisions that have been made under the DDA
are usually time-limited, so it is usually about getting things in
order in due course. I understand that conditions are often set on
those provisions, and that would remain the case for exemptions granted
under the
Bill. Committee
members have made some practical points. Apparently, the extent of the
availability of conditions to the Secretary of State would permit the
kind of communication that the hon. Member for Forest of Dean
mentioned. Such practical matters will be drawn to the attention of the
appropriate Departments so that all the sensible points that have been
mentioned are taken into account when exemptions are granted.
A limited
range of events would cause exemption. For example, the Glasgow
underground has different dimensions from other underground train
services and it would be difficult for it to meet the precise
regulations in relation to wheelchair accommodation, so it has an
exemption for the time being, but such a provision is made available
and used only in pretty exceptional situations like that, where bigger
tunnels would have to be dug under the whole of
Glasgow. Question
put and agreed
to. Clause
176 accordingly ordered to stand part of the
Bill. Clauses
177 to 179 ordered to stand part of the Bill.
Schedule
20 agreed
to. Clauses
180 to 182 ordered to stand part of the
Bill. Schedule
21 agreed
to. Clauses
183 and 184 ordered to stand part of the
Bill.
Schedule
22Statutory
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. Dr.
Evan Harris (Oxford, West and Abingdon) (LD): 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.
The
Solicitor-General: 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.
Dr.
Harris: I beg to move amendment 255, in
schedule 22, page 234, line 4, leave
out sub-sub-paragraphs (a) and
(b).
The
Chairman: 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.
Dr.
Harris: 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.
The
Solicitor-General: 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?
Dr.
Harris: 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. 9.45
am 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-Ã -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? John
Mason (Glasgow, East) (SNP): 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.
Dr.
Harris: 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. | 
