Equality Bill


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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 22

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.
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- -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)”.
 
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