John
Mason: 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.
Dr.
Harris: 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?
Mr.
Harper: 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.
The
Solicitor-General: Or the
resurrection.
Mr.
Harper: 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.
The
Chairman: 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.
Dr.
Harris: 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? 10
am 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
Solicitor-General: 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.
Dr.
Harris: 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.
The
Chairman: 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.
The
Solicitor-General:
Yes.
The
Chairman: 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.
Dr.
Harris: 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—
The
Chairman: 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.
Dr.
Harris: 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.
The
Chairman: 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.
Dr.
Harris: 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.
The
Chairman: 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.
Clause
186Charities
Dr.
Harris: I beg to move amendment 252, in
clause 186, page 133, line 24, leave
out subsections (5) and (6). An
amendment to protect an individual from discrimination from a charity
because of their
atheism. This
is a probing amendment to ask whether it is justified to have an
exemption in respect of the Scout Association, as that is what the
clause relates to. The Scout Association is an excellent organisation
that does brilliant work. It is, in many cases, supported by public
authorities and given accommodation by schools and public authorities.
Many young people want to join if they can because their friends
belong, and it is often the only or the main extracurricular activity
in the community.
A provision
was written into the Equality Act 2006 saying that although charities
could not discriminate against people on the basis of their religion
unless it was written into their charitable instrument and otherwise
justified, organisations that had had such requirements, now considered
inappropriate, before 18 May 2005 would be allowed to continue to do
so. The impact is that children who cannot sincerely say that they
believe in God cannot join the Scouts and people who wish to help
promote or work within the Scouts as scout leaders—the enormous
bulk of whom are not religious, as the Scouts are not a religious
organisation; they just have a joining oath—are not allowed to
do so. Many scout groups are short of leaders, so what they do when a
qualified person in the community wants to work with young people is to
say, “Well, just cross your fingers when you say the
oath.”
| 
