Equality Bill

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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”—
“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.
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 186

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.”
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