Memorandum submitted by the National Secular
Society
EC REASONED OPINION
226 AND RELATED
DISCRIMINATION MATTERS
On behalf of the National Secular Society I
attach the Commission's Reasoned Opinion to the Government dated
20 November 2009 and set out some related areas of concern.
Action which we would be grateful if the Committee could take
is shown in bold.
A. The National Secular Society would like
formally to register our concerns to the JCHR about Sections 58 and
60 of the School Standards and Framework Act 1998 (SSFA)
which we believe in substantial part are in breach of the Employment
Directive 200/78/EC. Our serious concerns include, but are not
limited to:
1. Education and Inspections Act 2006, Section
37 as this represented an impermissible regression of equality
law. This includes the repeal of s 58(4) of the SSFA (which read:
"The head teacher of such a school shall not, while holding
the post of head teacher of the school, be a reserved teacher.").
The CofE's "National Society advises that VC schools should
as a matter of course make all future Headteachers also Reserved
Teachers"[136]
except where the current incumbent objects, and the redesignation
would occur on their departure. The other provisions of Section
37 relate to VA schools non-teaching staff which may also
be impermissible regressions.
2. That discrimination permitted by Section 60(5)
of the SSFA on grounds of religious belief is probably incompatible
with the Framework Directive, in that it does not restrict such
discrimination to circumstances where there is a genuine, legitimate
and justified occupational requirement. (This is also the formal
conclusion of our Silk, available on request.)
We have endeavoured to persuade the Government
to modify the SSFA through the Equality Bill, but it is clear
this not now going to happen.
We seek the Committee's opinions on our two
allegations above and to the extent they consider that the legislation
is likely to be incompatible with the Directive.
B. Reasoned Opinion 226. The National
Secular Society complained in 2004 about the UK Government's
mistransposition of the EC Framework Directive 2000/78/EC into
the 2003 Employment Regulations. We can provide details of
exchanges of correspondence between the Society and the Commission
regarding our complaint.
As you will know, the Commission was not satisfied
with the Government's response and sent a Reasoned Opinion setting
out its continuing concerns. I attach a copy of the original (and
a recognised version which is much easier to work with).
The Society hopes the JCHR will find the attached
Commission's Reasoned Opinion of interest and the possible basis
for further study.
I draw particular attention to the Reasoned
Opinion's closing sentence in para 18: "Furthermore, the
wording of the national legislation contradicts the provision
under Article 4(2) of the Directive which provides that permitted
differences of treatment based on religion 'should not justify
discrimination on another ground'". It would seem to us that
this sentence has application beyond the 2003 SORs Reg 7(3)
and could also apply to the SSFA, which the Government is leaving
intact.
We invite the Committee to consider whether
it considers that the "discrimination on another ground"
concern in the above paragraph might have wider application in
UK discrimination law, for example the SSFA S 60(5)(a)(i) provisions
concerning tenets of the religion, especially given this appears
to go materially beyond the ethos of the school.
The principal question dealt with by the Reasoned
Opinion related to the 2003 SORs Regulation 7(3) concerning
exemptions for organised religion. The Government originally dealt
with this in Sch 9 Para 2(8) of the Equality Bill:
(8) Employment is for the purposes of an organised
religion only if the employment wholly or mainly involves—
(a)leading or assisting in the observance of liturgical
or ritualistic practices of the religion, or
(b)promoting or explaining the doctrine of the religion
(whether to followers of the religion or to others).
Following an outcry from the Archbishop of York,
Baroness O'Cathain, Baroness Cumberlege and others the religious
exemption is now likely to be materially widened under the latest
Government amendment to
Employment is for the purposes of an organised
religion only if—
(a)the employment is as a minister of religion, or
(b)the employment is in another post that exists
(or, where the post has not previously been filled, that would
exist) to promote or represent the religion or to explain the
doctrines of the religion (whether to followers of the religion
or to others)."
We fear that without a "wholly or mainly"
before "to promote" this is open to an impermissible
extension to administrative and service staff, simply through
the addition of a spurious sentence to their contracts.
The complaint in Para 5 of the Reasoned
Opinion over instruction seems to have been picked up in the Bill's
clause 110. We leave it to the Committee to decide how adequately
this has been achieved.
We draw this matter of concern to the Committee's
attention.
Other matter in the Equality Bill. An
amendment (no. 21A) we suggested to Bs Turner of Camden which
she raised at Committee to show perception and association on
the face of the Bill was rejected, and I think something similar
has been suggested by the Committee. I assume you have followed
the rejection of Baroness Varsi's Amendment 21 and Lord Ouseley's
Amendment 23 about replacing "because of" with
"on the grounds of" (with their precedents on association
and perception) and whether you accept the Government's rationale
for not doing so.
We invite the Committee to consider whether
the above concerns merit being drawn to the attention of the Government.
If further information is required we will be
happy to provide it.
K Porteous Wood
Executive Director
18 January 2010
136 www.natsoc.org.uk/downloads/equalopportuntiesdec08.doc
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