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The noble Baroness said: My Lords, in moving Amendment No. 5 I shall speak also to Amendment No. 6. I am a secularist and a humanist. I am an honorary associate of the National Secular Society and a vice-president of the British Humanist Association. However, I believe in the right of everyone to believe in and to practise the religion of their choice. I am glad that we live in a very tolerant society and I want to keep it that way. I think that those without religious beliefs also have rights, but I object when people with religious beliefs seek to impose those views and their lifestyles on people who do not share them. That is particularly unacceptable when it comes to employment. Our amendments are all about that.

Unless Clause 37 is amended or removed altogether, discrimination based on religion will become lawful for head teachers in voluntary-controlled religious schools that are controlled by local authorities and for teaching assistants in faith schools controlled by churches. In future, if this clause stands, it will permit the requirement that head teachers be reserved teachers and it will be possible for them, however talented, to be discriminated against on grounds of their religious opinions, their attendance or not at worship, and even their private lives where none of those issues has hitherto been of any concern.

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What is the reason for those changes? The Minister referred to the,

What consultation has there been with those representing persons who could be disadvantaged? Surely the person appointed should be the best qualified professionally to do the job rather than one who is or claims to be religious? What transitional provisions will there be for those already employed in regard to transfers or promotion? Even assuming head teachers’ security is not threatened in their present appointments, the career progression of non-religious teachers will be blighted. Competent and aspiring teachers will not be able to seek promotion unless willing to become, or at least pretend to become, a believer in an appropriate religion.

Clause 37 also makes it lawful for there to be discrimination on a religious basis in regard to non-teacher posts in voluntary-aided schools. It may be claimed that that will not apply to all non-teaching jobs because of the requirement in employment regulations that there should be a genuine occupational requirement, but the extent to which discrimination is permitted under the requirement is largely untested. Many of the staff involved will be relatively poorly paid. Alternative jobs in the same locality may be hard to find and the difficulty and expense involved in challenging an attempted reclassification may be almost impossible for them. Moreover, reclassification of such jobs, perhaps calling them pastoral assistants, if they are told to hand out prayer books, may be fairly easy for an over-zealous religious administration.

From such inquiries as I have been able to make in the limited time since the Bill was amended to include Clause 37, I gather that there has been no consultation with the teaching unions, or with the GMB, the union to which many of the non-teaching staff belong, and yet those changes will affect many employees, immediately in some cases and into the future. They would appear to be contrary to the EU employment anti-discrimination directive and also possibly to the requirements of our own sex discrimination legislation. It is understood that Catholic schools are already having difficulty in recruiting sufficient head teachers of their faith. I also understand from the general secretary of the National Union of Head Teachers that there is already a shortage of head teachers. Indeed, he says, the situation is reaching crisis point, and he asked whether the Government are aware of that.

Church attendance has been declining and that trend seems set to continue. Clause 37, unless removed or amended, will increasingly privilege a dwindling group of religious teachers while discriminating ever more acutely against the majority who are non-religious. That is even more unacceptable in the light of the stated government policy that new faith schools should be inclusive and should offer places to pupils from the families of other faiths or none. The funding will come from taxpayers, an increasing number of whom are secular.

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The right reverend Prelate the Bishop of Newcastle, speaking on Report at cols. 718 to 719, seemed proud of the fact that the Church of England schools are community schools. We heard more about that this afternoon. He referred to them as neighbourhood schools. He supported the idea of 25 per cent of places being available to the new schools on the basis of local rather than religious priority. I am sure that many noble Lords were pleased to hear that. Of course we welcome the idea of neighbourhood schools, but that is surely all the more reason for not discriminating when it comes to employing school staff. Surely professional ability, commitment and competence must be the criteria on which school appointments are made.

If the Bill becomes law, including Clause 37, in a short space of time all the new faith schools will employ, in any capacity, only staff who are or profess to be believers in their faith. Then it may gradually become the norm in existing faith schools, which will add to the divisiveness that the Government are anxious to avoid. I hope that the Minister will agree to reconsider the clause and that there will be consultations with the unions representing those who are likely to be disadvantaged before proceeding further with the changes envisaged.

The Minister this afternoon paid tribute to the outstanding work of head teachers and teachers generally. I hope that he will bear in mind those achievements when considering the clause. I beg to move.

5.45 pm

Baroness Flather: My Lords, I have put my name down to the amendment. I have been involved in race relations since the mid-1960s, when we had the first Race Relations Act. During the 40 years that have elapsed, we have constantly sought to try and make it impossible for people to discriminate in employment on the basis of race. We have fought against the notion that a certain type of job requires a certain person of a certain colour. Here we are looking backwards and saying that all jobs could be requiring a certain person of a certain faith. I find it extremely strange that we should be sitting here today and debating the issue. I thought that once we had put it to bed in race relations we would have put to bed the whole notion of discrimination on the basis of jobs.

The idea should be that if we want an RE teacher we can say that if the person is not of the faith that they are going to teach, it may be difficult for them, but I was an infant teacher with the ILEA and it asked for no requirement of any kind. Although it was a Church school, I was allowed to teach RE in the school. Now we are saying that all sorts of people could be discriminated against in jobs in a faith school, I feel that this is another serious reason for reconsidering what we are doing and where we are going. What will come next? I know that today we will not allow the provision to pass. Proper consultation should have been held with the unions. I am amazed that they have not raised a hue and cry: they should have. I hope that the Minister will take note.

Baroness Massey of Darwen: My Lords, I rise to support my noble friend’s amendment because I believe that we have created a tangled web here and

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that it does not have any place in law. I have two brief but important concerns. First, if this were law, people may be inclined to pretend to be something that they are not—that is, religious—to get the job or to retain a job. The reality of the clauses is a signal to faith schools that they can build requirements into job specifications, leaving the unsuccessful candidates to bring tribunal cases challenging the faith school. As we all know, appeal cases are very difficult. There is no statutory agency in this case to provide support for claimants. That is why I am so concerned to support my noble friend's amendment.

Lord Avebury: My Lords, my name also appears on the amendment and is attached to a letter that the noble Baroness, Lady Turner, addressed to the Minister and the Secretary of State, dated 20 October, asking for replies to be given to us before Third Reading. As we have not yet had that reply—I am very sorry that the Minister has not been able to address his mind to the important questions put to him by noble Lords then—I shall repeat some of the questions that were asked.

First, I must point out that, although the clause may not be contrary to the letter of the employment directive, it is certainly contrary to its spirit. For that reason, it is highly objectionable. From speeches already made from every Bench of this House, your Lordships will understand that it is a matter of tremendous concern that the Government should have introduced proposals such as this, which run contrary to what we have all agreed are ways to remove discrimination throughout Europe—in this country, in particular.

The first question that we asked the noble Lord and the Secretary of State was what consultation there has been about the proposals. We now understand from the noble Baroness, Lady Turner, that the trade unions principally concerned in the matter knew nothing about them until the last moment.

Lord Adonis: My Lords, that is simply not true. They were thoroughly consulted, as I shall set out in my reply.

Lord Avebury: My Lords, all I can say is that the trade unions have now said that they object strenuously.

Lord Adonis: Again, my Lords, that is not the case.

Lord Avebury: My Lords, I am sorry, but there is a difference of opinion between us on this, because the noble Baroness has spoken to trade unions during the past couple of days and has their authority to make statements on their behalf in the House. If the noble Lord is now saying that the noble Baroness has got that wrong, there is, at the very least, a misunderstanding between us on the question.

Lord Adonis: My Lords, this is a very important point. We met our social partners with whom we discuss these matters, which includes teacher associations, last Thursday, and they were supportive of the changes that we were making. They had been consulted about the matter previously, so they had

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previously supported the proposals. Because they read the coverage given to the matter last week, when they were updated on the amendments laid in the House, they were also supportive last Thursday.

Lord Avebury: My Lords, the noble Baroness tells me that she has consulted at least two of the principal trade unions and that they have both expressed their opposition to the proposals. We cannot deal with these matters across the Floor of the House when there is such a fundamental conflict of evidence between us. We shall have to refer to what the trade unions have actually said, not what the noble Lord tells us they have said behind the scenes or in consultation. As I say, there is a conflict of evidence that we cannot resolve in this debate.

We would like to know what other consultations, apart from those with the trade unions, the Minister has undertaken, because the process between the appearance of the proposals on the Marshalled List and their embodiment in the Bill was rapid. I do not believe that sufficient opportunity has been given to all those concerned to consider the effects that they may have. What research has the Minister and his department conducted on the effect of the proposal on employment in rural areas, which the noble Baroness, Lady Turner, mentioned? Where there is no choice of employment, it will be very difficult for teachers and there will be a particular difficulty for those who aspire to be head teachers. My noble friend Lady Williams was during the previous amendment paying tribute to head teachers and saying how difficult it was to secure really good ones. The Minister and his Government will make it far worse, because he will rule out many people who are still best qualified to match the needs of the appointments.

What study has been made of the likely effects of the Minister's proposals in areas where the local school is the only employer of any size and those losing their jobs or unable to obtain jobs because of the proposals in the clause are likely to suffer severely? Perhaps he would also answer the question put obliquely by the noble Baroness: how is a judgment to be made about a genuine occupational requirement? So far in this debate, it has been suggested that we do not know how far that will extend, but it will certainly mean that the jobs of teachers are under threat. Will it then extend from them to other people in faith schools? How does the Minister justify that under the employment directive?

Lord Peston: My Lords, I intervene subject to the approval of the noble Baroness, Lady Buscombe, whom I hope does not object to my speaking a second time.

Baroness Buscombe: Not at all, my Lords.

Lord Peston: Well, my Lords, the noble Baroness objected when I last spoke, saying that if I had not taken part in the whole of the earlier debate, I should not speak. I am just being nasty to her in the hope that she does not say it again. In case that she does not understand that I am being nasty to her, I am.

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My intervention is largely interrogative. When I read the Bill as it is before us, before the amendments, it was difficult to follow precisely the meaning of Clause 37. My main hope is that my noble friend will be able to tell us that it does not mean what it seems to mean. So, if I may, I shall put my speech as a series of questions.

My first question is: if we take a religious school of a particular religion that is advertising for a geography teacher, where I can see no religious content as relevant, will it be legal in the advertisement for the job to specify that only people of whatever faith—whether Jewish or Muslim—need apply? Will that be legal from now on—or, at least, will it be legal at the interview to say, “Oh, by the way, apart from having a degree in geography, are you actually a believer in the religion of the school?”? It is difficult to see from the Bill what is the answer to that question. Our fear is that that will be legal, which is why the amendments had been tabled.

If we go even further, and talk about the school caretaker, will the school be able to ask the school caretaker, “Are you Jewish?”? If the reply is, “No, Jews are not caretakers. That is not the sort of thing that Jews do, so I am not Jewish”, can the school then say, “You cannot be in this school”? My hope is that the Bill does not allow anything like that to occur—sorry, that was meant to be a joke.

Lord Winston: My Lords, it is a gratuitous comment. I must emphasise that a large number of Jewish schools have a huge number of non-Jewish teachers and staff who do an excellent job, including teaching Romeo and Juliet.

Lord Peston: My Lords, if I may say so, that is the whole point of the amendment. The point is: will it be legal for people to change from that position? Why would anyone want to? That is what I do not understand: where is this coming from? Why was the Bill changed to move in this direction?

When I was at school, I was taught maths by a Communist. We knew that he was a Communist because he had a hammer and sickle lapel button—this was during the war. It was legitimate to do that sort of thing in those days. I do not recall any of our maths teaching being distorted by the fact that we were being taught by someone wearing a hammer and sickle and I cannot understand why the teaching of the main subjects in the school should have any relevance to the religion of the teacher.

It may well be that I am being ultra-sensitive here and that my noble friend will say that that cannot possibly happen. One of the great ways in which we have moved forward in this country—very much under new Labour, let me say—is that people are meant to get jobs according to their merits and being the best candidate for the job. The old-boy system, which many of us, when we were young, knew dominated what went on in the world—that should now include the old-girl system—has, at least to some extent, gone. It is certainly not acceptable to make it explicit.

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I remember when I was starting as an academic that there were certain professors whom, if you could not get them to support you, you could not get an academic job at all. Those days have now gone. I am merely asking the Minister to assure us that that is the case. For example, I would honestly expect that the head teacher of the Catholic school would be a Catholic. I follow my noble friend in being in favour of religious freedom and that would not offend me at all. However, let us assume that the best possible person for the job was not a Catholic. Are we absolutely certain that person should never be considered for the job? I am just not sure. But certainly for the ordinary teachers, let alone the people who do the other work, this should not run.

6 pm

My last point in asking where this is coming from is that, to my pretty certain knowledge, the one religion for which this has never been a problem over a long period has been the Church of England. The Church of England, on the whole, has tried to appoint the best possible teachers for its schools, just as—and we were discussing this earlier—it has been much more welcoming and much less concerned about whether all of the pupils are Church of England believers. I repeat: who is driving the desire to do this sort of thing? My hope is that the Minister will be able to say to us that there is no problem here and that none of the existing legislation which is meant to stop sexual discrimination and other forms of discrimination is now, in some sense, removed. I am hoping he will tell us that and I wait to hear his answer.

The Lord Bishop of Peterborough: My Lords, I shall intervene only briefly because reference has been made to Church of England schools. A lot of the fears that have been expressed are unfounded; these are two very modest amendments. They clarify the situation in regard to controlled schools, where the majority of those on the governing body are not Church members or foundation members, and the majority of the governing body would have to agree that the head teacher could be a reserved teacher. Currently under the School Standards and Framework Act 1998, governing bodies have not been able formally to take into account the religious belief and practice of a candidate, but they have been able to appoint on the basis of the person’s fitness and ability to preserve and develop the religious character of the school. So if the governing body feels that in order to do that, they have to be a believer, this would allow them to do it.

The second part of the provision refers to aided schools and reflects a situation where what has in the past applied to teachers now needs to apply in some circumstances—again with the support of the governing body—to classroom assistants and others who were not covered by the previous legislation. So it is a tidying-up amendment. I say very firmly that it has certainly not been the intention of my colleagues in their discussion with the Government to have a negative impact on the circumstances of the

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employment of anyone working in a Church school, or indeed to be discriminatory in the way that it is applied. I hope I can allay some of those fears and I am sure the Minister will do so as well.

Baroness Walmsley: My Lords, I am most grateful to the noble Baroness, Lady Turner, for giving us the opportunity to debate this issue properly. Noble Lords will recall that when this issue came before us extremely briefly at an early stage of the Bill, I said nothing about it because it was grouped with a whole lot of other amendments about faith schools and the very fundamental matter of whether the school assembly should be of a broadly Christian nature. At the end of a three-hour debate, I felt it right to confine my comments to those issues.

However, if the noble Baroness chooses to put this amendment to the vote, we on these Benches will support her, and not because we misunderstand the situation as it now stands—with due respect, I think that perhaps one or two noble Lords do misunderstand it. The situation now is that we have the 20 per cent reserved quota and that is not being increased. The Government’s measures, as introduced by the right reverend Prelate the Bishop of Peterborough—as the noble Lord, Lord Peston, might know if he had been here on Report—allow the composition of that 20 per cent to be changed slightly.

I know of very few faith schools that do not already have a head teacher of the faith. Therefore, I really wonder why this is needed at all as regards head teachers. What does concern me is that a well qualified head teacher might be passed over for a less well qualified head teacher who is of the faith if this post is chosen to be reserved by the school. At a time when we are desperate for really good head teachers with the qualities of leadership, inspiration, understanding of young people, hard work, creativity and innovation about the curriculum, we do not want to exclude anybody who is really well qualified to lead a school just because they are not of the faith.

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