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I agree with that assessment. Perhaps it is also the reason why the Opposition Front Bench, the

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Government and noble Lords from many parts of your Lordships' House have come to the same conclusion. It is also notable that opposition to the introduction of quotas has united the Prime Minister and the Leader of the Opposition. The political reality is that if this amendment were passed this evening, it would undoubtedly be resisted in another place.

Last week, when asked whether he supported this amendment, David Cameron categorically said that he opposed the quotas proposed in the noble Lord’s amendment because it smacked of social engineering. He said that he had initially been attracted to the localist approach canvassed by the Secretary of State, until he had heard Mr Johnson suggest that the principle could in future be applied to all church schools. Mr Cameron concluded that the best and most effective way forward was to impose a duty to work for social cohesion, which your Lordships debated and approved earlier today.

Lord Barnett: My Lords, where does the amendment mention the imposition of quotas?

Lord Alton of Liverpool: My Lords, the noble Lord, Lord Baker, explained this point and mildly admonished me earlier for raising it. He has admitted that this is not the amendment which he tabled a week ago, which proposed a centrally imposed quota. The amendment now passes that power to local authorities. If the amendment is successful, they will be able to decide whether to impose a quota of up to 25 per cent. That is a fair interpretation of the position.

Lord Baker of Dorking: If they wish to.

Lord Alton of Liverpool: My Lords, what will that lead to? It will lead to debate taking place in every local authority up and down the land. What will that lead to in turn? It will lead to a patchwork quilt. I give noble Lords an example—it is not hypothetical. During the 1980s, many noble Lords will have followed events in Liverpool. If an ideologically motivated city council takes it into its head to oppose all state schools, it would be able, under the amendment which has been crafted this evening, to deny places in faith schools. It would be able to impose a new Test Act. Its local thought police would decide whether someone had faith. I am not exaggerating the situation: that is precisely what would happen. How will they be able to prove it one way or another? If the noble Lord’s amendment were to be successful and become law, we could easily find ourselves in a situation where people lied to admissions authorities to get their children into a school. How would we be able to prove that they told the truth? This amendment opens the way to that situation.

It would achieve one other undesirable thing in the localist setting: if I wanted my children to go to a faith school which took a more benign approach, and could afford to send them there, I would be free

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to move to a neighbouring authority—in this hypothetical example, to a borough such as Wirral or Sefton. Is that in the interests of social cohesion? Is it in the interests of the disadvantaged? Is it in anybody’s interests? I hope that noble Lords will oppose the amendment.

Baroness Carnegy of Lour: My Lords, the noble Lord made a great speech in defence of the Roman Catholic position, which I understand very well. Does he consider that the amendment which we agreed earlier will solve the problem as regards Muslim schools?

Lord Alton of Liverpool: My Lords, the noble Baroness makes a good point. She will know that I believe in integration. I am a patron of the Belfast trust which worked for integrated education in Northern Ireland. I am married to an Anglican, with eight ordained Anglican clergy on my wife’s side of the family. I work with Muslims, Jews and many others to bring about some sense of social cohesion in places such as Liverpool. I am very confident that the amendment which we passed earlier without dissent is the way to achieve the objective that she and I want.

Lord Waddington: My Lords, I hope that my noble friend will not press his amendment, because what he has done in the past week or two has borne fruit. I hope he will take the view that the amendment which was carried a short time ago is a great achievement and that he should not press the matter further. If he does so, I certainly shall not vote for his amendment. I shall not vote against him, but only for old time’s sake and not because I have any sympathy for the amendment.

I fear he has no answer to the fundamental argument against what he proposes. I am glad that the Government have climbed down from an elevated position that they should never have scaled. If new Catholic schools were required to take a given percentage of children of non-Catholic parents, I cannot believe that harmony would reign where harmony does not prevail now. In many of our inner cities, the problem is not that there are schools where all the children are of one faith, but, a more serious one, that there are schools where nearly all the children are of one race. In some neighbourhoods, schools have become almost entirely occupied by people of one race.

This amendment would not cure a social ill; it would create a great injustice. If new schools were required to take a given percentage of children of, say, non-Catholic parents, that would create a great feeling of injustice among those Catholic parents whose children were denied places which were given to the children of non-Catholic parents. We all know that much of the anxiety in the House tonight is centred on the future of Muslim schools and what that will do for our society. I can see the argument for a complete end to state funding of new faith schools, but I can see no argument for the state continuing to fund faith schools and then agonising over how to mitigate the consequences of what it has done. If

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there is a problem, particularly in relation to Muslim schools, it is being addressed in a somewhat roundabout way.

The Lord Bishop of Peterborough: My Lords, I shall endeavour to be brief and I shall certainly not emulate Gladstone. I agree with a number of speakers that we are seeking integration. I am sorry but I do not believe that the amendment in the name of the noble Lord, Lord Baker, will achieve that and I do not think it is the right way to achieve it. I disagree with the noble Lord in thinking that it will be simple to implement as I think there will be complications in implementing it; and, in the light of the amendment which we have already debated and accepted, I believe that there are other ways of addressing these issues.

When we last debated this matter, the right reverend Prelate the Bishop of Portsmouth was in his place and he is sorry not to be here today. I would like to correct a comment that was made earlier. In his letter to the Secretary of State, the right reverend Prelate said that,

The noble Lord, Lord Baker, spoke of a priority, which gave the wrong impression of that statement.

I do not want to repeat all the comments made from these Benches less than two weeks ago. We have made a statement and I am delighted that the Archbishop of Birmingham has clarified that at least 30 per cent of children in Roman Catholic schools are currently from non-Catholic families. I think that is an advance.

The noble Lord, Lord Baker, rightly said that this is about the shape of our society. In addition, I believe that the heart of the matter is whether we in this Parliament, those who form public opinion and the people of Britain have enough confidence in our values and way of life, founded as it is on Christian beliefs and values—themselves generous and inclusive—to allow those of different beliefs and ways of life to flourish within our society on their terms.

I believe that we need to trust the minority faith communities and not impose legal limitations on them before allowing their schools into the maintained system of education. So I believe that the amendment could foster a lack of trust, which in the end would be destructive to the very integration we are seeking to achieve. Therefore I hope that your Lordships will reject the amendment. Although I understand the reasons why the noble Lord, Lord Baker, has proposed it, it will not achieve the objective we seek.

Lord Brennan: My Lords, at Third Reading the House must exercise legislative discipline and I propose to apply it to the amendment. It is fundamentally flawed. The amendment would give local authorities the power to impose quotas and give the Secretary of State the reserve power to ensure that exclusive schools do not come into existence. In

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neither case is there an appeal. These are strong powers to give to local authorities and to the Secretary of State. Our legislative discipline requires us to consider in what way that power is expressed. What circumstances circumscribe its exercise? I invite your Lordships to note that in subsection (2) the power for local authorities is a power whereby they may, “if they so desire”, impose a quota. That is not a clear expression of the extent of irrational exercise of a power. There is no cross-reference anywhere to the circumstances to be taken into account if it is to be exercised. It is doomed to failure. It will never survive a judicial review application. It is that discipline that I am inviting the House to note on this occasion.

In addition, there are no circumstances to be applied to its exercise. Clause 33(6), as the Minister pointed out, refers to community cohesion, but for foundation schools. Amendment No. 7 refers to governing authorities and Amendment No. 19 to the Ofsted inspectorate. Not in Clause 1, Clause 2 or anywhere else do we find a local authority being required to take into consideration certain circumstances before deciding what it desires. That is unacceptable.

I was surprised when I read the amendment, and I may prove to be wrong, as may the librarians, but tonight they inquired on my behalf. In 58 years of parliamentary experience, only two Acts and nine sets of regulations have used the phrase, “if they so desire” and then only to give people a choice to make a representation, to participate or not; never to lay the foundation for the exercise of national or local power. If the amendment in this form is the result of inadvertence, so be it. If it is the alternative, so be it. In either event it is simply not acceptable. Would any one of your Lordships accept a power by national or local authorities in any other context simply dictated by the phrase, “if they so desire”? Of course not. The amendment fails, I regret to say, despite the wit and style with which it was introduced, on basic legislative principle. This is not a phrase that accommodates our democratic approach.

Secondly, if you propose to change decades of educational practice ingrained in our society, you need clarity. Was it not in the United States, on the only occasion that I can think of, with quotas in education during the civil rights era, that the passage of white pupils to black schools and vice versa led to division and outrage—educational and social consequences that no one had ever envisaged? Those who propose a system in which that might be required need to explain to us how it will work and how those problems will be avoided. The amendment does not do that. Neither in its content nor in its intent does it meet the democratic and legislative principles of the House.

9.45 pm

Lord Lester of Herne Hill: My Lords, I agree with what has just been forensically said by the noble Lord, Lord Brennan, about the defects in the amendment, but I should like, if I may, to make a series of different, short points. First, any Jew, like me, from my generation would have a natural aversion to

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quotas when it comes to access to schools. Those of my generation will remember how most public schools in London, for example, had very small Jewish quotas. The school that I went to, the City of London School, was, when I went there, the only one that had no Jewish quota, so one-third of the school was Jewish. The idea of quotas is something that I think both secular and religious Jews dislike, partly for that reason.

Secondly, most sensible people would say that having apartheid or religiously segregated schools creates social evils—witness Northern Ireland or, I would say, Birkenhead, Liverpool or Scotland, where there are obvious examples of the social problems that segregated education creates.

Thirdly, it is important to explain to the House and to the right reverend Prelate that this is not an area where there is not already robust law in place to catch state-maintained schools as public authorities if they discriminate on racial or religious grounds in access to places in those schools.

I give just two examples. One is the Race Relations Act, which would prevent any school, Jewish, Muslim or otherwise—indeed, even private schools—from practising direct or indirect racial discrimination in access. The more telling example, because it is more pervasive, is the Human Rights Act. I should be interested to know whether the Minister agrees with what I am about to say or can take advice on it.

The European Convention on Human Rights, in Article 2 of the first protocol, guarantees the right to education. Article 14 of the convention has to be read with it and states that in respect of the enjoyment of the right to education, there must be no discrimination. “No discrimination” will include discrimination on religious grounds.

I was counsel in a case on behalf of the Government of Mauritius, whose written constitution is modelled on the European Convention on Human Rights, which came before the Privy Council two years ago. An appeal was brought by the Bishop of Port Louis on behalf of the managers of 12 Catholic secondary schools in Mauritius. What had happened in that case is instructive. The Catholic Church in Mauritius maintained a system of private education that was excellent in the secondary area. In order to persuade the churches to bring their schools within the state sector, the Government made a deal whereby the Catholic schools could maintain a 50 per cent quota for Catholics; the other 50 per cent being admitted on merit. So there was a clear 50:50 quota.

The question that a Hindu father of an 11 year-old girl raised in the case was whether it was unconstitutional discrimination to refuse to admit his daughter in the 50 per cent reserved for Catholics in that area. A strong and unanimous judicial committee with the Privy Council, led by the noble and learned Lord, Lord Bingham, the senior Law Lord, held that that difference of treatment was discriminatory unless it could be objectively justified, looking at all the circumstances, including the principle of proportionality.

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In my view, that case, read with the case law on the European Human Rights Convention, shows the following: either of these categories of schools, these additional schools, is wholly funded out of public funds. They are therefore public authorities within the meaning of the Human Rights Act. They therefore have a duty to comply with the convention rights and with the right not to discriminate unfairly and unjustifiably in allocating pupils to those schools. Therefore, whether it be a Muslim school, a Jewish school, a Catholic school, or an Anglican school, any school which discriminates arbitrarily or in a disproportionate way in their admission arrangements will be vulnerable immediately to a direct challenge under Sections 6 and 7 of the Human Rights Act for breaching their obligations under the human rights convention because they are all public authorities.

This would not apply, of course, to schools that are privately funded, and nor should it. In the private sector, as the case I have just mentioned indicates, different considerations arise. But I just wish the House to understand that we already have a strong and robust Human Rights Act and Race Relations Act which govern in this field, and for that reason, as well as the technical points raised by the noble Lord, Lord Brennan, I am not in favour of this amendment. I do not like quotas, anyhow, and it is unnecessary. But I do think that those who operate schools of this kind ought to be pretty careful about the way that they make their admission arrangements. I would just add that under the Race Relations Act, local authorities are implicated in some areas, and so is the Secretary of State for Education, if they allow schools to discriminate indirectly or directly on grounds of race.

There is a lot of law in place. It will trump the legislation that the House is now considering because the Human Rights Act says that all legislation must be read and given effect in a way that is compatible with the convention rights, and the same applies to administrative discretion. I apologise for talking as the lawyer that I am, but I thought it might be quite useful if I gave the House some free legal advice on this area.

Lord Winston: My Lords, I rise regrettably to oppose the amendment of the noble Lord, Lord Baker. I do so remembering that we have at least one thing in common. Although I did not go to his primary school, we both shared a secondary “ancient” education.

Be that as it may, I feel that what he is recommending is a huge social experiment. It seems to me that before one considered this kind of legislation, one would need to do some very serious social science research to see exactly what the consequences could be. It could well be that rather than causing harmony, disharmony could occur as a result of this, particularly in areas where these schools are oversubscribed. In the current case of some Jewish schools, they are grossly oversubscribed in north-west London. If there were new schools being made, that would be a massive problem for those people.

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We have heard a great deal about the taxpayer paying for a religious education, but often in the schools that I am aware of, the religious education is paid for separately. Certainly in most Jewish schools, it does not come within the state’s remit. Religious education is paid for by the parents who raise those funds by alternative methods.

We have heard other irrelevant arguments. My noble friend Lady Massey talked about the situation in Northern Ireland. That is completely irrelevant. The divisiveness in Northern Ireland has nothing to do primarily with schooling. It comes from a totally different kind of society with the social tensions that has.

Equally, I have to say to the noble Lord, Lord Skidelsky, that it is ridiculous to take France as an example. Does he seriously consider France to be a more cohesive society as regards religious discipline? On the contrary, there is probably more anti-Muslim and anti-Semitic feeling there than there has been in Britain in recent years. The model in other parts of Europe is no better.

Rather than taunt my noble friend Lord Adonis for a switch of direction, we should congratulate the Government on their flexibility. It is not just the Catholic community that has made representations to them; the Jewish community is wholeheartedly opposed to this kind of amendment because it fears for the consequences. Much of the Muslim community opposes it. As has been said, we must trust the Muslim community accordingly. The worst thing that could happen if we discontinued such state funding would be to force some religious education into the private sector, where it might not be so well controlled. That would be a grave error. We should contemplate that today before we go through the Lobby, if the noble Lord decides to call a Division.

The Earl of Onslow: My Lords, it is self-evident from what the noble Lord, Lord Alton, said that the Roman Catholic Church is acting in a selective and self-protecting way. It is perfectly understandable. My noble friend Lord Baker and others have created a real danger of Muslim schools undergoing the same ghettoisation—I am not sure whether that is the right word but I am afraid that it is what they want to do. It is not often realised, for instance, that in the Muslim world there is no conception like ours in the Christian world of:

Throughout Muslim history there has been tension with secular government, because in theory the Prophet did not allow it. Everything had to be governed under Sharia or religious law. Christianity, luckily for itself, had the ability to separate the two.

The Church of England has been fundamental to the development of the ethos of the United Kingdom. As I said to a bishop earlier, I am not even sure that the Church of England always believes in God. He quite charmingly proved my point by saying, “I think we do”. The Church of England’s very broadminded and, if I may say so, very English approach to religion and society has made its schools particularly good.

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The other Churches felt left out and asked for help to preserve their separate identity. That is why Peel paid for Maynooth Roman Catholic seminary well before 1902 and Lloyd George. It was designed by Pugin and paid for by the English taxpayer. The very real danger that has been shown is that of exclusive schools, and we do not address it at our peril.

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