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Thirdly, a reporting requirement on businesses will inevitably create additional costs. One could draw an analogy here with gender pay reporting, but the rationale for that policy rests on a very long-standing piece of law, the Equal Pay Act 1970. The EHRC has been working closely with business representative groups to develop voluntary reporting measures as outlined last week and we have said that we will consider introducing a statutory reporting requirement only if this does not happen voluntarily. The clear rationale, engagement with stakeholders and fully mapped-out process which exist for gender pay reporting do not exist for my noble friend's proposal and I am, therefore, unable to support it. I ask my noble friend not to move her amendment.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to everyone who has taken part in the debate, although I am not going to reply to all the points. We on these Benches have been pressing for many years for the abolition of the default retirement age of 65, and it is core policy for us. However, we also have another overriding requirement, which is to get this Bill through, so we are trying-I may fail-to exercise great self-discipline in not speaking for longer than is absolutely necessary. I will reply extremely briefly, which will not do justice to all the points that have been raised.
First, I would like to say that the High Court which heard the case had the benefit of a vast amount of evidence. It was, of course, heard by an independent and impartial judge on the basis of the European directive and English law. What he said, in paragraph 130, was:
"I cannot presently see how 65 could remain as a default retirement age after the review".
That statement by the judge, which was not appealed against, is of great force.
Secondly, there was another body that was independent and impartial; the committee of the noble Lord, Lord Burns. I commend to the House, and to those who have been asking interesting questions, the report of that committee in HL Paper 179. Noble Lords should read that report and the evidence that was given, all of which was read by the judge. The fact that that committee, presided over by no less than the noble Lord, Lord Burns, should unanimously have come to the conclusion all those years ago, that one could replace a rigid retirement age by flexibility and choice, partly for the reasons given by the noble Lord, Lord Pannick, must surely carry some force. All the practical issues that are being raised were considered then.
If, before Report, noble Lords decide to look at that paper, I also commend the memorandum put in by the Chartered Institute of Personnel and Development and its oral evidence, which distinguished between what it called command-type organisations, of which I respectfully regard the church as one and the judiciary as another, and different kinds of managerial style. The way in which it goes into it in paragraphs 258 to 260 and paragraphs 269 to 270 I suspect ought to give people further pause for thought.
On the issue of old versus young, of course, one does not want old, arthritic, hardening of the arteries at the expense of young blood. The European Court of Justice decided, only on 19 January, in a case with the unpronounceable name of Kücükdeveci v Swedex GmbH & Co, that German law, which provided that employment before the age of 25 is to be disregarded when calculating service-related notice periods, breached the directive which governs us as well. That was an example of discrimination against the young which did not pass muster. The only reason why the UK succeeded in this issue in Luxembourg is because the Court decided that there was a wide margin of discretion open to the legislature to give effect to it.
I suspect the fundamental problem is that we do not take age discrimination as seriously as race discrimination or sex discrimination. Suppose the law said that a black person on reaching the age of 65 is automatically dismissed, no one in the House would say that that could conceivably be justifiable. The reason would be not only that colour and race are irrelevant but also that it violates the principle about which the noble Lord, Lord Pannick, spoke of individual merit on the basis of individual capacity. These days the same applies to gender. Few people would say that a retirement age of 65 for women but not for men could no longer pass muster because it was rigid and disproportionate and gender was not an automatic disqualification from employment. When one comes to age, unconsciously many people think that it is somehow more permissible because of the conflict between the old and the young. The Luxembourg court has made it quite clear that age discrimination is to be taken as seriously as the other forms of discrimination.
I have heard all the arguments and I am very impressed by the fact that in 2003 the Department for Work and Pensions and its Cabinet Minister thought that there was no problem at all in getting rid of the default retirement age of 65. That was six years ago and I am very heartened by what the Minister has said today; that the Government intend to get rid of it after further consultation, and no doubt other matters, by some time in 2011. That is a very important concession. I fully appreciate the need for a breathing space while that happens. All that divides me from the Government now are the words of Archbishop William Temple: "Whenever I travel on the Underground, I always intend to buy a ticket, but the fact there is a ticket collector at the other end just clinches it".
Although today I shall withdraw my amendment, on Report I shall return and, having listened to the noble and learned Lord, Lord Mackay of Clashfern, I shall seek to amend Clause 208, the commencement clause, to ensure that the Government's intentions will be carried out by the end of 2011. I thank the Government and the Minister-
Lord Monson: Perhaps the noble Lord would quickly answer my question about whether objective aptitude tests would be allowed. That would solve a lot of problems.
Lord Lester of Herne Hill: An employer is fully entitled to employ only those who are capable of doing the job. Of course, no one suggests that someone
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Amendments 103 and 104 not moved.
Clause 84 : Application of this Chapter
Clause 85 : Pupils: admission and treatment, etc.
Amendments 106 to 106ZB not moved.
106A: After Clause 89, insert the following new Clause-
"Reserved teachers at schools with a religious character
(1) The School Standards and Framework Act 1998 is amended as follows.
(2) In section 58, after subsection (3) insert-
"(3A) The head teacher of such a school shall not, while holding the post of head teacher of the school, be a reserved teacher.""
Baroness Turner of Camden: I shall speak also to the other amendments in this group. Amendment 106A reinstates an important protection in the Schools Standards and Framework Act 1998 that was removed by the Education and Inspections Act 2006. Under the protection in the earlier Act, it was not lawful for voluntary controlled schools, of which there are some 3,000, to require a head teacher to be a reserved teacher. Such teachers need to be able to teach religious education, must hold the requisite belief and attend religious worship and their conduct needs to be compatible with the precepts of the religion.
The removal of this protection in 2006 represented an adverse change in employment affecting thousands of head teachers and teachers with hopes of promotion later in their career. Attempts to secure transitional provisions for them have failed. Indeed, the Church of England's National Society for Promoting Religious Education has made it clear that all VC head teacher posts under its control will automatically become reserved teacher posts, regardless of the injustice, and even hardship, that that may cause. I am advised that the removal of the protection afforded represented a regression in employment equality law that is in breach of EU Directive 2000/78/EC.
The other amendments in this group deal with a similar issue: the religious requirement that can be imposed on all teachers in voluntary aided faith schools. Why should such requirements be imposed on, for example, physical education or maths teachers when the same rules do not apply to charities or businesses with a religious ethos? I believe that this is also not in line with EU Council Directive 2000/78/EC. The directive seems to require that permitted discrimination can take place only when there is a genuine occupational requirement. The Bill, if unamended, allows discrimination against a large category of employees; namely, all teachers in most faith schools. I hope that the Government will agree that this is not acceptable and that steps should be taken to ensure that the Bill is fully in line with the EU directive.
We had some discussion about the EU directive earlier in this Committee, and I understand that the Government have already been told that they are in breach. I have a copy of the reasoned opinion from the EU Commission, and it is quite clear that the ruling is that this country is in breach. It is an important document, and I hope it can be left in the Library for noble Lords to read. It is important for the legislation we are introducing to be in line with the directive. If it is not, it means that people who feel that their rights have not been applied to them may seek to have them enforced by the courts. It would be better if, from the beginning, we have legislation that is fully compliant with the EU directive. I beg to move.
Baroness Morris of Bolton: My Lords, Amendment 106A is yet another attempt to limit the powers of governors and goes specifically against what was agreed in the Education Inspections Act 2006, when this House removed that prohibition. We on these Benches see no reason to limit the power of governors and the rights of faith-based schools to maintain the ethos they are pledged to deliver by their own terms of endowment. Amendments 124, 125 and 137 pursue this same line by attempting to undermine the ability of governors to maintain that ethos through appointments and dismissals.
I apologise to the noble Baroness, Lady Tuner, but we do not find these amendments helpful. We feel that they could well impair the excellent work done by so many faith schools, often in deprived areas. Yet again, these Benches wish to maintain the status quo in this area in order to support the excellent work of faith schools and to preserve that delicate balance between the right to hold differing religious beliefs and mutual tolerance.
The Lord Bishop of Liverpool: My Lords, the noble Baroness, Lady Turner, will not be surprised to learn that these Benches do not support her amendment. The diocese of Liverpool has more than 120 schools and three city academies. I declare an interest in that I have been personally involved in interviewing for the principals of each of the three academies. Those candidates were, indeed, required to share the Christian faith.
The Government welcome the role of the churches in education. I was very glad to hear the noble Baroness, Lady Morris, refer to the work done by the churches,
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The character of any institution and, indeed, of any school, flows directly from the character of its leadership. It would be very difficult indeed to fulfil the Government's endorsement of faith and church schools if the Bill removed the requirement that the principal or head teacher should embrace the ethos which they are called to promote. Therefore, we oppose this amendment.
Lord Alton of Liverpool: My Lords, I join my voice with those of the right reverend Prelate the Bishop of Liverpool and the noble Baroness, Lady Morris of Bolton, in opposing this amendment. I understand the position that the noble Baroness, Lady Turner of Camden, has put to the Committee. It is not a new position, it has been expressed before, and she has certainly been admirably consistent in voicing that opinion, but many of us in your Lordships' House feel that anything which is done to dilute the character and ethos of church schools would be a regrettable mistake. They contribute an enormous amount to the life of this country but also to specific communities of the sort that the right reverend Prelate has just described.
I am a governor of a church school and I send my children to church schools. In the distant past I worked in the voluntary-aided as well as the maintained sector of education, so I have seen these schools at first hand and know the contribution that they make. If you were to hold up a mirror to contemporary Britain today, you would probably see its diversity more clearly in church schools than anywhere else. In the schools that I visit regularly, I see a range of children from many backgrounds; immigrant backgrounds, almost by definition. In an average Catholic school you will see children from African, Asian, Filipino and Polish backgrounds as well as from indigenous British backgrounds, but often with Irish antecedents in them. These are places we should be proud of because here we are living out integration and tolerance. Indeed, the faith schools that the right reverend Prelate has done so much to promote in the city of Liverpool, and which have been such a remarkable achievement, also have an interdenominational character. In a city with a sectarian past one must see that as a remarkable achievement, of which we should be very proud.
Instead of celebrating the extraordinary contribution of schools with a religious ethos, over the years we seem to have had a sustained attempt to dilute their character. I remember the debate in which I took part in your Lordships' House where attempts were made to impose quotas on church schools. I am glad that the Government have resisted any attempt in this legislation to change the admissions' procedures in church schools.
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The noble Baroness cited regulations from Europe as justification for her amendments. But it is probably worth reminding the Committee of Protocol 1 of Article 2 of the European Convention on Human Rights. It provides that the state shall in exercising its functions in relation to education and teaching,
It is impossible to see how they will be able to do that if the character of these schools is to be changed in the way in which the noble Baroness would wish.
In 1944, a historic bargain was made between the churches and the state. The Education Act 1944 still stands as testimony of one of the great pieces of legislation of the 20th century. It opened the door to people from the kind of background that I came from to have the opportunity of higher education. But it also provided the opportunity for the churches to give educational opportunities to children who were often from deprived and poor neighbourhoods.
As part of that historic bargain, the churches had to spend in those days three-quarters of the costs involved in the capital costs of building such schools. Even today it amounts to 10 per cent. The churches give the state this huge piece of collateral in order to help it in the education of children. That these schools are popular cannot be in dispute. Most neighbourhoods have waiting lists for such schools. It surely is not a coincidence that the former Prime Minister and the Leader of the Official Opposition both chose such an option. Indeed, it was recently reported that so has the Foreign Secretary. There is nothing to criticise about that. We should be asking why people make those choices. This is something from which we should learn and uphold. We should be proud of diversity in education.
The 1944 Act was part of the legislative programme of the national Government. RA Butler was Secretary of State for Education and Chuter Ede, Labour Member of Parliament, was his PPS. Consensus was reached before that legislation passed through both Houses of Parliament, which is probably why it has stood the test of time. Archbishop Griffin, the then Archbishop of Westminster, was in the Strangers' Gallery in the other place on the day the legislation achieved its Third Reading. He sent RA Butler a copy of Butler's Lives of the Saints. There are many parents in this country who would agree that the legislation has given their children many blessings. Anything we did to change the character of such schools would be an error.
Another reason why we should resist this amendment concerns the trust deeds of these schools and the responsibilities that they place, through charity laws, on the governors of such schools. We would be placing them in a position where they could not fulfil the obligations laid on them in those trust deeds if we were to accept these amendments. For those reasons, I hope that they will be resisted.
Lord Lester of Herne Hill: My Lords, we on these Benches, especially in the other place, strongly supported this range of amendments. I know that my colleagues in the other place would wish me to say that now and to pursue the matter. Frankly, I am not going to in the interests of the Bill as a whole. I have warned from the beginning that if we are not careful religion will ruin the Bill. Again and again religious questions will come up. They will take hours and will dwarf the overriding requirement, which is to get the Bill through. So I am not going to do what I should, which is to speak fully in support of the amendments of the noble Baroness, Lady Turner.
I just give one cautionary word about faith schools: when the original legislation on this matter was passed, I warned the noble Lord, Lord Adonis, who was then the Minister, that there were serious problems about admission to faith schools-which are not the subject of these amendments-because of a case I successfully argued in Privy Council, the Tengur case, involving the Bishop of Port Louis, Mauritius. A unanimous Privy Council held unanimously that you could have religious quotas but had to admit pupils on merit. That is not what this amendment is about. Therefore, I fully support the amendment but I shall not go into any of the arguments.
Secondly, I have done something completely idiotic-I failed to move Amendment 105, which had been fully debated and accepted by the Government and dealt with teenage pregnancy in schools. I apologise to the Committee for that. I cannot believe that the procedures of the House are so inflexible that it is not possible for me now to seek to rectify this. If it were not possible-
A noble Lord: You have Report.
Lord Lester of Herne Hill: Provided we get a Report stage. If I can be guaranteed that we will, we can deal with my foolish mistake, but I thought that I ought to state it now, and I wear sackcloth and ashes.
Baroness Thornton: I apologise to the noble Lord in return. I can confirm that his amendment had been accepted by the Government. We made a bit of a boob by not inviting him to move it at the correct time. We shall ensure that it is included on Report.
I thank my noble friend Lady Turner of Camden for tabling the amendments, which allow me to clarify the situation. I hesitate to use "clarify" in the presence of the Lords spiritual who are out in force again, but I hope that, this time, harmony will prevail.
Faith schools are an important part of our education landscape and part of the educational choice open to parents. To maintain their religious character, they must be able, where appropriate, to appoint teachers of the same faith. The provisions in the School Standards and Framework Act that we are debating preserve a situation which has existed for virtually as long as we have had publicly funded schools in this country.
My noble friend's first amendment in the group, Amendment 106A, is distinct from the others, as she said, and deals with the situation in foundation and voluntary controlled schools with regard to reserved teachers. Where there are more than two teachers in
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When the Education and Inspections Act amended the School Standards and Framework Act in 2006 to allow head teachers to be reserved teachers, it was done not to extend this exception but to help small and mainly rural schools. These schools often have to appoint head teachers who not only fulfil that role but also take on a variety of teaching roles. It was put to us that small schools were experiencing difficulties because their head teacher could not also be appointed to teach religious education, as the law did not allow this before 2006, so we amended the law to make life easier for those schools. We have no evidence that teachers' prospects were reduced by the Government's helpful amendment, but I invite my noble friend, if she needs to, to write to me if she has such examples.
The amendment was compatible with EC Directive 2000/78 because it simply applied an existing regime, which was applicable only to those specifically appointed to teach religious education, to those who were also head teachers.
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