Education Bill

My Lords, I begin by declaring an interest as an honorary associate of the National Secular Society, which has been instrumental in securing that these amendments are before your Lordships today. There have been herculean efforts to get the matter considered, first, by the Equality and Human Rights Commission and now by your Lordships in Committee. The noble Baroness, Lady Turner, has made reference to the Council’s opinion, dated 24 March, which had been sought by the Equality and Human Rights Commission as a result of persistent representations by the National Secular Society about the unlawfulness of certain provisions in Section 60 of the School Standards and Framework Act 1998, and of amendments to that and other sections of the 1998 Act which are included in this Bill. Yesterday, I alerted the Minister’s office to my intention of following the noble Baroness in referring to the 90-paragraph opinion by Mr David Wolfe of Matrix Chambers—he a distinguished lawyer in one of the leading chambers in the whole of England—which was deposited in the Library of your Lordships’ House following a Question for Written Answer dated 11 August 2011, col. WA 433. If I were to go through the whole list of alleged violations and potential violations of the European directive 2000/78/EC, which were identified by counsel, we should be here all night. However, it might help if I begin by explaining that Articles 4(1) and 4(2) of the directive provide a partial derogation from Article 2 which says that direct or indirect discrimination on grounds of religion or belief is proscribed in the field of employment. The derogation, which must be narrowly construed, provides effectively that a difference in treatment on grounds of religion or belief shall not constitute discrimination where the characteristic is a genuine and determining occupational requirement, provided that it is proportionate. Whether that derogation applies to reserved posts in the present context is arguable but in counsel's opinion it cannot go beyond that. To pick up on just a few points of detail, counsel says that SSFA, "““section 60(5) (and by parity also section 124A) falls foul of the Directive””," for which he gives several different reasons. This section applies to all voluntary-aided schools, religiously designated academies and to up to a fifth of teacher posts in voluntary-controlled schools. He expresses concern about the, "““(potentially flawed) assumption that all voluntary aided schools fall within Article 4(2) for all relevant purposes””." If this assumption is wrong they would not be able discriminate against all staff on religious grounds, as the law currently allows in voluntary-aided schools. This concern is repeated about religiously-designated new academies or free schools and independent schools with a religious character. If they do not fall within Article 4(2), which as I have said must be narrowly construed, it is illegal for them to discriminate in the way the law at present purports to allow, and I dare say that this could be the subject of unnecessary litigation. The opinion supports the proposal that Section 59 of the SSFA protections of staff in community schools should be continued when they convert to academies so that teachers cannot be required to teach RE, and of course staff should not be required to worship or believe. In the Minister’s Written Answer to me of 15 March, he said that the Government were satisfied that their approach was compatible with the directive, but at that time he had not seen this counsel’s opinion. When the NSS had a meeting with Minister Nick Gibb, some time in June, he appeared to be sympathetic to the amendment which counsel suggests. There is support for conditions to be attached to the exercise of the Secretary of State’s discretionary power in Clause 58 and Section 124AA(2) of the SSFA to convert VC schools to voluntary-aided academies so that they have power to discriminate against 100 per cent of staff rather than a maximum of 20 per cent. Having reviewed the several alleged violations and potential violations of the directive which he shows as contravening the limits on derogation from Article 2, counsel concludes that, "““the problem discussed above is far greater than even the NSS has contemplated so far. In particular, it would mean that schools which did not meet the Article 4(2) requirements would nonetheless be gaining a right to discriminate which Article 4(2) does not permit””." He goes on to note that although he had not been asked to deal with Human Rights Act matters, "““there may be significant Article 14 and Article 9 issues particularly when it comes to the position in voluntary aided schools (in relation to section 60(5)) and in Academies falling within section 124A (after the introduction of section 124AA, namely the ex voluntary aided schools) which are all clearly public authorities””." I just remind your Lordships that Article 14 ECHR prohibits discrimination on grounds of religion as well as other characteristics, and Article 9 confers the right of freedom of religion or belief. These are extremely serious matters. Given that the EHRC, as the Government’s statutory equality watchdog, had this hugely damming advice about legislation and proposed legislation being unlawful, one would have expected it to warn the Government immediately and to call for corrective amendments to be brought forward. However, predictably, it sat on counsel's opinion for nearly three months. It was on the desk of the chair, Trevor Phillips, while the Bill went through another place. There is even some doubt about whether the opinion would ever have seen the light of day if we had not become aware of its existence and applied pressure for its publication. Since it entered the public domain, it has been drawn to the attention of Ministers and every interested agency, including those in the European Commission responsible for directive enforcement. I ask the Minister to let us have copies of the correspondence that has ensued between EC officials and his department since then. Yesterday, I notified the Minister's office that I would refer to the matter in the debate. I hope that he has come armed with a full reply. Perhaps the best way forward now—I bow to the noble Baroness who moved the amendment to see whether she endorses it—is for the Minister to let us have the detailed point-by-point response called for by an analysis that makes shocking charges of lawbreaking against the Government. Before Report, we should sit down with the Bill team and our advisers to see how we can best rescue the Government from a disaster of their own making.