Equality Bill [Lords] |
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Paul Goggins: I begin by thanking the hon. Gentleman for the constructive tone in which he has introduced his amendments. I shall explain in a moment why the Government oppose them, but he has well known views in this area, and he has applied his mind in a very focused way to the particular issues in hand. I am not aware of any particular reason why the Government’s response to the report of the Joint Committee on Human Rights would not have been appropriate. My hon. Friend the Minister for Women and Equality and I will look into why there was no response, and will come back to the hon. Gentleman and other members of the Committee on that subject in due course. The report examined the wider question of the potential exemption of faith schools in general from the protection of this legislation, which is rather different from the kind of exclusion to which the hon. Gentleman has referred in his amendments. He will forgive me for being slightly pedantic about the phrase that he used about the harassment provisions, but the Government did not “remove” those provisions from the Bill. They were removed by his hon. Friends and hon. Members on the Conservative Benches, against the better judgment of the Government. However, we have concluded that it would be better for that matter to go before the discrimination law review and, we hope, for us to achieve a consensus on the way forward. Column Number: 171 12.15 pmAmendment No. 155 would clearly confine the curriculum exception to religious instruction and religious education, and amendment No. 153 would not exempt action related to the curriculum or to religious worship that could be regarded as subjecting a pupil to detriment. If either or both amendments were accepted, that would allow claims of discrimination about aspects of the curriculum when the curriculum is broad, fair and well balanced. The provisions are in place to protect the curriculum. We do not believe that the concept of individual rights should be used by those who may not agree with particular aspects of the curriculum in our schools as a means of challenging existing school policies of inclusiveness and diversity in the curriculum that are set out in statute. The Education Act 2002 provides for a basic curriculum that every maintained school is required to follow. There would be considerable concern if there were a suggestion that the way in which dancing, singing, music, physical education or even science lessons were taught should be changed to avoid challenge on the grounds of the religion or belief of certain children or their parents. That would clearly be unacceptable. However, such challenges would be permitted if the amendments were accepted. Dr. Harris: I understand the Minister’s point. That is why I said that I thought these would be probing amendments. However, could he explain why the term “any other detriment” is required when clause 48(1)(c)(i) and (ii) already refer to preventing a pupil from having access to a benefit, facility or service? What detriments does he hope that the exemption would capture that are not already captured by those sub-paragraphs? Paul Goggins: One could speculate about the detriments that any individual pupil or family might feel, but they should not have the facility, because they have an objection based on their religion or belief, to challenge aspects of the national curriculum that are agreed and set out in statute. Whatever reason they had would be a matter for them. We do not want schools to be continually engaged in litigation and legal challenge on matters that are beyond their scope to determine, having been determined in statute by Parliament. The amendments would permit that, although I accept that they have been tabled as probing amendments. Dr. Harris: I understand the Minister’s point and I will reflect on it. However, in respect of acts of worship, it is hard to see what detriment someone might feel they were subjected to, given that section 72 of another measure allows pupils to be pulled out of collective acts of worship of the kind referred to in subsection 2(b). Therefore, is it really necessary to provide for that catch-all exemption of “any other detriment” in respect of acts of worship that one does not have to attend, which is different from curricular matters, where there is no similar opt-out for pupils or their parents? Column Number: 172 Paul Goggins: The hon. Gentleman is right. There is the opportunity to opt out. However, if the amendments that he has tabled were included in the Bill, it is at least arguable that an individual pupil or family could challenge the holding of the act of worship as being of detriment to them. We do not want that to happen. The policy is set out clearly in statute and in the guidance that goes with it. We do not want individuals who argue that something is of detriment to them to be able to challenge the school and embroil it in all kinds of legal challenge, debate and argument in an unfair and burdensome way. We want to make it clear that we do not want individuals to pursue legal action along those lines. The hon. Gentleman is right to say that it is all set out in statute and that an individual can opt out of an act of worship. However, he cannot challenge the school for holding an act of worship on the ground that it is of detriment to him. Amendment No. 154 relates to exceptions for faith schools. During the passage of the Bill, we have made it clear that the part 2 provisions on discrimination on the grounds of religion or belief raise several issues particular to education and that certain exceptions are needed, especially for faith schools whose operation the Bill is not intended to undermine. I acknowledge the constructive way in which the hon. Gentleman put his argument. He has views about faith schools and no doubt he would love to have a further debate about them. However, he restrained himself this morning and focused on one or two particular issues. The Government have no intention under the Bill of reopening the role of faith schools. Faith schools have a right to operate effectively and they must be free to discriminate in certain respects on religious grounds. Faith schools are therefore currently exempted from the provisions specific to educational establishments. The amendments would remove that exception from two specific areas. They would make it unlawful for faith schools to exclude an existing pupil or to subject an existing pupil to any other detriment on grounds of religion or belief. The main purpose of the provision is to avoid the use of the Bill to allow individuals and particular families to bring complaints about the way in which faith schools are run when, in fact, what is being challenged is a fair and reasonable aspect of the way in which the school is organised. Such action would involve the school in unnecessary time and resources in defending legal challenges. Faith schools should be able to discriminate in relation to admissions, acts of worship and so on. However, I was struck by the phrase used by the hon. Gentleman when he talked about making sure that we had the appropriate balance between the power of the school authority and the position, the needs and the rights of individual pupils. I wish to offer him some encouragement. I am willing to look a little more closely at the particular issues that he raised. He argued that it was not right for a school to exclude existing pupils on the grounds of religion or belief. Given that a faith school has control over its admissions policy, it is unlikely that there would be many examples of when individuals would switch
We will be issuing guidance in respect of the measures. No doubt we shall discuss them, but elsewhere in the Bill are order-making powers that can add to the exceptions or remove them. Whether or not it will be necessary to do something with the Bill, we shall issue guidance on the matter and watch carefully to see how it is implemented in practice. Dr. Harris: Can the Minister assure the Committee that the guidance produced will be subject to full consultation with those who are not religious in a way that exists extensively for the religious and faith communities that have a particular perspective that they are entitled to have? They feel sincerely that sometimes their views impact on the non-religious in society and it is important at every stage to capture those views. If he can give such an undertaking, it would be of some reassurance. Paul Goggins: I will happily give that reassurance. At times, I fear that some of my colleagues in the Government might consider that I am a little ambitious when it comes to the issuing of guidance and consultation exercises. I am positively in favour of that, but sometimes I might take such action a little too early in the process. Clearly, guidance cannot be issued until the legislation is settled and measures have been put on to the statute book. I am a great believer in getting the guidance right, not least through the involvement and engagement with groups that have a particular interest in such matters. In respect of the Bill, the groups would include religious groups as well as non-religious groups, such as humanists. Not only would that improve the guidance, but the level of understanding of what legislation is intended to do and what it has the power to do. That approach also avoids the development of myths, which can grow up unnecessarily and damage public confidence. I hope that that reassurance regarding guidance is sufficient. I take this issue seriously. I hope to give the hon. Gentleman comfort by telling him that we continue to consider these issues carefully. When we first drafted the proposals that we are discussing, they had the back-up of the harassment clauses, which gave us extra confidence that the rights—as he put it—of the individual pupil would be protected. Now that the harassment provisions are no longer part of the legislation, I shall consider whether it is still strong enough to protect those rights, notwithstanding the right of faith schools to operate in an effective way that reflects the ethos of such establishments and of the faiths to which they adhere. With that reassurance, I hope that the hon. Gentleman will be happy to withdraw his amendment. Column Number: 174 Dr. Harris: I am grateful to the Minister for the content and tone of his remarks. I stress that my pointing out that there has not, as far as I know, been a response to the 16th report was not a criticism. The report probably came out just before the general election was called. The Committee is more than capable of raising with Ministers any concerns that it might have about lack of response; that is not for me to do. I was merely pointing out that because there was no response, it would be worth while seeking a response from the Minister now in semi-formal terms regarding my concern, which raises a point that is relevant to the Bill. I am grateful for the Minister’s reassurance about guidance. There is an argument that draft guidance can sometimes be made available while a Bill is being scrutinised, but that is not the case here. Therefore, we rely on proper consultation. My point about the need to consult the non-religious is that when dealing with establishments such as faith schools, the natural impulse is to think that any changes will affect the religious, but every exemption given to religious groups—well, not every exemption, but many of the exemptions and special provisions given, appropriately or otherwise, to faith groups—will have implications such as reducing choice or freedom or causing some other detriment to people who are not of a religious group or that religious group. It is important that we policy makers should think beyond people of religion when considering such matters. There are instances in which we are talking about 20 people, of whom 19 might well be religious, but we know that at least 30 per cent. of people say in censuses that they are not religious and that when it comes to observance, the majority are not religious. Their needs should be looked after. The Minister is correct to point out that the harassment provisions were taken out against the Government’s wishes through a Division in the House of Lords. Part of the worry—I do not want to go into specifics—was that there were wide exclusions in the original Bill, even on harassment, which were then narrowed on Report in the House of Lords after consultations, which seemed, at least originally, to exclude some schools from the need to avoid harassment. I know that the Government thought that they had the balance right by the time that they made those amendments on Report, but the House of Lords was not persuaded of that. Nevertheless, the right not to be harassed still exists because of the implications of the Human Rights Act 1998. The Minister is right to point out that schools will have to have regard to that when operating under the exemptions. Finally, I am grateful to the Minister for agreeing to consider the issue of exclusion, which is not provided for in subsection (2), but is allowed for elsewhere. I hope that he will consider that carefully. I agree that it may not occur frequently, but even one occurrence of that, or people feeling that they cannot change their religion because of the threat that that might affect their continuation at that school, would be a serious
Amendment, by leave, withdrawn. 12.30 pmMr. Grieve: I beg to move amendment No. 112, in clause 49, page 30, line 38, leave out ‘or repeal’. The Chairman: With this it will be convenient to discuss the following amendments: No. 113, in clause 49, page 30, line 40, leave out paragraph (c). No. 114, in clause 49, page 31, line 4, leave out paragraph (b). No. 115, in clause 49, page 31, line 7, leave out paragraph (c). Mr. Grieve: These amendments concern the power of the Secretary of State by order to amend the legislation, in so far as it provides for the amendment or repeal of exceptions in subsections (1) or (2), for an additional exception to clause 48, and for making
Each of those provisions raises different issues. As a general rule, I do not much care for powers that can be made under statutory instrument. After all, we spend a great deal of time in Committee considering the legislation, when the reality is that it can then be changed in important and fundamental particulars merely by a one-and-a-half-hour debate in the House of Commons, with no opportunity to amend the Government’s proposals. Therefore, I would like the Minister to explain why each of these provisions is included in the legislation in their current form, and to justify the necessity for each of them. Amendment No. 112 deals with subsection (3)(a). I have left open the option for the Secretary of State by order to amend an exception, but not to repeal one. Why do the Government require a power to perform such a repeal by statutory instrument to an exception that has been heavily debated in Parliament? I feel rather less strongly about additional exceptions, because an addition is different from a repeal, but what about paragraph (c) which refers to “construction”? Can the Minister explain in what circumstances the Government might make provision about
We addressed that earlier. It is to do with the criteria of discrimination,
On one showing, that opens up a very considerable hole through which the Government can alter this legislation at will in future. Dr. Harris: I rise to make two points. It is curious that the hon. Gentleman treats repeal and addition differently. Obviously, he is probing and he is entitled to frame his amendments as he wishes, but this relates to the point I raised earlier that every exemption given
The idea that it is okay to add an exception for faith schools under clause 49(1) and a clause 48 exemption, but not to repeal provision for faith schools is open to question. There is a sort of favouritism—I hate to use the term—towards faith groups. Mr. Grieve: The hon. Gentleman is wrong. I would take the same view if the legislation were intended to provide an exception for faith schools or non-faith schools. It just so happens that in this instance it concerns faith schools. The basic principle is that the state imposes a burden, and there is a profound philosophical difference between the state being able by statutory instrument to impose another burden and the state by statutory instrument being able to remove a burden. That is the basis of the differentiation I make. Dr. Harris: That is a fair argument, which could be balanced by the argument that in the case of repeal both Houses have already agreed what should happen. It could be argued that primary legislation should be necessary to revoke the consent of both Houses. That might not apply to an exception, on which debate had not already taken place, and an affirmative resolution might be appropriate. That is a relatively minor point, and my other point is also a minor one. I believe that the House of Lords made a similar amendment elsewhere in the Bill to curtail the Government’s ability to make changes of the kind in question by statutory instrument, or at least to ensure that that was done in a certain way. Does the Minister recall that, and would such amendments make the clause consistent with another clause in this part? Paul Goggins: As the hon. Member for Beaconsfield pointed out, clause 49(3) gives the Secretary of State order-making powers to vary exceptions in the light of experience. I hope that I can reassure him that the Government do not intend to establish powers under this clause that would drive a great hole through the Bill. Far from it. We want a facility to ensure that we can make minor adjustments and amendments to the Bill in the light of experience. Through our engagement with stakeholders across the board we have arrived at a set of well worked proposals that will, largely, work in practice. However, we want to allow ourselves the flexibility and room to improve the measure in the light of experience. Debate on a previous clause showed that there is a need always to maintain the right balance between institutions’ and individuals’ interests. Through experience we may learn to achieve that slightly better than we now envisage. Amendment No. 112 would remove the power to repeal an exemption. That would render us helpless if, in the light of experience, we discovered that an exemption in the Bill was not having the intended effect and was disadvantaging certain groups. All members of the
Amendments Nos. 114 and 115 would remove the provisions to allow a degree of flexibility in an exception or clarification that might be needed in different geographical locations. That involves an important point. Education is a devolved matter, but the issue of equality is not, so we need to ensure the right balance between our equality legislation and the different systems for providing education around the United Kingdom. We do not have a one-size-fits-all approach and we need the facility to develop things accordingly. I know that the hon. Member for Beaconsfield has strong views about order-making powers and I did not think for a minute that he would let an opportunity go by to bring those concerns to the attention of the Committee. However, the affirmative procedure is to be used and both Houses would need to agree any amendments in the normal way. Such opportunities can arouse significant debate in and out of Parliament. All that would be dealt with properly and in consultation with stakeholders, in a coherent and positive way. I hope that notwithstanding his general reservations about order-making powers, the hon. Gentleman will see the merits of those set out in the clause as an opportunity to improve the Bill in the light of experience. Dr. Harris: Will the hon. Gentleman give way? Paul Goggins: With three words to go, I give way to the hon. Gentleman. Dr. Harris: I am curious about something. I found the other clause that was amended. Clause 65 in the Bill that originally went to the House of Lords stated:
That is now clause 63 of the Bill, which states that the Secretary may by order only do so to “(a) create an exception”, or “(b) vary an exception”, but not to repeal an exception. I should be interested to know how that now relates to the provisions that we are discussing. Clause 51(1) is about public authorities. It seems either that the House of Lords decided that they should do only one of the provisions, or that there was a particular reason for reducing the scope in relation to public authorities, but not in relation to the clause under discussion. The Chairman: Order. For the benefit of the Committee, the Minister does not have to answer for what happened in the House of Lords, but if he wishes to do so— Paul Goggins: That is very kind, Mrs. Anderson. Either the hon. Gentleman is on to something, or he is not. I am not going even to try to respond in detail to
I accept that as legislation is developed between different Houses and at different stages within this House, there are potential inconsistencies in different parts of the Bill. If he is on to something, we shall want to address it. I am grateful to the hon. Gentleman for pointing out what may be an issue. If it is not, I shall be only too happy to write to him to put his mind at rest. Mr. Grieve: The Minister is, as ever, reassuring in his manner, and in the circumstances I shall not press the amendment to a vote. The hon. Member for Oxford, West and Abingdon rightly highlighted amendments in the other place to a further clause—clause 63, as it now is. I am pleased to see that they took place. They show that it is possible to rein in the Government’s tendency to seek to legislate by statutory instrument. However, the Minister has made a good case for keeping in the Bill the particular statutory instrument powers under discussion, and I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 49 ordered to stand part of the Bill. Clause 50 ordered to stand part of the Bill. Clause 51 Public authorities: general Mr. Grieve: I beg to move amendment No. 116, in clause 51, page 32, line 12, leave out paragraph (d). The Chairman: With this it will be convenient to discuss the following amendments: No. 117, in clause 51, page 32, line 13, leave out paragraph (e). No. 118, in clause 51, page 32, line 14, leave out paragraph (f). No. 119, in clause 51, page 32, line 15, leave out paragraph (g). Mr. Grieve: We now come to a clause that is of considerable importance to the Bill. The Minister will tell me if I am wrong, but if I understand it correctly, the duties imposed on public authorities are very much wider than those imposed on other people. Perhaps we should expect that. The duty spelled out in clause 51 is a duty on the public authority not to do any act that constitutes discrimination as previously defined in clause 44. Clause 51 is not just about the provision of goods and services; it appears to go further than that. The Minister may seek to enlighten the Committee about it. We then come to the clause’s detail. The first thing that struck me was the exceptions provided in subsection (3). The prohibition on discrimination does not apply to the House of Commons, the House of Lords, the authorities of either Houses of Parliament,
One problem is the issue of what is a public authority. It would be useful if the Minister could clarify what the Government consider a public authority to be, because it appears that the term can be defined fairly loosely. 12.45 pmIt is apparent from the Freedom of Information Act 2000, for example, that the special forces of the Crown and any unit assisting in the operation of GCHQ are already considered not to be a public authority, or are exempt from the status of public authority, which raises the question why that needs to be spelt out specifically in the clause. Equally, the House of Commons is considered to be a public authority under the Act, but not under this Bill. There is a lack of clarity. The amendments seek to do two things. First, they ask the Minister to say what a public authority is—a question that will crop up over and over again as we discuss the other amendments that I have tabled to the clause. Secondly, they ask him to justify why the Secret Intelligence Service, the Security Service, GCHQ and the armed forces of the Crown that help GCHQ should be exempt. An exemption may of course apply differently for different reasons. Under the Freedom of Information Act, one can see why certain bodies may be exempt, although it is noteworthy that the Security Service and the Secret Intelligence Service do not seem to be entirely exempt from an application under the Act. We need to know why the Government believe that those bodies may be required to discriminate on the ground of religion. The same may apply to the House of Commons and the House of Lords, but I rather assumed that it could be said that we are sovereign bodies and therefore entitled to regulate ourselves, so I did not table amendments to that part of the clause. As a first in our consideration of this rather complex and important clause, the Government need to justify why those bodies have been exempted. Notwithstanding the grandiloquent aims of the legislation, the cynic may say that the Government harbour secret anxieties about certain religions or religious groups, and believe that they should be able to discriminate simply on the ground of religion when considering the most secret matters. I should be grateful if the Minister would comment on that. |
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