Official Report: Minutes of Evidence

The Chairperson (Ms McLaughlin): I welcome Dr Orla Drummond, research officer, from the Northern Ireland Assembly's Research and Information Service (RaISe). I advise you, Orla, that the session is being reported by Hansard, and the video of the meeting will be available on the Committee web page. I invite you, Orla, to brief members.

Dr Orla Drummond (Northern Ireland Assembly): Thank you, Chair. Good afternoon, everyone. I apologise, at the outset, if this is slightly repetitive of some of the information that you have already received. I will briefly cover the contents of the Bill paper that examines the Fair Employment (School Teachers) Bill, which will be referred to as "the FEST Bill" for this presentation.

The Bill paper seeks to assist the Committee in scrutinising the FEST Bill and is made up of six sections. Section 1 provides background information, including an overview of the current schools structure and legal position. Section 2 documents the Bill's clauses and their premise as explained in the explanatory and financial memorandum (EFM). Section 3 provides details on the ongoing public consultation process for the proposed changes to the law enshrined in the Bill. Section 4 provides an overview of equality and human rights considerations, highlighting the approach advocated by the Northern Ireland Equality Commission. Section 5 summarises examples of similar legislation in other jurisdictions, and section 6 contains concluding remarks.

For contextual background, the paper notes that the Fair Employment and Treatment (Northern Ireland) Order 1998, which I will refer to as "the Order" for the rest of the presentation, makes discrimination on the grounds of religious belief and political opinion unlawful in the areas of employment; goods, facilities and services; the sale or management of land or property; and further and higher education. A number of exceptions are enshrined in Part VIII of the Order; therefore not all types of employment are covered. Some limited examples apply, such as any employment or occupation where the essential nature of the job requires it to be done by a person holding or not holding a particular religious belief or political opinion. Article 71 of the Order provides an exception for the recruitment and employment of schoolteachers in Northern Ireland. The FEST Bill contains provisions that, if enacted, would omit article 71 of the Order and regulation 30 of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003. That would repeal the current exception to fair employment laws for schoolteachers.

Section 1 of the Bill paper provides background information on the current schools structure. With the exception of a small integrated sector, the education system in Northern Ireland is broadly separated between schools catering for pupils from a Protestant community background and those from a Catholic community background. Similarly, teachers in Northern Ireland are predominantly from Protestant or Catholic backgrounds. The consequence is that controlled schools are in effect Protestant schools and Catholic maintained are in effect Catholic.

Research from Queen's University Belfast, conducted in 2020, found that 90·7% of children in Northern Ireland attended a school that was Catholic maintained or controlled non-denominational; 8·1% of pupils attended integrated schools; and 1·2% attended Irish-medium schools. Key findings from that research indicated that primary schools were more segregated than post-primary schools.

Teacher training is primarily but not exclusively separated between Stranmillis University College, which caters for teachers in controlled schools, and St Mary's University College, which caters for Catholic maintained schools. In order to teach in a Catholic maintained nursery or primary school in a permanent capacity, teachers must hold the recognised certificate in religious education. That requirement was introduced by the Council for Catholic Maintained Schools (CCMS) to recognise that nursery and primary schools have a pivotal role in preparing children to receive the sacraments of the Catholic Church.

As noted, the Order makes discrimination on the grounds of religious belief unlawful in the areas of employment; goods, facilities and services; the sale and management of land or property; and further and higher education. "Discrimination" is defined by the Order as treating a person less favourably than others or applying conditions that discriminate on the grounds of religious belief or political opinion. There are exceptions, and article 71 is one such exception.

Schools are exempt from the requirement to monitor the community background of their teaching staff and to carry out article 55 reviews for the Equality Commission regarding their teaching workforces. The Equality Commission has responsibility for enforcing the Order and working for the elimination of unlawful discrimination. In its 2004 review of the exception, the Equality Commission considered the following options. The first option was the removal of the exception. While that was the commission's original preferred option, it was considered to have a number of disadvantages. In particular, it could have serious implications for the integrated sector, which, at times, may have to discriminate to maintain a religious balance in line with the integrated ethos. Controlled schools would be unfairly disadvantaged in relation to claims of discrimination in comparison with maintained schools, which could more easily demonstrate a genuine occupational qualification due to a Catholic ethos. It also considered that there would be an increase in fair employment claims. The second option was to narrow the exception, meaning that the exception could be confined to one or both of the following: (a) the application of the exception to primary schools only would be justified by a genuine occupational qualification, that being the stage of preparation for confession, communion and confirmation; (b) the application of the exception could be extended to religious education in secondary schools as a genuine occupational qualification. The third option was no change.

Assembly motions on the issue were tabled in 2013, 2015 and 2021. In summary, the provision of exemption from the Order has received considerable attention over the years without agreement on how it should be amended.

Section 2 of the Bill paper provides an overview of the key provisions of the FEST Bill. The section highlights the fact that the policy objective is to remove the exception of teachers from the Order to ensure that schools are not permitted to use religious belief as grounds on which to discriminate between candidates for teaching posts. Schools would further be required to monitor the community background of their teaching staff, to carry out article 55 reviews of their teaching workforces and reviews of the employment policies and practices that affect their teaching staff and to consider whether they provide fair participation to members of the Protestant and Roman Catholic communities in relation to the employment of teachers.

In 2013, the Department of Education undertook a review of employment opportunities for teaching staff to examine the impact of the religious certificate required to teach in Catholic maintained primary and nursery schools. The review was conducted following concerns expressed by members of the Assembly's Education Committee that that requirement could lead to inequality in the employment of and opportunities for teachers. That included concerns about giving those who hold the certificate an unfair advantage to avail themselves of a wider range of employment opportunities. At that time, the Department of Education noted that the review had not identified any inequality in employment opportunities as a result of the requirement, but it identified barriers in accessing the certificate that could lead to inequalities for those who wished to obtain it. However, evidence from the Equality Commission to the Committee on 16 February 2022 stated the need to take account of recent developments and research. It noted that access to obtaining the certificate in religious education had widened substantially. It can now be taken alongside initial teacher training education at Ulster University and Stranmillis University College, in addition to the long-standing provision available at St Mary's University College.

Section 3 of the paper briefly details the FEST Bill consultation process, which opened on 31 January 2022 and closed on 7 March 2022. The Committee may wish to consider examining the outcome of that consultation, as final data was unavailable for inclusion in this paper.

Section 4 of the paper covers the equality and human rights considerations. It notes that there are anti-discrimination laws in Northern Ireland that aim to address endemic inequalities. The Order is one such piece of legislation, as is, for example, section 75 of the Northern Ireland Act 1998. Section 75 places public authorities in Northern Ireland, including education providers, under a duty to have:

Public authorities are also required to have:

As with all anti-discrimination law, the Equality Commission is the public body tasked with monitoring how Northern Ireland's equality laws work and making recommendations to government on ways in which they can be improved. That includes examining the role of exemptions and the working relationship between different anti-discrimination legislation. Article 71(2) of the Order states clearly:

article 71(1)

In relation to the removal of article 71 of the Order, the Equality Commission stated that it is:

It noted that its:

However, the commission recommends a staged approach, advising that the exception should be removed for the recruitment of teachers in secondary-level schools and that early consideration should be given to whether the exception should also be removed for primary-level schools.

From a human rights perspective, a number of protections secure the right to religion and the right of parents to ensure that their children's education and teaching is in conformity with their religious and philosophical convictions. Article 9 of the European Convention on Human Rights (ECHR) protects freedom of thought, conscience and religion. That right includes the freedom:

Article 9(2) notes that the:

In the case of the Order, tension clearly exists between balancing the right to religion with the protection of the rights and freedoms of others not to be discriminated against.

Article 2 of protocol No. 1 of the European Convention states that:

It should be noted that, while those rights are protected, they do not assert that teaching staff must necessarily be from a certain religious group. They simply assert that parents can ensure that such education is:

Finally, section 5 of the paper examines equality exceptions in other jurisdictions. As noted in the 2020 RaISe research paper, 'Exemptions to the Fair Employment and Treatment Order 1998: School Teachers', there are examples of similar legislation in other jurisdictions in relation to the employment of teachers. Section 5 details exceptions noted in that paper. For example, other jurisdictions documented include the European Union, Great Britain, the Republic of Ireland and Malta.

In the European Union, there is an equal treatment directive that provides for the exemption in member state law from certain recruitment and employment provisions where there is an occupational requirement. That occurs when:

In Great Britain, chapter 1 of Part 5 of the Equality Act 2010 provides that discrimination in employment is unlawful, yet schedule 9 provides for exceptions to those provisions where:

and

In the Republic of Ireland, the Employment Equality Acts 1998-2015 provide that discrimination in employment is unlawful. There are two exceptions to that in relation to the employment of schoolteachers. The Acts allow employers to require that teachers in primary and post-primary schools have a proficiency in the Irish language, and they provide that certain religious, educational and medical institutions:

are not regarded as engaging in discrimination for the purposes of the Acts if employers in that institution give:

take

In Malta, the Equality Bill was introduced to the Maltese Parliament in July 2019. The Bill was intended to draw together existing equality and anti-discrimination legislation and to produce new protections.

Clause 6(j) provides exceptions to certain anti-discrimination provisions, including:

The Bill paper concludes with key points taken from the first five sections.

That is an overview of the content of the Bill paper, and that concludes my presentation. I am happy to clarify any points, if I can.

The Chairperson (Ms McLaughlin): Thank you very much, Orla, for that and for your paper. The paper mentions the review of employment opportunities for teaching staff. What can the review tell us about the Bill?

Dr Drummond: The review examined the religious certificate and whether it had any impact on the ability of people to access employment. It was felt at that time that it did not but there may have been less opportunity for members of certain communities to have access to the certificate. That was the main point. The Equality Commission stated recently that there is new research in that area that states that you can now access the certificate at Stranmillis University College and Ulster University, not just at St Mary's University College, which used to be the case.

The Chairperson (Ms McLaughlin): You mentioned Malta, but, in your research, did you come across any examples of where an exemption was removed? How was it done? Was it done all at once or in phases?

Dr Drummond: I have not come across any exemptions that have been removed, but I can look at that, if the Committee so wishes.

The Chairperson (Ms McLaughlin): John Stewart, do you have any questions for Orla?

Mr Stewart: Hello?

The Chairperson (Ms McLaughlin): Hello, John. Can you hear us? He is not able to unmute. That has happened to me.

We will move on. Does anybody have any other questions for Orla? Orla's paper was pretty comprehensive. It addressed every section, point by point. There are probably not too many questions that we need to ask because they have been answered in the document.

Thank you, Orla, for briefing the Committee and attending today.

Dr Drummond: Thank you.