HC Deb 21 October 1998 vol 317 cc1337-48
Mr. Clappison

I beg to move amendment No. 4, in page 8, line 24, leave out from 'it' to end of line and insert 'shall not make any determination which infringes, or which could lead to the infringement of, that right.'. We deal once again with the important subject of freedom of thought, conscience and religion. We make no apology for returning to it. It must be dealt with satisfactorily, and we do not believe that matters can be left as they stand. Having said that, we recognise that the Home Secretary has made sincere attempts to overcome the problems created for the Churches and other religious organisations by the incorporation of the European convention. We understand that he has listened to the views of Church leaders and to those of the leaders of other faiths.

Amendment No. 4 would strengthen the protection that the Bill currently offers. It would extend protection of the freedoms to which I adverted, especially the freedom of religion. It was the widely held concern about religious freedom which led to the Lords amending the Bill when it began its progress through the other place. The Lords were anxious to afford a defence to Churches and other religious organisations.

I refer to "Churches and religious organisations", as concerns about religious freedom cut across the boundaries of religious faith. Not only Christian Churches, but other great faiths and religious organisations are deeply interested in these matters. Churches, religious organisations and faiths all come within the ambit of the Bill, because, for some purposes, they may be considered to be public authorities.

Turning once again to the definition of public authorities which is very much at the heart of our concern, it is not correct to assert—as has been asserted in some quarters—that Churches and religious organisations will come within the ambit of the Bill only when they are standing in the place of the state—for example, when they are providing education in Church schools. Although they will be deemed to be public authorities when they are standing in the place of the state, there may be other circumstances in which they will be public authorities for the purpose of the Bill.

Like any other person or body, Churches, religious organisations and faiths and the charities associated with them will be public authorities within the terms of the Bill when they carry out functions of a public nature. Ultimately, the courts will determine when they are or are not carrying out functions of a public nature. It follows that, when Churches and religious organisations are deemed to be public authorities, they will risk legal challenge from any person who asserts that they have breached a convention right.

It has come about in a strange way that a Bill which has been put forward as upholding human rights and promoting a human rights culture contains the seeds of a threat to the freedom of religious organisations and Churches to follow their own beliefs and order their own affairs—something that they cherish. It applies across the board.

The Secretary of State for Scotland is on the Government Front Bench. He will be concerned about the position of the Church of Scotland, and he may well wish to say more about that this evening.

The Secretary of State for Scotland (Mr. Donald Dewar)

indicated assent.

Mr. Clappison

I certainly bow in deference to the Secretary of State for Scotland in his knowledge of the Church of Scotland. I enjoyed the resumé of its history that he imparted to the House when we last discussed the Bill, particularly when he referred to the time during the late 19th century when one third of the ministers departed their livings and took their elders out into the wilderness—a feeling that we understand. I also enjoyed the next part of his speech when he said that that was followed by a period in which there was a great upsurge of enthusiasm among the congregations, and a great growth in the membership of the Church of Scotland.

Like all the other Churches in the United Kingdom, the Church of Scotland comes within the ambit of the European convention and is under threat in the way in which I have described. How great is that threat? We simply do not know. To be fair, in the past, the European Court of Human Rights has often been conservative in that respect, but there is no guarantee for the future and for what will follow incorporation of the European convention.

People who are well placed to know, such as Lord Alton and the Bishop of Ripon, are afraid of groups who, they believe, will be only too happy to take religious organisations to court to prove a point. Even if, ultimately, they are not successful, vexatious litigants can be a drain on those against whom they bring litigation. They could be a drain on the Churches in terms of cost and effort. The Home Secretary conceded that members of the congregations and Churches do not want to see their resources going into defending legal actions.

Mr. Straw

I did concede that point when the matter was debated in the House in May, and it was partly for that reason, although it was a subsidiary reason, that I thought it extremely important to introduce amendments to the Bill which sought to address the substantive concerns of the Churches and to block their being at risk from vexatious litigants.

7.15 pm
Mr. Clappison

I am grateful to the Home Secretary for that intervention. As I said earlier, I accept that he has been entirely sincere and done his best in difficult circumstances to give the Churches protection. I now turn to why the amendments that replace those made in another place are inadequate and do not fulfil the objective that the Home Secretary has just described of giving the Churches protection.

The problem is that the protection in the Bill is simply not strong enough; it is probably the weakest protection that the Government could have chosen. The Home Secretary's amendments simply require a court to pay particular regard to the importance of rights under article 9—freedom of thought, conscience and religion. A court may well consider that it has paid particular regard to the importance of those freedoms under article 9 and then find that, none the less, certain religious organisations are in breach of the convention. The Home Secretary may say that the provision affords religious organisations a defence, but it will not stop any of the challenges that they fear. He cannot reasonably assert that it amounts to a defence. It is merely a request or a requirement that a court pay particular regard to those freedoms. In itself, it does not amount to a defence.

Amendment No. 4 would be an improvement, as it would afford such a defence. Under the terms of the amendment, a court cannot make any determination that infringes the freedom of religion or any other article 9 rights. It is a stronger and altogether more appropriate form of protection than that which is presently in the Bill. Even at this late stage, we invite the Home Secretary to give it serious consideration and to look carefully at what we believe is the stronger protection that it offers our Churches, faiths and religious organisations.

If the Home Secretary is not prepared to accept the amendment, will he give us a careful explanation of his reasons, as we think that it is appropriate and we cannot see any reason why the Government should not give Churches and religious organisations stronger protection? There are precedents elsewhere in Europe for the freedom of religion to be given such protection, so we see no reason why similar circumstances could not prevail here. Religious freedom is one of our most cherished causes and it needs and deserves stronger protection from the possible threat that may arise under the incorporation of the European convention than is presently provided in the Bill.

Mr. Straw

I am grateful to the hon. Member for Hertsmere (Mr. Clappison) for the manner in which he made his speech. I shall seek to reply in a like manner and to explain as carefully as I can why, with the best will in the world, we cannot accept the amendment.

The matter was debated at considerable length on 20 May, when I spoke for almost 40 minutes. Let me reassure the Whips that I do not intend to do so this evening. However, I hope that the hon. Gentleman will take as read some of the arguments that I made on that occasion.

We never had the least intention of bringing forward a Bill that threatened religious freedom. I entirely subscribe to the sentiments that the hon. Member for Hertsmere expressed a moment ago. We did not believe that the Bill as originally drafted would have threatened religious freedom. However, concerns were expressed in the other place and here on the subject.

Contrary to the admonition of the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) that the Government are showing contempt for Parliament, I hope that hon. Members will acknowledge that none of us on the Treasury Bench has come to the debates with a "not invented here" attitude towards amendments from the Opposition or from the other place. I live in hope that there may be a broad consensus behind the Bill, so I thought it very important not to insist that the Bill as originally drafted represented the last word and the best judgment, but to take action on any serious concerns raised about the drafting. We did that for the Churches.

For reasons that I explained at considerable length, we were not able to accept the amendments passed in the other place earlier in the year. We came forward with a new clause, which now stands as clause 13 on page 8. It says: If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right. The hon. Member for Hertsmere made a point about the relative strength of the clause. Similarly worded clauses often say that a court "may" have regard to a particular factor. We have gone as far as we can to make the provision as strong as possible, saying not that the court may have regard, but that it must have particular regard to the importance of that right. We believe that that is a strong provision.

The amendment would replace those words with an alternative provision that would mean that, when such an issue arose, the court would not be able to make a determination that might infringe the article 9 right. As the hon. Gentleman has explained, the intention of the amendment is to protect the article 9 rights of religious organisations, even if other parties to the proceedings are asserting different and competing convention rights, such as the right to respect for private and family life under article 8 or the right to freedom of expression under article 10.

The hon. Gentleman has asked me to explain why we are not willing to accept the amendment. If it had the effect that I have described—we believe that it would, because of how the words are used—it would be contrary to the convention.

Mr. Clappison

Before the Home Secretary comes to the next stage of his argument, does he accept that, under the Bill, it will be possible for a Church or religious organisation to be found in breach of the convention, but that the amendment would prevent that by giving them a guaranteed defence?

Mr. Straw

The answer is yes. The hon. Gentleman is seeking to place the Churches beyond the convention, so that, even if they were exercising the functions of a public authority and were plainly in breach of the convention, they could not be found to be in breach. If we accepted the amendment, the Act would be in breach of the convention. Instead of matters being resolved here, they would go off to Strasbourg, and the Court would eventually declare that part of the Act in breach of the convention. I understand the purpose behind the amendment, but it would be self-defeating.

The right to freedom of thought, conscience and religion guaranteed by article 9.1 is not absolute. It is important to make that clear. Under article 9.2, it may be subject to such limitations as are prescribed by law and are necessary in a democratic society, in the interests of various factors, including the protection of rights and freedoms of others. In that respect, article 9 is similar to articles 8, 10 and 11. The court must weigh the competing interests and come to a decision. It is not open to a court to give automatic priority in all cases to one convention right over another.

Having said that, I want to reassure the Opposition on two points. The hon. Gentleman said that a Church will act as a public authority not just when standing in place of the state, but when it carries out functions of a public nature. That is not correct. To the extent that the second part of what he said was accurate, he was simply tautologically making the same point as the first. Churches will be subject to the Act only when standing in the stead of the state and exercising functions of a public nature. I explained that at considerable length at column 1015 of the Official Report of 20 May. I should also like to reassure the hon. Gentleman on Strasbourg jurisprudence.

Mr. Clappison

I am grateful to the Home Secretary for generously giving way for a second time. I appreciate that he is trying to give reassurance, but there is nothing in the Bill to say that Churches are public authorities only when they are standing in the place of the state. They are subject to the same definition in clause 6 as everybody else. They are public authorities when they are carrying out functions of a public nature. The Bill says nothing about Churches being public authorities only when they are standing in the place of the state. Whenever they carry out functions of a public nature, they will be public authorities.

Mr. Straw

The convention exists to protect individuals from abuse by the state or by people standing in the stead of the state. That is the point of the convention. It is not there to deal with the abuse of rights by bodies acting in a private capacity. That is spelt out in the relevant clause. For the avoidance of doubt, I shall repeat what I said on 20 May about how we think that the Bill will operate in relation to Churches: Much of what the Churches do is, in the legal context and in the context of the European convention on human rights, essentially private in nature … For example, the regulation of divine worship, the administration of the sacrament, admission to Church membership or to the priesthood and decisions of parochial church councils about the running of the parish church are, in our judgment, all private matters. In such matters, Churches will not be public authorities; the requirement to comply with convention rights will not bite on them. We do not believe that, for example, the Church of England, the Church of Scotland or the Roman Catholic Church, as bodies, would be public authorities under the Bill. I was asked to clarify that by many people, not least the Cardinal Archbishop. On the occasions when Churches stand in place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools."— [Official Report, 20 May 1998; Vol. 312, c. 1015.] Having dealt with that, I should like to reassure the hon. Gentleman on his second point. There is good Strasbourg case law to suggest that, in practice, article 9 rights are afforded considerable protection from attack. I should like to quote from page 359 of the text book "Law of the European Convention on Human Rights" by Harris, O'Boyle and Warbrick: Where there is a conflict between protected rights, the judgment of the Court in Otto-Preminger-Institut v. Austria speaks in favour of the strong regard to be had for religious beliefs (and therefore, Article 9 rights) in deciding priority between the competing rights. In that case, the state had interfered with the applicants' Article 10 right to freedom of expression by seizing and ordering forfeit a film found likely to offend the religious feelings of the Catholics who constituted the large majority of people in the region where the applicant proposed to show it. The Court upheld the interferences with the applicant's right as being necessary for the protection of `the [religious] rights and freedoms of others.' In confirming that the interference had a legitimate aim, the Court said: '… the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the state, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines'". The passage went on: —in the context of religious opinions and beliefs—may legitimately be included an obligation [on individuals] to avoid as far as possible expressions which are gratuitously offensive to others". The authors conclude: This is a strong affirmation of the power and even the duty of states to protect manifestations of religious belief. 7.30 pm

The hon. Member for Hertsmere invited us to speculate on what might happen if the Court in Strasbourg or the Judicial Committee of the House of Lords had a rush of blood to the head and, say, became evangelical atheists. I do not think that that is going to happen. Who knows what would happen if courts of the land or the European Courts went mad? All sorts of things could happen.

On the whole, the best guide to the future—indeed, in many ways the only guide—is the past. The Court's record provides substantial reassurance. So should the history of Europe, which was written in blood until 1945. Much of that blood was spilt in the alleged cause of religious belief and religious conflict. Many of the states of Europe which now form the core of the European Union and the Council of Europe have had peacefully to accommodate conflict between Churches—between the Lutheran Church and the Catholic Church in Germany and the Catholic and other Protestant Churches in other states—just as we have in this country, and just as we at long last are seeking to do in the north of Ireland. Against that background, our courts and the European Court in Strasbourg have been and will continue to be alive to the need to respect the exercise of religious freedom. They have clearly done so in the jurisprudence that has been laid down in Strasbourg.

The provisions of clause 13, which we introduced in May, require the Court to have particular regard to the importance of the right to freedom of thought, conscience and religion. That is as far—honestly—as we think that we can go consistent with the convention. We believe that that has also been recognised by the Churches.

I do not argue with the hon. Member for Hertsmere for seeking to revisit the issue, although the debate on the subject in Committee on 20 May followed the most intense period of discussion that I have had with representatives of the Churches. I was not able to meet their every request, but I can give a flavour of their response by quoting, as I did in Committee, from a letter that I received from Cardinal Archbishop Basil Hume, which said: I have sought the best legal advice and my initial assessment is that the amendment in the form tabled by the Government"— which now appears in the Bill as clause 13— may be the best that can be reasonably be achieved to reinforce the protection given by the Convention to the churches and other faiths under Article 9. I was very grateful to the cardinal archbishop for saying that. I happen to believe that the legal advice that he received is accurate.

Since that debate—this should provide a further reassurance for the hon. Member for Hertsmere—we have received hardly any representations from religious organisations about the potential impact of the Bill on them. We received many beforehand. I understood them, took them on board and went as far as we could with them. It is interesting that, although they have since had five months fully to consider the matter, we have not received representations from them. If they thought that clause 13 was insufficient or capable of improvement, I am sure that they would have told us so.

In the light of that explanation, I hope that the House will accept the reasons why we cannot agree to the amendment and that Opposition Members will not press it to a vote.

Mr. James Wallace (Orkney and Shetland)

Anyone who listened to the Home Secretary would accept that he has obviously given the matter considerable thought and has gone a long way to meet the many concerns expressed in Committee. He made the very telling point that there is a danger of going too far, thereby threatening the entire protection that is sought.

I shall briefly comment on matters regarding the Church of Scotland, to which the hon. Member for Hertsmere (Mr. Clappison) alluded when he moved the amendment. I welcome the fact that the Secretary of State for Scotland is present. He will know from the representations that he has seen that the matter has been the subject of considerable discussion between the Government and the Church of Scotland over recent months. Although I am not sure whether it is relevant, I declare an interest as an elder of the Church of Scotland.

As the Secretary of State for Scotland suggested in the history of the subject that he described in Committee, the Church of Scotland Act 1921 is constitutionally important. The Act was a settlement, agreed between Parliament and the Church of Scotland, that guaranteed the Church separate and independent jurisdiction in matters spiritual and paved the way for the union of the Church of Scotland and the Free Church in 1929. I would not want to detain the House, but it would be helpful if the Secretary of State confirmed that, when he wrote to the Moderator of the General Assembly of the Church of Scotland on 13 May, he said: I hope it goes without saying that I, and the government, would not wish the Bill to be a vehicle for undermining the position of the churches. That is certainly not the government's intention. Nor do we believe that it will be the effect of the Bill". Although I am sure that that sums up the Government's position, it would be helpful if the Secretary of State confirmed it in the context of the Church of Scotland. It is a matter of considerable importance and concern to the Church, which would certainly wish to be reassured that the Government are satisfied that the Bill is consistent with provisions of the 1921 Act and does not conflict with the Church's independent spiritual government and jurisdiction as recognised by that Act since 1921.

Mr. Dewar

I was touched that the hon. Member for Hertsmere (Mr. Clappison) remembered what I said on the previous occasion on which we debated this matter. Having a suspicious mind, however, I thought that he had read my remarks recently in order to pad out his own. Being a man of not infinite but occasional charity, I am prepared to take the more generous view of my own efforts on that occasion.

There is no doubt that this is a matter of importance. If I remember rightly, I said on 20 May that I was in a slightly awkward situation because I was being asked to deal with a wide range of points that were put to me on matters furth of the affairs of the Church of Scotland and felt at something of a disadvantage. I remember rather vaguely, for instance, some interesting exchanges about the employment policy of the Dutch Salvation Army occupying the attention of the Committee for some time.

On this occasion, I am not in the same difficulty, because the only contribution from outwith the respective Front Benches has been that of the hon. and learned Member for Orkney and Shetland (Mr. Wallace), who has taken a very close interest in these matters and who I know has—I do not know whether this is the right way of putting it—a long connection with the Church of Scotland, which he declared a few minutes ago.

The issue requires close attention; it has been an anxious matter. As there have been for my right hon. Friend the Home Secretary, so there have been many discussions on the topic between myself, my Department and legal representatives in the form of the Lord Advocate and the procurator to the General Assembly. I pay tribute to the care with which the Church of Scotland has advanced its case. I do so in the knowledge that the clerk to the General Assembly is present. The discussion has been civilised, but the fact that it has a civilised face does not undermine or hide the fact that it was taken seriously by those on both sides of the argument.

I do not know whether many of my colleagues in the House have taken the trouble to look at the Church of Scotland Act 1921; perhaps it is unfair to expect them to have done so. As I have said before, that Act must be almost unique in terms of House of Commons draftsmanship, certainly in this century. It is a splendid piece of prose, full of resounding cadences. Beneath those cadences, however, it is an attempt to define and offer protection to some significant and important principles. My first message is that we take those principles seriously.

I am conscious of the fact that we are dealing with a United Kingdom Bill, and that the amendment is of general application. None the less, it is important that I take the opportunity to make a statement about the position of the Church of Scotland under the Bill, and especially about the relationship between the provisions of the Bill and the Church of Scotland Act.

As I have already explained, concerns have been expressed during the passage of the Bill, both in the other place and in our Committee debate in May, that it may intrude unacceptably on the Church of Scotland's independent jurisdiction in spiritual matters. That was recognised in the 1921 Act, and relates to all matters of doctrine, worship, government and discipline in the Church.

My colleagues and I discussed those concerns fully with the then moderator and his colleagues within the Church. What I say today is not new, and I shall not pretend that it is, but I hope that it will be a clear statement of the Government's policy and intentions.

I set out in Committee the historical background to the position of the Church of Scotland in our national life, and the events that led to the Church of Scotland Act 1921, which recognised the independent jurisdiction of the Church of Scotland in spiritual matters. We do not want to do anything to disturb that important settlement.

Of course, that separation does not exempt the Church institutions from the operation of the law in general. In my experience, that fact has been accepted in all the conversations about the legislation. The Church has always recognised that, if by mischance it did something that constituted a criminal offence, it would not be immune from prosecution simply because it asserted that it was operating in a purely spiritual matter.

In addition, as we all know, the Church operates in non-spiritual areas—when it provides much-valued social work services, for example, and when it acts as an employer. In such matters, it is subject to the law, as is any other body in the field; there is no dispute about that.

The civil courts in Scotland have held that they have jurisdiction to inquire whether a question before them falls within the definition of spiritual matters, but not to determine the spiritual matter itself. The Government do not intend to disturb that position.

The general effect of the Bill is to bring rights home, and to make existing convention rights enforceable against public authorities directly in the courts of this country. We are making it unlawful for public authorities to act in a way incompatible with the convention rights. We have no intention of interfering with the religious freedom of any Church, and I emphasise strongly the fact that the Bill does not do so. We are not introducing any new civil rights beyond those in the European convention on human rights, which individuals can already found upon in Strasbourg; indeed, they have been able to do so for many years.

In our view, the courts of the Church of Scotland are not courts for the purposes of the Bill. That is in line with the separation of Church and state embodied in the 1921 Act. The Church has suggested that the Church or its courts might, in some circumstances, be held to be public authorities in the terms of the Bill when acting in spiritual matters. However, in all our discussions with the Church, neither party has been able to come up with a specific example of how that possibility might arise. There has been no challenge in Strasbourg to the actions of the Church in the more than 40 years since we ratified the European convention. In addition, jurisprudence to date, both domestically and at Strasbourg, suggests that the civil courts are reluctant to become involved in the spiritual affairs of any Church. The Home Secretary advanced some important evidence to that effect a few minutes ago.

7.45 pm

Only last month, the 1921 Act was successfully invoked by the Church of Scotland in proceedings before an industrial tribunal. The role of the civil courts will be to determine whether the Church was acting as a public authority, and if so whether any convention right had been breached, and what is the minimum intervention necessary to redress that breach. That simply reflects what the court in Strasbourg has always done in relation to cases brought against the United Kingdom.

In implementing our policy of bringing rights home, we would expect no less; equally, we would expect no more. Requiring the Church to carry out its functions in a way that respects convention rights, and providing a remedy in the civil courts if that is not done, does not affect the Church's independent jurisdiction in spiritual matters under the 1921 Act.

We have already explained both here and in the other place why we have been unable to accept the various amendments proposed that would have exempted the Church of Scotland, when acting in spiritual matters, from the provisions of the Bill. Briefly, we have not been willing to concede a specific exemption for one Church; nor do we think that an exemption for Churches in general would be justified.

The Church of Scotland is the only religious body in the United Kingdom that benefits from a statute guaranteeing its independence in spiritual matters, but there are many different religious groups in our society, all of which feel passionately about the preservation of their independence.

It is not the intention of the Bill to force any religious group to do things that might be inconsistent with its principles and conscience. The amendment that we tabled in Committee applies to all Churches and faiths, and reassures them that the domestic courts will have particular regard to their rights to freedom of thought, conscience and religion under article IX. We could not treat the spiritual independence of the Church of Scotland any differently.

I hope that I have been able to make it clear that the Government do not think that the Bill will undermine the position of the Church of Scotland under the 1921 Act. It is certainly not our intention that that Act should be undermined. We do not therefore think it necessary to make an explicit reference in the Bill, beyond the amendment that we have already made to recognise the position of Churches generally.

I hope that I have also explained why it is neither necessary nor desirable to make the point explicit in the Bill. The Church sought reassurances from us following both its own extensive internal debate, and a motion passed at the general assembly in May. I emphasise the fact that, throughout all our discussions with the Church, it has unfailingly welcomed the Government's intentions behind the Bill and reaffirmed its commitment to convention rights.

I have said to the Church that, if in practice the provisions of the Bill produce any real difficulties in connection with the 1921 Act, we shall be prepared to consider the matter, but that we shall not alter the Bill as it stands to deal with a possibility that we believe to be no more than hypothetical.

I hope that those words are of some help in clarifying our intention and our position. As for the specific points made by the hon. and learned Member for Orkney and Shetland, I hope that what I have said reinforces, and states at rather greater length, what I wrote in the letter that he quoted.

Mr. Wallace

I thank the Secretary of State for that statement and the clarification that he has given, which I think will be widely held to be helpful.

Mr. Dewar

I am grateful to the hon. and learned Gentleman. I am looking now at the schedule to the 1921 Act, which says: This Church is in historical continuity with the Church of Scotland which was reformed in 1560, whose liberties were ratified in 1592, and for whose security provision was made in the Treaty of Union of 1707. It would be somewhat brazen and presumptuous, even by my standards, if I were to put at risk such a fine pedigree so well established by custom and long usage. On those good intentions, I rest my case.

Mr. Clappison

This has been a worthwhile debate, in the sense that it has given us an opportunity to raise our concerns about religious freedom. Despite the words of the Home Secretary and the Secretary of State for Scotland, we remain unconvinced that the Bill as it stands sufficiently affords protection for religious freedom.

I appreciate that the Home Secretary was choosing his words with care and that he has made considerable effort in that regard. I am not so sure about the reference to evangelical atheists. I shall have to think about that later—possibly with the aid of a dictionary. We think that the amendment would have afforded stronger protection.

We accept that the Churches want to promote human rights, but I am sure that they share our anxieties that the Bill, as it stands, would have the unintended consequence of creating challenges and threats to religious freedom that do not exist at present. We are seeking not to take the Churches outside the Bill or the ambit of the human rights framework, but merely to provide Churches, religious organisations and faiths with a defence. We could have tried to take the Churches out of the Bill by tabling an amendment proposing that they were not to be public authorities for the purpose of the Bill. There are those in some Churches and faiths who would have preferred that course.

Churches and religious groups will be within the framework of the Bill. They could be public authorities, and they could rely upon the provisions of the Bill themselves to bring an action against another public authority which was in breach in some circumstances. The Churches, if regarded as public authorities, could have an action brought against them by another person or body, alleging that they were in breach. If the amendment were passed, the Churches—by relying on their freedom of thought, conscience or religion—would be afforded a defence. In the Bill as it stands, there is no such defence.

I heard what the Home Secretary said about Strasbourg, but it is interesting that, if the Churches were found to be in breach as public authorities in this country, they would have no right of appeal to Strasbourg as public authorities. I think that I made it clear in my opening remarks that Strasbourg's jurisprudence had been conservative in the past, but that is no guarantee for the future. The Secretary of State for Scotland's reference to the Dutch Salvation Army reminded me of the case brought against that organisation by a group under the auspices of human rights. The case was ultimately defended by the Dutch Salvation Army, but it was an expensive exercise.

Mr. Straw

The hon. Gentleman says that what I said was no guarantee for the future. Since we are talking about matters spiritual, I should say that there are no guarantees about the future that any of us can give, except that there will come a moment when we are no longer here. According to our point of view, we then may or may not be somewhere else. That is the only certainty there is about life—in the absolute sense. In the relative sense in which we must deal day by day, week by week and year by year, a considerable guarantee about the future conduct of the courts can be found in clause 2, which imports into English and Scots law the jurisprudence of the European Court of Human Rights, which gives a high emphasis to the protection of article 9 rights.

Mr. Clappison

That is so, but there may be cases that are not covered by that jurisprudence. Even so, in applying that jurisprudence, it may still be the case in some circumstances that the Churches or religious organisations could be found to be in breach. The Home Secretary cannot gainsay that, under the amendment, Churches relying upon an article 9 right could not be found to be in breach. No matter how we foresee the future, that is certainly a much more secure defence than the defence being provided by the Government—if, indeed, it is a defence at all.

We join the Home Secretary in expressing the hope that there will not be unintended consequences from the Bill in the shape of challenges to our Churches and great faiths, and we hope that they will not find themselves brought before the courts by litigants—perhaps the vexatious litigants which some have foreseen—at great expense to themselves. We hope that that will not occur.

We cannot express that hope with as much confidence as we would like. We cherish our religious freedoms, and we would have preferred to give them the superior defence afforded by the amendment—an altogether stronger defence. However, this has not been a contentious or partisan debate, and it is in the spirit of expressing that hope—although without much confidence—that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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