Human Rights Bill [H.L.]

HL Deb 05 February 1998 vol 585 cc747-842

3.33 p.m.

Read a third time.

Lord Campbell of Alloway moved Amendment No. 1. Before Clause 1, insert the following new clause— SPECIAL PROVISION FOR RELIGIOUS BODIES (". Section 4(2A) of this Act makes special provision for religious bodies.").

The noble Lord said: My Lords, the question is whether special provision should be made for religious bodies, as proposed in Amendment No. 8 to Clause 4, incorporating subsection (2A) as stated in Amendment No. 1. Until the right reverend Prelate the Bishop of Lichfield spoke in Committee, no consideration appeared to have been given to any need for some special provision, by the Government, by the General Synod of the Church of England or, indeed, by anyone else.

In his speech in Committee on 24th November the right reverend Prelate—this is the nub and essence of the amendment—stated: I greatly regret that I am not comforted by the remarks of the noble and learned Lord the Lord Chancellor. He seems to have rather deliberately left out the question of religious freedom. I am concerned that a very strict, rather totalitarian view of 'public' is endangering the freedom of choice of very large numbers of people in this country who see, as part of their democratic freedom, the freedom to have their children educated in a particular type of school without so-called public rights being used against that very freedom. At Second Reading I was glad to speak on behalf of the Churches very much in favour of the Human Rights Bill. But if a sense of rights is being introduced in this total kind of way, at the expense of the choice of individual families, then something very serious is being lost. Church schools in my diocese welcome in considerable numbers children of other faiths. That is seen as a freedom that we respect in their case. I hope that we shall resist any infringement, on this very delicate matter, of the religious nurture of the young in our country.".—[Official Report, 24/11/97; co1.7991]

In the wake of that speech I had some private discussions in the Bishop's Upper Room, which prompted my Amendment No. 24 discussed on Report on 3rd December. The amendment was supported by the right reverend Prelate the Bishop of Lichfield and my noble friend the Duke of Norfolk. I spoke to Amendment No. 24 and I supported Amendment No. 23, tabled by my noble friend Lady Young.

Your Lordships gave leave for me to withdraw Amendment No. 24 and to return on Third Reading on the undertaking, which I gave, to study with care what had been said in the debate. Having read the Official Report it became wholly apparent that Amendment No. 24 was not well conceived. It sought exemption from Clause 6—the public authorities provision. It is now well understood why the right reverend Prelate the Bishop of Ripon abstained on that Division.

The amendments to which I speak today seek to reflect the substance of the speech of the right reverend Prelate the Bishop of Lichfield. They have the support of my noble friend the Duke of Norfolk who cannot attend because he is abroad, the noble Lord, Lord Jakobovits, and the two right reverend Prelates who have kindly set down their names.

Although there is a distinct divergence in concept between the amendments to which I speak and Amendment No. 6 in the name of my noble friend Lady Young, there is no inherent conflict or mutual inconsistency. Each is freestanding on its own merits. I respectfully canvass the support of my noble friend and that of noble Lords who propose to support her amendment.

As regards Amendment No. 11, which stands in the name of my noble friend Lord Renton and which is grouped with my amendment, I say with respect—and I mean it—that we are not concerned with religious courts or with corporate religious bodies and the exclusion of such under Clause 6. That matter was dealt with some time ago and those Divisions were lost. But we are concerned with the exclusion of the fast track in proceedings in a court under Clause 4. Amendment No. 11, although grouped with my amendment, is also freestanding.

The concept of Amendment No. 1 is similar to that of the amendment prompted by the right reverend Prelate. It is to provide an all-creed exemption for religious bodies from the fast track procedure by removing the discretion of the court to make a declaration of incompatibility under Clause 4. However, the discretion of the court is always preserved to refer any alleged breach of the convention to the commission or to the European Court of Human Rights if so advised in accordance with extant procedures.

The concept of my noble friend's Amendment No. 6 differs. It is to introduce a statutory defence where a question has arisen in connection with a convention right for determination under the Act. The effect of that would not only afford exemption from the fast track procedure but also inhibit the court from referring such questions to the commission or to the ECHR. It is assuredly a wide and fundamental exclusion from the jurisdiction of our courts. There is within it a difficulty, as anyone conversant with the convention would understand. It provides a statutory defence in a Bill which does not as such incorporate the rights and obligations under the convention. Therefore, there is to some degree a difficulty in that concept.

Under the treaty obligations, all bodies, whether religious or not, are subject to the jurisdiction of the commission and the court, to which there is direct access having exhausted our domestic procedures. All bodies, whether religious or not, all persons acting under their authority, are subject to our criminal law and to our civil law. Under the Bill, if in any proceedings the submission is made that certain conduct, albeit justifiable according to our domestic law, constitutes a breach of the convention, the court has the discretion as to whether to refer the convention issue to the commission and to the ECHR for adjudication or to make a declaration of incompatibility which triggers the ministerial remedial action to amend our domestic law by affirmative resolution of both Houses.

However, under the amendment to which I speak, in this context, if a submission is made concerned with any spiritual matter—examples of which are given in the amendment—the discretion to make a declaration of incompatibility under Clause 4 is removed. However, the court may, if so advised, formulate and refer the convention issue to the commission and the court of justice. It will be for the court to judge on the facts of each case and to consider whether the amendment applies and whether the submission as to alleged infringement is of sufficient cogency as to warrant such a reference. It will not be for the court to determine the submission as to whether the alleged breach is well founded or not. It is wholly accepted that it is not the business of the Secretary of State to designate religious bodies. It would be a matter for the court on the facts of each case and on the evidence adduced. It is accepted that there can be no finite exclusive definition of spiritual matters and examples have been given.

According to Rolv Ryssdal, a distinguished and long-serving member of the court at Strasbourg, the convention was not intended to destroy the richness of our cultural heritage and other variety of life found in Europe by imposing rigid uniform solutions, but to recognise the right of free societies, within limits, to choose for themselves human rights policies which suit them best. There are 40 signatory states. The amendment to which I speak will inhibit the imposition of a rigid uniform solution in this context in the United Kingdom in a situation where I say unashamedly that uniformity should never be sought and should never be sought to be imposed.

We have heard much about Articles 8 to 10 relating to the right to respect for private and family life, freedom of thought, conscience and religion and freedom of expression. In that context, your Lordships may well believe that alleged breaches of the convention by all religious bodies and persons exercising functions under the authority of such institutions should not be a matter for adjudication in our courts and tribunals, but by the commission and the court of justice, multinational judicial bodies to which there is direct access under our treaty obligations.

Your Lordships may also believe that it is neither appropriate, acceptable nor necessary that our courts should make declarations in this context so as to trigger remedial measures by affirmative resolutions.

In this all-creed context, is it really the business of government to seek to devise and impose upon our country some rigid, uniform solution, some ethical moral code, based upon ad hoc case-by-case decisions of our courts and tribunals? Is it really the proper business of courts? As to that, there is considerable doubt about how our courts would approach the matter. What would happen in a family situation under Article 8?

On that, as I said on Report, the opinion on the approach as between the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Williams of Mostyn, differs and there can be no certainty. To save time, I shall not repeat the matter. But we are predominantly a Christian society tolerant of all manner of creeds, dissenters, agnostics and atheists. Each religion has its own dogma, teaching, rituals, ceremonies and discipline according to its own concept of the universal grace of God. Each religion has its own concept of respect for family life. I give that as but one example.

As the noble Lord, Lord Williams, truly said on 9th December, families in our society vary infinitely; the Government are not in the business of preaching or prescribing.

This is no exercise in confrontation with the noble and learned Lord the Lord Chancellor or with noble Lords on the Benches opposite. It is but an effort at persuasion as to how your Lordships should exercise the advisory role as to making special provisions for religious bodies, with an expression of gratitude to the two right reverend Prelates for having added their names in support of the amendment. I beg to move.

The Lord Bishop of Birmingham

My Lords, in speaking to the amendment proposed by the noble Lord, Lord Campbell of Alloway, I shall not address myself to the technicalities, which are best left to those who are expert in the law, but I shall address the heart of the matter. What I say now refers also to the amendments in the name of the noble Baroness, Lady Young.

I remain to be convinced that the Government have really heard the concerns of the Churches in this matter. We are concerned not for privileges but for the protection of conscience, a proper pluralism in our society and the proper integrity and autonomy of the Churches and other religious traditions in this country. We have no reason to doubt the good intentions of the present Administration but we are afraid of unintended consequences in future years. Liberal regimes can turn out to be as authoritarian as illiberal regimes.

I give an example. I am a supporter of the ordination of women to the priesthood. But I regard it as wholly intolerable that that should have been imposed on the Church of Sweden as an Act of state.

I give a warning also. When the state interferes with the rights of conscience or with the internal life of religious bodies, it is nearly always the state which ends with egg on its face. There are enough pictures of the seven Bishops in this place to make the point. Another example is the Public Worship Regulation Act 1874. As soon as the courts started to put obstinate clergymen into prison, the whole thing fell into disrepute.

Lord Renton

My Lords, I am rather surprised that Amendment No. 11 has been grouped with these amendments. Although it overlaps Amendments Nos. 8 and 6 and the amendments grouped with it, because it deals with problems of religious courts and bodies, it deals with them in a broader, different and technically necessary way. If any of those amendments were to be accepted, Amendment No. 11 would be consequential.

But even if none of those amendments had been moved, Amendment No. 11 on its own would be worth consideration and should be considered. Therefore, I shall reserve my right to speak on it when various other ways of dealing with religious problems have been considered. But I shall not trouble your Lordships further with it at this moment.

Lord Goodhart

My Lords, the European Convention on Human Rights is one of the most powerful weapons for the protection of religious freedom which has ever been created. That is why I am frankly surprised and somewhat sad that those who have put their names to the amendments, which include some Members of your Lordships' House for whom I have the highest regard, have persuaded themselves that the Bill is not a defence but a threat to them.

I remind your Lordships what the European convention actually says about religion. That is very clearly set out in Article 19, which states: Everyone has the right to freedom of thought, conscience and religion … to manifest his religion or belief, in worship, teaching, practice and observance … Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others". Article 2 of Protocol 2 gives rights to parents in respect of religious education in accordance with their consciences.

To allow those provisions of the European convention to be relied on by the English courts will benefit the Churches. Absolutely contrary to what the noble Lord, Lord Campbell of Alloway, said, it will encourage diversity of religion and culture. It will not create rigidity.

Let us take an example. Let us assume that a future government passes an Act which authorises homosexual marriages. Two homosexuals go to their local Church of England vicar and say, "We are members of the Church of England. We are regular communicants. We live in your parish. We want a church wedding. You must marry us". In those circumstances the vicar would rely on Article 9 and would say, "If this Act requires me to perform such a marriage, it is incompatible with my religious beliefs and therefore incompatible with Article 9".

I must point out that the amendment of the noble Lord, Lord Campbell of Alloway, on this issue would deprive that hypothetical vicar of the right to raise that defence in an English court. He would have to take the matter to Strasbourg. The noble Lord was wrong to say that the court itself could refer the matter to Strasbourg. There is no such power. The vicar would have to take the matter there at his own expense or that of the Church. This amendment would have denied that hypothetical vicar any relief in English law because the only right he could obtain was a declaration of incompatibility and that has now been forbidden to him.

Therefore, as a rule, Churches and other religious bodies will seek a declaration of incompatibility. Amendment No. 8 denies them the right to do that. Therefore, I say in response to the right reverend Prelate the Bishop of Birmingham Amendment No. 8 would give enormous help to an illiberal and authoritarian future government.

Amendment No. 11 seeks to exclude the church courts from their position under the Bill as a public authority. If a decision will affect the legal rights of a party before that court, why should he not be entitled, for example, to a fair trial under Article 6? Let us take the example which I mentioned at an earlier stage of an incumbent who faces proceedings in a church court to deprive him of his benefits. Is he not entitled to rely on Article 6?

At an earlier stage, the Church of England raised an entirely legitimate criticism of the Bill for enabling the fast-track procedure to be applied to Measures of the General Synod. That criticism was met by the Government's amendment put forward on Report. In welcoming that amendment, the right reverend Prelate the Bishop of Ripon said: The Church of England—I am confident that I speak for other Churches also—does not wish to escape its proper obligations under the convention".—[Official Report, 29/1/98; col. 397.] I greatly welcome that statement as I believe it accords with the highest traditions of the Church of England. If the amendments are passed, the suggestion would appear to be that the Churches might escape their proper obligations.

I regret that the movers of these amendments do not adopt the attitude which appeared to me was being adopted by the right reverend Prelate the Bishop of Ripon. I should emphasise once again that, if this amendment is passed, it will not serve the Churches because it will reduce rather than increase the protection which they will get from Article 9 of the European convention.

4 p.m.

Lord Campbell of Alloway

My Lords, before the noble Lord sits down, I should point out that he raised this issue on Report. I made it perfectly plain then that there is no question of my suggesting that the Church of England would be harmed or that any Church or religious body would, so to speak, not wish to be within the umbrella of the convention. The noble Lord misunderstands me again. Indeed, I agree with the right reverend Prelate the Bishop of Ripon in this respect.

Lord Lester of Herne Hill

My Lords, I should like to speak briefly on the matter following what has been said by my noble friend. I very much hope that your Lordships were able to absorb the many points that he made and with which I entirely agree. I have but a few points to make and I shall, I hope, not repeat anything that my noble friend said.

In the first place, the founders of the European Convention on Human Rights were men and women imbued with religious values as well as with the secular values of the Enlightenment. I was reminded of that fact by one of the Vatican's most senior lawyers when I was a rapporteur at an international gathering and referred to the Enlightenment. The Vatican lawyer pointed out, quite rightly, that the convention is steeped in Christian values. Indeed, it is part of our Christian and Judeo-Christian tradition. That is why, as my noble friend pointed out, the guarantee of religious freedom is so ample in the convention.

Therefore, the convention provides no threat whatever to any Church that is a proper established Church; in other words, a religion which is well recognised and which acts in accordance with its tenets and beliefs. During the half century since the convention has been established and during the 30 years since British citizens were allowed to take their cases to the European Court of Human Rights, I know of none in which any of these problems has arisen in practice where any enemy of religion or of any Church has brought a case that has ever got anywhere in Strasbourg.

I do not understand why the movers of these amendments think that merely giving our courts the same powers as are possessed by the European Court of Human Rights would represent any threat at all. On the contrary, surely our own judges would be much more sensitive to the kind of issues raised by the movers of the amendments than would an international European court.

Further, when I look at the way in which the amendments are drafted, it seems to me, apart from the absence of any necessity for them, that they would do great harm to relations between people of different faiths in this country. Your Lordships will have noticed that the amendments depend upon applying the provision to "religious bodies". The Moonies, the Scientologists and other sects would no doubt claim that they are religious bodies and that, therefore, they are entitled to the protection of this kind of immunity under the convention. I would not like to see our courts, as has happened with other countries, having to decide claims of discrimination between, say, the Scientologists and the Moon ies on the one hand and Christians or Jews on the other.

One of the amendments in the group—Amendment No. 6 refers to "religious belief- which, for some reason, is confined to Great Britain and does not include Northern Ireland. I should have thought that Catholics and Protestants might be offended by their exclusion from that amendment. Surely they, more than most people in this country, have particularly passionate views in that respect. However, leaving that point aside, the amendment refers to the, practices of a christian or other principal religious tradition represented in Great Britain". Some of us may think that the Moslems are a principal religious tradition represented in Great Britain, while others may think that they are not. I would not like to see a situation arise where arguments of that kind, as to whether or not a practice falls within the scope of this immunity, were brought forward.

The last time that the amendment was put forward it sought to give the Minister the power to define what was a religion. This time the aim is to give courts the power to define what is and what is not a religious body. That would simply transfer the problem of divisiveness. I fear therefore that the amendments are completely unnecessary in that they would confer an immunity on bodies of which most Members of your Lordships' House would not approve, in the same way as they would approve of others. However, that is of no matter because it is not for us to decide what is and what is not a proper religion. Moreover, the amendments would lead to the kind of divisive arguments that we have already had, for example, in debates about the offence of blasphemy where Moslems objected strongly to the fact that the offence did not cover Islam as well as the Anglican faith.

I very much hope that your Lordships will be satisfied that there is no practical problem that any of us can identify. As I said, none of the examples given seems to be a real example of any conceivable breach of the convention. If that is so, then we are being asked to approve amendments which I believe are fraught with problems and which would serve no real practical purpose. Therefore, I very much hope that the careful balance as regards protecting religious freedom against the misuse of the powers of the state (which is what this charter of liberty is all about) will be maintained and incorporated into our law in the way in which the Government wish.

Lord Henley

My Lords, I rise briefly to give the House some idea of our thinking on these amendments and those tabled in the name of my noble friend Lady Young, with which we shall deal later. My noble friend Lord Campbell of Alloway made it quite clear that his amendment was one approach to this particular problem and that that of my noble friend was another. He also made it clear that both sets of amendments were entirely free standing and could exist on their own. However, I suspect my noble friend will agree that it would not be wise for the House to try to press both sets of amendments and try to include both of them in the Bill.

As this is the fourth—or, possibly, the fifth time that we have discussed such matters, I do not intend to rehearse the arguments which were put forward at some considerable length at previous stages. Indeed, I made it quite clear earlier, especially on Report, where we stood on this sort of amendment and that we offered our support. However, I must now give some indication to my noble friend Lord Campbell of Alloway and to my noble friend Lady Young as to how I would recommend those of us on these Benches exercise our choice.

I prefer the amendments of my noble friend Lady Young. Therefore, when my noble friend Lord Campbell of Alloway considers how he should proceed with his amendments, I hope that he will feel it appropriate to withdraw them and leave it to my noble friend Lady Young to argue the case for her amendments and to press them at a later stage this afternoon.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, the grouping is perhaps not entirely satisfactory. It is a difficult question how fully to respond to this debate on the first grouping of amendments without trespassing on the ground to be covered by Amendment No. 3 in the name of the noble Baroness, Lady Young, in the third grouping of amendments we shall consider. But having regard to the extent to which some of your Lordships have ranged in this debate I think it better if I reply comprehensively so that the Church may be satisfied that we have given the fullest possible responses to its concerns. Therefore when we reach the amendments of the noble Baroness, Lady Young, I shall endeavour not to repeat, at any rate excessively, what I say now, although much of it applies equally there.

Let us remember that the European Convention was drawn up after the Second World War in response to the devastation it caused, accompanied by the grossest denials of human rights. It is a convention for the protection of human rights and fundamental freedoms. I emphasise the word "fundamental". For nearly 50 years the United Kingdom has been bound under international law to observe those basic human rights of people within its jurisdiction. I echo what the noble Lord, Lord Lester of Herne Hill, said. Over the some half century that we have been signed up to the convention, the Church has not experienced any problem whatever—that I am aware of—with the convention. It has been the clear desire of all the main political parties, and has had their general assent, that we comply with our convention obligations. That has been so for 50 years. The purpose of this Bill is to bring those rights home. It is to enable people to enforce their human rights in the courts of the United Kingdom rather than having to take their case to Strasbourg. The Bill does not create new human rights or take any existing human rights away. It provides better and easier access to rights which already exist.

In short, human rights are valuable and they deserve protection at home—equal protection to the protection to which they are entitled at Strasbourg. It is these central beliefs that lie at the heart of the Bill. When we introduced the Bill we did not expect it to meet with unanimous acclaim. But we did think that the principle of improving people's access to human rights would gain the strongest general support. I have to confess, as I did on Report, that it certainly did not occur to us that a campaign—admittedly, a very limited one—to deny access to human rights would be led by those claiming to speak on behalf of the Churches. What I have just said is in no way intended to belittle the sincerity or anxiety of those in the Churches who have expressed some concern about the impact on them of allowing human rights to be the subject of litigation in our own courts. I cannot claim—and I did not claim on Report—that we anticipated these concerns when the Bill was being prepared. But I can say that we listened carefully to the concerns as soon as we were made aware of them. I desire to persuade your Lordships' House that our responses have been full and satisfactory.

I remind your Lordships about events so far. First, a meeting was arranged with Home Office officials before Christmas. The meeting was at the request of the Church of England but helpfully included representatives of the other Churches. I think it fair to say that the Churches' representatives were given every conceivable opportunity to identify and present whatever anxieties they had. Following that meeting, a letter was sent to the Churches giving a considered response to all the points that had been raised. I believe that a number of your Lordships will have seen and read that letter. No suggestion has been received, in response to that letter, that the assurances which it gave on the particular points which it addressed were in any way inadequate.

Subsequently, at Report stage, we discussed a number of amendments dealing with the position of the Churches. On one point—the action to be taken when a measure of the General Synod of the Church of England is declared incompatible with a convention right—the Government felt able to bring forward an amendment. That amendment was proposed by my noble friend Lord Williams of Mostyn and dealt with a proper concern which had been expressed and was particular to the Church of England. It was graciously received by the right reverend Prelate the Bishop of Ripon, and by the House, and it has disposed of that aspect of the Church's concerns. The Government did not feel able to agree to the amendments brought forward at that stage by the noble Baroness, Lady Young, but I took the opportunity to reassure the Churches and the House in detailed terms about the Churches' expressed concerns.

Having heard the Government's response the right reverend Prelate the Bishop of Ripon said on Report, The Government have begun to take note of the deep concerns of the Churches. I am grateful to the noble and learned Lord the Lord Chancellor and to the noble Lord, Lord Williams of Mostyn, for the great care and attention that they have given to our concerns. and to their officials for the careful work that they have done.— [Official Report. 19/1/98; col. 1325.1

At col. 1326 the right reverend Prelate referred to, a more general concern about the right of the General Synod to introduce measures and the degree of control which Parliament would be taking back were it to subject General Synod legislation to the provisions of the Bill. However, I believe that when we reach Amendment No. 46 we will find that our concerns have been met".

Amendment No. 46 was in the name of my noble friend Lord Williams of Mostyn. The right reverend Prelate continued, at col. 1327, There are issues of great importance and considerable concern. We shall listen to the Government's reply with great attention".

I was gratified by those observations of the right reverend Prelate. Following the assurances which I gave I observed with pleasure that no bishop thought it right to vote against the Government on the amendments. I have therefore to ask myself whether it is the case that there is anything of real practical substance in the concerns that have been expressed.

Let us talk in general terms about the European Convention on Human Rights. Article 2 deals with the right to life. The Church will not breach that. Article 3 deals with prohibition of ill treatment, torture and degrading or inhuman treatment or punishment. The Church will not breach that, nor Article 4 which concerns the prohibition of forced labour, nor Article 5 which concerns the guarantee of liberty. To the extent that the Church courts are subject to Article 6, that, too, has not so far proved to be a problem. We have no submissions on that. Article 7 can hardly be relevant—the prohibition of retrospective criminal penalty. Articles 8, 10 and 11 all contain provisions which allow a proper reflection of the rights and freedoms of others, including, we say, the rights and freedoms of Church members. Article 9 guarantees religious freedom, so that cannot be a problem either. Article 12 concerns the right to marry. I shall discuss that in more detail in a moment. As I explained on Report, Article 14 is not a freestanding, generalised guarantee against discrimination but merely refers to discrimination in respect of the specific convention rights listed in the convention which are not enlarged by Article 14.

If we move to the protocols, the Church will not interfere with an individual's right to the peaceful enjoyment of his possessions—or deprive him of them—guaranteed by Article 1 of Protocol 1. Article 2 of the protocol guarantees the right of parents to choose education in conformity with their own religious and philosophical convictions. I cannot see how this could be any problem for the Church. Article 3 is about elections, and again is a matter which does not touch the Churches.

I analyse the convention shortly in this way just to show that there is nothing in the Bill which in practice will pit the Church and the secular courts against each other. Let us therefore focus on particular concerns and not on generalised concerns. I submit that we should not be using language to suggest that here we are on the brink of some Olympian clash between Church and state. Of course we are not. We are discussing a very few particular points and, I hope, looking at them with a sense of proportion to see whether there is anything to worry about.

One of them is the question of appointments to key positions in Church schools or religious charities. The answer to that is simple. I submit to the House that it is compelling. Nowhere in the convention rights is there a right to be appointed or to remain in a particular position or post. Article 14 has no impact upon the accuracy and width of that proposition. That point is really as simple as that.

The other question—and it really is the only other question—which has been of some concern to the Churches is the question whether they might be required to perform marriages of which they would disapprove from the standpoint of religious doctrine and therefore conscience. The first case cited is that of persons of the same sex who wish to be married to each other. I expressed my clear view on that on Report. I do not repeat it. I simply tell your Lordships that what I said is amply borne out by a decision of the European Court of Human Rights which has clearly held that the right to marry in Article 12 of the convention refers to, the traditional marriage between persons of the opposite biological sex".

That is exactly what I advised your Lordships on Report. The case was one against the United Kingdom, and the court held that the legal impediment in the United Kingdom on the marriage of persons who were not of the opposite biological sex could not be said to have the effect of impairing the right to marry in Article 12.

But our domestic law is of the same effect. The legal impediment to which the European Court of Human Rights referred is an explicit statutory one in our own country. Section 11 of the Matrimonial Causes Act 1973, which applies in England and Wales, provides in terms that a marriage is to be void if, among other things, the parties are not respectively male and female. There is similar provision in Scotland in Section 5 of the Marriage (Scotland) Act 1977, which clearly states that there is a legal impediment to a marriage if both parties are of the same sex. So even if the British courts were to lay aside the convention jurisprudence, which of course they are not going to do, a decision by Parliament would be needed before any such views could be given effect. I do not think that any of us have any serious doubt about what the view of Parliament would be on that.

The remaining specific concern—I find it difficult to deal with anything other than specifics—expressed by the Churches is about the remarriage of divorced persons, to which some but not all ministers of religion are opposed. The point here is that while the convention clearly recognises a right to marry, it does not recognise a right to marry, or to re-marry, according to a particular form of ceremony of one's own choice. Not only is that what the convention means, that is also in accordance with our own domestic law. Section 8 of the Matrimonial Causes Act 1965 specifically provides, in respect of clergymen of the Church of England and the Church of Wales, who alone of the Churches have any obligation to conduct marriages anyway, that they shall not be compelled to solemnise the marriage of any person whose former marriage has been dissolved and whose former spouse is still living.

These are the concerns which have been presented to us; and these are the fullest responses, in frankness to the House, that I can give. It is against that background that I turn to the amendments tabled by the noble Lord, Lord Campbell of Alloway.

Amendment No. 8 would prevent a court making a declaration of incompatibility in relation to any provision of primary legislation if it concerned any spiritual matter, a term which is given a wide definition. That is the main amendment because Amendment No. 4 would simply make the provisions of Clause 2 subject to the religious provisions inserted into Clause 4 by Amendment No. 8, and Amendment No. 1 is of a purely declaratory nature.

The practical effect of Amendment No. 8 would be to prevent the remedial order procedure being used to correct an incompatibility between the convention rights and primary legislation on a spiritual matter. It does so by removing the trigger for the use of the remedial order procedure, namely a declaration of incompatibility.

I do not think that it is either necessary or even sensible to amend the Bill in this way. If one thinks of primary legislation on a spiritual matter, one thinks first of Measures of the General Synod of the Church of England. Your Lordships accepted a government amendment at Report stage which removed such measures from the scope of the order-making power. I cannot think of extant examples of Acts of Parliament as opposed to Measures of the General Synod which are both concerned with the decisions of a religion relating to teaching, ritual, and so on, and which raise a convention issue. I cannot think of an example. If such legislation did exist, then it would continue to operate under this Bill despite its incompatibility with the convention rights. The Bill protects primary legislation, whatever its subject matter may be. If it cannot be interpreted compatibly with the convention rights, then in our view the higher courts should be free to say so. But a declaration would not be binding on the parties concerned and would not of itself create any liability. That is completely different from a finding that a public authority has acted unlawfully by breaching the convention right when that breach is not sanctioned by statute. Those are entirely different things.

I turn to the amendment tabled by the noble Lord, Lord Renton. His amendment is in very wide terms. I think that it is helpful to address it because it is grouped with these amendments. It takes us straight back to a full-blooded exemption for the Churches.

I shall pass over quickly the question of what effect is achieved by inserting the word "corporate" before "religious body". Religious bodies are not normally categorised according to whether or not they are incorporated. But I leave that aside. The very real question of principle is whether it is right to exempt the Churches from the duty not to act incompatibly with the convention rights and from the liability which rests on them to the extent that they are properly to be regarded as public authorities to answer for their actions. That is really the issue which the House determined at Report stage, and I believe that the House should answer the same question and give the same answer today. We think it right as a matter of principle that the Bill should bear equally on all bodies which, on a reasonable view of the part they play in public life, can properly be regarded as public authorities. We do not believe that the Bill will encourage the ordinary courts, or that the ordinary courts will even be disposed, to interfere in purely spiritual matters. But if—and it is a very large "if"—a religious body should find itself, no doubt inadvertently, acting in a manner that is incompatible with basic human rights and fundamental freedoms, we believe that it ought to be amenable to correction in the same way as any other organisation playing a similar role and that the Churches should embrace that.

4.30 p.m.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble and learned Lord for giving way. I wonder whether he agrees with me that there is consistent English case law making quite clear that the English courts will not take jurisdiction over spiritual matters or the exercise of jurisdiction by religious courts, whether they are Christian, for example, or the office of the Beth Din in the case of the Jewish faith.

The Lord Chancellor

My Lords, I readily confirm that that is my understanding, too. Having offered those rather detailed reasons which I hope were to the convenience of your Lordships at this stage in our discussions, I invite the noble Lord to withdraw his amendment.

Lord Campbell of Alloway

My Lords, I thank all noble Lords who have taken part in the debate. I thank in particular the noble and learned Lord the Lord Chancellor, who, with the assistance of the noble Lord, Lord Lester, has sought to give the House certain assurances. I do not know, any more than my noble friend Lord Renton, why his amendment, which relates to Clause 6 and exclusion, was grouped with this amendment. It is one of those mysteries which will perhaps never be resolved.

With the greatest respect, I am not convinced by the assurances of the noble and learned Lord the Lord Chancellor. I remain of the opinion that this amendment could well serve a valid, moderate and workable purpose; indeed, it is the minimum requisite to achieve such a purpose.

However, I accept the sense of the House. I always try to do so. Looking at the matter realistically, there is no great or sufficient support for this amendment on the Floor of the House today.

My noble friend Lord Henley says that the Opposition which I support—it is not a political matter anyway, so I do not know why we should be bothered with it—prefers another amendment to my own. I suppose that the Opposition can do that; why it has to inform this House of the fact I do not quite know.

Amendment No. 6 raises a most peculiar problem. Although the Opposition may prefer the amendment tabled by the noble Baroness, Lady Young, there is a problem, a sort of gremlin in it. The amendment attempts to create a statutory defence in our domestic law in a Bill which does not incorporate the rights and obligations of the convention into our domestic law. Therefore there is quite a serious problem, although, as I say, my noble friend Lord Henley prefers to live with that problem.

In any event, I take the point. One does not want to have two Divisions. In the circumstances, expressing my gratitude to the right reverend Prelates who supported this amendment and to noble Lords for having heard the argument, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 2: Before Clause 1. insert the following new clause— SPECIAL PROVISION FOR HER MAJESTY'S ARMED FORCES (". Section 4(2B) of this Act makes special provision for Her Majesty's armed forces.").

The noble Lord said: My Lords, this amendment is devoid of any party-political content as Her Majesty the Queen commands the Armed Forces. It is moved, albeit from these Back-Benches, under the aegis of your Lordships' All Party Defence Study Group. It is, as noble Lords may well think, a matter which ought to be capable of resolution by accommodation and consensus. by some categoric satisfactory assurances acceptable to all political parties. Whether such be the case or not remains to be seen.

In its original form this amendment was moved as Amendment No. 25 on Report, having been tabled again on 3rd December, supported by the right reverend Prelate the Bishop of Lichfield and the noble and gallant Lord, Lord Craig of Radley. Your Lordships gave leave to return to the matter today, on the same undertaking. to read what was said in the Official Report with great care. That has been done as a matter of form. It is accepted that Amendment No. 25 was misconceived as seeking exclusion under Clause 6 as the Armed Forces are a public authority. However, the substance of the amendment to which I spoke remains: to remove Her Majesty's Armed Forces and persons exercising functions under their authority remains the substance and is reflected in this amendment.

No account was taken of this matter when the Bill was drafted. Indeed, again, no account was taken until the right reverend Prelate the Bishop of Lichfield spoke in Committee. I referred to the approach to the convention as stated by Rolv Ryssdal when speaking to the amendment on religious bodies. Put quite simply, the Convention is not intended to impose rigid, uniform solutions, hut within limits to recognise the right of free societies to choose for themselves".

Among the 40 signatory states to the convention the structure of the armed forces in each is far from uniform. The United Kingdom is entitled to retain its own structure with, no doubt, certain changes from time to time to accommodate the "apple factor"—a by-product of overstretch.

Under this amendment the court retains a discretion to refer any question of an alleged breach of the convention to the commission or to the ECHR if so advised under extant procedures. But the discretion to make a declaration of incompatibility so as to trigger the fast-track approach for remedial action on a case-by-case basis is removed.

The Armed Forces should be excluded from the fast-track procedure as a special provision because of training and operational matters relating to discipline. It is not acceptable that at, say, Brentford County Court an application should be made that a member of the Armed Forces should not be sent to Bosnia as this would be in breach of Article 8 of the convention in constituting an infringement of his right to respect for his private and family life, even if, as is sadly the case, divorce in the services due to overstretch is rising at an alarming rate.

It is accepted that the Armed Forces are subject to the criminal and civil jurisdiction of our courts and to the jurisdiction of the Commission and the Court of Human Rights, an international body. It is accepted that due account of the convention must be had by the Government, the Armed Forces and such persons. However that may be, your Lordships may well think that it is neither necessary nor appropriate that in this context breaches of the convention on a case-by-case basis should be dealt with by our domestic courts and that declarations of incompatibility should not be granted. It is not the business of government or the judiciary to seek to construct a uniform code of conduct for the Armed Forces from all signatory states in apparent conformity with the convention.

And why not? As your Lordships know, there is no uniformity as regards terms of engagement, discipline, service, and so forth, among the signatory states. Each state has its own distinct and disparate provisions and system of maintaining good order and discipline. Would it not be contrary to good order and effective discipline to afford a forum in our courts for every barrack-room lawyer or disgruntled or aggrieved serviceman in which to allege breaches of the convention? There is always someone grousing about something. It seems to me quite incongruous that one can keep good, tight discipline with a system such as that proposed by the fast-track procedure.

If we had not won the war, there would not be a human rights convention. If we had not been disciplined, we would not have won the war. The discipline and conduct of our Armed Forces, according to our traditions, are near and dear to the heart of the noble Lord, Lord Gilbert, but the attitude of the Ministry of Defence is not known. It is the view of noble and gallant Lords, some of whom will no doubt speak today, that the Bill as it stands would affect many provisions of the services discipline Acts and undermine the authority of commanding officers as regards discipline, operational training and administrative matters and that there is a severe threat to the traditions of our military ethos. I beg to move.

Lord Craig of Radley

My Lords, I added my name to this amendment, as I did to the comparable amendment at Report stage. I asked at that time what the effect of the Bill would be on the Armed Forces Acts. I do not wish to repeat all that I said then, but I explained that I believed the importance of the Armed Forces Acts to be unquestioned. The authority of a commanding officer and the responsibility of those under command to obey lawful orders is fully underwritten by those Acts. I did not receive an assurance on that point. I also asked the noble and learned Lord the Lord Chancellor what the reaction of the Ministry of Defence, and in particular of the chiefs of staff, had been. He was unable to give me any more than an assurance in the following words: 1 am not aware that the chiefs of staff have made any representations to government for an exemption along the lines of this amendment".—[Official Report, 19/1/98; col. 1359.1

My own inquiries lead me to believe—and I apologise to the House if I am wrong—that the impact of the Bill had not been brought to the attention of those within the Ministry of Defence who, like myself, would have great concern about an impact upon the command authority of individuals within the Armed Forces. I therefore believe that it would be of great assistance to the House to have a fuller understanding of the impact of the Bill upon the Armed Forces Acts. I do not question the value or importance of the Bill, but I remain extremely concerned that we are in danger of allowing it to undermine the essential ethos, military discipline and responsibility of commanding officers within our Armed Forces. On that basis, I believe it important that the amendment be accepted.

4.45 p.m.

Lord Vivian

My Lords, I strongly support Amendments Nos. 2, 5, 9 and 10 in the name of my noble friend Lord Campbell of Alloway concerning the Armed Forces. I reiterate and strongly stress that these amendments in no way affect the human rights conveyed through the Bill to service men and women, who could still submit a case to the European Court of Human Rights should they so wish. The amendments do not take away their human rights.

What do the amendments do? They prevent those enlisted in the Armed Forces from using the fast-track procedure detailed in Clauses 10 to 12, which would result in a military offence bypassing the military discipline system. I believe that we are dealing here with a procedural matter. A disciplinary offence could be referred to a civil court within the United Kingdom and judged by people who have no knowledge of military conditions and the military way of life. That would clearly undermine the authority of a commanding officer. I am concerned that it would make large sections of the service discipline Acts invalid and unusable.

It is horrifying to think that, had those in the services been able to use this new system, some might have refused to fix bayonets at Tumbledown in the battle for the Falklands and refused to continue the attack against the enemy when the ammunition ran out. How horrifying to think that any soldier might refuse to go into a dangerous area of Belfast for fear of being shot at by a sniper and, more than likely, killed. How horrifying to think that servicemen might disobey an order to hold and defend a position at all costs against a forthcoming enemy attack. Similar cases can be made for the other two services. Examples can also be given in relation to equally important training and administrative matters within the Armed Forces.

If I were to give a lawful command, placing a serviceman in a position in which he is likely to lose his life, as in the examples I have just given, a case could easily be made that I have intentionally caused loss of life. As I understand the Bill in its present form, service men and women could trigger a case to be dealt with under the fast-track procedure detailed in Clauses 10 to 12 involving the civil courts, bypassing the military system and totally undermining the authority of a commanding officer. The ability to bypass military discipline could tempt some service people down this route, leading to much expensive litigation and the possibility of vast sums being paid in compensation.

Members of the Armed Forces work with great team spirit. It is that team spirit and not the individual that counts in service life. When servicemen make the supreme sacrifice, they do so for each other, for their unit and for their country. That entire way of life and military ethos are underpinned by the code of military discipline. Bypass that proven system of military discipline and ethos, and the high morale and efficiency so critical to the Armed Forces will be destroyed.

Parliament has recognised the special need for a military code of discipline for generations; hence the service discipline Acts. Why should we now legislate for a new system when the one we have works so well? Failure to carry the amendment will destroy all existing military ethos and morale and will lead to inefficiency and poorly trained Armed Forces. I ask the noble and learned Lord the Lord Chancellor to think again. I believe that the overall security of the realm may be put at risk. I strongly urge your Lordships to support the amendment.

Lord Goodhart

My Lords, the quality of the Armed Forces of the United Kingdom is remarkably high. They may be the best forces in the world. Most of those who, like me, did national service in the years after the war emerged with considerable respect for the Armed Forces; indeed, I am still a member of the regimental association connected with the regiment in which I had the honour to serve.

I do not agree that forces discipline should be exempt from the operation of the Human Rights Bill. Indeed, the proposal in the amendment does not do that. It actually applies to only one limited aspect of the Bill; that is, the power to declare that a statute is incompatible with the European Convention on Human Rights. The amendment does not stop any member of the Armed Forces raising a convention right if that convention right is dependent on something like an executive order and it is not a question of incompatibility with any statute. To a large extent therefore the amendment will leave the members of the Armed Forces with the right to raise convention points in legal action.

The forces are not exempt from the European Convention on Human Rights. An extremely important decision in February 1997, in the Findlay case, held that the court martial procedure under the Army Act 1955 was in fundamental breach of Article 6 of the convention. The previous government, to their credit, recognised that that procedure was indefensible even before the court gave its decision. For that reason they introduced what was enacted as the Armed Forces Act to set up a new procedure which complies with the European Convention on Human Rights. That involves the intervention of the European Court at the request of a member or former member of the Armed Forces. The sky does not seem to have fallen in on military discipline as a result.

The jurisprudence of the European Court recognises the special position of the Armed Forces. For example, in the case of Engel v. The Netherlands. the court accepted that confinement to barracks—what some of us remember as the dreaded "jankers"—did not involve an infringement of the right to liberty under Article 5, though it would have done so in the case of a civilian. The argument here is the same as it is elsewhere. If the Armed Forces are already subject to the jurisdiction of the Strasbourg court, why not extend that jurisdiction to the courts of the United Kingdom? I must say once again that the noble Lord, Lord Campbell of Alloway, repeated his suggestion that the courts have a power to refer cases to the European Commission or the European Court of Human Rights; but no such power exists.

Easier access to convention jurisdiction may possibly lead to a small flurry of challenges to forces discipline procedure in the first few months in which the Human Rights Bill comes into force. But the courts are robust enough to reject those challenges if no serious point is involved. I do not believe that the Bill will do the slightest damage to the efficiency or morale of the forces and there is some danger that an exemption would do such damage. After all, these days we have a volunteer Army. What will be the effect on recruitment if those joining the forces are told they will be deprived, so far as the British courts are concerned, of rights enjoyed by everyone else in this country, such as the right to a fair trial under Article 6? I therefore call on the House to oppose the amendment.

Lord Mayhew of Twysden

My Lords, I thank my noble friend for tabling this amendment. It is capable of securing an important safeguard for the management or the administration of our armed services. However, I should like to advance a slightly different argument in its support.

I agree with the noble Lord, Lord Goodhart, and my noble friend Lord Vivian that the Armed Forces are called upon to perform exceptional services. As we all know, they include on occasion being prepared to risk one's life. I believe therefore that they need to be regulated by exceptional legislation providing, in particular, for a unique disciplinary code and structure.

It is no less important that our armed services should always act within the law. As has been said, that applies already to the provisions of the convention and it is a duty which the Bill will now make explicit. Obedience to an order that is unlawful has never been a defence in our law and I am sure that it never will be. These arrangements are a prime illustration of what we mean by the rule of law. But we always need to remember that these arrangements and rules can expose servicemen to difficult questions of judgment and often to great danger.

It is easy for us in Parliament—and, if truth be told, rather satisfying—to intone about the rule of law. It is much more difficult and dangerous to uphold it in the course of one's duty when one is, for example, in support of a civil power on the streets of Northern Ireland. It follows that the Armed Forces disciplinary Acts need to be carefully and perceptively constructed; and so they are. They are the product of long experience and long evolution. Any change to them therefore needs to be the result of equally careful consultation and debate including, crucially, parliamentary debate. I believe that that should only be done by primary legislation, which I concede may need to be brought forward urgently in a specific case. It cannot suitably be done by a remedial ministerial order made under the fast track procedure in this Bill. That would be available if a court exercises a discretionary power to declare that a provision of primary or subordinate legislation is incompatible with a convention right. The deficiencies of the order-making procedure in this House and in the other place for this purpose are all too well known to noble Lords. There is no need for me to rehearse them.

I therefore applaud the thrust of the amendment. It is a purely procedural amendment, not a substantive one. It will still be open to the serviceman or woman to challenge in the courts the lawfulness in convention terms of disciplinary action taken against him or her of the kind the amendment deals with. The amendment does not put the Armed Forces above the law; it does not chip away at the obligations of the convention in their case; nor does it act at the expense of members of the Armed Forces in terms of their rights under the convention. What the amendment does do is to remove what I believe to be the wholly inappropriate fast track procedure for making summary changes in the sensitive legislation by which the Armed Forces are at present properly regulated.

5 p.m.

Lord Henley

My Lords, perhaps I may briefly make clear the position of these Benches. The amendments put forward by my noble friend Lord Campbell of Alloway raise some very serious issues. The fact that his amendments have been supported by not one but two former chiefs of staff certainly underlines the seriousness with which the Armed Forces view these issues and how seriously they think they ought to be addressed.

These issues were addressed at an earlier stage. We have not gone into them in the detail applied to the amendments we discussed some time ago. Nor has there been the detailed discussion that will occur on later amendments. However, the issues were certainly raised on Report. At that stage the noble and gallant Lord, Lord Craig, voiced his concerns. He raised those concerns again today. He made clear that it was his understanding that the service chiefs had not been consulted on the drafting of the Bill and on its application to the Armed Forces.

Before I and my noble friends make any decision as to how we vote should my noble friend decide to press the amendment to a Division, we certainly want to listen very carefully to what the noble and learned Lord the Lord Chancellor has to say in response to the amendment. I am eager to hear in particular what he has to say about the suggestion that the service chiefs were not consulted and whether they are satisfied now that they will not be affected in the way that many of my noble friends seemed to feel might be the case. I shall listen with extreme care to what the noble and learned Lord has to say before I make any decision as to how I shall vote in the Division Lobbies.

The Lord Chancellor

My Lords, perhaps I may make this point in agreement with the noble Lord, Lord Goodhart. In his argument on Amendment No. 1, the noble Lord, Lord Campbell of Alloway, appeared to be saying that a domestic court in relation to Amendment No. 1 could refer a spiritual matter to the convention institutions in Strasbourg. Here he is repeating the same point—that a domestic court could refer a convention issue concerning the Armed Forces to Strasbourg. In fact, no domestic court or the Government can refer a convention matter to Strasbourg. Only a victim of a violation of the convention may do that.

The noble Lord, Lord Goodhart, is also correct in saying that the Armed Forces are already subject to the convention and to the Strasbourg court. In the Findlay case, to which he referred, the relevant statutory provisions governing courts martial, in particular as they concern the role of commanding officers in courts martial, were found to breach the convention. Accordingly, our predecessors had to bring forward primary legislation to deal with that. So there is nothing in particular that is new here. The only point is that under the Bill these matters can be dealt with through our domestic courts and will not have to await Strasbourg.

The key point, in the Government's view, is that the Armed Forces fall squarely within the category of an obvious public authority. If they are not that, it is difficult to say who is. What I mean is that it is scarcely conceivable that there could be a Bill of this kind which did not cover the Armed Forces. Secondly, the Government are plainly answerable in Strasbourg for the actions of the Armed Forces which engage the responsibility of the state. Thirdly, if the intention is to bring rights home so as to allow our own courts to adjudicate on convention issues, this seems to be a clear case. Therefore, we cannot see any justification for excluding the Armed Forces from the scope and reach of the Bill.

As I understand the argument, the noble Lord is content for the Armed Forces to remain subject to the convention rights but maintains that only the Strasbourg institutions and not our domestic courts should be able to adjudicate on those rights. I cannot see the merit in that proposition. The major purpose of the Bill is to allow individuals to enforce their convention rights in United Kingdom courts. It would clearly run counter to the purpose of the Bill if we were to deny our courts the ability to take account of convention rights where the Armed Forces are involved.

The actual effect of Amendments Nos. 9 and 10 is to prevent a declaration of incompatibility being made in respect of legislation concerned with specified military matters or in courts martial proceedings subject to judicial review or the Courts Martial Appeal Court. The effect of the amendments is to prevent the remedial order procedure being used to correct an incompatibility between the convention rights and Armed Forces legislation. That is contrary to the scheme of the Bill. The scheme of the Bill is that legislation should be interpreted in a way that is compatible with the convention rights so far as possible; that incompatible primary legislation should continue to operate; and that Parliament should be given an opportunity to amend the incompatibility by means of an expedited procedure.

But I say to the noble Lord, Lord Mayhew, that the Government are not obliged to go by way of the expedited procedure. It might be appropriate in such cases. It would depend upon the extent of the incompatibility, and the detailed consideration of legislation that might be required, whether it would be appropriate to go by way of remedial order, which it would be if, for example, the provision which infringed the convention was capable of easy remedy. There might be a greater argument for primary legislation if a fuller assessment of the relevant legislation was called for. But we do not see a case for exempting the Armed Forces from the terms of the Bill and we do not see a case for ruling out declarations of incompatibility being made in respect of legislation that affects the military.

In practice, convention issues as they might affect the Armed Forces would arise in the course of proceedings before military courts and would be resolved there. Appeals would go to the Courts Martial Appeal Court. For example, if a soldier attempted to proceed directly against the Army command under Clause 7(1)(a) of the Bill, the court adjudicating the point would be the one specified in rules made in accordance with Clause 7(2). I am mindful of what the noble Lord, Lord Henley, said. I would be perfectly happy to indicate that we would have to reflect on it, but we would consider designating military courts as the proper venue for the consideration of complaints on convention grounds by Armed Forces personnel against the command of the Armed Forces.

As regards the concerns expressed by the noble and gallant Lord, my right honourable friend the Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces. Along with his colleagues, he desires the Bill to proceed. However, the noble and gallant Lord will be aware that several of the convention articles permit restrictions to be placed on an individual's rights provided certain specified conditions are met. It may be that there will be situations in which special considerations will certainly have to apply to the Armed Forces because of the nature of their work. It would be a matter for the Armed Forces to look at each situation on its merits and ensure that any actions they took were consistent with the convention rights as they would be applied to the particular circumstances of the case.

I also remind your Lordships and the noble and gallant Lord that under Article 15 of the convention a state may, in time of war or other public emergency threatening the life of the nation, take measures derogating from its obligations under the convention to the extent required by the exigencies of the situation. I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces. I have given an indication about willingness to consider designating military courts as the appropriate forum for the consideration of complaints on convention grounds by Armed Forces personnel. On that basis I invite the noble Lord to withdraw his amendment.

Lord Renton

My Lords, before the noble and learned Lord sits down, will he deal with the conflict mentioned by my noble friend Lord Campbell of Alloway when the courts, no doubt acting properly, find that there is something in the convention which conflicts with a decision made within the Armed Forces, of which Her Majesty the Queen is the head, as my noble friend said? Would it not be better to avoid such a conflict rather than have to face up to a situation which has to be resolved?

The Lord Chancellor

My Lords, no. If an unlawful act is committed by the Armed Forces which is in breach of the convention, that is intended to be remediable under the Bill.

Lord Campbell of Alloway

My Lords, the noble Lord, Lord Renton, hit the nail right on the head. It is all very well to have to keep listening to the "scheme of the Bill" and what the noble Lord, Lord Goodhart, says about it and, with great respect, what the noble and learned Lord says about it. I am concerned with the maintenance of discipline in Her Majesty's Armed Forces. I am far more concerned with that than with the scheme of the Bill. I find no sympathy from the Woolsack nor understanding of the fundamental issue which is of great importance to this country. There has been no satisfactory assurance given. I seek the opinion of the House.

5.15 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 153.

Division No.1
CONTENTS
Alexander of Tunis, E.	Marlesford, L.
Annaly. L.	Massereene and Ferrard, V.
Ashbourne, L.	Mayhew of Twysden, L.
Belhaven and Stenton, L.	Miller of Hendon, B.
Beloff, L.	Molyneaux of Killead, L.
Blaker, L.	Monson, L.
Blatch, B.	Murton of Lindisfame, L.
Boardman, L.	Naseby, L.
Caldecote, V.	Newall, L.
Campbell of Alloway, L. [Teller.]	Nickson, L.
Camegy of Lour. B.	Norrie, L.
Chesham, L.	Northbourne, L.
Cockfield, L.	O'Cathain. B.
Colwyn, L.	Onslow of Woking, L.
Cox, B.	Park of Monmouth, B.
Craig of Radley, L.	Patten, L.
Crickhowell, L.	Pender, L.
Davidson, V.	Plummer of St. Marylebone, L.
Dixon-Smith, L.	Rawlinson of Ewell, L.
Eden of Winton, L.	Renton, L.
Ellenborough, L.	Robertson of Oakridge, L.
Gormanston, V.	Romney, E.
Granard, E.	Rotherwick, L.
Halsbury, E.	Rowallan, L.
Hambro, L.	Saltoun of Abernethy, Ly.
Harmsworth, L.	Shaw of Northstead, L.
Hemphill, L.	Shrewsbury, E.
Holderness, L.	Simon of Glaisdale, L.
HolmPatrick, L.	Soulsby of Swaffham Prior, L.
Jakobovits, L.	Strange, B.
Kinnoull, E.	Swansea, L.
Kitchener, E.	Tebbit, L.
Leigh, L.	Vivian, L. [Teller.]
McConnell, L.	Waterford, M.
Macleod of Borve, B.	Westbury, L.
Malmesbury, E.	Wilcox, B.
NOT-CONTENTS
Ackner, L.	Carlisle, E.
Acton, L.	Carter, L. [Teller.]
Addington, L.	Chandos, V.
Alton of Liverpool, L.	Charteris of Amisfield, L.
Amos, B.	Chorley, L.
Archer of Sandwell, L.	Cledwyn of Penrhos, L.
Ashley of Stoke, L.	Colville of Culross, V.
Avebury. L.	Currie of Marylebone, L.
Bassam of Brighton, L.	Dahrendorf, L.
Bath, M.	David, B.
Beaumont of Whitley, L.	Davies of Coity, L.
Berkeley, L.	Davies of Oldham, L.
Blackstone, B.	Dean of Thornton-le-Fylde, B.
Borrie, L.	Desai. L.
Bridge of Harwich, L.	Dholakia, L.
Brooke of Alverthorpe, L.	Diamond, L.
Bnice of Donington, L.	Dixon, L.
Burlison, L.	Donoughue, L.

Dormand of Easington. L.	Milner of Leeds, L.
Eatwell, L.	Mishcon, L.
Ezra, L.	Molloy, L.
Falconer of Thoroton, L.	Monkswell, L.
Falkland, V.	Montague of Oxford, L.
Farrington of Ribbleton, B.	Morris of Manchester, L.
Fitt, L.	Murray of Epping Forest. L.
Gallacher, L.	Nelson, E.
Gilbert, L.	Newby, L.
Gladwin of Clee, L.	Nicholson of Winterbourne, B.
Goodhart, L.	Nicol, B.
Gordon of Strathblane, L.	Orme, L.
Gould of Potternewton, B.	Paul, L.
Grenfell, L.	Peston, L.
Hamwee, B.	Pitkeathley, B.
Hanworth, V.	Plant of Hightield, L.
Hardie, L.	Ponsonby of Shulbrede, L.
Hardy of Wath, L.	Prys-Davies, L.
Harris of Greenwich, L.	Puttnam, L.
Haskel, L.	Ramsay of Cartvale, B.
Hayman, B.	Randall of St. Budcaux, L.
Healey, L.	Rea. L.
Hilton of Eggardon. B.	Redesdale, L.
Hollick, L.	Rendell of Babergh, B.
Hollis of Heigham, B.	Richard. L. [Lord Privy Seal.]
Holm of Cheltenham, L.	Rochester. L.
Howell, L.	Rodgers of Quarry Bank, L.
Howie of Troon, L.	Rogers of Riverside, L.
Hoyle, L.	Russell, E.
Hughes, L.	Sainsbury., L.
Hughes of Woodside, L.	St. John of Bletso. L.
Hunt of Kings Heath, L.	Sandberg. L.
Hylton, L.	Sandwich, E.
Irvine of Lairg, L. [Lord Chancellor.]	Serota, B.
	Sewel, L.
	Shore of Stepney. L.
Jacobs, L.	Simon, V.
Janner of Braunstone, L.	Smith of Clifton, L.
Jay of Paddington, B.	Stoddart of Swindon, L.
Jenkins of Putney, L.	Stralbolgi, L.
Judd, L.	Symons of Vernham Dean, B.
Kennedy of The Shaws, B.	Taverne, L.
Kirkwood. L.	Taylor of Gryfe, L.
Lester of Herne Hill, L.	Tenby, V.
Levy, L.	Thomas of Macclesfield, L.
Linklater of Butterstone, B.	Thomas of Walliswood, B.
Lockwood, B.	Thomson of Monifieth, L.
Lovell-Davis, L.	Thurso, V.
Ludford, B.	Tope, L.
McCarthy, L.	Tordoff, L.
McIntosh of Haringey, L.	Turner of Camden, B. [Teller.]
	Walker of Doncaster. L.
McNair, L.	Wallace of Saltaire, L.
McNally, L	Wedderbum of Charlton, L.
Maddock, B.	Whiny, L.
Mallalieu, B.	Wigoder, L.
Mar and Kellie, E.	Williams of Crosby, B.
Merlyn-Rees, L.	Williams of Elvel. L.
Meston, L.	Williams of Mostyn, L.
Methuen, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.25 p.m.

Clause 1 [The Convention and the First Protocol]:

Baroness Young moved Amendment No. 3: Page 1, line 11, at end insert ("sections 2(4) to (7) and 7(7A) to (7C) and to").

The noble Baroness said: My Lords, we have now come to the last opportunity in your Lordships' House to debate this matter. I start by thanking my noble friend Lord Campbell of Alloway not only for the measured way in which he has spoken but for not pressing his amendment, Amendment No. 1.

I make no apology to your Lordships for returning to this matter yet again. I listened with great care to what the noble and learned Lord the Lord Chancellor said. I am sure that he, like myself, has received a volume of correspondence from people from one end of the United Kingdom to another who are extremely concerned about the effect of this Bill on matters of conscience. I have received letters from people from all Churches in this country and from different denominations. I can assure the House that I speak this afternoon on behalf of thousands of people, churchgoers, who are very worried indeed.

I shall not repeat the arguments that I used on Report except to say this: this is not a party political matter. I have had support from all parts of your Lordships' House. The noble Earl, Lord Longford, telephoned me this morning to say how very sorry he is that he cannot be in his place this afternoon as he is not well.

I agree very much with what the right reverend Prelate the Bishop of Birmingham said: none of us supporting these amendments is against human rights or against the principles of this Bill. I am glad to say that when there was a Division on Report I had the support of three Law Lords. Although I am not a lawyer, it is a great comfort to know that legal opinion is, to say the very least, divided on the issue before the House.

I have tabled two principal amendments. Amendment No. 6 is, as has been described, a defensive measure. The amendment would operate only when someone has been taken to court. It provides a defence for that person when they are pursued in the secular courts for no other reason than their religious beliefs. Perhaps I may make it clear: Amendment No. 6 is a weaker amendment than that which I moved on Report. That amendment gave the Churches an exemption from the Bill. This amendment is a defence when someone is taken to court. Of course, I should have preferred the stronger amendment, but I accept the rules of the House and that, having divided the House on an amendment and not carried the House with me, it would not be right to return to the same amendment now.

The amendment is quite clear. It has been carefully drafted to answer some of the criticisms raised on Report, particularly on the definition of religion. On an earlier amendment the noble Lord, Lord Lester of Herne Hill, raised the question of how to keep out crank religions. This amendment uses wording taken directly from the Education Acts which define what is taught in religious education in state schools. Section 375(3) of the Education Act 1996 refers to the Christian and other principal religions. That was first introduced in the Education Reform Act 1988. That has been widely interpreted to mean the big six: Christianity, Judaism, Islam, Hinduism, Buddhism and Sikhism. The phrase "teaching and practices" is also found in legislation. I believe that if religion is respectable enough to be taught in schools it is respectable enough to be covered by this amendment and defined in that way.

The concept of religious freedom has also been raised. The freedom to live out that belief is epitomised in the word "manifestation" which is drawn from Article 9 of the convention and the United Nations declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief (General Assembly Resolution 36/55 of 25th November 1981). The definition of "manifestation"—worship, observance, practice and teaching—is found in both the convention and the UN declaration. I hope that that makes quite clear why I have eliminated what can be broadly classed as crank religions. This is a defensive measure and is not as strong as the amendment I moved last time.

Amendment No. 15 follows almost word for word what the noble and learned Lord said the Bill meant when winding up the debate on Report. The right reverend Prelate the Bishop of Ripon will recognise these words. I hope that because the amendment follows almost exactly what the noble and learned Lord said he will find it acceptable. One criticism that has been made this afternoon is that reference is made to Great Britain and not the United Kingdom. I recognise that that is a difficulty. I felt it right to confine it to Great Britain rather than the different arrangements in Northern Ireland.

We have been over this ground before. The House must decide what all of this is about. It is about conscience. At the end of the day the question is: who decides on the internal regulation of the Church? Clause 6 defines the Churches as public authorities. At the same time, all existing legislation such as employment legislation that covers church schools and other legislation that covers charities must be interpreted in the light of the convention.

If I have correctly understood the noble and learned Lord, he believes that the Bill enacts legislation to which we are already subject. All domestic law, however, will be interpreted in the light of the convention and the provisions of Clause 3 of the Bill. I believe that the reality is that it will go much further. The Lord Chancellor said in effect that we need not worry. He did not believe that a case could be produced about which there would be cause for concern. He asked me to produce such a case.

When the convention was drawn up in 1950 who would ever have thought that anybody would talk about a homosexual marriage? After all, at that time practising homosexuality was a criminal offence. Now one has only to open a newspaper to see it written about every day. We are legislating not just for 1998 but for 2005 or 2020. I have my grandchildren in mind as I stand here. I am sure that other noble Lords will have in mind young people to whom all of this will apply. It is no use saying that everything is perfectly all right. I am not out to criticise the judges. All I say is that if regard is had to history, which in this case provides a guide, it will be seen that the law has been interpreted and changed and that process will go on. I cannot say how it will be changed; nor can the noble and learned Lord. Neither he nor anyone can give a guarantee to our successors.

In 1982 Canada did what we seek to do now and incorporated the convention. Over the past 10 years that country has had a series of cases concerning conscience which has resulted in the gradual secularisation of society. Cases are pending in Holland. If there are no cases pending in Germany it is because the German constitution has ring-fenced the Churches so that they are not subject to this matter. That was something that

I tried to achieve here but lost. I believe that we are justified in being anxious. If we look at what has happened in other countries which have incorporated human rights into domestic legislation, issues of conscience have been dealt with by the secular courts. The law develops and changes. As we sit in your Lordships' House organisations are planning to challenge the Bill when it becomes law. Make no mistake about that. It may not happen this year but it will happen, as it has happened in other countries.

These two amendments provide an opportunity, first, to provide a defence mechanism for those who are challenged—but only when they have been challenged—and, secondly, to write into the legislation the kinds of safeguards which the noble and learned Lord believes are already in the Bill but not stated explicitly. This seems to me to be the very minimum that can be asked for. I should like to do a great deal more but I have not been permitted to do so. This Bill has gone through the House at a very great pace and it has been extremely difficult to keep up with it. I very much hope that when we have considered this matter today the noble and learned Lord, despite what he has said, will think again. I do not speak for myself but for thousands of people who care very deeply about their religious convictions and conscience. This is not a secular matter but a matter for religious authorities. I beg to move.

The Lord Bishop of Ripon

My Lords, I am glad to support wholeheartedly the amendment moved by the noble Baroness, Lady Young. At Report the noble Baroness moved an amendment which, although it had my name to it, I felt unable to support in the Division Lobby. That amendment would have excluded from the provisions of Clause 6 religious bodies. It went further than many in the Churches wished to go. In that debate I gave unequivocal support for human rights. I am grateful to the noble Lord, Lord Goodhart, for quoting what I said on that occasion. I therefore abstained in the Division and no Bishop voted in favour of the amendment at Report. I am also grateful to the noble Lord, Lord Campbell of Alloway, for recognising my motives in acting as I did.

This amendment is quite different. It does not exclude or exempt religious bodies; rather, it provides on the face of the Bill assurances for which we have been looking. As the noble Baroness, Lady Young, has said, those assurances were given by the noble and learned Lord during the debate at Report. He gave us a generous and precise assurance. Since he has quoted me at some length, I hope that he will forgive me if I quote from his speeches on that occasion. He said: There is a very proper concern on the part of the Churches that they should continue to be able to select for key posts in schools people whose beliefs and manner of life are appropriate to the basic ethos of the school and, if necessary, to dispense with the services of employees who subsequently fall short of providing, shall we say, appropriate role models … I doubt whether there is any Member of your Lordships' House who would want to stand in the way of the Churches, and others, in that regard. It is certainly not what the Government intend or envisage in the Bill-.

I am most grateful to the noble and learned Lord for that statement, and for the assurance he gave a little later when he said: It is certainly not the intention of the Government in bringing forward this Bill or in resisting these amendments that the legislation should be used to compel any Church or person acting on behalf of a Church to administer a marriage contrary to their religious doctrines or convictions".—[Official Report, 19/1/98; cols. 1344 and 1346.]

Amendment No. 15 substantially embodies those assurances. I shall quote the amendment to show how that is so. The amendment provides: Nothing in this Act shall he used to compel any minister, official or other person acting on behalf of a Christian or other principal religious tradition represented in Great Britain to administer a marriage contrary to his religious doctrines or convictions.

(7B) In relation to—

1. (a) a church school;
2. (b) a school or college with a religious foundation or trust deed or, as the case may he, memorandum or articles of association,

nothing in this Act shall be used to affect its ability to select for the position of headteacher, deputy headtcachcr or other senior post people whose beliefs and manner of life arc appropriate to the basic ethos of the school and to dispense with the services of a person in the position of headteacher, deputy headteacher or other senior post whose beliefs and manner of life are not appropriate to the basic ethos of the school". It takes a little textual analysis to show that the heart of the amendment embodies the assurances that the noble and learned Lord gave.

It is because I am seized of the importance of what the noble and learned Lord said on that occasion that I believe that those phrases should be included on the face of the Bill. There are various reasons for concern. No doubt other noble Lords will amplify them. I shall mention just two to which the noble Baroness, Lady Young, referred. We are aware that there are hostile, anti-religious groups which would be only too glad of an opportunity to test in the courts the actions of religious bodies and people acting in accordance with their beliefs and convictions.

The Church of England, and I suppose other Churches, have already had considerable experience of litigation which they have resisted, but it is costly in terms of money and energy. It is likely that there will be groups which will be only too happy to take Churches to the British courts to prove a point. It will be costly for those who have to resist such actions.

I shall make a further point, which the noble Baroness, Lady Young, has already made. We do not know what the European convention may contain in the future. "Human rights" is an elastic phrase which might in the future be stretched to cover so-called rights that are not part of our contemporary shared value system. It is the future as well as the present of which we are thinking.

I support what the noble Baroness said about religious bodies. I, too, was going to draw attention to the Education Act 1988. I have been deeply involved in collective worship and religious education in my role as education spokesman for the Church of England. I am not aware that the phrasing of the 1988 Act has so far created any difficulty. It is clear, with reference to the examples given by the noble Lord, Lord Lester of Herne Hill, that Moslems are within and Moonies are without.

I have consulted Church House and Lambeth. Both bodies are generally supportive of the amendments. Noble Lords may be aware of the letter written to The Times this morning by members of the General Synod, which also expresses great concern. It would be dangerous to claim that any one person could speak for the Church of England. Nevertheless, in a general sense, I think that on this occasion I do speak for that Church. We are looking also for protection for other Christian Churches and religious communities.

In that regard, the noble and learned Lord, Lord Mackay of Drumadoon, moved an amendment on Report. I did not understand the precise point at issue, but I am well aware, as the noble and learned Lord the Lord Chancellor said, that the Government have already been most generous to the Church of England in bringing forward an amendment to meet our concerns about General Synod measures.

I am a little troubled that the Church of England has experienced that generosity and that, as far as I can see, the Church of Scotland has not. Both issues are constitutional—for the Church of England, embodied in the enabling Bill of 1919, which gave to the then Church Assembly powers to bring forward legislation to Parliament; for the Church of Scotland, the Constitutional Settlement of 1921. It seems to me that the amendment tabled by the noble and learned Lord, Lord Mackay of Drumadoon, asks for less than the amendment moved by the noble Baroness, Lady Young. I hope that, whatever the Government's attitude to the amendment moved by the noble Baroness, they will be as generous to the Church of Scotland as they have been to the Church of England. I hope that the noble Baroness is prepared to press the amendment to a Division. If she does, I shall be supporting her in the Lobby.

5.45 p.m.

The Earl of Perth

My Lords, I strongly support the amendment moved by the noble Baroness, Lady Young. She was right to point out that it differs in that it is protective and defensive. I speak as a member of the Catholic Church, one of the Churches involved in this matter. We are afraid of the Bill's implications. In one way or another it puts the State ahead of the Church. I know that the noble and learned Lord the Lord Chancellor has done his best to show us that our fears are unfounded. It may be easy to do so at the moment because we are talking about the present. What about the future?

Who knows what and how opinions will change over the years? There may be a strong anti-Church drive in years to come. We shall have less defence if we are deemed to be a public authority than we have at present. It is the decision that we may be counted as a public authority which is at the heart of our anxieties.

It is difficult to describe why we are so fearful. I notice again and again that if we are to be a public authority it will be because the courts so decide. I received a letter from the noble and learned Lord the Lord Chancellor the other day. He said that it would be for the courts to decide whether it was a public authority issue. That is indicative of the fact that this is a matter of Church versus State. On Report I developed the argument that it seemed to me that an earlier Lord Chancellor would in no way have supported the Bill. I refer to Sir Thomas More.

It is worrying that despite all our efforts the noble and learned Lord the Lord Chancellor sticks to his guns. I respect him for that, but he ought to be aware of our anxieties. Perhaps to ask him to think again is asking the impossible. He is probably unwilling to change the fundamental issues in the Bill, so let us have the defensive mechanisms that we have put forward.

He helpfully explained the position in relation to the convention and said that our fears were without substance. That may be the case today, but things change. The key issue is that conscience rules today and no one can foresee the future. The Bill puts all that at risk. The defensive mechanism proposed by the noble Baroness, Lady Young, supported by the right reverend Prelate the Bishop of Ripon, gives encouragement. I hope that the noble and learned Lord the Lord Chancellor will consider what has been said, and that if a Division is called we can look to your Lordships for help.

Lord Mackay of Drumadoon

My Lords, perhaps I may speak briefly to Amendment No. 12. As my noble friend Lord Henley made clear, we on these Benches fully support the amendments standing in the name of my noble friend Lady Young and intend to vote in support of them. We hope that others will follow us into the Lobby for that purpose.

I also thank the right reverend Prelate the Bishop of Ripon for his helpful comments in relation to the position of the Church of Scotland. The amendment I have tabled would cover not only the position of the Church of Scotland but any other religious body in a similar situation.

As I explained on the previous occasion, the Bill brings about a conflict between the Church and the state in that it seeks to undermine the constitutional settlement recognised by Parliament in the 1921 Act. At the conclusion of the previous debate, I invited the Government to think again. I know that the Church of Scotland is grateful to the Government for agreeing that the Secretary of State should meet the Moderator to discuss the issue which arises. That meeting took place on Monday this week. Unfortunately, at the conclusion of the meeting no progress had been made.

The following day, the Secretary of State wrote to the Moderator stating that the Government were unable to bring forward any amendment without undermining the purpose or integrity of the Human Rights Bill. The Moderator's response, which I understand was sent earlier today, includes the following terms: While I appreciate your having replied so promptly, I have to place on record our extreme disappointment at this response, especially as we understand that there is no dispute between us that the Bill in its present form is inconsistent with the provisions of the Church of Scotland Act. We are dismayed that the Government apparently intends that this inconsistency should remain. You state that you do not feel there is any amendment which the Government could bring forward which would meet our requests without undermining the purposes and integrity of the Human Rights Bill. Our concern is that the Bill in its present form undermines the purposes and the integrity of the constitutional settlement between Church and State, which the 1921 Act enshrines. It is a matter of particular regret to us that such a worthy measure as the Human Rights Bill, and one which the Church welcomes, should have such an effect".

That is not a Member of this House speaking on behalf of the Church; that is the Moderator for this year speaking for the Church of Scotland.

The Government, by bringing forward the Bill in its present form, have brought about this inconsistency. Despite every encouragement to do so, they have declined to bring forward an amendment which might remove the inconsistency. That is why I invite all noble Lords to support my noble friend Lady Young if and when she presses her amendment to a Division.

Lord Rawlinson of Ewell

My Lords, I have not previously spoken in the debate on human rights. Seven years ago I was one of the first counsel ever to appear at the Court of Human Rights at the European Commission, long before some other noble Lords who have spoken in the debates. I agree with my noble friend Lady Young that at that time cases were about immigration and torture. The cases did not relate to matters which now arise and which the court has somehow created into human rights.

At that time, I was not particularly impressed either by the jurisdiction of the court or, with notable exceptions, some of the members of the Commission who were then administering that court. I recommended that senior English judges should be appointed and I am pleased to know that that will be the case. However, I believe that during the late 1970s, 1980s and 1990s, the situation has changed. Therefore, although I am an agnostic in relation to the Bill and the value of the human rights jurisprudence, I am sceptical about whether it will alter what were and are the liberties and freedoms of British subjects. Nevertheless, I accept that it is better to incorporate the convention into United Kingdom law. It is in those circumstances that I welcome the Bill.

However, as the noble and learned Lord the Lord Chancellor admitted, the Government never considered the implications in so far as they concern the Churches and their role not only as a public authority—in the Church of England that may be limited to marriage—but in education, schools and charities. I read with surprise that during the Report stage the noble Lord, Lord Goodhart, asked whether the Churches want freedom to do things contrary to public safety, contrary to public order, contrary to public health and morals or the protection of rights and freedom of others. That is absolute nonsense. Of course that is not so. It is a distortion of what was being sought in the amendment then under discussion and it would be a distortion if it were applied to this amendment.

The amendment seeks to ensure that the Churches, in the exercise of their duties, have some safeguards and are at less risk of litigation under the Act. It may be that there has been no such previous case, but with many years experience of the law I can say, "Never say there will never be such a case". We have a litigious community which we have inherited from the United States. Everybody is eager to sue; everyone is eager to get someone into the courts. One can see Article 14 applying to an appointment which is denied to someone because of his religion; denied because a particular school or charity belongs to a Church and requires communicant members of the Church as the head of the charity or school.

What we see is not an outrageous demand. The noble Lord, Lord Alton, said on Report that it is a matter of perception. Whether or not the noble and learned Lord the Lord Chancellor accepts it, the perception is that the state is imposing some kind of control over Church affairs and that the Government are not looking at the reasonable apprehension of the Churches.

I speak as a Roman Catholic. I hope that the House. while it yet remains an authentic House of Parliament, will exercise today its constitutional power. I speak as a retired lawyer when I say that I hope it will ignore the lectures of other lawyers. I hope that the House will accept the amendment so that another place can look again at what the Churches—Christian, Jewish, Moslem—believe seriously affects the practice of their faith.

6 p.m.

Lord Goodhart

My Lords, the noble Baroness, Lady Young, said that this debate was about conscience. The European Convention on Human Rights and this Bill are about the protection of rights of conscience. As I said earlier, Article 9 is an extremely powerful protection of the rights of conscience and we have no such protection in our law as it exists.

Therefore, at first sight I find it surprising that the representatives and supporters of the Churches are coming to this House to ask for some sort of special treatment in the case of a Bill which gives them so much already.

I appreciate the concerns of the right reverend Prelate the Bishop of Ripon but I believe that they are not justified by any remotely possible threat posed by this Bill to the rights of conscience. I do not believe that the amendments proposed in this group are necessary or desirable.

The reasons that that is so have been explained in relation to the first group of amendments by my noble friend Lord Lester of Herne Hill and myself and, in his very comprehensive speech, by the noble and learned Lord the Lord Chancellor.

On Amendment No. 15, subsection (7B) deals with the right to hire and fire senior staff of Church schools. Those rights are governed already by the race relations, sex discrimination and employment rights legislation. As far as I am aware, with the possible exception of a very limited exemption from the sex discrimination legislation, the Churches have not sought exemption from any of those provisions. Why then should they feel so concerned about seeking exemption from a Human Rights Bill which will have nothing like the effect on employment practices as the three Bills which I have already mentioned?

Earl Russell

My Lords, the noble Earl, Lord Perth, invoked the memory of Sir Thomas More. He had every right to do so if it is relevant to this debate. But Sir Thomas More was a man with a very great and complex mind and his authority may be invoked on more than one side of this debate.

In his final resistance to King Henry, More stood up for the principle that, as he put it, the municipal law of England could not alter the universal law of Christendom. That is unfamiliar language now but it carries weight, and in the context of a Bill to incorporate a European Convention into English law it is strictly relevant because we cannot alter anything which is in this convention. It is not just the municipal law of this country; it is the universal law of Christendom. It can be altered only by agreement between the signatories. The only choice we face in the whole of this Bill is whether we shall have the rights under the convention, to which we are already committed, in British courts or at Strasbourg. It is that question only that we are addressing. The memory of Sir Thomas More may help us to remember that.

I congratulate the noble Baroness, Lady Young, on her courage, in which she is never deficient, in grappling with the task of attempting to define a religion. But that task is rather more difficult than one might gather from this amendment. First, I feel a considerable misgiving at the attempt to use the authority of Parliament, which is, I may say, not a spiritual authority, to try to make a distinction between first-class and second-class religions. One can imagine what the parliaments of King Charles II would have done to the Society of Friends had they had that principle available to them. It is not a pretty thought.

The wording also seems to cause some problems. The amendment states: in accordance with the historic teaching and practices of a christian or other principal religious tradition represented in Great Britain".

Therefore, the courts will be asked to determine whether a religion is principal. I imagine that Hinduism and Islam will be recognised as principal religions. I do not know whether that will be the case in relation to Sikhs, Zoroastrians or Baha'is. Were I to be a judge, it is not a question that I should be particularly happy to have come before me because it is not a question in which the authority of the law is particularly well placed.

I can imagine also considerable jealousies between the religions held to be in the first division and those classified by the courts as being in the second division. It would need a system of promotion and relegation.

The noble Baroness, Lady Young, relied throughout on the argument, "Who would ever have thought that various particular things could come to be construed as rights". I remind the noble Baroness of the words of Edmund Burke who said: Whatever now is established, once was innovation".

People in this country have been burnt at the stake for holding the religion which the noble Baroness herself now holds. We should do injustice to the memory of Cranmer, Ridley and Latimer were we to deny it. Therefore, in some ways, one may benefit from the fact that concepts of rights change.

But they change only in line with public opinion so they come to be taken as rights only at the time that it becomes acceptable to a very large part of the public that they should be so. I agree with the noble Baroness that one cannot foresee what judgments future courts will make. But courts are like railways: they run on lines. They can take any fork but they cannot go where there are not any lines.

Throughout our discussions there has been a great deal of concern about employment law. The noble and learned Lord the Lord Chancellor on Report called attention to the fact that there are no employment rights in the convention. I have checked that, I think, six times since the noble and learned Lord said that. I cannot see the least reason for doubting what he says.

That could be changed not by a court decision, which would be ultra vires, but only by a new agreement between all the members of the Council of Europe, further accepted, ratified and incorporated in British law by this House. Were any such development in prospect, it could not take effect in British courts were we to say no to it.

Concern has been expressed about marriage, which is a vital matter. The convention does indeed lay down a right to marry. But, as far as I can see, there are no words anywhere in the convention which lay down a right to marry according to the requirements of any particular religious faith. The requirements of a religious faith are administered according to the principles of that religion. The only requirement of the convention is a right to make a marriage recognised by law. A marriage does not have to be conducted in church to be recognised by law. We should also remember that the convention is in force and incorporated in countries which take their religion very seriously. I am not aware that any of the evil effects which have been perceived have arisen anywhere else within the Council of Europe.

Lord Lloyd of Berwick

My Lords, I shall speak briefly in support of Amendment No. 12. On Report, I asked the Government a number of questions about what would be the position of the ecclesiastical courts in England if the Bill passed through Parliament in its present form. I have to say that I received a very full and helpful reply for which I am grateful. It appears to be accepted that the decisions of the ecclesiastical courts have never before been subject to review by secular courts on their merits, whether by way of judicial review or any other judicial process, with the possible exception of an order obtained for something called "prohibition" but that certainly has not been applied for, or obtained, for 200 or 300 years. So the present position is that ecclesiastical courts are not subject to review by the secular courts.

However, this Bill seems to be doing just that for the first time. It is possible that there would not often be a case of overlap between human rights and anything which might be decided by way of doctrine in the Church courts. However, that could arise. If that overlap arises, who will make the decision? Will it be the ecclesiastical courts of the secular courts? I am concerned not only for the Court of Ecclesiastical Causes Reserved, about which I spoke on Report and upon which I sit, but the same also applies to the Court of Arches which is presided over by Mr. Justice Owen, a very distinguished High Court judge. What is the purpose of making the decision of one High Court judge subject, on judicial review, to another High Court judge's decision? The same applies exactly to the Court of Ecclesiastical Causes Reserved, which has not one but two judges and also three bishops. What is the point of doing that? Because, I would urge your Lordships, there really is no point, I hope that the noble and learned Lord the Lord Chancellor will at least think of accepting Amendment No. 12, whatever attitude he may take to the other amendments. However, if he is unwilling to accept even Amendment No. 12, will he possibly consider what I understood him to say he would consider in relation to the Armed Forces; namely, designating the ecclesiastical courts as the appropriate court under Clause 7(1) of the Bill?

6.15 p.m.

Lord Coleraine

My Lords, I have attached my name in support of my noble friend's paving amendment to her substantive amendments. As she said, the amendments are more modest than those she moved on Report. I believe they are better amendments because they do not attempt to take the Churches outside the general obligation to observe convention rights. Indeed, that point was made by the right reverend Prelate.

It should be plain by now that the Bill and, consequently, the noble and learned Lord the Lord Chancellor, are still widely perceived as unfriendly to the religious freedoms of organised religions. I do not believe that we have far to look for the cause of that situation. If a Church is a public authority subject to the requirement to observe convention rights, it should be recognised in the Bill that it is a public authority of unique hybrid character. I say that because the Churches have their own human rights, which they have for the benefit of their members and adherents. It is these which require the special protective provision under the Bill which the amendments of my noble friend would provide.

Perhaps I may give your Lordships an example. The headteacher of a Christian Church school becomes a Moslem, or vice versa. The public authority concerned dismisses him, and he complains to a court that the action is unlawful under Clause 6(1) of the legislation as being incompatible with his convention rights under Article 9. Indeed, Article 9 provides for his freedom of thought, conscience and religion, including freedom to change his religion or belief and to manifest his religion or belief in worship, teaching, practice and observance. Were that headteacher to take his case to Strasbourg, I believe that he would be told that the United Kingdom, as a high contracting party, was not liable under Article 1 of the convention. The reason given would be that the laws of the United Kingdom secure to him adequate rights under Article 9, even if they do not allow him to exercise those rights in a situation detrimental to the religious rights of others.

I am much less certain about the position under the Bill. It seems to me that it may not be possible for a non-governmental public authority to put forward a defence to a Clause 6(1) action by replicating what I might call the defence by way of Article 1, which is available to a government in an application to Strasbourg. The dismissed headteacher will not be trying to demonstrate to the commission or the court in Strasbourg that UK laws do not secure his Article 9 rights. He will be arguing that the Church authority, in breach of Clause 6(1) of the legislation, has acted in a way which is incompatible with his individual rights to religious freedom. The result in such a case may be entirely different. It seems to me to point to a very real need to give protection to Churches by way of a defence in such a case.

It is easy to overlook the fact that religious practices, culture, disciplines and the like, which are the hallmark of a particular organised religion, add up to the religious freedom of those who belong to that organisation. The rights of organised religions to conduct themselves autonomously in the religious field are not sufficiently protected by the Bill. The position of Churches is, I believe, unique among public authorities in that they are susceptible to attacks against their own religious rights. Those rights are also human rights, so it is not a question of seeking special treatment but of asking, on behalf of religious organisations, for parity of treatment and regard.

Lord Ashbourne

My Lords, I express my support for this group of amendments so patiently argued by my noble friend Lady Young. It may be helpful to consider what has happened in other countries where this legislation has been introduced. For example, in Germany there is not the same sort of special interest group campaigning that there is in this country. In any event, the constitutional court, which judges human rights issues, is itself very conservative. All in all, the position of the Churches and mainstream religions in Germany is a protected one. As my noble friend explained, in effect, the Churches' position is ring fenced.

The situation is different in Holland. The convention is incorporated into ordinary law to be applied by ordinary courts. There have even been extraordinary cases where individuals have sought to use human rights legislation to force religious groups to employ atheists in positions of religious leadership. Noble Lords will of course judge for themselves, but it seems to me that that is an eminently unsatisfactory situation. If it has happened in Holland, it may well happen here if the amendment is not carried and the legislation comes into force in its present form. I commend the amendments to the House.

Lord Rochester

My Lords, I think that those of my noble friends who have so far spoken this afternoon are aware that while I am a firm supporter of the Bill, on this particular issue of conscience, as I see it, my view differs from theirs. It is said that the terms of the European Convention, of legislation in this country and the present state of case law both in the United Kingdom and in Europe are such that the supporters of amendments like these have nothing to fear. My view is simply that representatives of Christian Churches, and, in the words of Amendment No. 15, religious tradition … in Great Britain"—

unlike my noble friend Lord Russell I think that is rather well phrased—should be explicitly protected in defence of decisions that they take that accord with their beliefs. In this conflict, actual or potential, between their rights and those of respective plaintiffs, it seems to me that the rights of the organisation should prevail and should be preserved in this statute. That being so, I find myself in support of the amendments of the noble Baroness, Lady Young. If they are pressed to a Division, I shall vote for them.

Lord Milverton

My Lords, I fully support the amendments of the noble Baroness, Lady Young. They are essential. If one is a minister in a Church or a lay person deeply involved in a Church, one realises how essential these amendments are. I am sure that other Churches recognise that. I hope that Her Majesty's Government will listen to the Scottish Church and give more leeway there.

The Lord Chancellor

My Lords, the noble Baroness, Lady Young, told your Lordships that her mailbag had been full of mail on this subject. For what it is worth, we have not received a great volume of correspondence on this issue, perhaps 20 or 30 letters at most, and of these there was a pretty even balance between those who support a special position for the Church and those who do not. I say particularly to the noble Earl, Lord Perth, that I think we can fairly claim that the totality of our response to the concerns of the Church shows both our responsiveness and our flexibility—the opposite of rigidity.

We have discussed these issues quite fully in our first debate on the amendments tabled by the noble Lord, Lord Campbell of Alloway. I made my general observations in that debate which are equally applicable here. I hope that I satisfied every specific concern of the Church. I think it is right to say that it is notable that not one of your Lordships has sought to challenge the correctness of the assurances which I gave both in relation to the convention and in relation to the meaning and effect of our existing statute book.

Amendment No. 3 would provide that the convention rights were to have effect for the purposes of the Bill subject to the religious provisions inserted into Clauses 2 and 7 by Amendments Nos. 6 and 15. Amendment No. 6 would provide that when convention points were raised in legal proceedings, it would be a defence for a person to show that he had acted in pursuance of a manifestation of religious belief. That phrase is defined broadly to include worship, observance, conformity to a moral or ethical principle, practice, teaching and employment policies.

I acknowledge that the wording of the noble Baroness's amendment borrows to some extent from the wording of Article 9 of the convention. To the extent that it does so, the amendment merely has the effect that a religious body would be able to invoke its own rights under Article 9, which is precisely what it can do anyway. But the real significance of the amendment, and its difficulty, is that the noble Baroness has not resisted the temptation to add a few glosses of her own. The amendment seeks to push matters beyond the point at which reliance can properly be placed on Article 9, or on any other article, and to that extent we believe that it is unhelpful. The most obvious illustration of that is in the reference in the amendment to employment policies. As I have already mentioned, this is something with which the convention simply does not deal at all. Therefore we do not think it is helpful for the Bill to deal with it in the way suggested in this amendment. I have certainly acknowledged the complete propriety of the Churches appointing persons of the appropriate belief and manner of life to key positions in religious schools but we do not think that any employment policy should receive automatic protection by means of an amendment like this, even if a convention point is at issue.

Amendment No. 15 to Clause 7 would exempt from the Bill a minister of religion or similar person who refused to conduct a marriage on the ground that it was contrary to his religious conviction. It would also exempt religious schools and religious charities from the Bill in relation to the appointment or dismissal of their senior officers. I acknowledge that this amendment addresses a specific concern that the Churches have voiced. I have done my best both at Report stage and earlier today to explain why these anxieties are misplaced and why there is no need at all for a fresh statutory guarantee of this kind to be granted. The point is that the Bill preserves primary legislation, unless and until Parliament decides to alter it, and allows legislation to be passed subsequent to the enactment of this Bill which will have effect notwithstanding this Bill. The particular matters that we are discussing are surely ones which are proper subjects for specific legislation, if the need were ever to arise. As I have tried to demonstrate, I do not believe for a single second that the need will ever arise. I believe that adequate legislation is in place and I believe that we have demonstrated that today.

But, if the Bill ever needs amendment, let it be amended with due consideration to all aspects of the issue, be it marriage or Church appointments which is in question. However, no one seems to be suggesting that the law needs amendment. I submit that that approach is greatly preferable to an attempt to anticipate every conceivable outcome—and a fair number of inconceivable ones as well—by means of general waivers from the Bill.

I make this appeal if not to the noble Baroness at least to those in the Churches in whose interest she claims to act. Let us imagine a reader of the Human Rights Act in years to come, if this amendment succeeds and prevails. The reader would find that there were three contingencies which this Bill aimed to head off. The first is that primary legislation might be struck down by the courts. That would be well understood by our successors because of the acknowledged sovereignty of Parliament. But the second contingency that the Bill would try to head off would be that the courts of the United Kingdom might make a judgment obliging clergymen to celebrate same-sex marriages, and the third is that they might hold that an atheist or an adulterer or whatever must be appointed to be head of a Church school. The reader would be curious to know why the Act should be concerned with these two instances. He would look up the debate and find that those provisions represented the contribution of the Church to the debate on this issue. I am sure your Lordships will forgive me, but I respectfully suggest that our imaginary reader would find some lack of proportion in this and a good element of overreaching.

The point was made, "Let's have this on the face of the Bill because some people might have a go at impossible cases and the Churches will be put to the trouble and expense of defending them". I simply say this. We do not scatter our statute book with statements about cases that cannot be brought unless to correct some specific consequence which one can rationally say would otherwise follow as part of the effect of the Bill. We leave matters to gain their intended effect in accordance with the intentions of Parliament.

In theory we could try to anticipate—and who better than the noble Lord, Lord Lester, to assist us in this endeavour—every case which might conceivably come before the courts against literally any public authority, have a debate as to how we think it should be decided, and then put on the face of the Bill a multiplicity of single instances. That is simply not the way that we should legislate on matters of general principle. If your Lordships will reflect on it, it is a quite extraordinary proposition: that if one puts forward concerns which are comprehensibly demonstrated to be completely unfounded and are not subject to any attempt at rebuttal, one then says, "Never mind, let us still put these assurances on the face of the Bill as regards particular instances, although the Bill is concerned with a high general principle".

I ask the Church and the House whether they wish to send the message that those are matters with which the Churches are preoccupied in relation to this Bill, which is designed to guarantee human rights and fundamental freedoms being accorded by every public authority.

I turn briefly to Amendment No. 12 in the name of the noble and learned Lord, Lord Mackay of Drumadoon. The amendment would exempt from Clause 6 a court or tribunal, exercising a jurisdiction, recognised but not created by Parliament"—

I emphasise the words "not created by Parliament"— in matters spiritual".

It would also exempt any religious body or person acting on its behalf if the religious body exercised such a jurisdiction. I suspect that the inspiration for the noble and learned Lord's amendment is the Church of Scotland. But the amendment is intended to be of general application. Our position is as explained earlier. We think it right as a matter of principle that the Bill should bear equally on all bodies which on a reasonable view of the part they play in public life can properly be regarded as public authorities—and that emphatically includes the courts. We do not believe that the Bill will encourage the ordinary courts, or that the ordinary courts will be disposed, to interfere in purely spiritual matters. But if—and it is a big "if'—any religious body should find itself, no doubt inadvertently, acting in a manner which is incompatible with basic human rights we believe that it ought to be amenable to correction in the same way as any other organisation playing a similar role.

Lord Mackay of Drumadoon

My Lords, before the noble and learned Lord passes from that point, will he agree with me quite explicitly that the proposition he has just articulated is inconsistent with the terms of the Church of Scotland Act 1921? There is therefore an inconsistency between an Act of Parliament passed by this Parliament in 1921 and a Bill which the noble and learned Lord is inviting this Parliament to pass; and yet he is not prepared to address the inconsistencies here and now as the Church wishes him to do.

The Lord Chancellor

My Lords, the particular question whether the Church of Scotland and its courts should be exempted from the Bill will arise specifically for debate before your Lordships on Amendments Nos. 7 and 21 standing in the name of the noble and learned Lord, Lord Mackay of Drumadoon; and the arguments specific to the Church of Scotland will be comprehensively dealt with by my noble and learned friend the Lord Advocate.

I add only one further point. In so far as the amendment reaches the courts of the Church of England, it does not achieve its aim of securing an exemption. That is because the jurisdiction of those courts was created by Parliament in the Ecclesiastical Jurisdiction Measure of 1963.

For all those reasons, and for the reasons that I gave in debate on the first group of amendments, I invite the noble Baroness to withdraw her amendments. If she does not do so, I invite the House to reject them.

Baroness Young

My Lords, we have had a good debate. I thank those many noble Lords from all parts of the House who have supported me.

I entirely support the amendments moved by my noble and learned friend Lord Mackay of Drumadoon. I have spoken to Dr. MacDonald of the Free Churches in Scotland. I believe that my noble and learned friend has not had a satisfactory answer to the important point he made at the end of his speech.

I wish to reply to two specific points. The noble Earl, Lord Russell—I always enjoy his speeches and on a number of occasions I have agreed with him—said that I had not defined religion. He will recall—if my memory serves me correctly, he was present during the debates on the 1988 and 1996 education Acts—that Parliament has defined religion. I have simply taken the same words. Therefore to say that Parliament has not defined it, and that we might be lumbered with first and second class religions is, if I may say so, a mistake on his part. It is a very unusual mistake, but on that issue I think it is a mistake.

Perhaps I may say this to the noble and learned Lord the Lord Chancellor. I think that he has not realised why we are worried. We are worried, first, because he did not consult the Churches. I live in a part of the world where I am surrounded by atheists, humanists, agnostics and groups of people whom I might well call cheerful pagans, but they do not ignore the Church completely. They may not agree with it but they do not ignore it.

This is a serious point. I feel that it is a slight—I hope that it is not an intended one—that the Churches were not consulted and were not referred to in the White Paper. We live in a society based on a Judaeo-Christian belief; and we are concerned that the Churches were not consulted.

I much appreciate the full statement that the noble and learned Lord has made. However, I am not satisfied by the assurances that he has given. Let us take employment rights, to which he referred. I recognise that the convention does not contain employment rights. But what he said was carefully worded. I am quite sure that he knows full well that the convention will affect the interpretation of existing employment legislation. Indeed, every judge will have various laws to consider—UK employment law; the EU employment law; and now convention obligations under the Bill. Under Clause 3 existing legislation must be interpreted so far as it is possible to do so in a way that is compatible with the convention. That is the point. He cannot give us an assurance as to what will happen in the future in relation to employment law concerning charities and matters of conscience.

The noble and learned Lord went on to say, "I do not believe that any of those dreadful things that you talk about will happen. But of course if they came to pass Parliament could legislate". Small experience of Private Members' legislation indicates that that it is not an easy proposition. There is also consideration of government time. I think that the noble and learned Lord's statement is completely unrealistic. So, far from reassuring me, the noble and learned Lord has worried me further. That is—I am surprised that anybody can find this matter funny at all. It is a very serious worry. That is why I have raised the issue on three occasions. I wish to test the feeling of the House.

6.40 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

& sup Their Lordships divided: Contents, 168; Not-Contents, 131.

Division No. 2
CONTENTS
Aberdare, L.	Hamilton of Dalzell, L.
Ailesbury, M.	Harding of Petherton, L.
Alton of Liverpool, L.	Harmsworth, L.
Ampthill, L.	Harris of High Cross, L.
Anelay of St. Johns, B.	Flayhoe, L.
Annaly, L.	Hemphill, L.
Ashboume, L.	Henley, L.
Belhaven and Stenton, L.	Holderness, L.
Beloff, L.	HohnPatricic, L.
Belstead, L.	Hooper, B.
Bemers, B.	Howe, E.
Biddulph, L.	Hylton, L.
Birdwood, L.	Hylton-Foster, B.
Birmingham, Bp.	Inchcape, E.
Blaker, L.	Jakobovits, L.
Blatch, B.	James of Holland Park, B.
Boardman, L.	Jenkin of Roding, L.
Brabazon of Tara, L.	Kenilworth, L.
Brain of Wheatley, L.	Kenyon, L.
Bridgman, V.	Kinloss, Ly.
Brigstocke, B.	Kinnoull, E.
Brougham and Vaux, L	Knight of Collingtree, B.
Buckinghamshire, E.	Lauderdale, E.
Burnham, L. [Teller.]	Leicester, Bp.
Butterworth, L.	Leigh, L.
Byford, B.	Linklater of Butterstone, B.
Cadman, L.	Liverpool, E.
Caithness, E.	Lloyd of Berwick, L.
Caldecote, V.	London, Bp.
Calverley, L.	Long, V.
Campbell of Alloway, L.	Lucas of Chilworth, L.
Camegy of Lour, B.	Luke, L.
Carnock, L.	Lyell, L.
Charteris of Amisfield, L.	McConnell, L.
Chesham, L.	Mackay of Drumadoon, L.
Chichester, Bp.	Macleod of Borve, B.
Clifford of Chudleigh, L.	Malmesbury, E.
Cockfield, L.	Marlesford, L.
Coleraine, L.	Massereene and Ferrard, V.
Coleridge, L.	Mayhew of Twysden, L.
Cope of Berkeley, L.	Mersey, V.
Cox, B.	Miller of Hendon, B.
Craig of Radley, L.	Milverton, L.
Cranbome, V.	Molyneaux of Killead, L.
Crickhowell, L.	Monckton of Brenchley, V.
Cumberlege, B.	Monson, L.
Dixon-Smith, L.	Montgomery of Alamein, V.
Eden of Winton, L.	Mottistone, L.
Ellenborough, L.	Mountevans, L.
Elles, B.	Munster, E.
Elton, L.	Murton of Lindisfarne, L.
Falkland, V.	Nelson, E.
Fitt, L.	Norrie, L.
Fookes, B.	Northboume, L.
Gage, V.	Northesk, E.
Gainsborough, E.	Norton, L.
Gardner of Parkes, B.	O'Cathain, B.
Grantley, L.	Onslow of Woking, L.
Halsbury, E.	Oxford, Bp.

Oxfuird, V.	Seccombe, B.
Park of Monmouth, B.	Selbome, E.
Patten, L.	Shaw of Northstead, L.
Pearson of Rannoch, L.	Simon of Glaisdale, L.
Pender, L.	Skelmersdale, L.
Perth, E.	Soulsby of Swaffham Prior,L.
Pilkington of Oxenford, L.	Southwell, Bp.
Platt of Writtle, B.	Stallard, L.
Plummer of St. Marylebone, L.	Stoddart of Swindon, L.
Rankeillour, L.	Strange, B.
Rawlings, B.	Strathclyde, L. [Teller]
Rawlinson of Ewell, L.	Sudeley, L.
Reading, M.	Swinfen, L.
Renton, L.	Thomas of Gwydir, L.
Renton of Mount Hany, L.	Thomas of Walliswood, B.
Renwick, L.	Trumpington, B.
Ripon, Bp.	Ullswater, V.
Robertson of Oakridge, L.	Vivian, L.
Rochester, L.	Wakeham, L.
Romney, E.	Waterford, M.
Rotherwick, L.	Weatherill, L.
Rowallan, L.	Wharton, B.
Ryder of Warsaw, B.	Wilcox, B.
St. John of Fawsley, L.	Williams of Crosby, B.
Saltoun of Abernethy, Ly.	Young, B

NOT-CONTENTS
Ackner, L.	Hayman, B.
Acton, L.	Hilton of Eggardon, B.
Addington, L.	Hoffmann, L.
Amos, B.	Rollick, L.
Anther of Sandwell, L.	Hollis of Heigham, B.
Bassam of Brighton, L.	Holme of Cheltenham, L.
Beaumont of Whitley, L.	Howell, L.
Berkeley, L.	Howie of Troon, L.
Blackstone, B.	Hoyle, L.
BoMe, L.	Hughes, L.
Bridge of Harwich, L.	Hughes of Woodside, L.
Brooke of Alverthorpe, L.	Hunt of Kings Heath, L.
Burlison, L.	Irvine of Lairg, L. [Lord Chancellor.]
Carlisle, E.
Carter, L. [Teller.]	Jacobs, L.
Chandos, V.	Janner of Braunstone, L.
Cledwyn of Penrhos, L.	Jay of Paddington, B.
Colville of Culmss, V.	Jenkins of Putney, L.
Craigavon, V.	Judd, L.
Currie of Marylebone, L.	Kennedy of The Shaws, B.
Dahrendorf, L.	Kirkwood, L.
David, B.	Lester of Heme Hill, L.
Davies of Coity, L.	Levy, L.
Davies of Oldham, L.	Lockwood, B.
Dean of Thomton-le-Fylde, B.	Ludford, B.
Desai, L	McCarthy, L.
Dholakia, L.	McIntosh of Haringey, L. [Teller.]
Diamond, L.
Dixon, L.	McNair, L.
Donoughue, L.	McNally, L.
Dormand of Easington, L.	Maddock, B.
Eatwell, L.	Mallalieu, B.
Ezra, L.	Merlyn-Rees, L.
Falconer of Thoroton, L.	Meston, L.
Farrington of Ribbleton, B.	Methuen, L.
Gallacher, L.	Milner of Leeds, L.
Gilbert, L.	Mishcon, L.
Gladwin of Clee, L.	Molloy, L.
Goodhart, L.	Monkswell, L.
Gordon of Strathblane, L.	Montague of Oxford, L.
Gould of Pottemewton, B.	Morris of Manchester, L.
Grenfell, L.	Murray of Epping Forest, L.
Hamwee, B.	Newby, L
Hanworth, V.	Nicholson of Winterbourne, B.
Hardie, L.	Nicol, B.
Hardy of Wath, L.	Orme, L.
Harris of Greenwich, L.	Peston, L.
Haskel, L.	Pitkeathley, B.

Plant of Highfield, L.	Shore of Stepney, L.
Ponsonby of Shulbrede, L.	Simon, V.
Prys-Davies, L.	Smith of Clifton, L.
Puttnam, L.	Strabolgi, L.
Ramsay of Cartvale, B.	Taveme, L.
Randall of St. Budeaux, L.	Thomas of Macclesfield, L.
Rea, L.	Thomson of Monifieth, L.
Redesdale, L.	Tope, L.
Rendell of Babergh, B.	Tordoff, L.
Renwick of Clifton, L.	Turner of Camden, B.
Richard, L. [Lord Privy Seal.]	Walker of Doncaster, L.
Rodgers of Quarry Bank, L.	Wallace of Saltaire, L.
Rogers of Riverside, L.	Wedderbum of Charlton, L.
Russell, E.	Whiny, L.
Sandberg, L.	Wigoder, L.
Sandwich, E.	Williams of Elvel. L.
Serota, B.	Williams of Mostyn, L.
	Young of Old Scone, B.

[^*The Tellers for the Not-Contents reported 130 names. The Clerks recorded 126 names.]

6.51 p.m.

Clause 2 [Interpretation of Convention rights]: [Amendments Nos. 4 and 5 not moved.]

Baroness Young moved Amendment No. 6: Page 2, line 21, at end insert ("(4) Where a court or tribunal is determining a question which has arisen under this Act in connection with a Convention right it shall be a defence for a person to show that he has acted in pursuance of a manifestation of religious belief in accordance with the historic teaching and practices of a Christian or other principal religious tradition represented in Great Britain. (5) For the avoidance of doubt, the teaching and practices referred to in subsection (4) above do not include any teaching or practice which contravenes the criminal law. (6) Subject to subsection (5) above, the teaching and practices referred to in subsection (4) above shall include teaching or practice in accordance with a relevant historic creed, canon, confession of faith, catechism or formulary. (7) In this section "manifestation of religious belief" shall be taken to include actions such as worship, observance, conformity to a moral or ethical principle, practice, teaching and employment policies.").

On Question, amendment agreed to. Clause 3 [Legislation]:

Lord Mackay of Drumadoon moved Amendment No. 7: Page 2, line 23, after ("legislation") insert ("(save for the Church of Scotland Act 1921)").

The noble and learned Lord said: My Lords, this amendment is grouped with Amendment No. 21 and deals with the position of the Church of Scotland under the Church of Scotland Act 1921. In the light of the result of the Division that has just taken place, it is possible that the noble and learned Lord the Lord Advocate will agree that the matters covered by these two amendments merit further consideration by the Government. If he is prepared to give an undertaking to that effect, it may not be necessary for me to speak to the amendment in detail and consider whether to divide the House in the light of his reply. I see that that is not the case and I therefore turn to the merits of the matter.

As I set out in some detail at both Committee and Report stages, there is concern about the incompatibility of the Bill's provisions with the Church of Scotland Act 1921. I need not rehearse the detail because it will be well known to those of your Lordships who have followed the debate. To pick up a phrase used by the noble and learned Lord the Lord Chancellor earlier this afternoon, the Church of Scotland considers the constitutional settlement acknowledged and recorded in the 1921 Act a matter of substance relevant to the history of the Church and the form of church government which it enjoys.

Since the union of the Church of Scotland and the Free Church in 1929 following the enactment of the 1921 Act, the constitutional settlement between Church and state has been recognised by successive governments of different political complexions. Indeed, I am informed that when the Moderator of the General Assembly of the Church of Scotland, to whom I referred earlier, visited No. 10 Downing Street during his annual visit at St. Andrew's tide last year and met the Prime Minister, he was impressed and pleasantly surprised at how well briefed the Prime Minister was about the contents of the 1921 Act and the constitutional settlement enshrined therein. I am told that at that meeting the Prime Minister sought to reassure the Moderator, and through him the Church of Scotland, that the present Government intended to respect that settlement. Against that background it is hardly surprising that the Moderator used the words: We are dismayed that the Government apparently intends that this inconsistency should remain".

When the noble and learned Lord the Lord Chancellor replied to the amendment moved by my noble friend Lady Young I intervened to inquire about the proposition he articulated that it was right as a matter of principle that the Bill should cover all bodies, including Churches and Church courts, and that, if any religious body, however inadvertently, breached convention rights, it was right that the civil courts should intervene and regulate the situation. I firmly believe, and invite your Lordships to accept, that giving the civil courts the right—which goes beyond the jurisdiction they exercise at the moment to consider whether a matter is a spiritual one—to investigate how a spiritual matter has been conducted and whether Church courts, in adjudicating or legislating upon a spiritual matter, had breached a convention right as set out in the Bill would give rise to an incompatibility with the 1921 Act. It is therefore necessary for me to move this amendment and in due course a subsequent one to make it clear that, if the Government are not prepared to move, they will bring about this inconsistency. I beg to move.

The Lord Bishop of Ripon

My Lords, I said earlier in your Lordships' House that I did not pretend to understand this issue, and I probably still do not. In so far as I do understand it, I believe that the issue is whether the spiritual jurisdiction of the courts in Scotland derives from the spiritual authority of the Church rather than from Parliament. My understanding is that the Church of Scotland seeks to keep that separation, that the constitutional settlement of 1921 embodied it and that it is for that reason that the Church of Scotland describes itself as a free Church rather than an established Church, something which has come as a surprise to some noble Lords, not least those on these Benches.

I have debated the issue with some of my colleagues. We believe that the Church of Scotland's point is well made. We in the Church of England are perhaps a little envious of the 1921 settlement which embodies it so clearly. As I said before, I hope that the Government will be able to be generous to the Church of Scotland in their consideration of this matter.

7 p.m.

The Lord Advocate (Lord Hardie)

My Lords, I should say at the outset that I make no apology for dealing with this debate at rather more length than is perhaps usual at Third Reading. I propose to deal with the points referred to by the noble and learned Lord, Lord Mackay of Drumadoon, under reference to points made by him and the history of the Church at Report stage.

This issue was raised, as noble Lords will be aware, by the noble and learned Lord and other noble and learned Lords at Report stage. It is an issue to which the Government have given considerable thought during the period since Report and I shall revert to deal with the point raised by the right reverend Prelate the Bishop of Ripon in due course. I wish to say at the outset that it is not accurate to suggest that the Government have been intransigent, have not given way and have not been willing to listen to try to accommodate the Church of Scotland. I shall return to that in due course.

We received letters on this subject from the noble and learned Lords, Lord Mackay of Drumadoon and Lord Mackay of Clashfern. My right honourable friend the Secretary of State for Scotland and I had a meeting with the Moderator of the General Assembly. The noble and learned Lord, Lord Mackay of Drumadoon, referred to the meeting with the Secretary of State and I should indicate that I was in attendance by video link—perhaps somewhat disembodied.

Following that meeting we had further discussions between Ministers and reached an understanding of what the Church of Scotland's concerns are. It is my purpose today to set out the Government's attitudes to those concerns. I wish to do this fully so that it is on the record. I hope that noble Lords and Members in the other place will appreciate that the matter has been given the full consideration it deserves.

I shall touch briefly on the historical background; secondly, I will deal with the Government's view of the practical problem which the Church faces; and, thirdly, I will go into what I might call the more theoretical implications of the amendment. At the end I shall deal with the point raised by the right reverend Prelate the Bishop of Ripon.

The Church of Scotland occupies a unique position in the constitutional framework of the United Kingdom. Prior to the Act of Union the Church was, to a great extent, regulated by Acts of the Scottish Parliament. Some of that legislation remains on the statute book to this day. The Act of Union, after referring to various Acts of the Scottish Parliament, provides that, The foresaid true Protestant religion … and its presbyterian Church, government and discipline that is to say the government of the Church by kirk sessions, presbyteries, provincial synods and general assemblies all established by the foresaid Acts of Parliament … shall remain and continue unalterable".

There can be little doubt—and it is not surprising—that the Scottish Parliament was accustomed to regulating the Church of Scotland. But the relationship did not continue to be a harmonious one. It was what the Church saw as the interference of the state in its spiritual affairs which led to the disruption to which the noble and learned Lord referred in debate. That unhappy period of dispute between Church and state ended with the Act of 1921. By passing that Act, Parliament dissociated itself from the doctrine, worship, government and discipline of the Church of Scotland while reserving the jurisdiction of the civil courts in relation to civil matters.

The effect of the 1921 Act was to end the status of the Church as the established Church of Scotland and change it instead into a national Church. The 1921 Act recognised the independent jurisdiction of the Church of Scotland in matters spiritual. It is worth recalling exactly what was meant by that. I refer noble Lords to Article IV of the Declaratory Articles appended to the 1921 Act which provide, so far as is material for present purposes, that, This Church, as part of the universal Church wherein the Lord Jesus Christ has appointed a government in the hands of Church office-bearers, receives from him, its divine King and Head, and from him alone, the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government and discipline in the Church".

The effect of that article was considered by the Inner House of the Court of Session in the case of Ballantyne v. Presbytery of Wigtown in 1936. I shall not trouble your Lordships with the detail of that case. Suffice it to say that the court ruled that any matter contained within Article IV of the Declaratory Articles, by virtue of being so contained, was a spiritual matter in relation to which the civil authority had no jurisdiction. Since Article IV of the Declaratory Articles mentions the government and discipline of the Church, those matters are spiritual.

For the purposes of the 1921 Act, as interpreted by the Court of Session in 1936, "spiritual matters" do not include only those matters relating to doctrine and worship, which one might have thought, on an ordinary view of the question, were included in that term, but include also the practical and administrative procedures by which the government and disciplinary procedures of the Church of Scotland are carried out.

The concern of the Church of Scotland is that if this Bill is not amended it is possible that the courts of the Church of Scotland will be held to be public authorities for the purposes of Clause 6 of the Bill and, indeed, may be held to be courts within the meaning of that clause. That in turn would mean that actions by those courts which were incompatible with a convention right would be reviewable in the Court of Session. In the Church's view that would amount to a reversal of the recognition by Parliament of the independence of the Church under the 1921 Act.

That is a brief summary of the background of the present legal position of the Church of Scotland and, more particularly and more importantly, of the genuine concern which the Church has in relation to this Bill. I shall now move to the second part of my remarks to consider how much of a practical, as opposed to a theoretical, problem there is. The acts, which the Bill treats as acts of a public authority, include, as your Lordships will see from Clause 6(3)(a), on the one hand, acts of a court or tribunal. On the other hand, as Clause 6(3)(b) provides, there are included acts of a person certain of whose functions are functions of a public nature. But, as is clear from Clause 6(5), acts of a private nature are not included.

The Church is concerned that its courts may be held to be public authorities within the meaning of Clause 6. As I indicated at Report, in response to a question from the noble and learned Lord, Lord Mackay of Clashfern, it is my view that the courts of the Church of Scotland are not courts for the purposes of this Bill. I should like to take a moment to explain why.

Courts of the Church of Scotland do not, as a matter either of their constitution or practice, carry out any judicial functions on behalf of the state. Nor do they adjudicate upon a citizen's legal rights or obligations, whether common law or statutory. They operate in relation to matters which are essentially of a private nature. Unlike the courts of the Church of England—this is one of the differences—they do not have the right to compel the attendance of witnesses or the production of documents.

During the period when, as I briefly described, the Church of Scotland was to a greater or lesser extent regulated by Acts of the Scottish and thereafter the British Parliament, it would have been easy to maintain that its courts were courts of the land exercising a different but, within their own area, an equal jurisdiction to the civil courts. But the effect of the 1921 Act, which, as I have said, recognised the independence of the Church from regulation by Parliament, was to define the Church as a non-public or private institution in the sense that its affairs were of no concern to the state. The 1921 Act effectively disestablished the Church of Scotland. It would seem to me illogical to say that the state had no interest or jurisdiction over the affairs of the Church and its courts while at the same time saying that those courts were nevertheless courts for the purposes of a public general Act. That is the Government's view on whether the courts of the Church of Scotland are courts for the purposes of this Bill.

Clause 6, when read with Clause 2, is of course designed to invite the civil courts of the United Kingdom, as far as possible, to treat as a "public authority" those bodies which the Strasbourg institutions would treat as bodies whose acts engage the responsibility of the state. However, as I said at Report, whether or not the courts of the Church of Scotland are courts for the purposes of the Bill, it is possible that they might in some circumstances be public authorities.

At the meeting which the Secretary of State and I had with the Moderator, who was accompanied by the Principal Clerk to the Church of Scotland, the procurator to the Church of Scotland and the solicitor to the Church of Scotland, no one in the party from the Church of Scotland was able to suggest a concrete example of a case in which a court of the Church of Scotland would clearly be acting as a public authority within the meaning of Clause 6. I may say that the meeting took some time. The matter was explored. The Church came prepared for the meeting. It was given plenty of time to come up with examples and it was significant that it was not able to do so.

Within government there have been extensive discussions of this point among officials from the Lord Chancellor's Office, the Home Office, the Foreign and Commonwealth Office, the Scottish Office, the Cabinet Office, parliamentary counsel's office and my own office. Therefore, to suggest that this matter has been treated lightly is not a fair comment.

Lord Mackay of Drumadoon

My Lords, I am grateful to the noble and learned Lord for giving way. If in anything I have said either today or on previous occasions I have begun to suggest that the Government have not, since the concern was raised, treated the matter rightly, I should like to disavow the noble and learned Lord of such a view. What I have suggested—I do not think the noble and learned Lord the Lord Chancellor has denied this—is that in bringing forward the Bill to the House there was no prior consultation with the Churches, it was not flagged up in the White Paper and it was not mentioned at Second Reading. So I do offer the mildest of criticisms in that matter. But I fully accept that when the matter was raised it was addressed—in a letter I received from the noble Lord, Lord Williams of Mostyn, in private discussion with the noble and learned Lord the Lord Advocate and at the meeting. I should like to think that in mentioning that meeting earlier I paid compliment to the Government for agreeing to meet the Moderator at short notice.

7.15 p.m.

Lord Hardie

My Lords, I am grateful to the noble and learned Lord for his intervention. I accept that the impression I got must have been mistaken. On the question of consultation, the White Paper did not specifically mention the Churches. I accept that. But the Churches had the opportunity to comment on the White Paper, as did everyone else, prior to the Bill being introduced.

Despite these lengthy consultations with various departments within government, we, too, like the Church, are unable to find an example of a case which would be caught. The least unlikely case might be one in which Article 6.1 of the convention became relevant. Because if—it is a big "if'—a minister's relationship with the Church gives him a civil right, he would have a convention right to have any dispute concerning that civil right dealt with consistently with Article 6.

Article 6.1 is reproduced on page 15 of the Bill. I do not think it necessary to repeat it. However, it is possible that proceedings before a kirk session considering disciplinary action against a minister may require, for the purposes of Article 6, to be, a fair and public hearing by an independent and impartial tribunal established by law".

Questions might then arise—I emphasise that I am referring to a hypothetical situation—as to whether a kirk session was independent and impartial and, in particular, whether it was established by law. I would have some doubts as to whether a kirk session could be so described. As I have said, it seems to be reasonably clear that there was a period in the history of the Church when much of its administration and government was regulated by Acts of the Scottish Parliament. At that period it would have been easy to say that kirk sessions and indeed the assembly itself were "established by law".

However that may have been, it appears to me that the effect of the 1921 Act was to cut the connection between the general law of the land and the administration and government of the Church. That being so, it must be at least doubtful whether the kirk session and the general assembly could any longer be said to be "established by law". It is also possible that questions might be raised as to whether Church courts present a sufficient appearance of independence and impartiality.

It is not perhaps necessary for me to express any definitive view on any of these questions. I would only remark that in the 30 years since individual petition to Strasbourg became competent, no such point has been taken before the European Court of Human Rights by any Scottish minister.

However, I must continue to make these improbable assumptions for the purposes of the argument. Let me continue. If a Church body to which the Bill applies commits a wrong in convention terms, it would fall to the civil courts to right it. The convention rights are in this context part of the law of the land. The civil courts would investigate the convention issue—in the disciplinary example I have given, the criticism of the procedural unfairness levelled against the Church—in exactly the same way in which they would address any other question arising under the law of the land; for example, a complaint that someone acting on behalf of the Church had committed a delict, or tort in English terms. That would be consistent with long-standing Strasbourg jurisprudence on these questions. The civil courts' task does not, and cannot, involve trespassing on the doctrinal or spiritual interests of the Church, any more than the European Court of Human Rights would do were a complaint to be made direct to Strasbourg before the Bill comes into force.

To sum up on this part of my remarks, neither the Church nor the Government have been able to identify a real practical problem which this Bill will cause to the courts of the Church. The least unlikely problem is one related to whether the Church courts are independent and impartial tribunals established by law, within the meaning of the convention. If that problem exists, it exists now. The Bill will not solve it. The only difference the Bill will make is that questions relating to that problem will be dealt with in Edinburgh rather than in Strasbourg. In relation to an earlier group of amendments, I would simply refer to the intervention of the noble Earl, Lord Russell, who expressed this point more eloquently than I can. But the point is exactly the same.

I turn now to what I referred to as the theoretical threat to its independence which the Church perceives. The Church has repeatedly asserted that it would not wish to act inconsistently with the convention. The Government of course accept and welcome that as a general statement of the Church's position. But by seeking to be exempted from the provisions of the Bill the Church is asserting that, in the event of its courts acting in a manner incompatible with a convention right—perhaps because their internal organisation and procedures are inconsistent with Article 6—that matter should not be reviewable by the ordinary courts in Scotland but should only be reviewable by appeal within the system of Church courts. I would only observe that, in the case of a breach of Article 6, further consideration by other Church courts is unlikely to cure the defect.

But, as was made clear at the meeting with the Secretary of State for Scotland, the Church's position goes further than simply claiming to deal with human rights matters within its own courts. In the event of a finding by the European Court of Human Rights that the United Kingdom was in breach of its international obligations by reason of a Church court's having acted incompatibly with the convention, the Church of Scotland asserts that the United Kingdom Parliament would have no entitlement to require the Church of Scotland to change its procedures so as to make them compatible with the convention. According to the Church of Scotland, the most that Parliament or the Government could do would be to ask the Church to reconsider the matter. It would be for the Church to decide whether to change its procedures. The Church is claiming the right to continue to deny convention rights to those affected by the actings of its courts.

Perhaps I may say in passing that I inquired of the Moderator and the other representatives at the meeting as to how long this procedure would take. I understood from my researches that we would be talking about two years. In fact it would be three general assemblies before the Church could bring it into line. We are talking about three years. But even then, at the end of three years the Church might decide that it was not going to come into line with the requirement, in which case Parliament would require to consider what amendments were required to the 1921 Act.

I have already said that I have not been able to imagine a case in which such a situation would arise. But if it were to arise, the responsibility of this Government, and of any future government, would be to implement the international obligations of the United Kingdom. Those obligations, in the case of the human rights convention, consist in guaranteeing convention rights to everyone in the United Kingdom. No exception is made in the convention for persons who may be subject to the jurisdiction of the Church of Scotland.

As I have said before, the Government do not seek to subject the institutions of the Church to detailed parliamentary control. We have no wish to provoke a disruption of the kind which soured Church-state relations in the last century. We seek only to incorporate into domestic law the rights which the United Kingdom has for some 45 years undertaken to guarantee to its citizens under the European Convention on Human Rights.

I shall add one final point before I finish. Your Lordships will note that this legislation is to apply to every public authority in the United Kingdom. The Bill represents a major constitutional change in the working of institutions throughout the country. The very courts of the land are to be subject to the Bill. The only exceptions are the two Houses of Parliament acting as such.

I have tried to show that the concerns of the Church are not based on any realistic fear of interference by the civil courts with the Church courts. No one has been able to think of a real example. I have explained that, if the least unlikely example of conflict were to arise, the Bill would neither help nor hinder the arguments which the Church might present. It would enable the matter to be dealt with by a Scottish court rather than by a European court in Strasbourg. I would have thought that that would have been to the Church's advantage.

The Church's position ignores the practical implications of the United Kingdom's international obligations. It maintains that it is not for Parliament to legislate in such a way that the civil courts might be able, even in theory, to review the actions of Church courts. The logic behind these amendments is that even in the event of a finding by the European Court of Human Rights that the United Kingdom was, by reason of the actions of a Church court, in breach of its obligations under the convention, this Parliament could not put the matter right.

The Government's object in bringing this legislation forward is to enable the citizens of the country whose human rights within the meaning of the convention are being interfered with to raise that matter before the courts of this country rather than being required to take the matter to Strasbourg. Her Majesty's Government see no reason to make an exception to that general rule in respect of persons whose convention rights may have been adversely affected by institutions of the Church. Therefore, in the light of that full explanation, I hope that the noble and learned Lord will withdraw his amendment.

The right reverend Prelate the Bishop of Ripon made reference to the Government's position in relation to the Church of Scotland. He said that he did not understand the argument. I say to the right reverend Prelate that, unlike the Church of England, the Church of Scotland is not an established Church. The measures of the Synod of the Church of England require to be approved or not, as the case may be, by Parliament. As I understand it, that was the effect of the Government's amendment to accommodate that particular situation. That is not the position in the Scottish Church. Its legislation is not in the same category. I hope that that will explain the Government's concession to the Church of England and that it will not be misconstrued as being partisan in favouring the Church of England.

At the meeting, I pursued with the Church representatives whether there was any intermediate solution they could put forward. They wanted to be excluded and that was their position. I said that I was anxious to hear from them of any intermediate solution that might meet their requirements short of excluding the Church from these provisions. I was advised that they were unable to respond because they did not have the authority of the Church to make any offers. We went to the table genuinely anxious to accommodate the Church, if at all possible. In the circumstances it has not proved possible to do so.

Lord Mackay of Drumadoon

My Lords, I am grateful, as I am sure will be the members who attended the meeting on behalf of the Church, for the very full explanation of the Government's position, which the noble and learned Lord the Lord Advocate has now given us.

He raised a number of issues. The first is whether it is right, having regard to the history of the matter, to view it as a matter for concern. The second issue is the practical implications. I cannot stress enough the importance to the Church of Scotland of the history of that Church and the importance and significance of the constitutional settlement which was entered into in 1921. It was a settlement between two parties, the Church on the one hand and Parliament on the other.

I believe that the noble and learned Lord the Lord Advocate has been present at the opening of a general assembly of the Church of Scotland. The fathers and brethren—that is, the ministers and elders, as they are referred to—stand to hear a letter from Her Majesty which is read to them by the Principal Clerk. In that letter, year in and year out, Her Majesty—no doubt acting on the advice of her Ministers—annually renews her pledge to preserve and uphold the rights and privileges of the Church of Scotland of which she is a member but in which she holds no special position as she does in the Church of England.

I have attended many assemblies over the years. I watched my father, who was a seventh-generation minister, take part in its debates. When I was in office, I myself attended two opening ceremonies. On each occasion those words of Her Majesty were greeted with acclamation. It means a great deal to the Church. In that sense it is a very practical issue.

The Church is not seeking to exempt itself from the Bill. On previous occasions when I have raised this matter I have been at pains to point out that the Church is quite happy that the provisions of the Bill should apply when it is dealing with what I might refer to as matters secular, such as the running of old folks' homes, clinics for drug addicts and the rest. Either paying for it itself or using funds gratefully received from local authorities or central government, it does work on behalf of the whole community.

There is no suggestion at all that the Church seeks to be exempted from the provisions of the Bill. Its concern is limited to its impact on the provisions of the 1921 Act. The noble and learned Lord the Lord Advocate has helpfully set out his view as to how the Church would fall to be treated in terms of Clause 6 of the Bill. His advice, as I understand it, and I am sure that I understand it very fully, is that the Church court would not be considered to be either a court or tribunal under the clause.

On a previous occasion I referred to a letter which I received from the noble Lord, Lord Williams of Mostyn, copies of which, I suspect, were sent to others. In the second part of it he says: As to the first point, the courts of the Church of Scotland would appear to be courts for the purposes of the Human Rights Bill, and accordingly to be public authorities. I think it is right that this should be so. In most respects, there is no reason to distinguish between these courts and the civil courts. Their procedures for hearing cases, for example, should comply as necessary with Article 6 in the same way that other courts' procedures should".

There seems to be a change of position on that very crucial matter. I am inclined to the view

Lord Hardie

My Lords, I was aware of the views expressed by my noble friend Lord Williams in the letter referred to. I was also aware that my views differed. The reason lies in the word "reconsidered". Throughout the passage of the Bill the Government have reflected deeply on the implications of it for the Church. As I said, there have been meetings between the Government and others. The position reached, contained in the view I have expressed, is the correct one.

Lord Mackay of Drumadoon

My Lords, as a Law Officer one should never inquire into the advice given to government colleagues. However, I am happy to hear that the noble and learned Lord the Lord Advocate has persuaded his colleagues. I hope that he will accept from me that, hearing these views for the first time, he has certainly not persuaded me. I was unaware that this point was raised with the representatives from the Church last Monday. If it was, it was certainly not drawn to my attention. On receiving the letter from the noble Lord, Lord Williams, I believed that the Government and I were at one in being of the view that the Church fell to be treated as courts under Clause 6. As I say, I am not persuaded to change my mind on that very crucial issue, having listened very carefully to what the noble and learned Lord the Lord Advocate so helpfully set out at length.

The noble and learned Lord the Lord Advocate also said that he could not imagine a case where any practical problem would arise. I am sure that the noble and learned Lord is aware of the case of Logan v. Presbytery of Dumbarton, which came before a judge in the Court of Session, Lord Osborne, in April 1991. That case was brought by a minister of a parish church who sought judicial review of certain decisions of the presbytery which were of a disciplinary nature. Among the arguments that he wished to raise (had the court been prepared to entertain the proceedings) was, first, that the presbytery had failed to accept—indeed, had rejected— a plea of res adjudicata advanced on the minister's behalf—in other words, that the issue had already been decided. His second ground—this is of crucial importance to the point made by the noble and learned Lord—involved claiming that the conduct of the presbytery's proceedings when dealing with the libel against him had resulted in a decision which was contrary to natural justice in a number of respects. So, as recently as three years ago a minister went to the Court of Session arguing that his rights had been breached, contrary to natural justice.

I fully accept that one cannot entirely equiparate the rules of natural justice with the convention rights as they are set out in the Bill, but they are not entirely dissimilar subjects. It is possible to imagine a case where a minister, whom a presbytery seeks to remove from office for a variety of reasons, may seek to challenge the proceedings on the basis that they had not been conducted fairly. Indeed, in his response to my noble friend Lady Young this afternoon the noble and learned Lord the Lord Chancellor was prepared to admit such a possibility, however unlikely and inadvertent.

Finally, the Lord Advocate criticises the Church for asserting that Parliament has no right to require it to abide by convention rights when dealing with matters spiritual. That is correct, but that is no more than the Church of Scotland relying on the provisions of the constitutional settlement recorded in the 1921 Act. The Church is not ignoring anything. It is not ignoring the United Kingdom's obligations under the convention or under any other treaty. It is taking account of those matters and saying that it is for it, the Church, and for it alone to decide because that was the constitutional settlement it entered into back in 1921. I stress again that that settlement has been accepted, recognised and respected by successive governments—until the present one.

This is a matter about which the Church feels very strongly and, for reasons which I am sure your Lordships will understand given my ecclesiastical background and my membership of the Church, I too feel strongly about it and I seek to test the opinion of the House.

7.33 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 57; Not-Contents, 109.

Division No. 4
CONTENTS
Ackner, L.	Bridge of Harwich, L.
Addington, L.	Burnham, L.
Allenby of Megiddo, V.	Calverley, L.
Anelay of St. Johns, B.	Carlisle, E.

Colville of Culross, V.	Meston, L.
Dahrendoif, L.	Mishcon, L.
Dholakia, L.	Newby, L.
Ezra, L.	Nicholson of Winterbourne, B.
Falkland, V.	Ogmore, L.
Goodhart, L.	Redesdale, L. [Teller.]
Hamwee, B.	Renton, L.
Hams of Greenwich, L.	Ripon, Bp.
Holdemess, L.	Rochester, L.
Holme of Cheltenham, L.	Rodgers of Quarry Bank, L.
Hooper, B.	Russell, E.
Howe, E.	Russell-Johnston, L.
Lester of Heme Hill, L. [Teller]	Sandberg, L.
Linklater of Butterstone, B.	Simon of Glaisdale, L.
Lloyd of Berwick, L.	Slynn of Hadley, L.
Ludford, B.	Thomas of Walliswood, B.
Mackay of Dnunadoon, L	Thomson of Monifieth, L.
McNair, L.	Wigoder, L.
McNally, L.	Williams of Crosby, B.
NOT-CONTENTS
Acton, L.	Judd, L.
Archer of Sandwell, L.	Kennedy of The Shaws, B.
Bassam of Brighton, L.	Levy, L.
Berkeley, L.	McIntosh of Haringey, L.
Blackstone, B.	Mallalieu, B.
Borrie, L.	Merlyn-Rees, L.
Brooke of Alverthorpe, L.	Milner of Leeds, L.
Carter, L. [Teller.]	Molloy, L.
Chandos, V.	Monkswell, L.
Currie of Marylebone, L.	Montague of Oxford, L.
Davies of Coity, L.	Murray of Epping Forest, L.
Davies of Oldham, L.	Nicol, B.
Dean of Thomton-le-Fylde, B.	Pitkeathley, B.
Desai, L.	Plant of Highfield, L.
Donoughue, L.	Ponsonby of Shulbrede, L.
Dormand of Easington, L.	Prys-Davies, L.
Eatwell, L.	Puttnam, L.
Falconer of Thoroton, L.	Ramsay of Cartvale, B.
Farrington of Ribbleton, B.	Randall of St. Budeaux, L.
Gallacher, L.	Rea, L.
Gilbert, L.	Rendell of Babergh, B.
Gordon of Strathblane, L.	Renwick of Clifton, L.
Grenfell, L.	Richard, L. [Lord Privy Seal]
Hanworth, V.	Rogers of Riverside, L.
Hardie, L.	Rowallan, L.
Haskel, L.	Serota, B.
Hayman, B.	Simon, V.
Hilton of Eggardon, B.	Stoddart of Swindon, L.
Hoyle, L.	Strabolgi, L.
Hughes of Woodside, L.	Symons of Vemham Dean, B.
Hunt of Kings Heath, L.	Turner of Camden, B.
Irvine of I airg, L. [Lord Chancellor.]	Walker of Doncaster, L.
	Wedderburn of Charlton, L.
Janner of Braunstone, L.	Whiny, L.
Jay of Paddington, B.	Williams of Mostyn, L.
Jenkins of Putney, L.	Young of Old Scone, B.

On Question, amendments agreed to.

Resolved in the negative, and amendment disagreed to accordingly.

7.41 p.m.

The Lord Chancellor

My Lords, in Division No. 2 the figure announced for those voting Not-Content was 131. The correct figure is 130.

Clause 4 [Declaration of incompatibility]: [Amendments Nos. 8 to 10 not moved.] Clause 6 [Acts of public authorities]:

Lord Renton moved Amendment No. 11: Page 4, line 6, at end insert ("and does not include any kind of religious court or any corporate religious body").

The noble Lord said: My Lords, I beg to move Amendment No. 11, which was grouped with Amendment No. 1. I said at the time that I reserved my right to return to it when it came to its turn on the Marshalled List. I am a keen supporter of this Bill, as I made clear at Second Reading. However, I believe that in view of the strength of feeling in your Lordships' House on religious matters, especially the work of the religious courts, and the great number of noble Lords who supported the amendment moved by my noble friend Lady Young, we should think carefully about the religious courts and bodies.

As the Lord Chancellor said when he referred to the amendments in the first group, this amendment has very wide effect. I concede that. But the definition of public authorities in Clause 6 is wide, especially if one refers to subsection (3)(b) where one finds that, 'public authority' includes … any person certain of whose functions are functions of a public nature".

That is a wide definition. Admittedly, it does not include the Houses of Parliament or a person exercising functions in connection with proceedings in Parliament. However, before this Bill reaches another place I ask the noble and learned Lord to consider the desirability from the public point of view, in view of the support of your Lordships' House, of avoiding conflict between our secular courts and religious courts and bodies. Admittedly, my amendment is brief but it covers ground that has been referred to in a large number of much more detailed amendments this evening. But it may make for better legislation if we deal with it in the way set out in Amendment No. 11.

I do not wish to take up more time on this matter. I hope that the noble and learned Lord, who has a wonderful grasp of the matters contained in this Bill, will simply say that perhaps in all the circumstances the matter should be given further thought.

Viscount Colville of Culross

My Lords, I believe that this group of amendments included Amendment No. 12. I listened carefully to the words of my noble and learned friend Lord Lloyd of Berwick about certain very specialised ecclesiastical courts. He asked the noble and learned Lord to consider what appropriate court or tribunal he might determine to be suitable to oversee those particular courts. He made an offer, which was not accepted, in relation to courts martial earlier this evening. Will the noble and learned Lord respond to the matters referred to by my noble and learned friend Lord Lloyd of Berwick? If those courts are already presided over by extremely eminent if specialist judges of the High Court, it does not follow that just any court, be it the Divisional Court or suchlike, is the appropriate tribunal to oversee them under Clause 7. My noble and learned friend did not get an answer to that, and I was very interested in the point that he made.

The Lord Chancellor

My Lords, I shall deal with the amendment of the noble Lord, Lord Renton. quite quickly. It is in very wide terms and takes us straight back to a full-blooded exemption for the Churches. It goes far beyond the more limited amendments in the name of the noble Baroness, Lady Young, which a short time ago found favour with your Lordships' House. I pass over rather quickly the question of what effect is achieved by the insertion of the word "corporate" before "religious bodies". Religious bodies are not normally categorised according to whether they are incorporated. I doubt whether the effect would be quite what the noble Lord intends. At all events, this does not appear to be an appropriate criterion by which to determine whether a religious body is a public authority for the purposes of the Bill.

The other question of principle, which we have already debated, is whether it is right to exempt the Churches from the duty not to act incompatibly with convention rights and the liability that rests upon them, to the extent that they are properly to be regarded as public authorities, to answer for their actions. Your Lordships' House determined that matter at Report stage. I believe that the House should give the same answer today. We believe it right as a matter of principle that the Bill should bear equally on all bodies which on a reasonable view of the part that they play in public life can properly be regarded as public authorities.

All I can say by way of comfort to the noble Lord is that we firmly believe that the Bill will not in any way encourage the ordinary courts to interfere in purely religious matters. But it is the view of the Government that if a religious body should find itself, however inadvertently, acting in a manner incompatible with basic human rights and fundamental freedoms, it should be amenable to correction in the same way as any other body that plays a similar role. I invite the noble Lord to withdraw his amendment.

Lord Renton

My Lords, I thank the noble and learned Lord for his reply, although I do not feel that it goes far enough or is open-minded enough. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 12: Page 4, line 8, at end insert?— ("( ) In subsection (3) "court or tribunal" does not include any court or tribunal when it is exercising a jurisdiction, recognised but not created by Parliament, in matters spiritual. ( ) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the act is done by or on behalf of a religious body exercising a jurisdiction, recognised but not created by Parliament, in matters spiritual.").

The noble and learned Lord said: My Lords, this amendment was spoken to with Amendment No. 3. I beg to move.

On Question, amendment agreed to. Clause 7 (Proceedings]:

Lord Lester of Herne Hill moved Amendment No. 13: Page 4, line 24, leave out subsection (3) and insert— ("(3) Nothing in subsection (I) shall prevent an applicant from bringing an application for judicial review provided that the court considers that he has a sufficient interest in the matter to which the application relates.").

The noble Lord said: My Lords, I shall try to be brief for several reasons: first, because I believe that this is the first amendment which is of real practical importance. We have listened for several hours to amendments on doctrine, theology and general theoretical questions. This amendment deals with a practical problem. It relates to one of the only flaws in what the noble and learned Lord the Lord Chancellor is entitled to describe as a jewel of a Bill.

The flaw arises, as I explained in some detail in Committee, because the Government have imported into the test of legal standing to bring proceedings under the Bill a European test of victim rather than the conventional domestic law test.

The present sensible and satisfactory position under English law is to be changed. The law of standing is concerned with who can invoke the judicial process. Issues of standing can arise in private law or public law. When I moved an amendment in Committee, I endeavoured to exclude the European test of standing for private law as well as for public law. This amendment does something more modest. It seeks to exclude it only in public law proceedings for judicial review.

When one is dealing with private law claims—that is to say, tort actions for damages or damages and injunctions in relation to a public nuisance or a breach of statutory duty—someone claiming has to show that he or she was personally affected. That is similar to the European victim test. So I am not troubled about using the European victim test in a private law context, because in a private law context there is a focus on the individual. That is the central quality of what we call private law. It is concerned, above all, with the rights of private individuals and corporations. As regards judicial review, the position is entirely different.

Mr. Justice Sedley observed in a recent judgment that public law is not at base about rights, even though abuses of power may and often do invade private rights. He pointed out: it is about wrongs—that is to say. misuses of public power". and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or outcome may, without in any sense being a mere meddler or a busybody, wish and he well-placed to call the attention of the court to an apparent misuse of public power. Mr. Justice Sedley also pointed out that our courts will not permit busybodies or mere troublemakers to apply for judicial review.

The basic English rule of standing is that the applicant for judicial review must have a sufficient interest in the matter to which the application relates. That includes cases of representative or associational standing, where an association seeks standing, either to represent a group of interested parties or to represent the public interest. So our courts have accepted that bodies such as the Child Poverty Action Group, Greenpeace. the EOC, the Immigration Law Practitioners' Association or the Joint Council for the Welfare of Immigrants all have standing to bring judicial review proceedings, regardless of whether the people whose interests they seek to represent are their members or are identified and joined as individual victims.

As it stands, Clause 7 alters that sensible English legal test of standing for cases of judicial review involving alleged breaches of convention rights by requiring the applicants to be victims within the meaning of Article 25 of the European convention. That is a test devised for the entirely different purpose of deciding who is entitled to have recourse to the European Commission and the European Court of Human Rights.

The purpose of the amendment is to align the Bill with the present domestic law for standing for seeking judicial review. It would leave the victim test intact for non-judicial review proceedings in private law cases.

This is a matter of great practicality. I know that there are several Law Lords who would have been here tonight if the issue had not been raised so late in the debate. The noble and learned Lord, Lord Hoffmann, wished to be here. He was sorry that he had to leave. I am grateful to the several Law Lords, serving and retired, who have been able to stay until this late hour. I am aware that the Master of the Rolls, the noble and learned Lord, Lord Woolf, has written to the Government expressing his opposition to this narrow and unworkable test of standing.

I shall explain why it is unworkable. I asked a Question about this and received a Written Answer which confirms the following bizarre situation: Clause 7, as it stands, will result in five different tests of legal standing in judicial review proceedings. There will be the case where there are common law principles alone in play; there will be cases where common law principles embody convention rights; there will be cases where European Community law embodies convention rights; there will be cases of judicial review on convention rights alone; and there will be cases of a combination of any of those grounds. That will lead to unnecessary, time-wasting, costly legal disputes, when our present test of standing for judicial review is satisfactory and workable.

The only justification given on the Government's behalf was in the Written Answer given by the noble Lord, Lord Williams of Mostyn, on 9th December 1997, when he kindly explained that the reason for the Government's approach: have less to do with practical advantage … than with a desire to reflect in our domestic arrangements the circumstances in which cases do now go to Strasbourg".— [Official Report, 9/12/97; col. WA 15.1

Surely practical advantage should be the touchstone, rather than a desire to use an alien European test devised for an entirely different purpose. I beg to move.

Earl Russell

My Lords, the noble and learned Lord the Lord Chancellor wishes it to be known that he is not responsible for describing the Bill as a jewel. As the author. I must modestly take responsibility for that description. It is an accurate description. But I agree with my noble friend that the amendment would put right one blemish in it. It is of great practical effect. It deals with the increasing tendency of cases to be brought by organisations representing people of whom the applicant is one.

That has been the position in a great many of the most important cases that we have had recently. I think, for example, of the case of Bates from the Social Security Act 1990, upon which I have regaled your Lordships many times, and will not do so again. That was brought by the Child Poverty Action Group on behalf of an applicant who suffered from learning disability and might have had great difficultly in bringing the case herself.

I think of the case Ex parte B, on asylum seekers' right to benefit, which detained this House for much of the summer of 1996. That woman was destitute, in a strange country and totally ignorant of the system. Without that, she would have been unable to bring the case. I think of a case in the Appellate Committee of your Lordships' House on the employment rights of part-time workers in which my noble friend Lord Lester of Herne-Hill, who has been too modest to mention it, was the successful applicant. I believe that that case has done more to advance the standing of women than any other event in Parliament. in its judicial or legislative capacity, in the past five years. All those matters are in the interests of potential litigants.

When we start talking about human rights we are tempted to confine ourselves to human rights, but there is a case to be considered for the convenience of the Government. I wish to consider that case in supporting the amendment. In some quarters, fears have been expressed about a flood of appeals. I believe that those fears may be exaggerated. However, there is no doubt that when such cases are heard in British courts it will take a few years for things to shake down and for people to learn the types of cases which are practical.

In the Social Security Bill, which is before the House at present, there is a good deal about what is referred to as the sifting of appeals. The question, "Who does that?", is always difficult. However, it occurs to me that one of the real advantages of having organisations involved in the bringing of cases is that they will carry out a preliminary sift. They will tell people, "No, this case does not come within the terms of the European Convention." They will tell other people, "Your case might come under the terms of the European Convention, but the chances of success are very slender." Therefore, when a case is brought to court it will have been exhaustively tested and examined and will be considered to have a reasonable chance of success. That may materially save the time of the court.

I recall Lord Taylor of Gosforth, one of the ablest people it has been my privilege to listen to in this House, speaking in a debate on legal aid. He explained with that simple clarity of which he was such a master how much the time of the court is taken up in having to deal with uninformed litigants in person. It is with that speech in mind that I ask whether this amendment is for the convenience of the Government.

8 p.m.

Lord Slynn of Hadley

My Lords, for a number of years, I appeared as counsel before both the commission and the court of human rights on behalf of the United Kingdom. I was convinced then, and I have remained convinced, that it was of the greatest importance that the convention, with amendments, should become part of domestic law. If we are not to adopt too restrictive an approach to those who may approach the courts for the protection of human rights we should give effect to this amendment.

During the years, we have seen the development of judicial review because of the degree of flexibility which the courts enjoyed. It is essential that judges at all levels should have the freedom to allow to approach the court those who can show a sufficient interest. If they do not do so, I see a grave risk of the word "victim" being tortured into an artificial meaning in order to protect the rights of those who ought to be able to bring matters of great importance before the courts.

For the reasons given by the noble Lord, Lord Lester, I firmly, if briefly—I do not wish to repeat what he said—support the amendment. I do so not only as a result of our experience in the British courts with judicial review, and not only as a result of what I saw in the Strasbourg court, but also because I believe that we should learn from the experience of what we have seen in the European Court itself. Those who may approach the European Court to challenge decisions of the Commission and the Council are strictly limited. The treaty speaks of those who have a direct and individual concern. In my view, the court at an early stage interpreted that in a very narrow way. Most of us outside the court, and some of us on the court, believed that that had been interpreted too narrowly and had prevented sufficiently interested groups of individuals challenging what the Commission and the Council had done as being unlawful.

I do not believe that we should follow that path in regard to the protection of human rights. I welcome as warmly as any of your Lordships the fact that the Government have brought the measure forward and done so early and vigorously. However, I believe that if the word "victim" remains in the Bill and the amendment is rejected there is a serious risk that human rights will not be protected as they should be protected in the future. I support the amendment.

Lord Ackner

My Lords, I, too, support the amendment. I regret that the matter has come on so late and that a number of speakers to whom reference has been made have been unable to wait. Among those is the noble Lord, Lord Alexander, to whom I spoke briefly about the matter over tea.

It must be emphasised at the outset that there is no question that, if the amendment is accepted, the litigation which results will in any way be increased or be academic. Sufficient standing will enable the applicant to appear only if he shows that he has a sufficient real interest and, in addition, the discretion of the judge listening to the application is used in his favour.

I would have submitted to your Lordships that there could be practical disadvantages in having different tests for standing in judicial review cases which involve human rights points under the Act and those which do not. As has been said, it will result in a tortured meaning ultimately being given to the word "victim" to ensure that those who have real merits are not excluded. I adopt the observation of the noble Earl, Lord Russell, that benefits will be gained by allowing public interest groups in appropriate cases to make the application. Quite apart from the fact that it will ensure that the factual picture and the legal issues are put clearly before the court, it will also save what is dear to the Government's heart the cost of legal aid—because those groups bear their own costs. I would have thought that this is an eminently sensible amendment to make. Unless one is wholly technical in one's approach to the legislation, there is no reason for resisting it.

Lord Renton

My Lords, I, too, support the amendment. I believe that Clause 7(4) is too narrow and has the defect referred to by the noble and learned Lord, Lord Slynn, in relation to the word "victim". However, judicial review now plays an important part in the evolution of the law in our courts. The amendment would be even more acceptable if, to the words "a sufficient interest in the matter", were added the words "or if there is a sufficient public interest". That would broaden the measure still further and make it more relevant to the present practice with regard to judicial review. However, even with the amendment's present limitations, it is worthy of support.

Lord Simon of Glaisdale

My Lords, I, too, support the amendment for the reasons that have been given and for the reasons I gave at an earlier stage of the Bill.

Lord Mishcon

My Lords, I intervene briefly in ease—1 hope that I do not speak too pompously—lay Members of your Lordships' House believe that litigation would be increased by the acceptance of the amendment. It may be thought that one must go before the court on a judicial review before any decision can be made as to whether there is a sufficient interest. If I may respectfully say so, that would not be the case because there must be an application for leave to bring the judicial review proceedings, usually looked at by a judge and sometimes by two judges, I understand. That will be the case if this amendment is accepted. The judge or the judges on the application to bring the proceedings will consider whether there is a sufficient interest, and if there is not leave will not be given.

The Lord Chancellor

My Lords, I shall try, in replying to those who have spoken in the debate, to match their brevity. This is a narrow point but I agree that it is of some importance. I well understand the reasons why noble Lords champion the sufficient interest test which applies in judicial review applications. But of course the provision in this Bill in no way affects that test of standing for judicial review which has been developed by the courts and not created by statute.

As regards the proposed statutory test, I believe that the concerns expressed about applying the victim test are misplaced. I say immediately to the noble Earl, Lord Russell, that there is nothing in our Bill which would prevent pressure groups—interest groups—from assisting and providing representations for victims who wish to bring cases forward.

There is a flexible Strasbourg jurisprudence on the victim test which I suggest the English courts would have no difficulty applying. Although I hesitate to take up time, and indeed abstain from doing so, I could cite example after example of an expansive approach by the Strasbourg court to the victim test.

As we have said a number of times, the purpose of the Bill is to give further effect in our domestic law to our convention rights, and it is in keeping with that approach that a person should be able to rely on those rights before our courts in the same circumstances that they can rely upon them before the Strasbourg institutions, and not in different circumstances. Bringing rights home means exactly what it says—to mirror the approach taken by the Strasbourg court in interpreting convention rights.

I acknowledge that as a consequence, and despite the flexibility of the Strasbourg test, a narrower test will apply for bringing applications on convention grounds than in applications for judicial review on other grounds. But I venture to think that interest groups will plainly be able to provide assistance to victims who bring cases under the Bill, including, as I mentioned in Committee, the filing of amicus briefs. Interest groups themselves will be able to bring cases directly where they are victims of an unlawful act. I do not believe that different tests for convention and non-convention cases will cause any difficulties for the courts or prevent interest groups providing assistance to victims of unlawful acts.

As to the questions raised about giving access to the courts, I mentioned in Committee that I am giving serious consideration to Sir Peter Middleton's proposal that there should be a separate fund for public interest cases, including those involving rights under this Bill. Informed consultation with various interest groups on that matter is already well under way and I hope to publish a consultation document by the end of February.

Therefore, we consider that the wording of Clause 7 is wholly consistent with the proposition that rights should be brought home to this country from Strasbourg on the same terms as they may be enjoyed there. Therefore, I hope that the noble Lord will give thought to withdrawing the amendment.

Lord Lester of Herne Hill

My Lords, I am grateful to everyone who has taken part in this short but important debate. I am grateful to the noble and learned Lord the Lord Chancellor for his reply. I am particularly grateful to the noble and learned Lord, Lord Slynn of Hadley, who at this moment is meant to be at an important public engagement and is staying here purely for the purpose of this debate.

The noble and learned Lord's experience is probably unparalleled because he was Treasury devil—that means that he was the government's chief lawyer—which position he filled with outstanding distinction. He was a distinguished judge and advocate general in the other European Court of Justice. He has had great experience of the Strasbourg case law. He has been and is a most distinguished Law Lord. Therefore, he has within him more practical experience of questions of legal standing and the interests of litigants than anyone else in this House, except those on the Cross-Benches who are serving or retired Law Lords.

The noble and learned Lord the Lord Chancellor has been quite frank and straight with the House, as one would expect. I have too much affection and admiration for him to believe that he is deeply convinced by the argument that he puts forward on behalf of himself and his colleagues. I have heard him when he is passionate and deeply engaged. I listened carefully today. He has not said that there is any abuse of the English test or that there is anything wrong with it. He concedes that it will be narrower to adopt the European victim test than to keep to our own well-tried test. But all he can put forward by way of justification is that third parties will be able to come in with amicus briefs. That is fine, but you still have to find an individual victim before you can be a third-party amicus. He said that he believes that some of the bodies to which I referred will be able to find individual victims. But some will not and it will be very difficult for cases to go forward.

Whatever the outcome may be of seeking the opinion of the House, I am a sufficient optimist and believer in the capacity of reason to persuade, to hope that this matter will be given further thought and will be reacted to with practicality and flexibility. However, I wish to test the opinion of the House.

8.17

On Question, whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contentes, 46; Not-Contents, 71.

8.26 p.m.

[Amendment No. 14 not moved.]

Baroness Young moved Amendment No. 15: Page 4, line 38, at end insert ("(7A) Nothing in this Act shall be used to compel any minister, official or other person acting on behalf of a Christian or other principal religious tradition represented in Great Britain to administer a marriage contrary to his religious doctrines or convictions. (7B) In relation to

1. (a) a church school;
2. (b) a school or college with a religious foundation or trust deed or, as the case may be, memorandum or articles of association,

nothing in this Act shall he used to affect its ability to select for the position of headteacher, deputy headteacher or other senior post people whose beliefs and manner of life are appropriate to the basic ethos of the school and to dispense with the services of a person in the position of headteacher, deputy headteacher or other senior post whose beliefs and manner of life are not appropriate to the basic ethos of the school. (7C) In relation to a charity which has as one of its aims the advancement of religion, nothing in this Act shall be used to affect its ability to select for the position of chief executive, deputy chief executive or other senior post people whose beliefs and manner of life are appropriate to the basic ethos of the charity and to dispense with the services of a person in the position of chief executive, deputy chief executive or other senior post whose beliefs and manner of life are not appropriate to the basic ethos of the charity.").

Lord Mackay of Drumadoon moved Amendment No. 16 Page 5, line 6, at end insert? ("( ) The provisions of this Act do not affect any rule of law which prevents the High Court of Justiciary, the Court of Session and the Sheriff Coon from reviewing any decision of the Lord Advocate as to whether or not to prosecute a particular individual.").

The noble and learned Lord said: My Lords, the amendment deals with a matter which I have raised previously. For that reason, I hope that I can take it briefly. The protracted proceedings have not only disrupted the birthday celebrations of my wife, but I understand that they are also interfering most seriously with the birthday celebrations of the noble Lord, Lord Williams of Mostyn. I hope that I speak for the whole House when I wish him, for what remains of the day, a very happy event.

When the matter was last before the House I expressed my concern that the Bill would, inadvertently perhaps, interfere with and disturb the relationship between the Lord Advocate on the one hand and the courts in Scotland on the other hand, as regards decisions as to whether or not to prosecute particular individuals. At that time I expressed some concern that the Government had not sought and brought before your Lordships the views of those who participate in the criminal justice system in Scotland on such an important issue.

Since then, and as I promised, I have discussed the matter with various parties. The position of the Faculty of Advocates remains the same as I previously explained; namely, that it believes there to be strong policy grounds for excluding the Lord Advocate's decisions from review. It certainly doubts whether the Court of Session is the forum in which to do so. Members of the Law Society apparently have differing views on the issue—some agree with me, while others take the view that all decisions of the Lord Advocate should be reviewable not only on convention right grounds but also on the broader grounds appropriate in judicial review proceedings. However, I doubt whether many Lord Advocates would agree with that.

The position of the Court of Session is of some interest. I wrote to the Lord President, the noble and learned Lord, Lord Rodger of Earlsferry, to ascertain whether or not he was prepared to write to me in terms which would enable me to explain to the House the view of the court. The noble and learned Lord discussed the matter with a number of the judges at one of their regular meetings. The view that he reports to me in a letter, which I know has been copied to the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Advocate, is that the court considers it "inevitable" that the decisions of the Lord Advocate should be reviewed. That seems necessarily to involve an application to the courts, following the decision which the Government have taken vis-a-vis the convention.

However, in his letter, the noble and learned Lord also says: The idea of a court … reviewing the Lord Advocate's exercise of his powers represents a major change in the relationship between the courts and the Lord Advocate".

Indeed, in that letter, the Lord President describes the change as "startling". Therefore, it is right that your Lordships should know that there is a measure of surprise that this change is taking place without, as I understand it, any detailed discussion until I raised the matter with those involved.

In speaking to this matter previously, I have expressed concern that, if decisions are reviewable against convention rights, that might open up review on other grounds. That, too, is a view which the Lord President shares. He states in his letter, It also seems to me likely that, once the Lord Advocate's decisions are seen to be reviewable on one ground, it will be hard to resist the view that they should be reviewable on other grounds also".

Linked to that, of course, is the question of whether the noble and learned Lord the Lord Advocate will now require to provide reasons for his decisions when those are brought before the court for review.

I do not know whether the noble and learned Lord the Lord Chancellor or the noble and learned Lord the Lord Advocate will respond to this amendment, but whichever it is I shall be interested to learn what the proposals are, and whether the noble and learned Lord the Lord Advocate intends to adhere to the existing convention of not giving reasons for such decisions, or whether he intends to depart from it at least in some cases to enable the courts to adjudicate on the merits or otherwise of any application brought against him.

I return to an important question which I submit is of great practical concern; namely, the question of which court should entertain such applications when remedies are sought either by accused persons or by victims. First, I wish to consider the position under Clause 7 of this Bill. This House still awaits from the Government any indication of how the Secretary of State for Scotland intends to exercise his rule-making power under the Bill to designate which courts are appropriate for particular kinds of actions. Here again your Lordships may feel the views of the Lord President are of interest. On a previous occasion the noble and learned Lord the Lord Chancellor suggested that the natural court with which to place such a jurisdiction would be the Court of Session. On the other hand the Lord President expresses the view that it might be appropriate for both courts to have a jurisdiction, with the one court having jurisdiction in certain cases and the other in others. Understandably he declines to express too firm a view on the issue, unless it comes before him for decision in a particular case. Therefore we have a situation that the same issue as to whether a particular convention right had been breached might arise on the one hand in the Court of Session, where there is an appeal to the Appellate Committee of your Lordships' House, or on the other hand in a High Court of Justiciary case, where no such right of appeal exists. The court in which the issue arose would be a matter of complete chance. That would presumably be determined according to whether the proceedings were raised by an accused person on the one hand, or one of his alleged victims on the other.

However, there is a further twist to the problem of which court should have jurisdiction. The Scotland Bill proposes that the post of Lord Advocate will be devolved. It is intended that he should become a member of the Scottish Executive. As such his actings and failures to act will be reviewable against convention rights, as a devolution issue, as defined in Schedule 6 to the Scotland Bill. Such devolution issues can—as I read Schedule 6 to the Bill—be raised in any court in Scotland, not only in the Court of Session and the High Court of Justiciary but also in a Sheriff Court. When they are, the ultimate appeal court against the determination of a devolution issue will not be the Appellate Committee of your Lordships' House but the Judicial Committee of the Privy Council. It seems to me, with respect, therefore that there is a serious incompatibility between the different routes that are available for judicial proceedings under this Bill and those set out in Schedule 6 to the Scotland Bill.

I am aware from previous discussion on this Bill that the noble and learned Lord the Lord Chancellor has kindly agreed to consider such issues involving potential conflict between the two Bills in the fullness of time. As regards fairly minor and technical matters, I am more than content with such an assurance. But I believe that this is a matter of fairly fundamental importance. For that reason, I very much hope that I shall receive some commitment from the Government to bring forward a government amendment to deal at least with the issue of which court should entertain applications for those who claim to be victims, because I harbour no hope that they will favour or accept my fundamental objection to the implications for the relationship between the noble and learned Lord the Lord Advocate and the court. I beg to move.

8.30 p.m.

Lord Hardie

My Lords, the noble and learned Lord moved a similar amendment on Report. Since then not only has he written to the Lord President but I have had a meeting with the Lord President which I believe predated the letter which the Lord President wrote to the noble and learned Lord. In his letter the Lord President quite clearly accepts the logic of the Government's position. If this Bill is to be passed, the logic is that the noble and learned Lord the Lord Advocate, as with any other public authority, should be subject to the terms of the Act.

As regards the noble and learned Lord's reference to the Lord President finding the change to be startling, I should perhaps simply read out the appropriate sentence from the letter of the Lord President to the noble and learned Lord. The Lord President, having dealt with the question of the inevitability of the application of the Bill to the noble and learned Lord the Lord Advocate, states, But, however startling the change may be, I cannot see how it can be avoided once incorporation takes place".

I am not sure that he was necessarily accepting that the change was startling, as the noble and learned Lord, Lord Mackay of Drumadoon, said. It is a question of interpretation. There is no justification for having a gap in the protection provided by the Bill. Furthermore, I have no desire to be placed in a position in which, when exercising this role in my capacity as Lord Advocate, I am seen to be above the convention. I think that is also a logical position given the position that has been taken in relation to the Church of Scotland and other bodies seeking exemption.

As regards the question of which court should hear such applications, the noble and learned Lord will be aware that Clause 7(2) indicates that the appropriate court or tribunal will be determined in accordance with rules. These rules will of course be made in due course by the Secretary of State for Scotland. In fairness to the Lord President, he indicated that there was a case for the Court of Session. There may also be a case in some situations for the High Court of Justiciary. However, the Lord President did not want to be drawn into that debate and wished specifically to reserve his position. I anticipate that that will be a matter for my right honourable friend the Secretary of State for Scotland. I anticipate also that, in accordance with normal procedures, soundings will be taken with the Lord President and his views will be taken into account, although of course I cannot commit my right honourable friend the Secretary of State in that regard. Having explained the reasons for being opposed to this amendment, I invite the noble and learned Lord to withdraw it.

Lord Mackay of Drumadoon

My Lords, before the noble and learned Lord the Lord Advocate sits down, I hope that he will address the issue I raised as regards the relationship of the provisions in the Scotland Bill with those in this Bill, as I believe that is a fundamental issue if the position of the noble and learned Lord the Lord Advocate is to be devolved. I am happy to say that it will not necessarily follow that the noble and learned Lord himself will go if his post is devolved. However, the position will be devolved and there could be a devolution issue on the lines of one route, which is set out in Schedule 6 to the Scotland Bill, and which I suggest is incompatible with any rule-making power under Clause 7. I do not anticipate that, if the Secretary of State designated that such issues should be raised in the Court of Session and/or the High Court of Justiciary, there could be any question of his writing into the rules a right of appeal to the Judicial Committee when no such right of appeal currently exists.

Lord Hardie

My Lords, there will no doubt be many an hour available to us to discuss the provisions of the Scotland Bill when it comes to this House. I simply adopt the position of my noble and learned friend the Lord Chancellor and indicate that any inconsistencies will be addressed at the appropriate time.

Lord Mackay of Drumadoon

My Lords, I am happy that the inconsistencies will be addressed. However, the practical problem is that the Bill will now pass from your Lordships' House. Unless there are amendments to it in another place, it will not be competent for me or any other noble Lord to raise an amendment to the Bill to take account of any concern that we have. Therefore I hope that before reaching a concluded view on the matter, the noble and learned Lord the Lord Advocate will consult not only with the courts but also with those such as myself who are genuinely interested in ensuring that when we have devolution the scope for unnecessary legal dispute is minimised.

I found the noble and learned Lord's construction of the Lord President's letter somewhat startling. But now is neither the time nor place to dwell on that.

I have raised the matter as fully as I can. I believe that I have discharged my duty to your Lordships' House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Judicial acts]:

The Lord Chancellor moved Amendments Nos. 17 and 18: Page 6, line 5, leave out ("of a court"). Page 6, line 19, after ("act^—) insert ("means a judicial act of a court and").

The noble and learned Lord said: My Lords, at Report stage I indicated that the Government would be making a minor drafting amendment to this clause to remove a possible source of confusion. At present Clause 9 refers in subsection (1) to "a judicial act" and in subsection (3) to a "judicial act of a court". It therefore uses a slightly different expression in two places. There is a small risk that the courts might interpret "judicial act" on its own as embracing acts whose nature is judicial and not merely acts of a court. For example, a prison governor imposing a penalty on a prisoner in breach of prison regulations could be said to be doing something which is a judicial act. That is not the intention of the clause. Although we would not expect the courts to have difficulty in concluding that Clause 9 is intended to operate only in relation to judicial acts of a court or tribunal, we think that we should not leave that possibility for confusion.

Amendment No. 17 therefore removes the words "of a court" from subsection (3). Amendment No.18 adds to the list of definitions in subsection (5) to make it quite clear that "judicial act" means a judicial act of a court. I beg to move.

8.45 p.m.

Clause 12 [Procedure]:

Lord Coleraine moved Amendment No. 19: Page 8, line 7, at end insert ("and why it is appropriate to proceed by way of a remedial order").

The noble Lord said: My Lords, the amendment relates to the fast-track procedure whereby incompatibilities in legislation with the convention can be dealt with by remedial order. At Report stage we welcomed the introduction by the Government of a new provision to the effect that a Minister introducing a remedial order would provide Parliament with a statement as to why he considered an order in those terms to be appropriate.

When the noble and learned Lord moved the amendment, it seemed to me appropriate that the statement should extend to the Minister giving the reason why he thought not only that the terms of the order were appropriate but that it was appropriate to make a remedial order. The statement might well contain words such as, "The Government consider that the amendment of legislation is so simple that we do not need to proceed by way of introduction of a public Bill". Alternatively, they might say, "There are a number of cases pending and it is important to clarify the point. We can do so quickly only by remedial order".

It did not seem to me to be appropriate for such a statement to contain the words—as I hope the noble and learned Lord will agree—that the Government proceed by way of remedial order because there is no parliamentary time available to proceed otherwise.

I made the point at Report. The noble and learned Lord said that he would consider it and write to me. I had hoped that having taken my point on board he would undertake to bring back the amendment, properly phrased, in another place. I received his reply today. It was the next best thing. He said that he did not think the amendment was necessary. He wrote: The amendment relates to clause 12(3)(b). That provides that a statement accompanying a remedial order (or draft) laid before Parliament must give 'the reasons why the person making it (or proposing to make it) considers an order in those terms appropriate'. Such reasons cover not only the reasons why it is appropriate to use the order-making powers, but also why it is appropriate to do in the terms proposed. Any doubt about whether that is the correct meaning of clause 12(3)(b) as currently drafted will, I suggest, be removed if one looks back at clause 10(2) where the word 'appropriate' is also used".

I do not agree with the noble and learned Lord's construction of the clause. Clause 12(3)(b) states, considers an order in those terms appropriate".

It is dealing only with the terms and not with the appropriateness of making the order.

The noble and learned Lord referred to Clause 10(2) which provides, If a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendments to it as he considers appropriate".

I stress that the word "appropriate" is used twice.

I should have thought it reasonable to expect that if the intention was that the subsequent words should apply to both uses of the word "appropriate", the provision would have made that clear.

The noble and learned Lord addressed this point at Report. However, he does not seem to have taken the same view as he now does. At col. 407 of the Official Report of 29th January he said: The other change that we propose is in the government Amendment No. 56. It would require a remedial order, or draft, to be accompanied by an explanatory statement. This would contain particulars of the court case in which the declaration of incompatibility had been made, and would seek to explain what the incompatibility was. It is designed, therefore, to facilitate the consideration of remedial orders by Parliament".

If the noble and learned Lord believed at that time that the clause covered the need to make the order, he would have said so. In writing the noble and learned Lord said that he would reflect on the point further. Having heard what I have said, I hope that he will feel able to bring back the amendment in another place in a proper form.

I beg to move.

The Lord Chancellor

My Lords, the noble Lord, Lord Coleraine, is right in that this issue turns on the proper construction of Clause 12(3)(b) but in the light of Clause 10(2). Clause 10(2) provides that, If a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendment to it as he considers appropriate".

So that is a double appropriateness test: the Minister must consider it appropriate to amend by way of remedial order, and then he may, by order, make amendments which he considers appropriate.

I should have thought that a court would construe Clause 12(3)(b), which provides that, A remedial order (or draft) laid before Parliament must be accompanied by a statement containing … (b) a statement of the reasons why the person making it (or proposing to make it) considers an order in those terms appropriate", to mean that the statement must give reasons both as to why the order itself is considered appropriate and why its terms are considered appropriate.

I do, however, take the point made by the noble Lord, Lord Coleraine, that we should reflect—if I may put it in my own language—as to whether it should be made more express that a double appropriateness test applies in Clause 12(3)(b), as certainly it does in Clause 10(2). I will certainly undertake to reflect upon the matter. On that basis I invite the noble Lord, Lord Coleraine, to withdraw his amendment.

Lord Coleraine

My Lords, while I am considering whether to withdraw my amendment, I wish to say that I shall not be able to be present for the final speeches after Third Reading. I should like to have made quite a few observations about the consultation processes that went on before the Bill was introduced and about the way in which the expressions "public authority" and "functions of a public nature" have been left so much in the air during the course of our debates. In the circumstances, I shall not do so.

I have now had a chance to consider the noble and learned Lord's remarks. I am very pleased to find his words in his letter to me as to his view of the meaning of the phrases in question on the record now. I am sure that that will be very satisfactory. I am happy to learn that he will reflect further on this whole question. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 20: After Clause 13, insert the following new clause—("Human Rights Commissioner HUMAN RIGHTS COMMISSIONER

1. (1) The Secretary of State may by order made by statutory instrument appoint a Commissioner, to be known as the Human Rights Commissioner, to perform any or all of the following functions
1. (a) to provide advice or other assistance, including legal and financial assistance, to persons?—
   1. (i) bringing, or proposing to bring, proceedings under section 7; or
   2. (ii) relying or proposing to rely upon a Convention right in any proceedings,
   provided that the Human Rights Commissioner considers that such proceedings raise a question of principle of general public importance;
2. (b) to bring proceedings under section 7 or intervene in proceedings?—
   1. (i) brought under section 7; or
   2. (ii) where a Convention right is relied upon.
   provided that the Human Rights Commissioner considers the bringing of such proceedings, or such intervention, to be in the furtherance of the main purposes of this Act;
3. (c) to undertake research and educational activities connected with the main purposes of this Act: or
4. (d) to review and report to the Secretary of State on the appropriate machinery to give effect within the United Kingdom to the Convention rights set out in Article 14 of the Convention (prohibition of discrimination).
2. (2) No order may be made under subsection (1) unless a draft of the order has been laid before, and approved by, each House of Parliament.").

The noble Lord said: My Lords, last, but I hope not least, I wish to deal with an amendment of great practical importance. It is the only issue upon which those on these Benches differ from the Government in relation to this Bill other than on the question of legal standing. The issue is of great importance to us. If this amendment can be accepted during the Bill's passage, it will make a great difference to the practical effectiveness and impact of the legislation.

The amendment is modest enough. It does not require the Secretary of State to do anything at all. All that it does is give him the power—not the duty—to appoint a human rights commissioner. We have deliberately referred to a "commissioner" rather than a "commission" to make the proposal more modest than it might otherwise have been.

The amendment would empower the Secretary of State to trigger all or any of four functions. The first is to provide advice and assistance to people considering bringing cases under the Bill. That is similar to the power given to the Commission for Racial Equality and the Equal Opportunities Commission at present. And it can be exercised only in real public interest cases. The second power is the ability to bring proceedings or intervene in proceedings under the Bill. The third, with which my noble friend Lady Williams of Crosby, will deal, is to undertake research and educational activities to promote the purposes of the Bill. Last, and not least, there is a power to authorise the human rights commissioner to review and report to the Secretary of State on the appropriate machinery to give effect within the United Kingdom to Article 14 of the convention, the prohibition on discrimination.

May I say at once how sorry I am that neither the noble Baroness, Lady Amos, nor the noble Baroness, Lady Lockwood, were able to stay for the debate. In an earlier form this amendment originally stood in the name of the noble Baroness, Lady Amos. Both noble Baronesses have quite exceptional experience in this area. I was involved in the appointment of the noble Baroness, Lady Lockwood, when I worked for the Home Secretary in 1974-75. She was the first chairwoman of the Equal Opportunities Commission, and the noble Baroness, Lady Amos, served as its chief executive in later years. Both have a lifelong commitment to making equality work in practice. I am very sorry that they could not be present at this hour on this occasion.

I have said most of what I would like to say in previous debates, so I can be brief. The first point relates to access to justice. One of the commissioner's most important roles would be to provide assistance and advice to those who are thinking of bringing proceedings. That operates as an extremely important filter. It helps the courts to know that cases that are brought before them are well focused, that they have been through the rigorous screening process, as happens for example with the Legal Committee of the Equal Opportunities Commission.

It is not easy, given the very limited budget that the Treasury imposes, for any case to be brought unless it has been very properly sifted and tested. It is vital to have that kind of specialised, well focused, well targeted legal advice and assistance if this Bill is to mean anything in practice to people of that kind—those who are not the fat cats, the rich, but who have genuine, real cases and need well targeted legal aid advice and assistance. I know that the Lord Chancellor has important proposals in mind for dealing with public interest cases. My own view is that it needs to be well targeted and sifted by a specialist body in the case of this Bill.

It is very important that we have effective access to justice, because everyone will have to exhaust his or her domestic remedies under the Bill before going to Strasbourg. If that means having to go all the way from an industrial tribunal or county court to the House of Lords before the case can go to Strasbourg, it is important that we do not make people worse off by forcing them to do that and not providing them with adequate support. That is what happens under the EOCs, the CREs and the Fair Employment Commission for Northern Ireland.

In his very important address to the Solicitors' Annual Conference in Cardiff the noble and learned Lord the Lord Chancellor observed that the civil justice system should be accessible to everyone, not just the very rich and the very poor. I know that he means that, and I enthusiastically agree. The noble and learned Lord, Lord Woolf, in his Access to Justice report made similar points about the need for effective access to justice. That is the first major function of the amendment.

I shall not deal with education or research, but I wish to say something about reforming the existing anti-discrimination machinery. If, in West Cork, you ask, "How do I get to Skibbereen'?", a local person is likely to say, "Well, I wouldn't start from here". If I were trying to create effective machinery in the human rights and anti-discrimination area, I would not start from here. That is to say, we now have a proliferation of quangos—two EOCs, two CREs, one FEC and a disability council which has no powers at all.

I spent a couple of years of my life, I am very proud to say, trying to help to devise within the Home Office effective machinery for enforcing the anti-discrimination legislation. But the promise of the White Papers that I helped to write—on equality for women and racial discrimination—has never been fulfilled in practice. Particularly in recent years, and particularly in relation to the big Equal Opportunities Commission, the will to have strategic law enforcement has died and we have moved away from what was always intended; namely, well focused, not over-funded, well targeted law enforcement. The result is that people like Professor Bob Hepple, I, and others working in the field have come to realise that the existing anti-discrimination legislation urgently needs to be reformed in a way that will make it more cost effective with a single enforcement agency able to draw upon the expertise of different divisions specialising in gender and racial equality and other areas of inequality.

There was a commitment in the Labour Party manifesto to reform anti-discrimination legislation. It is important that the Government should be assisted in that reform by machinery to give wise advice as to how best it can be done. I regard that as a function of the human rights commissioner, acting as an honest broker and adviser on how best to reform the mess of anti-discrimination legislation which has now become a patchwork of bits and pieces with different enforcement mechanisms. For example, there is much weaker enforcement under the fair employment legislation in Britain than in Northern Ireland. Some time soon the Home Office and the Department for Employment and Education will have to apply their collective minds to what needs to be done to reform anti-discrimination law. The fact that the matter straddles two departments makes the task more difficult. I believe that the human rights commissioner would, in a modest way, fulfil the important functions of effective access to justice and helping to remake the existing anti-discrimination enforcement machinery.

I am sorry to say that although in opposition we were able to reach complete agreement with the Labour Party on the main elements of the constitutional reform package, including the creation of a human rights commission or commissioner, this is the only element in the package which has not been implemented following the election. The door has not been entirely shut; the White Paper leaves it ajar to some extent. Whatever happens this evening in this House I very much hope that the door will be opened during the passage of the Bill in a way that will enable these objectives to be achieved. I beg to move.

9 p.m.

Baroness Williams of Crosby

My Lords, in its report of December 1997 the IPPR made it plain that in its view the creation of a culture of human rights in this country depended on two pillars: prevention and enforcement. I believe it is worth quoting a paragraph from that report: For those who feel that the principal benefit of incorporation should not be what happens in the courts but the impact it could have on public attitudes, engendering a culture of mutual rights and responsibilities, this is a major weakness in the current institutional arrangements for the protection of human rights in the United Kingdom. A Human Rights Commission is needed to fulfil these roles".

In these debates, in some of which I have been privileged to take part, there has been much emphasis on enforcement. We have heard an impressive array of speeches from members of the legal profession. I am even more admiring of that profession than I was when the proceedings began. But I also have a sense of slight despair. The danger of a debate almost wholly dominated by brilliant members of the legal profession is that almost every aspect except the legal one is neglected. For that reason I wish to say a few words about those neglected aspects in the hope of strengthening the hand of the noble and learned Lord the Lord Chancellor should he decide that it would be wise and proper to press for a human rights commissioner.

As my noble friend Lord Lester said, this amendment is framed in a minimalist way. We have moved away from the suggestion of a human rights commission, with which we began. We have fallen back, not because we wanted to, but to try to commend the issue without involving ourselves too deeply in questions of public expenditure, on this proposal which I and my colleagues believe to be essential but which is deliberately framed in a modest way.

Let me say something about the needs and the responses to those needs. The first need is to make our fellow citizens aware of the culture of human rights and human obligations. It is an issue which the colleagues of the noble and learned Lord the Lord Chancellor—the Prime Minister, the Secretary of State for Education and Employment and others—have addressed on many occasions, and we commend them for that.

The issue of education does not only concern the education of schoolchildren; it concerns above all the preventive factor the IPPR pointed to, which is so far missing from our deliberations and conclusions. Let me give examples. If government departments, particularly sensitive departments such as the Home Office, are to take seriously the culture of human rights and their related responsibilities, it is crucial that officials in those departments understand the impact and nature of the Bill and the case law which flows from decisions of the European Court of Human Rights.

Secondly, it is crucial that those who are supposed to teach our children about human rights and responsibilities and positive attitudes towards them should have access to training in that area. Some of us who are not lawyers have found it hard enough to follow the meanderings of this debate. I invite the House to consider how much more difficult it is for someone who has not had the privilege of listening for many hours to deliberations on these issues.

Thirdly, if we are serious about our responsibilities to our fellow citizens, it is absolutely crucial that those bodies that stand at the interface between Government and the citizen, in particular the citizens advice bureaux and local government, understand the implications and impact of the Bill. I fear that there is probably not one in a hundred who has the faintest idea about what we are deliberating—not for lack of intelligence, but for lack of any access to information about it on a broad scale. I am profoundly disturbed by that because I wish the Government well on the Bill. I hope that they can bring about a change in public attitudes. But for the life of me, I do not know how they will do that without some system of reaching out to those fellow citizens and explaining to them what their rights and the rights of others are.

I do not wish to detain the House—it has been a long day of debate—but I should like to outline briefly the supply of advice and assistance along those lines at the present time. I speak as someone who once tried to introduce what was then called "political studies" into schools, only to find that it aroused the most extreme suspicions in this country. It is strange that we are a democracy but are terrified of politics. I have never understood why.

The current response of the Government falls under one heading—the new Advisory Group on Education for Citizenship. I shall read out briefly the crucial terms of reference: The Group will give advice on how schools can teach their pupils about the nature and practices of participation in democracy and the duties, responsibilities and rights which individuals have as citizens".

Every other word in the terms of reference, every reference by the Secretary of State for Education and Employment and every reference in the press release concerns only education in schools. I telephoned a member of the advisory council who confirmed that the target of the advisory committee was children up to the age of 19 and also that it has no resources. I am all for children receiving education in citizenship and all for a module in the national curriculum to that effect, towards which it is working. But I am deeply troubled about the lack of any provision of any kind for those who are over the school leaving age.

There is one other provision in this country—the so-called network of human rights units—which consists largely of university and NGO bodies, including some distinguished elements such as the Human Rights Centre at the University of Essex and the Human Rights Unit at the University of Birmingham. It is an entirely voluntary network which gained a little support from the National Lottery.

It is of the most crucial importance that we prevent what otherwise might be a series of cases reaching the courts, none of which needs do so, simply because we failed to inform those responsible for administration at central government, local government and citizen level about the impact of the Bill. It is because I believe in the Bill that I feel such profound concern in relation to the failure to make provision for telling our fellow citizens about it.

I plead once again and finally with the noble and learned Lord the Lord Chancellor to make the strongest possible case—I am sure that he will make a very persuasive case—to his colleagues that a small amount of public money to set up a human rights commissioner is vital to the achievement of the aims he so eloquently set out over recent days and weeks.

Viscount Colville of Culross

My Lords, the noble Baroness, Lady Williams, is absolutely right. In this country we ought not to be too proud to learn from the experience of the rest of the world.

As your Lordships know, I sit on the United Nations committee that oversees the implementation of the international covenant on civil and political rights, many of whose provisions are exactly the same as those we are discussing today. In country after country throughout the world a national commission either has been or is proposed to be set up to do exactly what the amendment foreshadows. Some of them do that better than others, but they carry out the functions mentioned by the noble Baroness.

The need for such a commission in some countries is extreme. Perhaps the most striking example—in a country which had better be nameless but is part of the former Soviet bloc—is a case we examined quite recently. That country had signed and ratified the optional protocol giving individual access by way of communication to the committee. The leading human rights non-governmental organisation was not aware that the government had ratified the optional protocol or that it could advise any of the citizens of that country that there was a right of individual access.

I know that that sounds quite extraordinary, but it is not as unusual as all that to find that there are people who do not understand that human rights of the kind we are talking about in the Bill are actually intended for them to implement and, as the noble Baroness said, for those who are in charge of the administration of all kinds of our affairs to implement on behalf of the recipients of those services. There is a widespread ignorance, and I do not think this country is immune to that disease.

It is also worth noting that there is the excellent standing commission in Northern Ireland which for years now has been carrying out the most valuable service in this respect. It has advised government in report after report on wholly practical and sensible things, many of which are taken up. One would have thought that if one did not need a body of that kind government would have done it all by themselves. But they have not. They do it on the initiative of the standing commission, and the standing commission goes into the whole question of the dissemination of the rights and the dissemination of the discussion of these matters in a way that no one else does.

I therefore think that the noble Lord, Lord Lester of Herne Hill, and his colleagues are correct in continuing to press the Government for something as modest as what they are talking about this evening, because it will do things that I am perfectly certain will bring home the benefits to those who are entitled to have them under the Bill in a way which no one else will ever do.

9.15 p.m.

Lord Henley

My Lords, I do not wish to prolong the debate because it is getting late and we have other business on the Order Paper. I just want to add a word or two to what I said at the Committee stage before Christmas when we discussed a similar amendment. On that occasion I expressed my concerns about taking such a line. I should like to repeat that on this occasion. I do not know whether the Government want support from this side of the House. But all I can say is that, should the noble Lord, Lord Lester, wish to press the amendment to a Division, the Government will have the support of these Benches in that Division.

Lord Williams of Mostyn

My Lords, the Government's position on this matter has been well known for some time. In our White Paper, Bringing Rights Home, we set out that various matters needed to be considered before a final decision was taken as to whether to set up a commission or appoint a commissioner. We reached this decision after careful consultation throughout the summer and autumn months. We believe that we need to give more thought to the relationship between a possible commissioner or commission, the relationship between a new commissioner or commission and the existing rights bodies such as the Equal Opportunities Commission and the Commission for Racial Equality. We want to ensure that if there is to be a new commission or commissioner the work would add to rather than detract from the valuable work that those bodies perform.

I know that the noble Lord, Lord Lester, has tried to anticipate this concern in his proposed subsection (1)(d). We do not think that takes it any further. We think that the relationship between a human rights commissioner and other commissioners ought to be worked out before a commissioner is appointed, and not given as a function to perform after appointment.

Fundamentally, we wish the whole new culture of human rights to infuse the parliamentary process. I know that the noble Lord, Lord Lester, will be disappointed, but we have given careful thought to the representations he has made regularly to us in the Home Office together with those from other bodies such as Charter 88 and Liberty which are very knowledgable about these matters. As my noble and learned friend the Lord Chancellor said at Second Reading, if Parliament wishes to have a parliamentary committee on human rights—it is a decision for Parliament—the Government would wish it a fair wind. If that committee is to be established, we believe that it should review alternatives, think about structures and think about the possibilities for the way ahead. I take entirely the point made by the noble Baroness but my noble and learned friend indicated the areas which might be of interest to a parliamentary human rights committee—such as the taking of evidence not limited to London, such as educative functions, such as seminars for local government and other organisations. I can say that in the Home Office at least the questions of human rights—how one ought to approach legislation in the future and how one ought to approach the conduct of the department in the future—are under pressing daily consideration.

I think that in a sense we are agreed on the objectives but we disagree on the present steps to attain those generally accepted objectives. Therefore, we believe that the proper course is to see whether or not Parliament wishes to set up a parliamentary committee. I repeat that we would give it every blessing, fair wind and support.

When the Bill becomes an Act and the commencement date has been decided, there then should be a period of time for assessing exactly what ought to be done. First, should we have a commission; secondly, should it be a commissioner, which is very important indeed; what ought the remit of work to be and, just as important, what should be the relationship between any new body and existing bodies? Therefore, I hope that the noble Lord will not regard as churlish my declining to accede to his invitation. We have thought about it, but come to a different conclusion. I believe that what is between us is the immediate approach rather than the ultimate objective.

Lord Lester of Herne Hill

My Lords, I am extremely grateful to everyone who has spoken and to those who have not spoken, but who have remained behind to listen to the debate. I greatly welcome the notion of a parliamentary Select Committee and hope that it happens soon. But it will not do anything for the access to justice problem that I spoke about. If we are to wait until the Bill becomes law, which will be some time before 10th December 1998—Human Rights Day—and only then to start the reform process for discrimination law, I can assure the Minister that we shall not see the reforms that are urgently needed in that law in the lifetime of this Parliament. Unless the Government start soon, that will not happen. I know full well the difficulties of dealing with existing institutions and trying to re-make them. I know of the vested interests and the problems that arise. Although I welcome the spirit of what the Minister has said and understand what is written between the lines as well as in the lines, the situation is more urgent than he was conveying.

I am not surprised that the noble Lord, Lord Henley, and his party oppose this amendment and that he would therefore vote against it. The reason why I am not surprised is that, throughout the long history of anti-discrimination law, going back to the period when a Mr. Ivor Richard, the MP for Barons Court, was one of the first supporters of the earliest anti-discrimination legislation of the 1960s, the Conservative Party, with one exception, has never been an enthusiastic supporter of anti-discrimination legislation. It opposed all the race relations Acts through the 1960s and 1970s. It opposed the enforcement mechanisms of the sex discrimination legislation. The only exception that was made, under American pressure, was as regards tackling religious discrimination in Northern Ireland. The Conservative Party has never been an enthusiast for effective enforcement by an administrative agency of any of the anti-discrimination legislation. The best example is the wretched, pathetic, disabled Disability Council, which was born with no teeth or muscles of any kind.

So I am not surprised that there should be that opposition. Nor am I surprised that the Government are troubled about setting up new machinery to add to the existing proliferation of quangos. But one has to make a beginning at some time. If we had heard from the noble Lord, Lord Williams of Mostyn, something more concrete as to what is to be done about access to justice in order to support people bringing cases under the Bill, then I should have hesitated to test the opinion of the House. But we have been promised nothing specific or concrete as to what is to be done to help people to translate into practical reality the theoretical rights contained in the Bill and the convention. This is a matter on which my party feels strongly. It is the only provision of great importance which we agreed upon in opposition which has not been fulfilled in this Bill. Therefore, I wish to test the opinion of the House.

9.24 p.m.

On Question, Whether the said amendment (No. 20) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 77.

Division No. 5
Contents
Ackner. L.	Harris of Greenwich, L.
Addington, L.	Lester of Heme Hill, L. [Teller.]
Carlisle, E.	Linklater of Butterstone. B.
Colville of Culross, V.	Ludford, B.
Dholakia, L.	McNair, L.
Falkland, V.	McNally, L.
Goodhart, L.	Meston, L.
Hamwee, B.	Newby. L.

Nicholson of Winterboume, B.	Simon of Glaisdale, L.
Ogmore, L.	Thomas of Walliswood, B.
Redesdale, L. [Teller.]	Thomson of Monifieth, L.
Rodgers of Quarry Bank, L.	Wallace of Saltaire, L.
Russell, E.	Wigoder, L
Sandberg, L.	Williams of Crosby, B.
NOT-CONTENTS
Acton, L.	Jay of Paddington, B.
Allenby of Megiddo, V.	Judd, L.
Archer of Sandwell, L.	Kennedy of The Shaws, B.
Bassani of Brighton, L.	Levy, L.
Berkeley, L.	Luke, L.
Biddulph, L.	Lyell, L.
Blackstone, B.	McIntosh of Haringey, L. [Teller.]
Borne, L.	Mackay of Drumadoon, L.
Brooke of Alverthorpe, L.	Mallalieu, B.
Bumham, L.	Milner of Leeds, L.
Camegy of Lour, B.	Mishcon, L.
Carter, L. [Teller.]	Molloy, L.
Chandos, V.	Monkswell, L.
Cocks of Hartcliffe, L.	Montague of Oxford, L.
Currie of Marylebone, L.	Murray of Epping Forest, L.
Davies of Coity, L.	Newton of Braintree, L.
Davies of Oldham, L.	Nicol, B.
Dean of Thornton-le-Fylde, B.	Pitkeathley, B.
Desai, L.	Plant of Highfield, L.
Donoughue, L.	Ponsonby of Shulbrede, L.
Dormand of Easington, L.	Prys-Davies, L.
Falconer of Thornton, L.	Ramsay of Cartvale, B.
Farrington of Ribbleton, B.	Randall of St. Budeaux, L.
Gilbert, L.	Rawlings, B.
Gordon of Strathblane, L.	Rendell of Babergh, B.
Grenfell, L.	Richard, L. [Lord Privy Seal]
Hamilton of Dalzell, L.	Rogers of Riverside, L.
Hanworth, V.	Serota, B.
Hardie, L.	Simon, V.
Haskel, L.	Strabolgi, L.
Hayman, B.	Symons of Vemham Dean, B.
Henley, L.	Thatcher, B.
Hilton of Eggardon, B.	Turner of Camden, B.
Hoyle, L.	Wakeham, L.
Hughes of Woodside, L.	Wedderbum of Charlton, L
Hunt of Kings Heath, L.	Whitty, L.
Irvine of Lairg, L. [LordChancellor.]	Williams of Mostyn, L.
	Young, B.
Janner of Braunstone, L.	Young of Old Scone, B.

On Question, Motion agreed to.

9.32 p.m.

Clause 21 [Interpretation, etc.]:

[Amendment No. 21 not moved.]

An amendment (privilege) made.

The Lord Chancellor

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(The Lord Chancellor.)

Lord Henley

My Lords, as this Bill comes to the end of its journey through this House and before we send it to another place, as is customary I should like to say a few words of thanks to noble and learned Lords on the Government Benches who have dealt with this Bill. In particular, I express thanks to the noble and learned Lord the Lord Chancellor, who has put up with a great deal during the seven days when this Bill has been considered in this House. Today was probably the first day when no reference was made either to Cardinal Wolsey or the papal triple crown. Therefore, it is right that I should mention it at this stage for fear that the noble and learned Lord believes that such matters have been forgotten.

I particularly thank the noble Lord, Lord Williams of Mostyn, for his very helpful letters both to me and my noble friend Lord Kingsland. I thank my noble and learned friend Lord Mackay of Drumadoon and the noble and learned Lord the Lord Advocate, who has had the difficult task of dealing with some of the rather technical Scottish issues.

I repeat that we have a number of concerns and I mention just three of them. Earlier this afternoon the House passed an amendment moved by my noble friend Lady Young relating to the Church of England and various religious bodies. I sincerely hope that the Government will consider very carefully how to proceed before asking another place to overturn that amendment, but obviously that is a matter for another place to consider. We very much regret that the Government did not move more than they did—I appreciate that they moved a certain amount—on the fast-track procedure. I regret that, especially in the light of the report of the Delegated Powers Scrutiny Committee whose advice we always followed while we were in government from the moment it was set up. It would have been helpful had the Government done the same.

My third point relates to an amendment which we considered tabling at this stage. We then decided that it would not be appropriate to raise a new matter on Third Reading. It is one which my honourable and right honourable friends will consider raising in another place. It is that the Bill should, in effect, provide for a government right of appeal to Strasbourg. The noble and learned Lord the Lord Chancellor made clear today that under Strasbourg law only a citizen, and not a government or public body, can take a case to Strasbourg. We should consider seriously whether amendments can be produced whereby, if the Government are dissatisfied with a ruling of the House of Lords, they can, by ministerial certificate, provide that they shall be under no obligation to amend the law unless and until the issue has been the subject of a Strasbourg ruling.

I again thank the noble and learned Lord the Lord Chancellor and his colleagues for the way in which they have handled the Bill and wish it well in another place.

Lord Wakeham

My Lords, I am the chairman of the Press Complaints Commission and therefore it is right that I should declare an interest. Having had a long day sitting here without saying a word, I feel that I now have to say something about the position of the press. Let me say at the outset that I welcome the fact that the Government have this morning made it clear that the issues I have raised surrounding this Bill, which include questions of prior constraint and financial compensation, remain under active consideration. Discussions continue, and no decisions have been reached.

These are matters of fundamental importance in a free society. For that reason, I wrote today to the noble and learned Lord the Lord Chancellor and his right honourable friend the Secretary of State for Culture, Media and Sport, setting out in detail my concerns, especially on the subject of prior restraints. I have also published the letter in view of the public interest involved.

I have always made it clear that I support incorporation, but I have made no bones of the serious concerns I have about the way in which it is being done. Those concerns may be misplaced. The noble and learned Lord the Lord Chancellor has done his level best to reassure me. On the other hand, I may be right—and, if I am, the Bill will have enormous repercussions for the system of self-regulation that we have built up.

I do not say that as a threat, still less some form of blackmail. I say it because of what I see as the logical consequences of the Bill which grafts a statutory superstructure on to our system of self-regulation. As a result the system will no longer be a self-regulatory one. It will for the first time have a basis in statute.

The PCC was set up in 1991, principally to assist ordinary people in resolving their disputes with newspapers. It centres on a code which covers a number of areas in which the public are right to expect high ethical standards of journalism. It was also set up as a system which was designed to be independent: independent of the press; independent of government; and independent of the direction of the courts. It is that independence that both safeguards the interests of the public and upholds the freedom of the press.

Self-regulation is not perfect—and it probably never will be—but it has achieved far more than any of those who set it up in the first place probably ever expected. It has provided a swift dispute resolution procedure which works only because of the voluntary commitment of editors and the amicable way in which the commission's work is conducted. And its code—the first ever set of rules for all journalists—has also gradually raised standards among all newspapers. They are standards of accuracy and speed of correction; respect for individual privacy; safeguards for the vulnerable, such as children or those in hospital; and protection from harassment. At the heart of my concerns is the fear that the way in which the Government are incorporating the convention will change the nature of the system—and not for the better.

This Bill will almost certainly make the PCC a public authority and part of a statutory system. That is bound to have implications, and it will do so because it will put the courts in the driving seat. It is they who will be able to compel the PCC to change its structure and its powers if they deem that it is not acting compatibly with the convention. That possibility is quite simply inconsistent with the principle of self-regulation.

My main worry is what a statutory basis will do to the processes by which self-regulation operates. Those processes, which are voluntary and based on common sense, are in many ways the antithesis of statute and legal supervision.

If the PCC's adjudications on matters of privacy were subject to subsequent action by the courts, my task of seeking to resolve differences, get a public apology where appropriate or if necessary deliver a reprimand to an erring editor would no longer be a practical proposition. This is because voluntary co-operation by editors would open them up to subsequent action in the courts. Material freely volunteered would become part of a legal action. From day one, therefore, the newspapers' approach to any complaint of invasion of privacy would be highly cautious and legalistic—if, indeed they chose to co-operate at all.

There are other problems arising from the legal supervision of the PCC by the courts. First, the PCC has no powers of prior restraint—rightly, in my view. Such powers of prior restraint, exercised by the PCC or by the courts, would have serious implications for the role of a free press in a free society. However, the courts could force it upon us.

There is another problem. It has been suggested that the courts will seek to satisfy themselves that the PCC has "effective remedies" at its disposal, including the power to award compensation. But, again rightly in my view, the PCC has no such power and seeks none. If therefore the courts say, "Yes, the PCC should award fines", we will have to change, but that change will make a mockery of the principle of self-regulation. It is no longer the newspaper industry regulating itself; it is being given direction by the courts.

In those circumstances, the process by which we resolve 90 per cent. of the thousands of complaints we receive will be put into jeopardy. Newspapers and complainants will know that we are the first round in an expensive legal battle that could end up in the High Court with damages and costs. Newspapers will find it impossible to co-operate with us in a friendly fashion and will deal with all complaints through lawyers.

That is not the way it is meant to be. The newspaper industry set up the PCC as an independent body to resolve disputes and gave it a powerful sanction: to demand an editor print a critical adjudication in his newspaper. It set it up to provide what the Master of the Rolls described recently as a robust, common sense system of dealing with complaints. It was never intended to be a legal system.

But if the courts are able to interfere in the way that I have just described, and they will be under a duty to do so, newspapers will have an entirely different system on their hands. The PCC will not be able to resolve disputes because it will no longer work on an amicable and friendly basis. Indeed, how could it when many, particularly the rich and those set on gold-digging, would use it as a first stop on the route to court?

My concern in those circumstances is this: why should the newspaper industry continue to support the PCC? It will be part of a legal system only because the PCC exists. And in turn, the PCC will be unable to carry out the function that it was originally intended to do: to administer a code and to resolve disputes in a non-legalistic way. Therefore, we shall be of no use to ordinary people, for whom we were set up, and no use to the newspaper industry which would simply be opened up to new types of legal action because of our existence.

I hope that a way will be found to continue the system, despite the changes. But it may be simply too difficult to unscramble self-regulation from law. In my view, the two do not mix. In those circumstances, the choice is not as simple as the one put forward by the noble and learned Lord the Lord Chancellor that the Bill will make a good system even better. The choice is not necessarily between the PCC and a better PCC. It may be a choice between the PCC and no PCC, or at least a seriously diminished one. That would put at risk all aspects of our work, by far the bulk of it, which does not relate to privacy.

My proposal at an earlier stage of the Bill was to exclude the PCC and its activities from the supervision of the courts so that ordinary citizens could continue to complain to us without the necessity and cost of legal representation, which will be the inevitable consequence of newspapers using lawyers as part of a legal system. Nothing in the scheme of things that I propose would stop the rich, the powerful, the corrupt and those with something to hide going over our heads directly to the courts if the courts, encouraged by the Bill, develop the common law in the way that has been suggested. So be it. But at least the vast majority of ordinary citizens will still be able to use our services to resolve complaints without the cost of using the law.

As your Lordships may recall, I had also put forward proposals to deal with the problems which will arise if the rich and powerful are able to take out interlocutory injunctions against newspapers on the grounds of intrusion into privacy. Those problems are acute and the Government have still not indicated to me how they intend to deal with those points, although I suspect that Ministers are indeed aware of the issue. I do not intend to go into great detail about those matters. My views are on the record and the issue continues to give me great anxiety.

I conclude by saying that it may be that I am wrong on some of this. Certainly the full effects of this Bill will not be swiftly felt, probably not until the final years of this Parliament, but I fear—and I repeat that this is not a threat but merely the logical consequence of this legislation—that the PCC will be undermined; the vast majority of ordinary people who do not have large financial resources to take on a newspaper but who do so now through the PCC will be left with nothing but the courts and the very real risks that go with them. I really do not want that to happen.

Lord Simon of Glaisdale

My Lords, as we are once again sitting late on the Bill, I shall not deliver the speech that I had contemplated. However, I should like to refer very briefly to what the noble Lord, Lord Wakeham, said. In the first place, since 1991 there have been a number of offences by the press which have deeply disturbed public opinion; indeed, one cannot just waive them aside.

Secondly, I can see no reason why the Bill should undermine self-regulation. At an earlier stage, my noble and learned friend expressedly disclaimed that. I respectfully agree. In so far as there is an effective system of self regulation, there need be no recourse to remedies under the Bill. The remedies are entirely in the hands of the PCC.

Thirdly, the noble Lord referred to what is undoubtedly a danger; namely, gagging writs. Your Lordships had to consider that matter while considering the defamation Bill during the last Parliament. The suggestion was made that patent law could provide a model in that respect. At one time it was a great mischief that threats of action for infringement of patent and action writs for infringement of patent were being inordinately and grossly used by rich corporations sitting on their own patents to snuff out new patents. The law countered that by making it an offence to threaten to or to issue a writ for infringement without reasonable cause.

When that was suggested during the proceedings on the defamation Bill, my noble and learned friend Lord Mackay of Clashfern, the then Lord Chancellor, said that he would take the matter away and have it considered in his department, since when the silence of the grave has descended. I beg my noble and learned friend on the Woolsack to take that document out of its pigeonhole, dust it down and see whether it can usefully be used not only to prevent the gagging writs of defamation but also to meet the anxieties of the noble Lord, Lord Wakeham.

The only other comment that I wish to make is that I would like the Cross-Benchers to be associated with the tribute that was paid by the noble Lord, Lord Henley. Indeed, we must also associate his Front Bench with that tribute. My noble and learned friend the Lord Chancellor and the noble Lord, Lord Williams of Mostyn, have shown a quite unusual command of their Bill and all its background. One must remember, too, that this is only a small part of the multifarious burdens which are descending upon them at present. I desired to say that because I have been critical during the proceedings on the Bill of the inflexibility of Ministers.

Your Lordships will remember Burke's famous picture of the court of Marie Antoinette and the society that sustained it which ended, vice itself lost half its evil, by losing all its grossness".

So we can say that inflexibility has lost half its evil by losing any measure of discourtesy. The noble and learned Lords have left us deeply in their debt.

9.55 p.m.

Lord Lester of Herne Hill

My Lords, I can bet the Bank of England to a blood orange that what I say in a few minutes about the intervention of the noble Lord, Lord Wakeham, will not be reported in the newspapers to the same extent as what he has said. But before I come to that, I shall deal with some more graceful matters.

First, I echo the tribute of the noble Lord, Lord Henley, to the noble and learned Lord the Lord Chancellor and to the noble Lord, Lord Williams of Mostyn. I also pay tribute to their civil servants and parliamentary counsel who have given such magnificent support to the Government and to this House. The Bill is brilliantly conceived and exquisitely well executed. I congratulate the Government and especially their unnamed advisers on having produced a measure of this quality.

It is also appropriate to express the privilege I feel in having taken part in debates on the most important constitutional measure that has been introduced into Parliament in my lifetime. It will not be the last of this Government but it is the first, and it will profoundly affect all three branches of government. It is a great pleasure from these Benches to have been able to give wholehearted support to this new reforming Government and to a Lord Chancellor who is committed to important measures of democratic renewal and constitutional reform under the rule of law. His party and my party are committed to that. We have embarked on developing a modern constitution for a modern citizenship in which everyone is able to enjoy their basic human rights; in which there is greater accountability of Ministers and officials to Parliament and to the courts; in which there is subsidiarity, devolution to the nations and the regions; freedom of information and a voting system which more fairly reflects the wishes of the electors in a plural democracy. We are, in truth, privileged to be fashioning, after the ice age of no change in these areas, a true modern constitutional resettlement.

We have made a few modest improvements to the Bill during its passage thanks to the flexibility Ministers have shown. I believe that the Bill has been marred in certain respects. I hope that those defects may be removed in another place. I hope that when the Bill is considered in another place some of those vigorous, open-minded new Labour and Liberal Democrat MPs might join together in their independent minded strength to improve the Bill in some of the respects that we have urged on your Lordships.

I respectfully agree with what the noble and learned Lord, Lord Simon of Glaisdale, has said about the intervention of the noble Lord, Lord Wakeham. I have great respect and affection for the noble Lord, Lord Wakeham. He was the Leader of this House when I came here and showed me particular kindness. He is modest enough to admit that he might be wrong. That applies, of course, to what I am about to say. However, I believe that he is part of an entirely misguided misrepresentation of the effect of this Bill on freedom of speech.

I am not entitled to say much about many things, but I am entitled to say this because I have spent my professional lifetime using the human rights convention in Strasbourg on behalf of newspapers and citizens to reach places with the convention that could not be reached by English statutes or judicial decisions. I did Spycatcher, the thalidomide case, the Harriet Harman case and a series of similar cases of that kind. Having represented newspapers in Strasbourg and in this country, it sticks in my throat when I read in newspapers that they are entitled to have the benefit of Article 10 of the convention on free speech, but they must be somehow immunised against the effects of Article 8 on privacy. There is no other democracy in the world where that is the case. It is not the case in the United States, the land of the First Amendment, where there is privacy protection and the protection of free speech. It is not the case in Australia, Canada, New Zealand, India or the rest of Europe. I know of no country which has in its legal system what has been advocated by some sections of the press during a campaign against these aspects of the Bill.

To use a phrase of the noble and learned Lord, Lord Ackner, in a case which I once lost in front of him, Spycatcher, I am glad that the Lord Chancellor and his colleagues have so far proved themselves to be a rock and not jellyfish. It would be easy to cave in to this press campaign.

The reason that I believe the noble Lord, Lord Wakeham, the Press Complaints Commission and the press which support the commission are misguided is easy to summarise. First, the right to free speech is paramount, especially when newspapers act as watchdogs in reporting news rather than simply entertaining on matters of public interest. There is an entirely consistent body of case law in Strasbourg which states that. And English courts have now followed the Strasbourg jurisprudence—even before this Bill had been incorporated. The right to privacy is an exception to the right to free speech. The two have to be balanced by the principle of proportionality. I know of no case in Strasbourg which has ever threatened the freedom of the press. That is the first point. Bringing those rights home means bringing home a balanced legal system in which our courts will be in the same position as the Strasbourg courts.

Secondly, the Bill poses no challenge of any kind to the work of the Press Complaints Commission. If the Press Complaints Commission and its backers choose to stay as they are and not be given further powers, that is their entitlement. But if they choose that unwise course, it will simply mean that they will not be able to provide effective remedies through self-regulation in cases where they otherwise could. To the extent that they do not provide effective remedies, it will be left to the courts to do so using the common law as they always have done.

That is why I agree with the Lord Chancellor who has consistently argued that it is in the interest of freedom of the press to give the PCC, as a self-regulatory body, effective powers and effective remedies. That does not mean turning the PCC into a court of law; still less does it mean giving them the power to issue injunctions. But if it can compensate victims, make recommendations and show through its procedures that it can provide effective remedies, the courts will defer to the PCC.

The PCC is a public authority. I can illustrate that by asking noble Lords this question. What would be the position if the PCC were to hand down a decision which unnecessarily infringed on free speech? Let us suppose that it gave too much preference to privacy and too little to free speech. The PCC would be breaching the convention and there would be a need for an effective remedy against the PCC acting in an unduly censorious way; and quite rightly, too. The PCC exercises public powers in the same way as the Advertising Standards Authority or any of the other regulatory bodies.

The noble Lord, Lord Wakeham, and the PCC are better off being a public authority than a private club because no one can bring proceedings against the PCC except by way of judicial review. Leave needs to be sought, the remedies are discretionary, discoveries in cross-examination are rare and the PCC is given all the advantages of a public authority.

During the debates, the noble Lord, Lord Wakeham, referred several times to the poor and the rich. He complained that somehow this would be a rich person's charter—and what about the poor'? When I heard the noble Lord say that, I longed to ask—I have not yet done so—what does the PCC really want? Is it legal aid for the poor to be able to bring privacy claims against the press? I do not think that Mr. Murdoch or Mr. Conrad Black would be terribly pleased if one gave legal aid on a widespread basis to bring privacy claims any more than to bring defamation claims. The reality is that the Bill will aid the poor as well as the rich, provided that the Lord Chancellor and his colleagues are able to deliver the public interest legal aid that we have been promised.

I do not perceive any threat whatever to the freedom of the press or, more importantly, the freedom of the public. If I may say so, I am sorry that the noble Lord has chosen to make a prepared speech of that kind rather than moving an amendment today, as it was open to him to do, to test the opinion of the House. I do not believe that the opinion of the House would at all accord with the views that he expressed. I may have sounded rather rough in my remarks and apologise if that was the case; however, it is important that we are clear about these matters.

I wish to say one final thing, and I apologise for having taken so long. We are incorporating the convention at just the right time—I echo the fears expressed by the noble and learned Lord, Lord Browne-Wilkinson, at an earlier stage as to the future of the European Court of Human Rights. Thirty judges have now been elected under the new procedure to the permanent court; there are another 10 to go. All I can say, with great respect to them, is that we may have lived through the best period of the European Court of Human Rights. It may never be able to match in my lifetime the strength that it had 10 or 15 years ago. Thank heavens, this Bill will empower British judges to give effective domestic remedies to our citizens. I warmly congratulate the Government on making that possible and express delight from these Benches.

Lord Ackner

My Lords, my abiding recollection of this Bill will be attending the supervisions so ably administered by the noble Lord, Lord Lester, to the great satisfaction of us all. I particularly enjoyed them since I did not have to produce an essay indicating how I followed every word the noble Lord said.

I should also like to pay tribute to the noble and learned Lord the Lord Chancellor for his relaxed good humour in coping with a very difficult Bill. I am delighted to see him now relaxed at the lectern instead of being swamped by the impossible full-bottom wig which, as I recall from my time as an advocate, makes life very miserable if you have to make a speech. I am indebted to the noble and learned Lord for his advocacy in persuading the Treasury to treat judges who go to the court in Strasbourg properly in relation to their pension. I am sorry that he did not accept my submissions in regard to Clause 8—but then he did not accept them in regard to many other clauses.

With regard to the remarks of the noble Lord, Lord Wakeham, if self-regulation is effective, then he has nothing to fear. At present, it is not effective because there is no sanction—and there is no reason why there should not be a sanction. In financial services, there is the sanction of the ombudsman, who can give judgments which turn out to be expensive, and there are regulators who can impose very sizeable fines. I do not see why self-regulation should not be made effective. I believe that the spectre of the courts intervening may hasten that very desirable process. I, too, wish the Bill well.

Earl Russell

My Lords, when I arrived in this House I was told that a Lord was a new boy for his first 10 years. I have about six weeks to go. I think I may say, therefore, without fear of contradiction by events, that this is the best Bill that I have seen before this House in the time that I have been a new boy. It has also been debated in the highest traditions of this place. For that, I owe thanks to my noble kinsman, Lord Henley, and to the noble Lord, Lord Kingsland. For the quality of the Bill, for the conceptual beauty of the drafting, I owe thanks to the noble and learned Lord on the Woolsack and to the noble Lord, Lord Williams of Mostyn, who reminds me of my father's remark on J.M. Keynes: "I felt I took my life in my hands every time I argued with him".

Above all, I must pay tribute to my noble friend Lord Lester of Herne Hill, who is in many ways—I hope the noble and learned Lord will forgive me—the "onlie begetter" of this Bill. I pay tribute to him, first, for his work as an advocate. One cannot put such a Bill through without people coming to realise that it may be of benefit to many ordinary citizens. Secondly, there is the immense patience and care that he put into the Private Member's Bill which he piloted through this House. I sat behind him as he did that and watched him face down outright opposition and conduct a careful process of negotiation with the legal Cross-Benches about the detail of the drafting. To his success then we owe a great deal of our success now. Finally, there is the patience and courtesy with which he has helped the noble and learned Lord pilot the Bill through the House. Seldom can a private Peer have achieved so much in the legislative field. I have heard the view expressed by lawyers who know far more about this than I ever will that, because of his efforts, the Bill will reach the statute book some 35 years earlier than it would otherwise have done. For that I owe thanks both to him and to the Ministers who have taken charge of it and so ably piloted it through.

This is not the time to respond to the noble Lord, Lord Wakeham. I will simply quote one maxim from Chief Justice Coke: It is not right that anyone should be wiser than the law".

That was originally aimed at Dukes and Earls, but it applies equally to big business, trade unions, the press and any other interest one may name.

I have one more thing to say. Occasionally it has been suggested that this Bill is in some sense an alternative to the authority of Parliament as a check on the Executive. It is not; it is a complement. Courts and Parliaments check executives in two different ways on two different kinds of problem. Both are needed. Having two does not weaken the one. It gives us hope that we shall have both together.

The Lord Chancellor

My Lords, it is right that this Bill occupies a central position in our programme of constitutional reform. By bringing rights home it will enable people in this country to enforce their convention rights against public authorities before our domestic courts. I believe that this will have a profound and beneficial effect on our system of law and government and will develop over the years a strong culture of human rights in our country.

The noble Lord, Lord Henley, speaking in the debate on Second Reading, was good enough to acknowledge the importance of the Bill. He also suggested that adequate time should be set aside for considering it. Since then we have had six days in which to scrutinise the Bill in detail. That is only right. A Bill of this importance needs a thorough examination, and that is what it has had.

The Bill is based on a number of important principles. Legislation should be construed compatibly with the convention as far as possible. The sovereignty of Parliament should not be disturbed. Where the courts cannot reconcile legislation with convention rights, Parliament should be able to do so—and more quickly, if thought appropriate, than by enacting primary legislation. Public authorities should comply with convention rights or face the prospect of legal challenge. Remedies should be available for a breach of convention rights by a public authority. We have brought these principles together into what your Lordships have, I think, generally agreed is a carefully constructed Bill.

We have not been able to accept amendments that have gone to the heart of the Bill and I am conscious that some noble Lords thought us inflexible—one being the noble and learned Lord, Lord Simon of Glaisdale. However, I am grateful for the rich contribution that he made to our debates on the Bill and for the observations which he made a few minutes ago. I pay tribute also to the noble Earl, Lord Russell, who has been unstinting in his principled and generous support for the Bill, even setting aside his general concerns about the use of Henry VIII clauses to embrace the remedial order provisions. From his distinguished heredity he has provided a much needed sense of historical perspective.

The noble Baroness, Lady Blatch, remarked at the last stage of the Bill on the frequency with which the noble Lord, Lord Lester of Herne Hill, managed to catch my eye—and rightly so, because he has for many years championed the cause of human rights. He has spoken with the highest authority on many of the issues raised by your Lordships, drawing where necessary on his personal experience—greater probably than that of any other lawyer—of appearing both for and against the Government in cases before the European Court of Human Rights. We are fortunate to have his knowledge and experience at our disposal. The Government introduced the Bill, but most of the credit for keeping the cause of a human rights Bill alive over many long years goes to the noble Lord, Lord Lester of Herne Hill.

I make just one observation. Late one evening the noble Lord was perhaps concerned that we appeared to be retreating from the position that the Bill fully brings rights home. I commented only briefly—it was at the end of a long day—and I say a little more now. The Bill provides for all legislation, past and future, to be interpreted as far as possible in a way which is compatible with the convention rights. The convention rights are the magnetic north and the needle of judicial interpretation will swing towards them.

The noble Lord knows, and I am sure accepts, that the courts are not to set aside primary legislation under the Bill, but the principle of statutory construction is a strong alternative. It will be unlawful for public authorities to act in a way which is incompatible with the convention rights and that also is a strong and far-reaching provision. Taken together, those measures provide for the convention rights to have a great effect in our domestic law. I go further; in 99 per cent. of the cases that will arise, there will be no need for judicial declarations of incompatibility.

What the Bill does not do is make the convention rights themselves directly a part of our domestic law in the same way as, for example, the civil wrongs of negligence, trespass or libel are part of our domestic law. Claims in those areas are all actionable in tort in cases between private individuals. But, as the noble Lord knows, we have not provided for the convention rights to be directly justiciable in actions between private individuals. We have sought to protect the human rights of individuals against the abuse of power by the state, broadly defined, rather than to protect them against each other. That is the only practical difference between the full incorporation of the convention rights into our domestic law and the actual effect of the Bill. I hope that we can put to one side what is really a theological dispute in relation to the meaning of the word "incorporation" and concentrate on what the Bill was designed to achieve, which is a real enhancement of the human rights of people in this country.

Another issue of concern to some noble Lords was the possible impact of the Bill on the freedom of the press and, in particular, on the Press Complaints Commission. The noble Lord, Lord Wakeham, made a number of points to which I should like to come, though I endorse the robust observations of the noble Lord, Lord Lester.

The noble Lord, Lord Wakeham, commented on the idea of the Press Complaints Commission awarding compensation; not fining newspapers, I emphasise—"fine" is an abuse of language—but awarding compensation to individuals who have been wronged in terms of the PCC's own code but who at present have no entitlement to compensation under that code. He was opposed to the PCC having a power to award compensation. In our view, if the PCC had a power to award compensation against a newspaper for unjustifiably invading someone's privacy—unjustifiably because the newspaper is serving no public interest in doing so—that individual is more likely to seek a resolution from the PCC than if no such power is available. So a power to award compensation would reduce the likelihood of an aggrieved person seeking redress from the courts. To the extent that a person might go to court because he is not satisfied with the remedy he has been given, or because he does not think the PCC is capable of giving a sufficient remedy, then the existence of a power on the part of the PCC to award compensation would, for the reasons the noble Lord, Lord Lester, gave, be highly relevant to the court's discretionary considerations.

That said, we have engaged in a dialogue, and we will continue to do so, about the likely effect of the Bill on the PCC or on newspapers generally. The issues have been debated in Committee and both the Secretary of State for Culture, Media and Sport and my noble friend Lord Williams of Mostyn have had meetings with the noble Lord, Lord Wakeham. Both I and my noble friend Lord Williams of Mostyn have stressed our readiness to meet media organisations to deal with the Bill.

Finally, the noble Lord, Lord Wakeham, was concerned at what he saw as the increased likelihood of injunctions against the press. I have said before—and I repeat again—that if the domestic courts develop a law of privacy, we have little doubt that they will carefully balance the Article 10 interest in freedom of expression and the Article 8 interest in private and family life, not least at the pre-publication stage if any injunction was being sought. If the PCC develops and strengthens its code, in my view, the granting of injunctions would rarely, if ever, occur.

It may be worth reminding your Lordships—I certainly remind the noble Lord, Lord Wakeham—of the remarks of the European Court of Human Rights in the Spycatcher case in 1991, and I agree with every word of this: the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned for news is a perishable commodity and to delay its publication even for a short period"—

I emphasise "even for a short period"— may well deprive it of all its value and interests".

I have to say that this Government do give a very, very high value indeed to freedom of the press, in just the same way as our courts do and as the European Court of Human Rights does.

I have always made it absolutely clear that the Government want to see the Press Complaints Commission take greater powers for itself. The point is that the weaker the self-regulation, the more exposed the press is to judicial action by judges in their own independent sphere. So the point about the PCC taking greater powers is that that would keep these cases out of the courts and within a strong and balanced system of self-regulation. where they ought to be.

As I have said many times before, I hope that the press itself will lay down proper standards and procedures to protect the public from illegitimate intrusions into their privacy. A press properly regulating itself is the best protection of freedom of expression. If you can trust the press to judge its own failings responsibly there should be no need for the intervention of the courts. I therefore welcome a good deal of what the noble Lord, Lord Wakeham, said. Of course, all these issues remain under active consideration by government. Final decisions have not yet been reached. I can say that the Government eagerly await what we hope will come from the noble Lord's proposals for the improvement of self-regulation of the press by the PCC.

We have naturally sought to preserve the central elements of the Bill, which in any event have been much praised. But we have listened to the points made in debate and have been able to take some of them up and to improve the Bill. For example, the circumstances in which the High Court of Justiciary can make declarations of incompatibility under Clause 4 has been widened. Clause 7 has been amended in relation to the jurisdiction of tribunals so that we can ensure that individuals will be able to rely on their convention rights against public authorities in any legal proceedings. Clause 9 has been amended in order to provide an enforceable right to compensation for a breach of Article 5 of the convention resulting from a judicial act.

Your Lordships' concerns about remedial orders have been reflected in a number of amendments providing additional restrictions and requirements in Clauses 10 to 12. The labours of the noble and learned Lord, Lord Ackner, as judicial shop steward emeritus have borne fruit in amendments to the provisions for judicial pensions under Clause 18. In short, this Chamber has done its revising work well and a Bill which began as good has become even better.

On Question, Bill passed, and sent to the Commons.