Lords Sitting of 19 January 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

Listed Churches: VAT on Repairs
Lord Lloyd-Webber Lord Lloyd-Webber asked Her Majesty's Government:
Why Value Added Tax at the standard rate of 17.5 per cent. is levied on the repair bills of listed churches (grade I and II), even when the repairs have been partly funded by English Heritage and its equivalents in Wales, Scotland and Northern Ireland.
Lord McIntosh of Haringey: My Lords, building repairs have been taxed at the standard rate since VAT started in 1973. The Government do not consider it appropriate to make an exception for listed churches.
Lord Lloyd-Webber: My Lords, I thank the Minister for his reply, which I am sure he appreciates I find a little disappointing. If one wandered across the road to Westminster Abbey one would see that its central tower was unfinished. Surely, it is ludicrous that the central tower could he completed but would not be subject to VAT when at the same time the fabric would be subject to a 17.5 per cent. rate of tax. Is the Minister aware that the total amount of money given by English Heritage is less than that collected from the Churches in the form of VAT on church repairs? Since the EU has agreed a concessionary rate of 5 per cent. on church repairs and repairs to listed buildings, does the Minister agree that it would be a wonderful recognition of Jesus Christ's contribution to the millennium to allow church repairs to be treated in that way?
Lord McIntosh of Haringey: My Lords, I believe that the noble Lord underestimates the extent to which money is made available by the Government to listed churches. In the current financial year English Heritage has allocated £20 million to the churches grant scheme. The Department for Culture has allocated £2.4 million to the Churches Conservation Trust. There is also money available from the Heritage Lottery Fund.
As to the paradoxical situation whereby repairs are standard rated whereas alterations are zero-rated—here I agree with the noble Lord—although alterations were originally zero-rated when we introduced value added tax, the relief was proposed to be withdrawn by the noble Lord, Lord Lawson, when he was Chancellor of the Exchequer in 1984. Under great pressure he conceded that this should not be the case for any listed building, but he had no power, and the Government have no power, to change the standard rate for repairs.
Lord Bruce of Donington: My Lords, can my noble friend confirm that there is nothing in European
1244
legislation, notably the sixth directive on VAT, that takes away the right of the British Government to make a change should they so desire?
Lord McIntosh of Haringey: My Lords, no. The sixth directive allows new reduced rates rather than new zero rates, which are not permitted. It allows these reduced rates to be applied only to housing and not to the buildings which are the subject of this Question.
The Lord Bishop of Oxford: My Lords, are Her Majesty's Government willing to press the European Commission to add listed building repairs to the services eligible for reduced rates of VAT, of course at national discretion, ultimately with a view to abolishing VAT on these buildings altogether?
Lord McIntosh of Haringey: My Lords, no. The Government take the view, as did the last government, that if VAT is to be effective it must be as simple as possible. To begin to make a distinction between listed churches and other listed buildings would add to the complexity of collection of VAT.
Baroness Platt of Writtle: My Lords, does the Minister agree that the churches of this country, especially the listed ones, are an important part of the national heritage—even more so as we approach the celebration of 2,000 years of Christianity? Would it not encourage all the volunteers who give their time, talent and money to maintain our churches if the Government made a move in their direction and at least reduced the level of VAT, which I understand is affected by the European directive but comes up for reconsideration every two years?
Lord McIntosh of Haringey: My Lords, I have no quarrel with the sentiments behind the question put by the noble Baroness, but she is wrong in saying that we have power to apply zero-rating to buildings of this kind. Our powers within the VAT directives are quite limited, as I explained to the right reverend Prelate the Bishop of Oxford.
The Lord Bishop of Ripon: My Lords, I should like to press the point made by the noble Lord, Lloyd-Webber, on the amounts involved. Does the Minister agree that a figure of about £18 million is paid by the Churches in VAT, which is comparable with the figure that he has already given? Does he agree that effectively the Government take back the money that they give to the Churches? If the Minister is not willing to alter the regulations on VAT, would not a simple way forward be to make the grants much larger to take account of the VAT that must be paid?
Lord McIntosh of Haringey: My Lords, the VAT bill of the churches as a whole—I refer to all Churches and not just the Church of England—applies very widely and includes the bill to all charities. It would be

1245
particularly difficult to try to exclude the Church with most listed buildings from this general rule and neither this nor any other government have felt able to do so.
Baroness Maddock: My Lords, did the Minister hear the deputy Prime Minister on the radio this morning imploring builders to build in cities rather than on greenfield sites? As the Minister said, 17.5 per cent. VAT is charged on all repairs to all buildings and renovations, including energy efficiency measures, and yet if one builds on greenfield sites the tax is not levied. Does the Minister believe that that is something that should be looked into seriously if we are not to cover our green belts with houses?
Lord McIntosh of Haringey: My Lords, I am afraid that I did not hear the deputy Prime Minister this morning. The zero-rating of all new construction applies to greenfield sites and to what are called brownfield sites in the cities. The difficulty regarding the distinction between repairs and alterations, which is what led Mr. Lawson, as he then was, to seek to withdraw the relief for alterations, is that it is possible to disguise one as the other. For that reason, all governments have thought it desirable to have a consistent regime.
Baroness Rawlings: My Lords, I am amazed by the Minister's reply. I remember distinctly, as I am sure the whole House does, that in opposition he was keen to have those changes made. He was always pressing the government. We have heard encouraging noises from the Secretary of State and his department. Surely they now have the chance to do something.
Lord McIntosh of Haringey: My Lords, I have explained the restrictions on government action which are the result of the VAT regime. If the noble Baroness is referring to the review of charities tax announced in the July Budget, I can tell her that there have been 2,500 replies and that further consideration is being given to the replies. It is likely that there will be a further consultation document in the spring. The Government are in no way resiling from their intention to review charities tax law.
Lord Kennet: My Lords, is my noble friend aware that since 1973 this matter has been one of the principle bones of contention between those concerned with the preservation of ancient buildings and the Government? Is he aware that its effect is to cause the owners of old churches and other listed buildings to let decay continue, because of the forbidding aspect of VAT, until there is nothing for it but partial demolition and alteration, which is VAT free? That is a major cause of the loss of listed buildings.
Lord McIntosh of Haringey: My Lords, I agree with my noble friend that the effect of the distinction between repairs and alterations is paradoxical and does not
1246
always reflect what we would wish to happen to listed churches. As he says, the issue has been there for a long time. The underlying paradoxes behind it do not change.

Ambassadorial Appointments
2.47 p.m.
The Earl of Carlisle The Earl of Carlisle asked Her Majesty's Government:
Whether they will invite a United Kingdom citizen from an ethnic minority who has served the nation with distinction to serve as ambassador in one of the United Kingdom's major embassies at an early opportunity.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, my right honourable friend the Secretary of State for the Foreign and Commonwealth Office has made it very clear that he wants to broaden the base from which we draw our ambassadors overseas. We are committed to increasing the representation of minority ethnic and other under-represented groups in the FCO, especially at senior levels. If an individual from outside the FCO who had served the nation with distinction had the right personal qualifications and experience to do the job, we would certainly want to consider inviting him or her to serve as an ambassador in one of our major embassies, regardless of his or her ethnic background.
The Earl of Carlisle: My Lords, I thank the Minister for her excellent reply. Will she accept my congratulations on the appointment of Mr. Limbit Spencer, who is the FCO liaison officer for minority ethnic communities? Will she also, at the earliest opportunity, present to the Prime Minister the name of a UK citizen from the minority ethnic community to serve as an ambassador?
Baroness Symons of Vernham Dean: My Lords, I am delighted to accept the noble Earl's congratulations. We have no appointments in the pipeline, but we shall want to consider that option in the near future. I thank him also for his remarks about Mr. Limbit Spencer, whom we appointed in December last year. It is the first such appointment in Whitehall. Mr. Spencer will be looking at possible recruitment outside the FCO and at developing the opportunities for staff currently serving within the FCO.
Lord Wright of Richmond: My Lords, will the Minister confirm that there are no longer any nationality constraints on second generation British citizens joining the FCO?
Baroness Symons of Vernham Dean: My Lords, as I understand it, that is the case. The noble Lord is right.
Lord Janner of Braunstone: My Lords, how many of our citizens of Afro-Caribbean or Asian origin are today in any of the top grades in the FCO?
Baroness Symons of Vernham Dean: My Lords, it is because my answer to my noble friend is so gloomy

1247
that we have to address this issue with considerable vigour and determination. I am sorry to tell the House that there are currently no individuals from the ethnic minorities that he mentions in any of the 222 posts worldwide which would attract ambassadorial status. For that reason we must attack this issue with determination.
Lord Gisborough: My Lords, in approving the principle that ethnic minorities should pay their part in the Establishment, will the Minister assure the House that positive discrimination will not take precedence over the most able qualifications?
Baroness Symons of Vernham Dean: My Lords, I am happy to give the House that assurance. We shall continue to recruit and to promote on the basis of fair and open competition. I hope that my Answer that we shall be looking not only for people who have served the nation with distinction but those who have the right qualifications and experience for the job satisfies the noble Lord.
Lord Chalfont: My Lords, will the Minister give the further assurance that the Government will not depart too far and too readily from the procedure of appointing ambassadors from among the senior ranks of the Diplomatic Service?
Baroness Symons of Vernham Dean: My Lords, we want to broaden the basis. In answer to my noble friend I had to tell the House that, unfortunately, we do not have considerable numbers of people of ethnic minority background in the pipeline. We need to develop the individuals within the FCO at all levels. I am sure that the noble Lord is right and that the majority of ambassadorial appointments will be drawn from within the FCO. However, the House should be under no illusion; we want to broaden the basis, but we wish to look outside on the basis that I have indicated.
Lord Moynihan: My Lords, will the Minister congratulate Sir John Coles who, under the previous Government, was committed to making the Foreign and Commonwealth Office more representative of Britain's ethnic make-up by encouraging applications from ethnic minorities? Under his stewardship the proportion of ethnic minority applicants to the FCO's graduate fast-stream doubled from 1994 to 1995. That shows the seeds sown to address the important issue raised by the noble Lord, Lord Janner.
Baroness Symons of Vernham Dean: My Lords, I am happy to add my voice to the congratulations expressed by the noble Lord, Lord Moynihan. Sir John Coles, in particular, played an important part in the FCO's open day, which took place on 15th September last year. He was a firm enthusiast for that day, and I hope that on that basis we shall be able to plan for future open days. But we need to do more: we need to ensure that the appointment of Mr. Limbert Spencer, in
1248
examining ways in which we can look further outside the FCO and develop those people already inside the FCO, is taken forward.
Baroness Amos: My Lords, I welcome the initiative being taken by the Foreign and Commonwealth Office and the commitment being shown by the Government to tackling inequality. Does the Minister agree that, given the under-representation at senior levels, mechanisms need to be put in place not only to promote individual development but also to promote organisational change?
Baroness Symons of Vernham Dean: My Lords, I agree that organisational change is necessary. We hope to put forward proposals to include community fora within ethnic minority communities, a sustained programme of advertisements and editorials in the minority ethnic press and a special recruitment fair in June. Therefore, I hope that we shall be able to move forward on a number of important fronts.

Gulf War Veterans: DLA Entitlement
2.54 p.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
Under what conditions the entitlement to disability living allowance of individual Gulf War veterans in receipt of 70 to 80 per cent. war pensions is under review, particularly in Northern Ireland.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, no such review is targeted specifically at Gulf War veterans. The Benefits Agency of Great Britain is currently carrying out a review of various categories of disability living allowance awards, as ongoing awards are vulnerable to changes over time—people improve or deteriorate—and we need to check that the correct amount of benefit is in payment. If the noble Countess has any particular cases in mind, and if she will let me have the details, we can arrange for a meeting or to have them followed up.
The Countess of Mar: My Lords, I thank the Minister for that helpful Answer. Is she aware that about three years ago the convenor of the OP information network and I had a meeting with senior officials of the Benefits Agency about the problems surrounding chronic fatigue syndrome, OP poisoning and the symptoms of fluctuating illness? Members of the War Pensions Agency also attended a meeting at which it was agreed that the issue would be examined seriously. Does the Minister agree that a large proportion of the illnesses of the Gulf War veterans relates to post traumatic stress disorder or chronic fatigue syndrome and that they are being picked out? Such people are not being given a medical examination. If on a particular day they are regarded as being fit enough to walk 100 yards or to make a cup of tea, their DLA is taken away. That has affected some 60 people in Scotland and some 40 people in Northern Ireland. I do not know how

1249
many there are in England. A number of Gulf War veterans, who have served their country, are now having their benefits taken away.
Baroness Hollis of Heigham: My Lords, will the noble Countess be kind enough to give me the details of the cases which she has raised? One cannot talk about individual cases. A possible explanation for people losing disability living allowance is that they are simultaneously receiving a constant attendance allowance, which they are entitled to claim with 80 per cent. capacity. That is almost twice as generous as the higher care element of DLA. Duplicate payments have been discovered: that is, people receiving both CAA and DLA. Clearly, we do not pay twice for the same disability. If they are the cases to which the noble Countess is referring we shall be happy to check that no further errors remain in our system.
Lord Burnham: My Lords, the figure of 6,000 was widely quoted in the weekend newspapers as being the number of people suffering from Gulf War illnesses. Can the Minister confirm that that figure is known to her department?
Baroness Hollis of Heigham: My Lords, that is not the figure of which I am aware. I am aware that approximately 425 claims for war pensions have been received in respect of Gulf War-related illness. Of those, 219 have been awarded and only 27 have been rejected—that is less than 6 per cent. of the total. The rest are being processed. I asked why those 27 had been rejected and was told that either no disablement had been found or that the Secretary of State had determined that the disability was not attributable to service. Therefore, of all the Gulf War veterans claiming for Gulf War related illnesses, only 27 have had their claims rejected. I am assured that those rejections were well founded.
Lord Monkswell: My Lords, what would be case if on medical advice a person takes extended bed rest? I am thinking of people suffering from ME and women with a history of miscarriages who may be advised by their doctors to take extended bed rest. Would such people be eligible for disability living allowance?
Baroness Hollis of Heigham: My Lords, I am not aware of any women taking bed rest as a result of pregnancy who were Gulf War veterans.

Saudi Arabia: Detention Practice
2.59 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
Whether they will seek to ensure that practice in Saudi Arabian places of detention is examined at the forthcoming meeting of the United Nations Human Rights Commission.
Baroness Symons of Vernham Dean: My Lords, Saudi Arabia will be considered under the confidential
1250
1503 procedure of the UN Commission on Human Rights. We would expect practice in places of detention to be among the subjects raised by non-governmental human rights organisations.
Lord Avebury: My Lords, has the Minister had time to glance at the report, Torture in Saudi Arabia: No Protection, No Redress, which is to be published tomorrow? I understand that a copy was sent to her. It illustrates that torture and ill treatment in places of detention in Saudi Arabia are widespread and persistent. Is that not caused partly by the practice of holding people incommunicado for long periods before they are brought to trial? Will that matter also be raised with the UN Commission on Human Rights? Does the Minister believe that, in view of that evidence, it would be useful for the UN rapporteur on torture to visit Saudi Arabia to see whether, in collaboration with the government of that country, he can help in eradicating the causes of torture?
Baroness Symons of Vernham Dean: My Lords, I have glanced at the report to which the noble Lord referred and which is to be published tomorrow, although as yet I have not been able to study it very thoroughly. Her Majesty's Government condemn unequivocally the practice of torture wherever it occurs. We shall certainly study that report in greater detail and look carefully at its recommendations.
We continue to be concerned about reports from Amnesty International and other non-governmental organisations of torture in Saudi Arabia. Indeed, in his Question the noble Lord refers to holding individuals incommunicado in Saudi Arabia. In Saudi Arabia, the very particular form of Sharia courts is one which is very different from our own system. Under our system we would find holding people incommunicado extremely difficult and when that occurs we make representations to the authorities on a consular basis to the Saudi Arabian authorities. Her Majesty's Government have supported the noble Lord on previous occasions in relation to the UN rapporteur, and it is regrettable that the UN rapporteur is not welcome in Saudi Arabia. We hope that our representations on a wide number of issues will also include that matter.
Lord Moynihan: My Lords, while I recognise the right of states to bring to justice those convicted or accused of recognised criminal offences, what specific policy initiatives are the Government taking in line with their ethical foreign policy to encourage the access of human rights monitors, including Amnesty International, into Saudi Arabia to observe its judicial system?
Baroness Symons of Vernham Dean: My Lords, we have done what we can to encourage the Saudi Government on this issue. Our embassy in Riyadh raised this matter on 31st May and on 16th November. We stressed the public and parliamentary concern felt in this country in relation to those issues. Torture was discussed specifically, as was our wish to see greater freedom for individuals to practice non-Moslem

1251
worship. My right honourable friend Mr. Derek Fatchett has also discussed those matters with the Saudi ambassador in London and I have had occasion to raise some of those issues on a consular basis with the Saudi ambassador in relation to particular cases of British individuals in detention in Saudi Arabia. Therefore, we have raised this matter on a number of occasions and in different fora.
Lord Wallace of Saltaire: My Lords, while we recognise the importance of Saudi Arabia to British economic interests, particularly as a country to which we export a great many arms, does the Minister recall the series of lectures which Sir Anthony Parsons gave in 1980-81 on our failure to foresee the likelihood of a collapse of the Iran Government and regime and the adverse consequences to Britain of having become over-committed to the Shah? Are the Government conscious of the internal tensions within Saudi Arabia and the need to conduct a very delicate foreign policy relationship with that regime for much the same reason?
Baroness Symons of Vernham Dean: My Lords, we are very conscious of the points which the noble Lord rightly makes. Of course there is an important economic relationship with Saudi Arabia, but there are also very important human rights issues at stake. We engaged the Saudis in confidential dialogue on a full range of human rights issues, including that relating to torture, which the noble Lord, Lord Avebury, raised in his Question. We welcome the fact that the Saudi Government have acceded to the UN convention on torture. That is a delicate matter. It does not mean that we should not address it robustly but we must address it in the delicate way which the noble Lord has indicated if we are to achieve any results rather than just make loud noises in the right places. That is not the point. The point is that we should make a difference.
Lord Avebury: My Lords, of course there is a need for delicacy, which is always prayed in aid as an excuse for doing nothing. But does not the Minister agree that Saudi Arabia is not exempt from the Foreign Office mission statement goal that the Government will seek to promote the human rights and democracy which we demand for ourselves, and that that includes immunity from torture and detention without trial as well as the other human rights and freedoms which are similarly lacking in Saudi Arabia?
Baroness Symons of Vernham Dean: My Lords, I should be most alarmed if anything that I have said to your Lordships' House had led your Lordships to believe that the Government in any way take a different view from the view that the noble Lord, Lord Avebury, has expressed. My remarks about delicacy were merely that the Government must consider the most effective way in which to argue human rights issues where there
1252
are different cultures and different religious practices and observation, and where the attitudes towards human rights are very different from our own.

Human Rights Bill [H.L.]
3.5 p.m.
Report received.
Clause 1 [The Convention and the First Protocol]:
Lord Mishcon Lord Mishcon moved Amendment No. 1:
Page 1, line 6, at beginning insert?—
("( ) The main purpose of this Act is to provide effective remedies for violation of the Convention rights within the jurisdiction of the United Kingdom.").
The noble Lord said: My Lords, your Lordships will recollect that in Committee the subject matter, as well as the principle of this amendment, was discussed and from all sides of the Committee there appeared to be support for the proposition, if this were brought forward on Report, that it is a good thing from a legislative point of view to have the purpose of the Act set forth in summary form. I hope that the House will agree that that summary is correctly contained in the amendment.
Perhaps I may anticipate the amendment to Amendment No. 1, which I believe may be moved. The principle must be to summarise the main purposes of an Act and not to include in that summary exceptions that there may be or other provisions which are of a fairly minor character compared with the main objects of the Bill. Having said that, I beg to move.
Lord Williams of Elvel Lord Williams of Elvel moved, as an amendment to Amendment No. 1, Amendment No. 2:
Line 2, after ("remedies") insert ("subject to exemption on grounds of religious law and practice").
The noble Lord said: My Lords, I should first perhaps disagree with my noble friend in that he said that the matters which I am about to raise are of minor importance. I believe that they are matters of major importance. Secondly, I should declare an interest in the sense that I am a practising member of the Church of England; I am and have been for many years a member of the Ecclesiastical Committee of both Houses of Parliament; and I should further add that I do not regard this as a party issue. This is an issue for the House rather than a party political matter.
I have general support for the amendment moved by my noble friend. There is no doubt that a general expression of the content of a Bill is desirable. Therefore, I have no quarrel with my noble friend in that regard. But the expression "effective remedies" caught my eye because the nub of the problem go forward—is that adherence to a religious faith is unlike membership of any other organisation. It is not like joining the MCC or, indeed, the Labour or Conservative parties. Those who join that religious faith recognise a higher authority that under usual procedures—and I shall come to those in a minute—can declare what should be the rules of that particular club.
In Committee my noble and learned friend quite clearly stated that if a church or a religious body has any functions of a public nature, it qualifies as a public authority under the Bill. He went on to say that certain acts by public authorities were covered by Clause 6(5) of the Bill (as it then was) and that:
"In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private".
From my noble and learned friend's remarks, there is no doubt that the Church of England and the Church of Scotland, both Churches by law established—whatever that may mean; and I am sometimes in some doubt about it—have in many of their functions actions and activities of a public nature. Therefore, if my noble and learned friend is to be taken at his word, as he should be, they would undoubtedly qualify as public authorities under the Bill.
That may arguably be true of other religious faiths, but I cannot speak—and, indeed, would not wish to—for other religious faiths. I would certainly not wish to speak for the Church of Scotland as there will be others much more qualified than myself to do so. However, I believe that I can argue for the Church of England. There is undoubtedly a conflict between Article 9 and Article 14 of the convention when it comes to amendment of the canon law of the Church of England. It may well be that there is an argument about that for other religious faiths and, when I turn to practice, it is possible that that will also be the case. But certainly so far as concerns the Church of England, it has been well established under the law that the procedures for changing the canon law of the Church (which is the religious law governing it) under the 1919 Act fall under the process of measures which are produced through the synodical process at present. They come to your Lordships' House and another place to be approved or disapproved having been considered by the Ecclesiastical Committee, which noble Lords will know is a joint committee of both Houses, with the remit of declaring whether or not such a measure is expedient.
Perhaps I may give the House just one example. The conflict arose in a recent measure on the ordination of women, where the measure amending the canon law of the Church of England specifically excluded women from becoming bishops. As I understand it, and on any reasonable definition of Article 14, that would be considered to be discriminatory. But under Article 9 there is the freedom to practise religion in whatever way anyone feels is appropriate to conscience.
In my view, it would be absurd if the whole structure of the synodical relationship as regards the Synod, the Church of England and Parliament became disrupted by the fast-track procedure at present in the Bill. I am glad to have the assurance that the fast-track procedure, if your Lordships accept forthcoming amendments, will not apply to measures of the Church of England. Again, it is not for me to pronounce what may happen in the Church of Scotland.
However, that does not necessarily solve the fundamental problem; namely, that a measure, if so declared by a higher court—to use the words of the
1254
Bill—and deemed to be contrary to Article 14 of the convention, can be replaced by another measure which, presumably, if the Synod so decides, would be in accordance with the convention on human rights now incorporated into UK law. But what happens if the Synod in its wisdom decides that it does not want to conform to what the higher court has decided? There is still the problem of a conflict between Articles 9 and 14 of the convention.
I do not want to detain your Lordships for long, so I turn now to the question of practice. As noble Lords will be aware, in the Church of England a number of priests decided that, although they would not leave the Church of England as a result of the ordination of women measure, they would seek alternative episcopal authority. So that was arranged. It is an unhappy compromise but, nevertheless, one that was accepted by the House of Bishops and the Church of England in general.
Clearly, any priest who performs an act of a public nature, which is a marriage or a burial, and decides that he cannot accept that the act is performed by a woman priest, is in contravention of Article 14 of the convention. But, on the other hand, he is working according to Article 9 of the convention. Having said that, I leave aside the whole question of other Churches; for example, the Roman Catholic Church where the canon law in fact prohibits the ordination of women to the priesthood. What happens in the case where those provisions of religious law and practice of the Churches are challenged by the courts and a higher court decides that they are contrary to the convention which is now part of UK law?
I wish to be supportive of the Government because, in the first place, basically I support my noble friend in his amendment. I support the idea of the convention being put into UK law. However, I am afraid that I have to part company with the noble Baroness, Lady Young, in her amendment which she will move later because I do not believe that charities should be exempt from the convention. However, I make this suggestion to the Government. I believe that there are solutions. First—and I believe that this will happen—fast-track procedures for amendment of Church of England measures or Church of Scotland legislation should be ruled out. Secondly, measures can only be amended by other measures going through the normal synodical process.
That is the minor problem. The major problem is that there must be some way of indicating to the courts, in whatever way appropriate, that Parliament intends that Article 9(1)—that is, the freedom of conscience of "everyone"—should, if challenged, take precedence over Article 14 which is the anti-discrimination article. If my noble and learned friend could just move that little pace further, I, at least, would be much happier. I beg to move.
Lord Hughes of Woodside: My Lords, I rise to oppose Amendment No. 2. My noble friend Lord Williams of Elvel has declared his interest in the Church of England. I should perhaps declare my interest as

1255
chairman of the all-party humanists group, although I do not speak on behalf of that group which has not discussed the issue.
I agree with the noble Lord, Lord Williams of Elvel, to this extent. This is not a minor matter, but one of major importance. The amendment put forward is of a sweeping nature and refers to remedies,
"subject to exemption on grounds of religious law and practice".
That goes far wider than the amendment introduced by the noble Lord. It is a blanket exclusion from the provisions of the Bill on the grounds of religious law and practice.
What is religious law and practice? The meaning is not defined in the Bill, nor so far as I am aware is it defined anywhere else. I do not argue in any sense that there should be any infringement of the rights of people to practise religion of whatever kind they wish to follow. That has never been my position. I believe in the inclusion of people of religion in the civic affairs of our country. However, I object to the way in which the Church seeks to exclude itself from the Human Rights Bill. Apart from matters of practice—I believe that that was mentioned today—for the life of me I cannot think of any reason that any Church should seek to exclude itself from the upholding of human rights. It may seem paradoxical, but I argue that one of the main functions of religion is to uphold human rights. Therefore to pass such a wide amendment would lead us into grave difficulties.
I refer to what I call the peculiar religions such as the so-called Moonies—they may take offence at that—which declare themselves to be religions. Some of their practices undoubtedly are totally against the spirit and practice of this legislation. Would such religions be able to creep in under the amendment, and say, "The law can't touch us in our activities because we are excluded"? The issue needs to be looked at closely. For the House to exclude religion on such wide grounds would be extremely dangerous and highly damaging, not just to the Bill, but to the fabric of our society.
Lord Simon of Glaisdale: My Lords, I have put my name to Amendment No. 1 in the name of the noble Lord, Lord Mishcon. A purpose clause is not always appropriate, but there was general agreement in Committee that this was a case where a purpose clause would be of advantage. There was general approval of the way in which the noble Lord, Lord Mishcon, had framed the purpose clause which is now put forward again.
I desire to intervene only on two points. The first is in relation to what service a purpose clause is for. It is an aid to interpretation; and it is nothing else. Your Lordships have heard two speeches cogently argued and, if I may say so, deeply impressive. After hearing them, no one would minimise the importance of the considerations which they raise, even if one had been inclined to do so before.
However, the arguments relate to one amendment, or perhaps more than one, which will be moved later by the noble Baroness, Lady Young; and perhaps to one to be moved by the noble Lord, Lord Steel, in relation to
1256
the Church of Scotland. As one who was formerly concerned on many occasions with statutory interpretation, I can only say that if one were to start inscribing exceptions into a purpose clause one would only confuse the court. The function of a purpose clause, when it is appropriate, is to give a general guidance to the general spirit of a Bill—an Act of Parliament as it becomes. It is not in the least designed to fish out this or that exception. To do that not only serves no useful purpose but will derogate from the value of any purpose clause.
There is only one other thing I should like to add: it is in relation to the last amendment on the Marshalled List, and the last in the list of groupings. I refer to the amendment to the Title. Frequently a Title can serve a useful and valuable purpose. Instead of or with a purpose clause, it can indicate to the court of interpretation the overriding force impelling the Act of Parliament. The two are not mutually exclusive. They may be cumulative. Therefore I can support wholeheartedly the amendment of the noble Lord, Lord Mishcon, without anticipating in any way by way of derogation the amendment that I shall move in due course in relation to the Title.
Lord Campbell of Alloway: My Lords, 1 would have supported the amendment moved by the noble Lord, Lord Williams of Elvel, subject to a hit of tightening up of the drafting—but that is neither here nor there—if I could have supported Amendment No. I. But I cannot. It is a purpose clause. I stand four square behind the recommendations of the Renton committee on purpose clauses, at paragraphs 11.6 to 11.18 on pages 62 and 63 of the report. These appear under the heading, Aids to Understanding. It is stated quite clearly in the report that they should not be used as a mere manifesto incorporation—in this case to reflect page 35 of the Labour manifesto—to enforce human rights in our courts. That is clearly the main purpose of the Bill. Everyone knows that. It is a tightly crafted Bill, and no aid to understanding or construction would be afforded by the introduction of a purpose clause.
I accept the view of the report. The report states that it is not appropriate to introduce a purpose clause. It is suggested that it is certainly not appropriate to introduce a purpose clause at the outset of any stage of the Bill where amendments are tabled which, if carried, could afford exceptions to the main purpose. The noble Lord, Lord Williams of Elvel, referred to that in outline and I need not make the point again. I agree with him.
As in the case of the Long Title, to which the noble and learned Lord, Lord Simon of Glaisdale, referred, the purpose clause should be postponed to the end of the Bill, where amendments to the Title are considered. However, as yet no such procedure has evolved. Such procedure may not have evolved because it is not often that your Lordships' House introduces purpose clauses. It is stated clearly in the report that these clauses should he used only as an aid to,
"better understanding of the legislative intention",
(as to which there is no question here), to resolve doubts and ambiguities (as to which there are none), and to limit or clarify the scope and effect of legislation. This

1257
amendment does not seek to limit the scope of legislation. There is no obscurity in the drafting of the Bill which warrants clarification. For those reasons, based on the Renton report, which I accept, I oppose Amendment No. 1.
3.30 p.m.
Lord Lester of Herne Hill: My Lords, I wish to speak in support of Amendment No. 1, standing also in my name, and explain why I oppose Amendment No. 2 as an amendment to it. In answer to the noble Lord, Lord Campbell of Alloway, perhaps I may begin by explaining why I believe the noble Lord is mistaken about the Renton report, and also as to the reasons why this is a valuable provision. I am glad to see the noble Lord, Lord Renton, in his place. The Renton report made one exception to the paragraphs to which the noble Lord, Lord Campbell of Alloway, referred. The report stated that there is one circumstance in which a purpose clause should be used; namely, where a Bill seeks to give effect to an international treaty obligation. That is exemplified by the present Bill.
Why is that the case? It is because there is a discrepancy between what was stated in the White Paper both by the Prime Minister, on behalf of the Government as a whole, and statements by the noble and learned Lord the Lord Chancellor in the course of debate, which need to be clarified. It may be that they can be clarified when the noble and learned Lord the Lord Chancellor replies, in which case the need for this clause may be reconsidered.
Perhaps I may explain the discrepancy. In his preface to the White Paper the Prime Minister said:
"We are committed to a comprehensive programme of constitutional reform … The elements are well-known … new rights based on bringing the European Convention … into United Kingdom law".
The introduction and summary stated:
"The Government has a Manifesto commitment to introduce legislation to incorporate"—
I emphasise the word "incorporate"—
"the European Human Rights Convention into United Kingdom law. The Queen's speech … announced that the Government would bring forward a Bill for this purpose",
that is to say, for the purpose of incorporating convention rights into domestic law.
Paragraph 1.19 of the White Paper states:
"to make more directly accessible the rights which the British people already enjoy under the convention. In other words, to bring those rights home".
All that is very plain—although not plainly stated on the face of the Bill.
In Committee, however, the noble and learned Lord the Lord Chancellor stated:
"convention rights will not … in themselves become part of … substantive domestic law".—[Official Report, 18/11/97; col. 508.]
It is very important to assist the courts and members of the public to know whether, as the White Paper states, the purpose of the Bill is to provide effective remedies to the violation of convention rights by incorporating convention rights into domestic law. I hope, and believe,
1258
that the noble and learned Lord the Lord Chancellor will be able to confirm that the main purpose is indeed to provide effective remedies for violation of convention rights. That is what is meant by bringing convention rights home.
Article 2 of the convention obliges the United Kingdom to secure convention rights for everyone within the jurisdiction of this country; and Article 13 obliges the UK to provide effective domestic remedies. It has not been argued in previous debates either by the noble and learned Lord the Lord Chancellor or the noble Lord, Lord Williams of Mostyn, that there is any practical objection to a purpose clause of this kind. For those reasons, I very much hope that the Government will be sympathetic to the amendment tabled by the noble Lord, Lord Mishcon.
I turn briefly to the amendment to the purpose clause tabled by the noble Lord, Lord Williams of Elvel. With great respect to the noble Lord, this amendment is not at all well-conceived. First, it is quite clear from the case law under the European Human Rights Convention that Article 9—the religious freedom provision of the convention—gives ample scope for canon law making, for the ordination of women, for all the practices, procedures, rituals and dogmas of the established Churches, and indeed, other religions.
One of the most dramatic examples occurred in a case in which I was involved in this country, but not in Strasbourg; namely, the Salman Rushdie case. As noble Lords will remember, an attempt was made to extend the law of blasphemy to cover not only the Anglican faith and Christianity but also Islam. It was argued successfully in the English courts, using the convention, that to extend the law in that way would be to set one religion against another and would be divisive, and that any suggestion of discrimination was misconceived. The European Commission of Human Rights agreed with that argument, which had been accepted by the Divisional Court, and threw out a challenge based upon Article 14 by some fundamentalist Moslems who sought to challenge discrimination, and found the case to be manifestly ill-founded. The kind of problems raised by the noble Lord, Lord Williams of Elvel, would simply not arise under the convention in a proper case in this country. Were they to be raised I am confident that no British court would be likely to find that any of those established practices could not pass muster under Article 14—the non-discrimination guarantee—and Article 9.
However, I agree with the noble Lord's remark that there are some religions, whether real or supposed, which may violate basic human rights and freedoms; and it would be quite wrong in principle, especially in a purpose clause but also in the body of the Bill, to carve out an exception, or immunity, when no such immunity exists under the European Convention itself. We cannot use the Bill to diminish the rights given by the convention by imposing immunities on particular interest groups. Therefore, I hope that that amendment will not be pressed.
Lord Renton: My Lords, I am in favour of the main amendment moved by the noble Lord, Lord Mishcon,

1259
and opposed to the amendment to it moved by the noble Lord, Lord Williams of Elvel. With deep respect to my noble friend Lord Campbell of Alloway, I believe he has drawn the wrong conclusions from the recommendations of the committee of which I had the honour to be chairman.
We were very anxious in making all of our recommendations that Acts of Parliament should be understood not only by lawyers—in fact, better understood than lawyers are sometimes capable of doing because of the ambiguities so often found in legislation—but clearly understood also by all the users of legislation and all those who were subject to it or who needed to enforce it as laymen. That was the main reason underlying our desire to declare the intention of Parliament so far as possible in general terms through purpose clauses, statements of principle and, as the noble and learned Lord, Lord Simon of Glaisdale, said, by giving aid to the interpretation of Acts of Parliament. It was with those thoughts in mind that we recommended purpose clauses—I hope not in too limited a way, although looking back over the many years since we reported we might have put the matter forward in a more general way.
In relation to the Bill, the amendment moved by the noble Lord, Lord Mishcon, would be very helpful Clause 1 goes straight into a definition of the convention rights. Surely it would help users of the statute to be told at the outset what is set out in Amendment No. 1. In particular, and with deep respect to him, I have to disagree with my noble friend Lord Campbell of Alloway that purpose clauses should come at or towards the end of a Bill. Clearly their value comes if they are put at the beginning. All such purpose clauses that I can remember over many years in parliament and in your Lordships' House have come at the beginning of a Bill or the beginning of a part of a Bill. Sometimes it is necessary to have more than one purpose clause in a Bill which is widespread in effect and has several different parts dealing with different matters. So far as this Bill is concerned, I believe it is a valuable way of starting the Bill and I warmly support it.
I now come to the amendment of the noble Lord, Lord Williams of Elvel. I have not always agreed with him but I have always respected his sincerity, and do so today. He referred us to Articles 9 and 14 of the convention, which are set out in the schedule. It seems to me that both those articles give protection to religious attitudes in a very broad way. I do not propose to read them because they have already been referred to by the noble Lord; but, if noble Lords will be kind enough to refresh their memories of the contents of those two articles, they will see that freedom of thought and various other matters, including religion, are set out. It is not just a Christian religion; any established religion would benefit in the same way in our courts when the convention comes to be applied in them.
The noble Lord, Lord Williams of Elvel, raised one matter which, I confess, took me a little by surprise, regarding the ordination of women. I shall be interested to hear the Government's response on that point. We have a Sex Discrimination Act, but in all the discussions that took place in the Church of England on the
1260
ordination of women I never heard the Sex Discrimination Act invoked. Indeed, in relation to the law and practice of the Church of England—of which I am a member—I wonder whether it has any bearing.
We have had a valuable discussion and I do not propose to trouble your Lordships further, except to say—I hope I am not out of order in doing so—that at about eight o'clock on Wednesday evening I am committed to opening a debate on purpose clauses and statements of principle.
Lord Campbell of Alloway: My Lords, before the noble Lord sits down, will he accept that I do not know what the Renton Committee intended but that I quoted verbatim from its report? Secondly, of course I realise that purpose clauses come at the beginning of a statute. What I was suggesting—and my noble friend misunderstood because I put it badly—was that they should be discussed at the end with the Long Title because the Bill might be amended during the course of discussion.
Lord Renton: My Lords, I did not suggest that my noble friend had misquoted the report of our committee; I merely said that I thought he had drawn the wrong conclusions from it, and I stand by that.
Lord Browne-Wilkinson: My Lords, I believe that I am the only speaker so far who is likely to have to construe this Bill. Your Lordships are being asked to consider what is possibly the most important constitutional Bill for some time. I do not believe that our time is usefully spent discussing the technicalities of statutory interpretation. Speaking purely for myself, the first amendment seems to clarify what is self-evident anyway; it does no harm and may do good. As to the religious amendments, those are matters which occur later in the Bill. May we please get on with the substance of this important Bill and not discuss minor technicalities?
3.45 p.m.
The Lord Bishop of Ripon: My Lords, perhaps I may comment briefly before we move on. In the amendment of the noble Lord, Lord Williams of Elvel, we are discussing matters to which we shall return in later amendments, but I should like to make two brief responses. To the noble Lord who spoke after the noble Lord, Lord Williams of Elvel, I should like to say that of course the Churches are deeply supportive of the human rights movement and of this Bill, and I shall say more about that in a moment. However, as the noble Lord. Lord Williams of Elvel, made clear, there are times when there is a conflict between rights.
The ordination of women was mentioned both by the noble Lord, Lord Williams of Elvel, and the noble Lord, Lord Renton. My understanding is that when that measure was introduced an exemption was obtained for it from the Sex Discrimination Act. There were clauses in the measure which required that exemption, notably the clauses that allowed parishes not to receive the ministrations of a woman ordained priest.

1261
In relation to the more general point made by the noble Lord, Lord Williams of Elvel, who referred to the Church of England as "by law established", my understanding, as far as I have any of that particular phrase, is that it does not mean that the Church of England is founded by law or upon law—it was founded by Jesus Christ—but is by law given certain responsibilities, such as the responsibility, within certain constraints, to marry any who in the parish present themselves for marriage, and certain opportunities, such as the opportunity of bishops to be present and to speak in your Lordships' House.
The noble Lord referred to the difficulty that might be raised by canon law being in some ways subject to this Bill. This matter has been raised by the General Synod and was discussed in its standing committee, where I strongly made the point that by history the Church of England had been given certain freedoms in relation to law and that for this Bill to take those freedoms back, as it seemed to be doing, was to reverse history and to put the Church of England in a difficult position. My understanding is that the Government have heard that comment from the Church of England and will respond to it in due course. We await that response with great interest.
We shall return to the remaining issues, which are of considerable importance, on later amendments.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, Amendment No. 1 is grouped with Amendment No. 2. It was formerly grouped with Amendments Nos. 3, 5, 53, 70 and 75, but they are now grouped separately; I therefore do not attend to those amendments but to Amendments Nos. 1 and 2.
Dealing first with the amendment of the noble Lord, Lord Mishcon, the Government have reflected carefully on this matter since Committee stage but continue to believe that there is nothing to be gained by including a statement of purpose in the Bill, as the amendment seeks to do. We believe that the purpose of the Bill can be readily understood from the scheme of the Bill, which is well understood, as was demonstrated in Committee. The Bill provides a clear and coherent scheme by which the convention rights are to be given further effect in our domestic law. The purpose of the Bill is obvious: it is to enable convention rights to be asserted directly in our domestic courts. The medium of achieving that is, among others, Clause 3, the interpretative principle that, so far as possible, the courts are to construe primary legislation and subordinate legislation compatibly with convention rights. I agree also with the noble and learned Lord, Lord Simon of Glaisdale, that in any event it is not appropriate to have an exception in a purpose clause.
I turn now to the amendment of my noble friend Lord Williams of Elvel. The more appropriate place in your Lordships' discussions today for considering these matters is no doubt when we come to consider the amendments to Clause 6 and, in particular, Amendments Nos. 23, 24, 26, 27 and 72. My noble friend Lord Williams of Elvel looked ahead to Amendments Nos. 40
1262
to 43, in the name of my noble friend Lord Williams of Mostyn. They impose limits upon remedial orders and address the question of Church Measures. That perhaps is the appropriate stage at which to consider in detail those questions.
As my noble friend Lord Williams of Elvel explained, his amendment is not about Article 13 or the provision of remedies; it is about the implications of the Bill for the Churches. I do not want to say a great deal about that in the debate on these amendments because we shall be debating those subjects in some detail later.
Looking first at the detail of my noble friend's amendment, it appears to me that the declaratory statement inserted by the amendment about the purpose of the Bill is not to apply where religious law and institutions are concerned. However, because the noble Lord has not tabled any amendments giving substantive effect to his exemption, his amendment to Amendment No. 1 does not achieve anything, unless it is intended to cross-refer to the provisions which would be inserted in the Bill if the amendments tabled to Clause 6 by the noble Baroness, Lady Young, and others were to be carried. It would not affect the position in the Bill where the Churches, to the extent that they are a public authority, are subject to the requirement to comply with convention rights.
More generally, the Bill provides for a wide interpretation of the term "public authority" because we want to provide as wide a protection as possible for the human rights of individuals against an abuse of those rights. There is an exemption for Parliament so as to protect the principle of parliamentary sovereignty; but nothing in the proceedings on this Bill has so far convinced us that it would be right to create any further exemptions. We must remember that the purpose of the Bill is to enhance the basic human rights of the people of this country. The idea that those rights should not be available in matters of concern to the Church is one to which I, and no doubt others, find it hard to subscribe. However, we shall be debating those matters in more detail later and therefore I confine myself to those observations at this stage.
Lord Williams of Elvel: My Lords, I am grateful to my noble and learned friend the Lord Chancellor for what he said. No doubt he will be more forthcoming when the further amendments he mentioned are debated later on.
I wish to make only one point. If the noble Lord, Lord Lester of Herne Hill, is right—and I am sure that he is right—about the jurisprudence in the European Court of Human Rights, particularly the affairs of Salman Rushdie and others; if that jurisprudence is to be followed by the UK courts and if my noble and learned friend could declare that in some form or other, then many of my worries would be removed. No doubt my noble and learned friend will address that subject when we debate the amendments to which we shall come later this evening. In the meantime, I beg leave to withdraw the amendment.

1263
Amendment No. 2, as an amendment to Amendment No. 1, by leave withdrawn.
Lord Mishcon: My Lords, little did I think when I tabled Amendment No. 1 that 49 minutes of your Lordships' time would be devoted to it. I am duly flattered, but nevertheless feel that I can serve your Lordships best by saying that I shall read the learned speeches that have been made on canon law, ecclesiastical law, on women and on bishops with the utmost care before deciding what I should do. In the meantime, I beg leave to withdraw the amendment.
On Question, Amendment No. 1 negatived.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 3:
Page 1, line 8, leave out ("l2 and").
The noble and learned Lord said: My Lords, I am somewhat surprised to find myself moving this amendment. I believed that the noble Lord, Lord Lester of Herne Hill, was to move it and I shall leave to him the main explanation of it. He is the leading expert on jurisprudence in the European Court of Human Rights.
Amendment No. 3 concerns Article 13, which is left out of the schedule setting out the articles which apply. Indeed, that is reflected in Clause 1. Amendment No. 3 will make the reference to the articles run from 1, with no exception at the end of 12, straight on through to Article 18.
In addition, I need say only this. There is a consequential amendment to the schedule, and the noble and learned Lord, Lord Mackay of Drumadoon, attached his name to that amendment. Therefore, presumably he also supports Amendment No. 3 or Amendment No. 5 which says the same thing in a slightly different way.
There is an alternative. My noble and learned friend Lord Ackner tabled Amendment No. 33 which in effect reproduces the force of Article 13 and incorporates it into the body of the Bill. I shall have to leave him to say how he wants that treated. The course I prefer and which I am now following is the simpler one; namely, making Article 13 also part of the schedule to the Bill. The form is simpler in Amendment No. 3 than in Amendment No. 5. They have precisely the same effect, but on the ground of simplicity Amendment No. 3 may be preferred.
I wish to make one last point. I am leaving the main argument to the noble Lord, Lord Lester of Herne Hill, and he ordinarily has no right to speak again at the end of the debate. The Minister has the last word, subject to my being formally entitled to reply to the debate. I hope your Lordships will give the noble Lord, Lord Lester, leave to speak a second time in reply to the debate on the understanding that I shall not myself exercise the right to do so. I beg to move.
4 p.m.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for what he has said. I would like to speak in support of Amendment No. 3, which stands in my name, and also to the other amendments that are grouped, Amendments Nos. 5, 33 and 70.
1264
Amendment No. 5 is not so neatly and simply expressed as the amendment of the noble Lord, Lord Simon of Glaisdale, and would certainly not need to be further considered were Amendment No. 3 to be accepted. Amendment No. 33 is not in my name, it is in the name of the noble and learned Lord, Lord Ackner. It seeks in a different way to achieve the same result. Amendment No. 70 is consequential.
I can deal with the matter briefly because it was debated fairly fully in Committee. It is clear from its place in the convention that Article 13 is one of the rights guaranteed by the states parties to the convention. It is also clear that a breach of Article 13 can be the subject of a complaint on the international plane under Article 25 of the convention.
To take the most recent example, in the Chahal case the United Kingdom was found to have breached Article 13 separately in a judgment of the European Court of 15th November 1996. That made it necessary for Parliament to enact special immigration appeals legislation. The European Court observed in Chahal that Article 13:
"guarantees the availability at national level of a remedy to enforce the substance of the convention rights and freedoms in whatever form they happen to be secured in the domestic legal order. The effect of this article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant convention complaint and to grant appropriate relief'.
So the European Court has made it quite clear that Article 13 imposes binding obligations on the United Kingdom to provide effective national remedies for arguable breaches of the convention. That is why it is very important that our courts do not consider cases under this Bill in blinkers and why they are permitted to look at all relevant provisions of the cnvention, including Article 13. They already do so even though the convention has not been domesticated.
I give two examples. In the Esther Rantzen case and the Elton John case, in considering how it should exercise its discretion to interfere with excessive damages awards in libel cases under Section 8 of the Courts and Legal Services Act, the English Court of Appeal indicated that it had regard to Article 13 and the obligation on it to ensure effective remedies in relation to the free speech guaranteed in Article 10.
To take another example, in a case called ex parte Khan last year two Law Lords of the Appellate Committee again expressly referred to their obligations as a court under Article 13. It is therefore a curious gap, and in my view one of the only three imperfections in this otherwise brilliant Bill, that when one comes to look at the very first part of the Bill, one finds reference made to Articles 2 to 12 as provisions at which the courts can look, and then it leaps from 12 to 14 leaving out Article 13.
Two different explanations for this omission have been given by Ministers so far in the course of debates. One given by the noble Lord, Lord Williams of Mostyn, was that it is not necessary because the Bill is giving effect to Article 13 by providing effective domestic remedies. The other answer, given by the noble and learned Lord the Lord Chancellor, was to indicate some

1265
anxiety in government circles that if Article 13 were to be incorporated into our law this might lead our courts to be excessively creative in fashioning new remedies in proceedings under the Bill. But Amendment No. 3 is not directly incorporating Article 13. What it does is to permit our courts to have regard to Article 13. I have no objection to incorporating Article 13. I do not believe our courts would stray as a result, but I think it is objectionable to exclude Article 13 altogether from the matters to be taken into account by the court. It would be quite wrong for there to be a gap between what is enacted by this Bill and our international obligations under the convention, and by excluding Article 13 altogether one would be only partially incorporating the convention and not giving full effect to all its provisions.
I apologise for taking so long to try to explain the matter as I see it but it is quite an important matter and there are some outside this House who harbour all kinds of unworthy suspicions about machiavellian reasons for excluding Article 13. I do not share any of those doubts but I believe it is important that Article 13 should be one of the provisions in Section 2 of the convention to which the courts can have regard.
Lord Renton: My Lords, this group of amendments and other amendments which will follow to my mind raise a very important question of principle. We are purporting to incorporate the European Convention on Human Rights into the jurisdiction of our own courts. In doing so we should not pick and choose as to which articles of the convention we think should apply and which should not. But in relation to Article 13, set out in Amendment No. 70, we have to bear in mind that it does not state rights; it states an obligation upon persons acting in an official capacity. It has that limitation.
It so happens that Clause 6 of the Bill deals with that very matter. So to my mind, rightly or wrongly, the Government were justified in avoiding repetition by omitting the reference to Article 13. If we turn to Clause 6, under the heading Public authorities, we see in subsection (1):
"It is unlawful for a public authority to act in a way which is incompatible with one or more of the convention rights".
Although the wording is slightly different in Article 13, that conveys the same message and therefore, although I am strongly opposed to our varying the terms of the Convention on Human Rights, I think that on this particular matter, to avoid repetition or conflict, the Government would be justified in inserting Clause 6 and omitting Article 13.
The Lord Chancellor: My Lords, I am grateful to both noble Lords for giving us another opportunity to consider a set of amendments which relate essentially to Article 13 and the provision of remedies. All of this was debated in some detail in Committee. I am grateful for the support of the noble Lord, Lord Renton, on the
1266
decision not expressly to include Article 13. He referred to Clause 6 of the Bill. I would refer also to Clause 8, which provides:
"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its jurisdiction as it considers just and appropriate".
Our courts are rich in remedies and have every freedom under Clause 8.
No one supporting the amendment has suggested any respect in which the Bill is deficient in providing effective remedies to those who have been victims of an unlawful act. That is what determines it for me. The noble Lord, Lord Lester of Herne Hill, said that there may be some elsewhere who harbour suspicions that the Government must have some secret or hidden motive for rejecting the amendments. If they do, I do not know what they are. The Bill has been constructed in a way that affords ample protection for individuals' rights under the convention. We have adopted an intentionally wide definition of public authority under Clause 6, and Clause 8(1), which I have already read, gives the courts ample scope for doing justice when unlawful acts are committed. I would say that these are measures of a government determined to deliver a strong form of incorporation, not a government fighting shy of enhancing our citizens' rights.
Our objection is that the amendments add nothing to the scheme in the Bill. On the contrary, the only effect they could have is to disturb the carefully crafted structure of the Bill in some unforeseen way. I do not know what the courts would make of amendments which, on the face of it, contain nothing new. I therefore suggest that the amendments would either cause confusion or uncertainty. In our judgment, the Bill as it stands does the job that we wish it to do and we see no advantages—only disadvantages—in taking up any of the amendments relating to Article 13 or the provision of remedies. I therefore urge noble Lords who have supported the amendments to withdraw them.
Lord Ackner: My Lords, before my noble and learned friend sits down, I wonder whether he can help on one matter. The noble Lord, Lord Lester, referred to an observation which my noble and learned friend made during the Committee stage. The noble and learned Lord the Lord Chancellor said that,
"to incorporate expressly Article 13 may lead to the courts fashioning remedies about which we know nothing other than the Clause 8 remedies which we regard as sufficient and clear".—[Official Report, 18/11/97: col. 477.]
Perhaps my noble and learned friend the Lord Chancellor can identify what the remedies with which he is concerned might be and also how they might lawfully be fashioned in view of the terms of Clause 8, to which I shall seek at a later stage to move an amendment.
The Lord Chancellor: My Lords, I have not the least idea what the remedies the courts might develop outside Clause 8 could be if Article 13 was included. The noble and learned Lord has really made my point for me. Clause 8(1) is of the widest amplitude. No one is

1267
contending that it will not do the job. When we have challenged the proponents of the amendment on a number of occasions in Committee to say how Clause 8 might not do the job, they have been unable to offer a single example. Therefore, the argument is all one way. What we have done is sufficient.
Lord Hoyle: My Lords, it is quite clear from the Companion to the Standing Orders and Guide to the Proceedings that the noble and learned Lord, Lord Simon, may not transfer his right of reply to the noble Lord, Lord Lester, because the latter has already spoken and is prohibited by Standing Order 28 from speaking twice.
Lord Simon of Glaisdale: My Lords, I understood the rule of order to be that a noble Lord could speak twice at the Report stage provided he was given leave to do so. That is what I referred to in inviting the noble Lord, Lord Lester, to ask for leave to speak again by sacrificing my right to speak again.
Lord Lester of Herne Hill: My Lords, I am in some difficulty. If I did, with the leave of the House, speak again, it would be to say one sentence. However, it might not be the sentence that the noble and learned Lord, Lord Simon of Glaisdale, would himself speak. Therefore, I am not sure what is the appropriate course. If I were given leave, what I would say is that I am satisfied by the Lord Chancellor's assurance that Clause 8 is of the widest amplitude.
Lord Hoyle: My Lords, I am sorry but the position is very clear. The Companion states:
"Only the mover of an amendment speaks after the Minister on Report save for short questions for elucidation to the Minister before he sits down; except that, where the Minister wishes to speak early".
4.15 p.m.
Lord Simon of Glaisdale: My Lords, it seems to me, however reluctantly, that it falls to me to say the final words. I desire only to say this. Absolutely nothing is to be lost by including Article 13. My noble and learned friend the Lord Chancellor obviously thinks that he has served all the purposes of Article 13 in the Bill, which in his view is inviolate from envious hands being laid upon it. It may be so. There is a famous example in legislative history when a most momentous Act was passed bringing together the systems of equity and the systems of common law which had previously been disparately administered and considered. The Bill, which became the Judicature Act 1875, set out various respects in which the rules of equity and the rules of common law had diverged and resolved them in favour of equity. But there is one final paragraph, which said:
"In the event of any further divergence, the rules of equity shall prevail".
No one at that time could think of any further divergence, just as my noble and learned friend the Lord Chancellor can think of no way in which his Bill is defective in carrying out the purposes of Article 13.
Oddly enough, some time after the 1875 Act, a discrepancy emerged which nobody thought of at the time. It fell to be decided by the provision to which I
1268
have just referred. So however certain my noble and learned friend may be that he has covered every possible contingency for which Article 13 might call, he may have been mistaken. In another connection at an earlier stage, I quoted the famous words of Oliver Cromwell to the General Assembly of the Church of Scotland and I venture to repeat them at this stage. I hope that it will not be necessary to do so again later. The words that Cromwell used to the General Assembly were,
"I beseech you, in the bowels of Christ, [to consider that] you may be mistaken".
On Question, amendment negatived.
[Amendments Nos. 4 and 5 not moved.]
Clause 2 [Interpretation of Convention rights]:
Lord Kingsland Lord Kingsland moved Amendment No. 6:
Page 2, line 2, leave out from ("right") to end of line 4 and insert ("shall be hound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, and must take into account any—").
The noble Lord said: My Lords, I am tempted to ask the noble and learned Lord, Lord Simon of Glaisdale, to move this amendment for me, so eloquently has he just spoken. I tabled this amendment at Committee stage and the noble and learned Lord the Lord Chancellor very kindly said that he would go away and think about it. I do not see any accommodating amendment at Report stage, so I assume that he has decided against me.
The reason that I have tabled this amendment is to draw the attention of the House to the fact that, by requiring our own judges only to take account of the jurisprudence of the European Court of Human Rights and not to be bound by it, we would be incorporating the substance of the convention, but not its jurisprudence. The effect would be to make the incorporation of the convention a domestic Bill of human rights. Our own judges could range over its interpretation without the discipline of the decisions of the European Court of Human Rights.
One of the consequences would be that a litigant, dissatisfied, or only partially satisfied, by the judgment of our courts, could go off to the European Court of Human Rights and obtain a judgment which is more favourable than he or she received domestically. What will the Government's reaction be to that decision in those circumstances? Under the terms of the convention, if the European Court of Human Rights decides that the law of the United Kingdom falls short in some way or other of the convention, it is bound to alter its legislation to reflect that judgment. Do the Government continue to consider themselves under such an obligation? If they do incorporate the judgment of the European Court of Human Rights in those circumstances, what do they believe the attitude of our own domestic courts will be? I beg to move.
Lord Lester of Herne Hill: My Lords, this amendment was fully debated at Committee stage. Briefly, my reasons for opposing it can be summarised in this way. First, the only judgments of the European Court of Human Rights that are strictly binding on this country are in cases involving the United Kingdom directly. In international law we are not bound by any

1269
other judgments. Therefore, very boringly and technically, the amendment is too wide in any event in suggesting that our courts should be bound by any judgment because that would be to go further than the European Convention itself requires.
Secondly—and I hope that the noble Lord, Lord Kingsland, will not mind a mild tease about this—it is a little strange for his party, which is not noted for its passionate enthusiasm for the European dimension to be brought home to this country, to be more European than the convention itself requires. It certainly does not require our courts to be slavishly bound by the judgments of the European Court.
Thirdly, if our courts get it wrong and there is a mismatch between what they decide and what the convention requires, the aggrieved individual can always go to Strasbourg. Fourthly—and I hope I say this diplomatically and with respect—the European Court of Human Rights is growing larger and larger, having, I believe, up to 40 judges who come from very diverse backgrounds and from countries in eastern, central and western Europe. Therefore this enormous court will find itself having great difficulty in developing consistent principles of law. There will be the danger of variable geometry developing in the human fights area. I hope that I will never be accused of undue chauvinism, but, speaking for myself, I believe that our judges will be able to give a lead to Strasbourg in developing jurisprudence under the convention. I would not like to fetter them in any way. It seems to me sufficient to require them to have regard to Strasbourg case law, but not to be bound by it as though it were a question of stare decisis under our domestic law.
Lord Browne-Wilkinson: My Lords, I believe I had something to say about this amendment at Second Reading. As a serving judge, I shall be concerned if this amendment is agreed to, and broadly for the reasons to which my noble friend Lord Lester of Herne Hill has referred. The starting point is that it is a unique feature of English common law, as regards Europe, that we have this concept of being bound by it. With the possible exception of Eire, I believe that we would be the only member of the European Union which would regard the decisions of Strasbourg as binding on our local courts.
I see no reason that we should fetter ourselves in that way in dealing with a jurisprudence that is by definition a shifting one. I am particularly concerned, for the reasons to which my noble friend Lord Lester has referred, because, although until now the jurisprudence of Strasbourg has been powerful, with the expansion of the European Union there are now a number of judges from jurisdictions which in the past at least have not been famous for their defence of human rights. To find that we were bound by a decision of such a court would be unfortunate.
In practice there will be every encouragement to follow and produce a uniform jurisprudence. But to say that the courts of this country have to produce a result which in their view is unfair, in the sense of being bound by it, would produce an inertia in the development of
1270
human rights law which would be undesirable. For those reasons I prefer that we were required to have regard to the jurisprudence of Strasbourg, but not to be technically bound to follow it whether, in our view, it is right, wrong or indifferent.
4.30 p.m.
Lord Meston: My Lords, since this is the second innings in terms of what took place in Committee, I should like to amplify the points that I would have wished to make at that stage. I believe that the Bill is right in its existing wording and that the amendment is wrong in looking at the matter in regard to the English law of precedent. As I understand it, there are three main reasons. First, the decision for the court is usually whether an individual's rights have been violated in a particular case. It is most unlikely that there will be any need to be bound by a particular judgment of the European Court of Human Rights. It is entirely appropriate that any pre-existing judgment is used for guidance only and nothing more. Secondly, as I understand the established jurisprudence from Strasbourg, the convention must be treated as a living instrument that reflects present circumstances that may not be the same as those existing at the time of any earlier decision of the court, which may have derived from facts arising in a different signatory's state. Thirdly, the primary judgment in any particular case will rest with the national court which is to be given a margin of appreciation. In those circumstances, the wording of the Bill which requires our courts to take into account the decisions of the European court is firm enough.
The Lord Chancellor: My Lords, I said at Committee stage that I would reflect on the noble Lord's amendment, as indeed I did. I also hoped that he would have taken the opportunity to reflect on whether to persist with his amendment. As other noble Lords have said, the word "binding" is the language of strict precedent but the convention has no rule of precedent. The amendment would therefore go further than the convention required and, for reasons that I shall give in a moment, in an undesirable direction.
Perhaps I may be permitted the following observation. The Opposition has become the Janus party with two faces looking in the opposite direction. On the one hand, it opposes a Bill which in principle gives domestic effect to rights contained in an international treaty, while at the same time it seeks to amend the Bill so that the judgments of an international court are binding upon the courts in this country. We take the view that the expression "take in account" is clear enough. Should a United Kingdom court ever have a case before it which is a precise mirror of one that has been previously considered by the European Court of Human Rights, which I doubt, it may be appropriate for it to apply the European court's findings directly to that case; but in real life cases are rarely as neat and tidy as that. The courts will often be faced with cases that involve factors perhaps specific to the United Kingdom which distinguish them from cases considered by the European court. I agree with the noble and learned Lord,

1271
Lord Browne-Wilkinson, that it is important that our courts have the scope to apply that discretion so as to aid in the development of human rights law.
There may also be occasions when it would be right for the United Kingdom courts to depart from Strasbourg decisions. We must remember that the interpretation of the convention rights develops over the years. Circumstances may therefore arise in which a judgment given by the European Court of Human Rights decades ago contains pronouncements which it would not be appropriate to apply to the letter in the circumstances of today in a particular set of circumstances affecting this country. The Bill as currently drafted would allow our courts to use their common sense in applying the European court's judgment to such a case. We feel that to accept this amendment removes from the judges the flexibility and discretion that they require in developing human rights law.
Also in his contribution the noble and learned Lord, Lord Browne-Wilkinson, echoed a point that I believe I made in Committee. Clause 2 requires the courts to pay heed to all the judgments of the European Court of Human Rights regardless of whether they have been given in cases involving the United Kingdom. The United Kingdom is not, of course, bound in international law to follow the court's judgments in cases to which it has not been a party and it would be strange to require courts in the United Kingdom to be bound by such decisions. In view of the observations of others and what I have just said in reply, I hope that the noble Lord will seek leave to withdraw his amendment.
Lord Kingsland: My Lords, before the noble and learned Lord sits down perhaps I may repeat one part of my opening remarks. If a domestic court makes a decision which is then incorporated into domestic law under the fast-track procedure, and meanwhile the litigant goes to the European Court of Human Rights and gets a decision that is different from that which has been incorporated in domestic law, does it mean that the government of the day will not under any circumstances incorporate the decision of the European Court of Human Rights in domestic law to the extent that it differs from their reaction to the domestic decision? Put another way, if a declaration of inconsistency by a domestic court has been incorporated in our own law does that set the limits of what the Government are prepared to accept from a decision of the European Court of Human Rights, whatever it is?
The Lord Chancellor: My Lords, I am not sure that I entirely understand the force of the question. As I understand it, the supposition is that the courts of the United Kingdom make a declaration of incompatibility and give their reasons for holding a statute to be incompatible; alternatively, Parliament moves fast and passes a remedial order which is of legislative effect in a certain legislative sense. As I understand the question, I am asked further to suppose that the European Court of Human Rights in Strasbourg pronounces on that point, or something very close to it, in a sense not quite in accord with the reasons given by the court in making
1272
its declaration of incompatibility or the purpose of the remedial order. I can only say that in those circumstances the Government would obviously think again.
Lord Kingsland: My Lords, I am much obliged to the noble and learned Lord for that response. He said in his first response that the Opposition was behaving Janus-like, looking in two directions or with two faces. I hope he did not intend to say that the Opposition was being two-faced in the way that it treated this Bill. I am happy to see the noble and learned Lord nodding in confirmation.
I was struck by three interventions which drew the attention of the House to the doctrine of precedent. It is true that the doctrine of precedent in our law is almost unique in Europe. I believe that it is also true of Ireland. But the issue goes beyond the issue of precedent. Since we are not bound by the jurisprudence of the European Court of Human Rights our judges can range very widely over possible interpretations of the terms of the convention. As a result of whatever decision they make, the legislature is obliged to incorporate that decision into law. This represents a profound constitutional shift from the way that we have done our work in this country over many centuries. From the reactions around the Chamber it appears that noble Lords are ready to accept that shift. Your Lordships should not do that without being aware of its implications. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Legislation]:
[Amendment No. 7 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 8:
Page 2, line 23, after ("legislation") insert ("(save for the Church of Scotland Act 1921)").
The noble and learned Lord said: My Lords, the amendment deals with the position of the Church of Scotland under the Bill, and, in particular, the relationship of the Bill to the provisions of the Church of Scotland Act 1921. I shall speak also to Amendment No. 12 in the names of the noble Lord, Lord Steel of Aikwood, and the noble Baroness, Lady Linklater of Butterstone. I talked to the noble Lord, Lord Steel, at the weekend. He told me that he might be delayed in reaching your Lordships' House this afternoon, and asked me to apologise if he did not arrive—and he does not appear to have done—before the amendment were called.
I hope that the House will accept that the fact that I feel able to put my name to the second of the two amendments indicates that no question of party politics lies behind either of the amendments. The noble Lord, Lord Steel, and myself, and I am sure also the noble Baroness, are united by a desire to lay before your Lordships the concerns of the Church of Scotland and its members, that one of the unintended consequences of the Bill, as presently drafted, is that it may seek to disturb and undermine the constitutional settlement that has existed between the Church of Scotland and the state since 1921.
I am not sure whether it is strictly necessary to declare any interest in a debate of this nature, but it would not surprise noble Lords to learn that the noble Lord, Lord Steel, and I are members of the Church of Scotland. We are united in another respect, in that we are both the sons of the manse. We speak therefore with a common voice. I hope that what I have to say will strike a chord with and find support on other sides of the House.
At the outset I wish to make it clear, as the Church of Scotland has already made it clear to the Government, that it is not seeking a blanket exclusion from the Bill's provisions. Neither of the amendments would have such an effect. The Church seeks to safeguard the exclusive jurisdiction of its Church courts to legislate and adjudicate upon matters spiritual which involve—I quote from the fourth Declaratory Article set out in the schedule to the 1921 Act—
"all matters of doctrine, worship, government, and discipline in the Church, including the right to determine all questions concerning membership and office in the Church. the constitution and membership of its Courts, and the mode of election of its office-bearers, and to define the boundaries of the spheres of labour of its ministers and other office-hearers".
The Church of Scotland is content that the Bill's provisions would apply to other activities in which it is engaged as a public authority; for example, work that it does to implement care-in-the community provisions, funded by central or local government. I am informed by the principal clerk of the General Assembly that the Church has no difficulty with the Bill's general purposes, and recognises that in relation to matters which are not matters spiritual the Church should properly come under the Bill's provisions. In that respect, the Church of Scotland may be in a different position from other Churches. The Church would wish your Lordships to consider its position from a different standpoint; namely, the constitutional settlement incorporated in the 1921 Act to which I shall refer in a moment.
Earlier in the debate, reference was made to the Church of Scotland being the established church of Scotland. Strictly speaking, that is not correct. The position of the Church of Scotland is different from that of the Church of England. While some people refer to the Church of Scotland as the national church of Scotland, it is not an established Church; it is a free Church. That is a matter which it holds dear.
Other noble Lords have said that they find it difficult to understand why a Church should seek to exclude itself, to any extent, from a Bill dealing with human rights. That was a point made by the noble Lord, Lord Hughes of Woodside, and was supported by other noble Lords.
To understand the nature of the concerns of the Church of Scotland, it is necessary to deal briefly with the historical background to the 1921 Act. When that background is considered, it will be readily appreciated, as I firmly believe, that the Government neither intended nor anticipated that the Bill's provisions would bring about the problem which has arisen between the Bill and the provisions of the 1921 Act. No such conflict was heralded in the White Paper. and, as far as I am aware,
1274
no such conflict was discussed or anticipated in any consultation that took place before the Bill was introduced.
In the 18th and 19th centuries there was a considerable history of conflict between Church and state in Scotland. Each asserted an exclusive jurisdiction to certain matters, which the other denied. That remains the position today. The jurisdiction of the Church is claimed by the Church to have been derived only from the Lord Jesus Christ, as the 1921 Act makes clear, and not from Parliament.
Unfortunately, many of those disputes resulted in litigation in the civil courts. That was perceived by members of the Church at that time as state interference. It led directly to what is known as the disruption of 1843, when many members and congregations left the Church of Scotland and the Free Church of Scotland was established. That latter Church had a history of divisions and unions, but by the turn of the century there had been formed what is known as the United Free Church of Scotland. Members of that Church adhered to the position that in certain matters it was entitled to exercise exclusive jurisdiction free from state interference. In that regard, the jurisdiction referred to was both legislative and a judicial one.
In 1929, the United Free Church of Scotland and other Churches united again with the Church of Scotland. An essential precursor to that union was the enactment of the Church of Scotland Act 1921. Before the Act was presented to Parliament the General Assembly of the Church of Scotland prepared what are known as Declaratory Articles which set out the constitution of the Church in matters spiritual. Those claimed the exclusive jurisdiction of the nature I have described. The Act was then passed. Section 1 of the Act provided that Parliament recognised that those Declaratory Articles were lawful articles in which the constitution of the Church was set forth, and no limitation of the liberty, rights and powers in matters spiritual could be derived from any statute or law affecting the Church.
Parliament thus recognised that the Church of Scotland had an exclusive jurisdiction of the nature that I have described—a jurisdiction free from interference by the civil authority. A serious concern has now arisen. It is that the Bill's provisions constitute an unavoidable breach of the provisions of the 1921 Act.
As those Members who were present in Committee on 18th November will recollect, I raised that matter for the first time. In particular, I raised the issue of whether the courts of the Church would fall within the definition of "public authority" in Clause 6. At the conclusion of the debate, the noble and learned Lord the Lord Chancellor kindly undertook to reply in writing to my questions. I am grateful to the noble Lord, Lord Williams of Mostyn, for the letter which he sent to me last week. It followed certain meetings between Church officials and officials of the Lord Chancellor's Department.
The noble Lord's letter acknowledges that the courts of the Church would appear to be courts for the purposes of the Bill and, accordingly, ought to be regarded as

1275
public authorities. He considers that it is right that that should be the case. That means that the courts will be subject to the provisions of the Bill and must have regard to relevant convention jurisprudence in order to avoid challenge in the civil courts. In other words, the Government acknowledge that the Bill seeks to regulate the way in which the courts of the Church of Scotland go about their legislative and judicial functions in matters spiritual.
The noble Lord, Lord Williams, recognised the problem with jurisdiction and undertook to consider it further. However, his comments in the letter did not amount to an undertaking to bring forward an amendment which would address the problem. That was a great disappointment not only to me but to those in the Church of Scotland who have been following the matter with considerable interest.
I move the amendment today with the clear request that in reply the noble and learned Lord the Lord Advocate, on behalf of the Government, will acknowledge whether such a conflict exists; whether the Bill will permit the civil authorities to interfere with the way in which the Church courts conduct their business; and whether the Bill will admit the possibility of the Court of Session entertaining an application under Clause 4 to have a declarator of incompatibility granted in respect of the 1921 Act. If such acknowledgements are given, I hope that the noble and learned Lord the Lord Advocate will also be able to say that the Government will bring forward an amendment which eliminates such a conflict.
If, on the other hand, the Government's position is that having considered the matter since November last year such a conflict exists and the provisions of the Bill must and should prevail, it is incumbent upon the Minister to make that clear. The members of the General Assembly of the Church of Scotland, when they gather together in May, will then be aware of what has happened and can consider their reaction to what many in the Church will perceive as an attempt to undermine the constitutional settlement that has existed since 1921.
Successive governments since 1921 have reaffirmed their support for that settlement. I understand that the present Government did so shortly after coming to power. That is why I believe that what has happened has been unintended. I put that forward in a constructive mood because, as I indicated at the outset, I do not for one minute regard the issue as being one of party politics. I beg to move.
Baroness Young: My Lords, I put my name to the amendment, although I am not a member of the Church of Scotland nor a Scot. However, I understand the point made by the noble and learned Lord, Lord Mackay of Drumadoon, and I understand the same point which arises in Amendment No. 12, to which I have also attached my name. As the noble and learned Lord said, this is in no sense a party political matter.
I believe that the Church of Scotland is right to be concerned that the White Paper makes no mention of the fact that it is to be treated as a public authority.
1276
While in no way wishing to anticipate the arguments that I shall put forward in relation to my amendments, that is a serious omission.
>The noble and learned Lord clearly set out the history behind the 1920 Act. My reason for supporting the principle of the amendments—and I hope that the Government will agree to them or bring forward their own amendments on Third Reading if these are incorrectly drafted—is that I have been advised that Clause 6 is in conflict with the 1921 Act. Clause 6 classifies the Church as a public authority when it performs public functions. The result is that the freedoms which were enshrined in the 1921 Act will be restricted by the Bill before us. The Convention on Human Rights will override the 1921 agreement.
I understand that that came at the end of a great deal of difficulty for the Church and was a final settlement. It is wrong that it should be overturned in this way. I have every sympathy with the concerns of the Church of Scotland. At the end of last week, I was able to talk to Dr. McDonald of the Church of Scotland. I am sympathetic to all the points that have been made and I believe that we are agreed that the Church is directly affected by the Bill which amounts to the secularisation of what have previously been matters for the Church.
Lord Goodhart: My Lords, as regards my party and others, I believe that Amendment No. 8 is a matter of conscience. Two of the names in support of Amendment No. 12 are members of this party. However, speaking for myself and not for the party, I must express anxiety about the amendment. I do so largely for the reason expressed by my noble friend Lord Lester of Herne Hill in discussing Amendment No. 2.
I welcome the acceptance by the Church of Scotland, expressed by the noble and learned Lord, Lord Mackay of Drumadoon, that in its capacity as a public authority it will be subject to the Human Rights Bill, except in respect of the discipline of the Church courts as regards matters of faith. It is extremely unlikely that, in acting as a public authority, the Church of Scotland will find it is in breach of the European Convention on Human Rights. Article 9 of the convention, set out in Schedule 1 to the Bill, is extremely broad and gives great width to religious bodies and organisations. The Church of Scotland is asking for exemption for its courts from the limitations in Article 9(2).
I accept that if the Church of England has a similar exemption, the Church of Scotland will also have that exemption. But the real problem is that if exemption is given to the Church of Scotland or, as we shall be debating later, to the Church of England, I am extremely concerned that it is opening the door to other religious bodies, some of whose practices in some cases are unquestionably contrary to the European Convention on Human Rights.
I do not object to an amendment which simply has the effect of preserving the constitutional separation of the Church of Scotland from the state without weakening the application of that Church to the European Convention on Human Rights. If the Government believe that they are able to table an

1277
amendment which will have that effect, we shall support it. But for my part, I must express my personal concern about this matter and we shall return to it on later amendments.
5 p.m.
Lord Dean of Harptree: My Lords, I wish to express support for the case which has just been put so very powerfully by my noble and learned friend Lord Mackay of Drumadoon. I do not belong to the Church of Scotland but I do declare a non-financial interest as a lay server in the Church of England. I assure my noble and learned friend that the fears which he expressed about the possible effect of this Bill on the Church of Scotland are shared equally by the Church of England and I believe are shared by all other established Churches in the land.
I am sure it is agreed generally that people have human rights which should be protected, particularly against abuse of power by the state or its agencies. But of course, there are also duties. Rights and duties are two sides of the same coin. Equally, institutions have rights as well as duties. In our nation, institutions are essential to our general health. They provide stability, continuity and succour for individuals and families. Indeed, they are a powerful protection for people against undue influence by the state.
When we deal with Churches, we are dealing with a special type of institution because they are concerned with the spiritual needs of people and their religious freedoms. Churches could not possibly function effectively without membership conditions, rules and the means to uphold them. They are autonomous bodies; they have run their affairs over the centuries within the law; and there is a strong feeling, which I believe the Government recognise well, among all the Churches that the Bill as drafted could mean that the essential privileges and beliefs of the Churches could be undermined.
I am absolutely certain that the Government have no intention whatever of doing that. But I must suggest with great respect that, in the debate so far on this subject, nothing has been said which has effectively stilled the fears expressed by the Churches. I realise that this amendment deals with the Church of Scotland and my noble and learned friend has described the position. In regard to the Church of England, there is an equally strong case. That is an established Church and I rejoice that it is. That is good for both the Church and the state. But certainly in the case of the Church of England, Parliament already has effective control. Many of the measures which are passed by the Synod must be approved by Parliament. If Parliament does not approve those measures, they are null and void. In my recollection, that has happened on a number of occasions during my time in Parliament. That is not by any means a dead letter. Therefore I suggest that Parliament has ample opportunity, when it scrutinises Church legislation, to satisfy itself that the legislation is compatible with human rights.
1278
As my noble and learned friend mentioned in his opening remarks, there have been many clashes between the Church and the state over the centuries. It has never done anybody any good. I suggest that we should wish to avoid creating a new potential for friction and conflict which could arise from this Bill as drafted at present.
I realise that the Government have tabled later amendments which may deal with this point and I shall look forward with great interest to hearing the noble Lord, Lord Williams of Mostyn, explain the purport of those amendments. However, I hope that the Government will at least accept the spirit if not the letter of this and allied amendments. I suggest that they can do so without in any way undermining the principle of the Bill and I very much hope that they will do so.
Lord Howie of Troon: My Lords, I yield to no one in my admiration for the Church of Scotland. I was brought up in it some while ago. However, I must confess that I do not adhere to any of its doctrines or beliefs. I speak as a total neutral in this religious matter.
I recall that Lenin was greatly attracted to the democratic practices of the Church of Scotland, although I do not imagine that he followed them very closely in his political activities. But it is those democratic practices of the Church which are attractive to such an unbeliever as myself.
However, the amendment worries me. We are dealing here with a Bill which is intended to extend, expand and safeguard human rights. I believe that everyone in this House agrees that that is desirable. But here we have a situation in which a body is trying to limit that extension of human rights.
I wonder what the Church of Scotland fears. Knowing many Presbyterians as I do, I cannot imagine that they would, in the Church, wish to do anything which limited human rights. Therefore, why are they fearful? In what way are they limited and confined? I cannot see it at all. The Church, by its very nature, must be compassionate—even Presbyterians are occasionally compassionate—and it must have regard for human rights. I believe that with the best of intentions this amendment is mistaken and I sincerely hope that my noble and learned friend the Lord Chancellor will advise against acceptance of the amendment.
Lord Campbell of Alloway: My Lords, perhaps I may deal very briefly with this matter because I have a subsequent amendment, Amendment No. 24, which encompasses all religious bodies and which is obviously linked with this amendment. I do not anticipate what I shall say on that amendment which I propose to move.
However, this amendment is wholly requisite. It is not in fact met by Amendment No. 46, which was tabled, I believe, this morning. It is right to say, for the assistance of the House, that Amendment No. 24, which is concerned in its general application with all religious bodies of all creeds recognised as such in the United Kingdom and Northern Ireland, was tabled on 3rd December. In the wake of that fact serious discussions ensued between representatives of the General Synod and the Home Office. As a result,

1279
I received a letter today from Lambeth Palace to say that Ministers had agreed that Church of England Measures are to be removed from the remedial order making process—a rather grand way of describing the fast track procedure.
I do not wish to detain your Lordships for much longer, but it is most important that similar negotiations and discussions, with a view to establishing a satisfactory arrangement—that is, far more satisfactory than that suggested in Amendment No. 46—should be undertaken between now and Third Reading. Alternatively, some such assurances should be given today. I do not want to mislead the noble Lord, Lord Williams of Mostyn, but when we deal with Amendment No. 24 I shall be looking most carefully at the detail, the nature and the extent of such assurances that are given before deciding whether or not to divide the House.
As regards the Church of England legislation, I have to point out that the most reverend Primate the Archbishop of Canterbury has sent a message of congratulation and gratitude on the initiative taken as regards Amendment No. 24. I hope that a similar course of discussion can follow the very powerful initiative of my noble and learned friend Lord Mackay of Drumadoon today.
Earl Russell: My Lords, the problem we face here is not one about relations between the Church of Scotland and human rights; it is a problem about relations between the Church of Scotland and the state. In case noble Lords should wonder why someone has intervened who is neither a Scot nor a Christian, I do so strictly in my capacity as a historian. This area of church/state relations is one where misunderstanding between these two countries has been endless. Indeed, I once described England and Scotland as two nations divided by a common language. It was specifically on a matter of church/state relations that I was speaking when I did so.
Scotland and the Netherlands are in effect the only countries in Europe where the Reformation came and was established from below. It means that the whole structure of church authority was quite different from that with which we in England are familiar. I listened earlier to the right reverend Prelate the Bishop of Ripon. Obviously I agree with him that the spiritual authority of the Church of England is in no way derived from the state, but its powers of jurisdiction are, I believe, generally recognised as legally, in their coercive capacity, derived from the state.
There has been a long struggle there for autonomy and enjoying the defence of the idea of academic freedom, which is very largely derived from the efforts of the church. I observe those with sympathy. But it is a quite different story from that of the Church of Scotland, which never recognised that it was established by any authority derived from the state. Its ultimate authority rested in the body of its members. It is the continual inability of English people to understand that which has caused a great deal of conflict between the two countries.
1280
The Church of Scotland has always claimed that it was not subject to Parliament. I understand that modifications in modern times have been reached on that point. However, the question remains: is the Church of Scotland a public authority within the meaning of the Act? As the noble and learned Lord, Lord Mackay of Drumadoon, said, obviously in relation to its work in things like community care, which deserves a great deal of respect from us all, there would not be a problem. But where we get into spiritual matters we might save ourselves a great deal more trouble than we imagine if we could find a way of wording the Bill which secured the full agreement of the General Assembly.
5.15 p.m.
Baroness Carnegy of Lour: My Lords, the noble Earl has just told the House something most important. I hope that noble Lords listen to him most carefully. I strongly support the amendments. The noble Lord, Lord Howie of Troon, said that he did not know what the Church of Scotland was afraid of. In a letter to the noble Lord, Lord Steel—of which I have had sight and which formed the basis of the speech of my noble and learned friend Lord Mackay—the Church of Scotland has set out the exact nature of its fears, so they will be on the record. I hope that the Government will pay attention to them.
I have a few questions that I hope the noble and learned Lord the Lord Advocate will cover in his response. This seems to be the right time to ask such questions, as I understand the noble and learned Lord will be replying. First, what is the position of the other Churches in Scotland under the Bill? Is it the same as all other non-established Churches in the rest of the United Kingdom, or is it different? Secondly, will that relationship be changed when the Scots parliament is created? We understand that the legislation of the Scots parliament will be subject to different treatment under the Bill from that of the Westminster Parliament. Will that affect the other Churches? If it does not affect them at all and if their relationship is precisely the same as that of other non-established Churches in the UK, then we can discuss such Churches under the amendment of my noble friend Lady Young. I shall be content if that is the position.
I should be most grateful to receive a precise reply from the noble and learned Lord the Lord Advocate because there is anxiety in Scotland in the Roman Catholic Church which, as the noble and learned Lord knows, is as big as the Church of Scotland, and in the Free Church of Scotland. My own Church, the Scottish Episcopal Church, is at present sanguine. It has not yet begun to discuss the matter. I would like to know whether that Church will find itself in the same position as other non-established Churches in the UK. I would be most grateful if the noble and learned Lord could cover those points in his response.
Lord Milverton: My Lords, I support the amendment in principle as, indeed, I shall support the noble Baroness, Lady Young, in her later amendments. I do so very firmly because, as what I may call an ordinary rank and file clergyman, I believe that we can see this

1281
in perspective and the dangers involved. If we are going to be able to uphold, practise and proclaim as far and as fully as we can our belief—and the same applies to other Churches—are we going to feel that because we are doing so we are preventing some people from having human rights? I do not believe that that is the case. If they cannot agree with our principles and beliefs, then, in a sense, one has to say, "Sorry, go somewhere where you will be able to find something of your outlook."
I believe that there is a danger involved in using the argument that the Churches will find themselves being taken up for denying human rights and liberties. I deny that they have or that they will deny human rights and liberties to any person in conducting baptism, marriages, funerals, and so on, because they are holding to the proclaimed beliefs of their Church. In baptism, for example, some of my fellow clergymen and even perhaps right reverend Prelates might think that, in some ways, I was too easy because I never said to any couple who came to me, "Now I must be convinced that you are Christian; I must be convinced by that because of your way of life and by the fact that you come regularly to church"—which really meant, most probably, every Sunday—"before I will think of baptising your child". I baptised anyone whether or not of the congregation, because I believed that something in them felt for God and the Church; and we are there to give, not to deny. The only time I have refused a request is with regard to marriage. I have married divorced people and I have let the bishop know. I have married divorcées. We should be able graciously to say to people, "We have this belief. We have this custom. Try to understand it", and if they cannot do so, one has to say, "Sorry" to their request. But on the whole those people will not make such a request. They may feel that they can go to another of the many traditions within the Church of England, or to some other church.
Speaking seriously, it is dangerous to dismiss these dangers as regards the Church of England, the Church of Scotland or any of the main Churches. I support the amendment in principle. I have great admiration for the Scottish Episcopal Church. My daughter married an Irish-Scot and lives in Helensburgh. She attends the Scottish Episcopalian Church in Helensburgh; and it is a jolly good church. Perhaps it could give a lead to some English parishes.
Lord Lester of Herne Hill: My Lords, we have allowed individuals to bring cases before the European Commission since January 1966. I am not aware of a single case involving this country in which any of the problems referred to by any noble Lord have been raised. I am not aware of any textbook in which anyone has suggested that any of the issues ever would be raised.
Although I accept the sincerity and force with which noble Lords speak, it seems to me undesirable if the main debates on the Bill should be dominated by a
1282
matter which, before the Bill was brought in, no one ever suggested raised any problems under the convention.
Lord Clyde: My Lords, perhaps I may add my voice as another member of the Episcopal Church, which seems to be well represented here. Underlying this issue may be uncertainty as to precisely what is meant in the Bill by the word "public". It appears in the phrase "public authority" which is not definitively defined. However, in Clause 6(3) one has some flavour of it. The greater problem is the reference to "functions … of a public nature".
One associates this clause with the processes of judicial review. One is well aware of the distinctions drawn between public and private activities as a means of trying to define the scope of the English supervisory jurisdiction. But if those terms are taken to have substantial meaning they may not serve adequately to provide a sufficiently exact definition. In Scotland the courts have turned their face against the use of such language and have rejected the public/private distinction as a test for the jurisdiction of the supervisory powers of the court. It may be that the word "public" in this context will be open to definition and interpretation.
I have understood—I hope that I am right; but those who know far more about the history and substance of the European Convention on Human Rights will correct me—that in essence the rights laid down are rights for the benefit of the private individual against the state and not against anyone else. If that is right, it may be that it is essentially the state quality of public authority to which attention should be paid in defining what will be Section 6. If that is right, there may be an answer to the problem. Just as the courts in the past have respected the internal operations of ecclesiastical bodies, so also the scope of this article should be limited so as to exclude such operations.
Lord Hughes: My Lords, I, too, am a member of the Church of Scotland. In that capacity I find myself in almost total agreement with the case so ably stated by the noble and learned Lord, Lord Mackay of Drumadoon. The only exception I take is that he stated that this is not a political matter. He is a little wrong in that. It is not a party political matter; but it is a political matter. As the noble Earl, Lord Russell, said, this is a matter of the relations between the Church and the state. The relations have existed happily under successive governments for the past 76 years. That is rather remarkable in religious history in Scotland. If we go back to the last century, the experience was not of seeking to reach agreement but of finding out on how many occasions one could be different from other people. We are remarkably free from that aspect and we should not be taking any risk in the Bill.
My noble friend Lord Howie said that the Church should be compassionate. Of course it should. But I cannot believe that in this Bill the Church of Scotland will be infringing the human rights of its own members.
Lord Renton: My Lords, when I heard my noble and learned friend Lord Mackay of Drumadoon move his

1283
amendment, I naturally wondered what there was in the Bill which interfered in any way with an ecclesiastical court of any Church; and I could find nothing. However, when he mentioned the broad definition that can be Oven to public authority, I thought that he had a point. However, the point can be better dealt with by amending Clause 6, which deals with public authority, by making it clear that public authority in the context of the Bill does not include any kind of ecclesiastical court. I believe that that would be a far better way of solving the problem.
Lord Mackay of Clashfern: My Lords, I am not a member of the Church of Scotland. However, I believe that this is an important point not only for the Church of Scotland but in general. The issue raised is perhaps best focused by asking the question whether, in the Government's view, when referring to a public authority, the Bill includes an ecclesiastical court or authority of a Church deciding what is a spiritual question in the words of the Act of 1921. For example, is a court of the Church of Scotland, in deciding a spiritual question, a public authority within the meaning of Clause 6(3) of the Bill?
Lord Hope of Craighead: My Lords, the suggestion has been made, in particular by the noble Lord, Lord Lester, that no case has been brought which suggests that a problem might arise which would be affected by the matter we are discussing. To set the record straight, perhaps I should mention that a case came before the Court of Session in Scotland in 1995 in which the Court of Session had to ask itself whether it had jurisdiction to examine the way in which a Church court, a presbytery of the Church of Scotland, had conducted a particular affair. The Court of Session, I think that it is right to say, saw this as a dispute as to its jurisdiction to review the activities of what it considered to be another court.
It has been said that there is an issue here as between church and state. But it should also be regarded as a question which would affect the relationship between the church as a court and the Court of Session as a civil court. I should be grateful if the noble and learned Lord the Lord Advocate, in replying, would direct some comments to that matter.
5.30 p.m.
Lord Lester of Herne Hill: My Lords, before the noble and learned Lord sits down, I wonder whether he is aware that, in England, similar issues have arisen in English judicial review courts, notably recently in relation to the Beth Din and the Chief Rabbi in dealing with matters of Jewish law and discipline. The English judicial review courts have consistently held that they have no jurisdiction to use the powers under Order 53 to review decisions taken in that way, for reasons that are rather similar to those outlined by the noble and learned Lord in relation the Court of Session.
Lord Hope of Craighead: My Lords, the case in Scotland that I have in mind was not one of judicial review. It was brought for a declaration in relation to
1284
the activities of the church court. It more precisely addressed the real issue which may underlie the whole problem; namely, the distinction between matters spiritual and matters which are properly open to review in regard to human rights.
Lord Elton: My Lords, as a bewildered layman, I believe the matter is becoming rather clear. It seems quite right that the temporal authority should have precedence in temporal matters and that the spiritual authority must have precedence in spiritual matters. It appears from reading the Bill that the legislation has blurred the line between what is temporal and what is spiritual. The appointment of persons and their qualification to appointment may be very largely a spiritual matter but under the Bill will be treated as a temporal matter. Therefore the spiritual authority may be overridden by the temporal authority by the action of this legislation. It is from that eventuality that my noble friends and others seek to protect the Church of Scotland and, later on, other Churches.
The Lord Advocate (Lord Hardie): My Lords, I declare an interest in this matter in two regards. In view of the question put to me by the noble Baroness, Lady Carnegy of Lour, I should declare that I am, as she suggested, a Roman Catholic; and in relation to this particular debate I should also declare that I am married to a member of the Church of Scotland. My wife is an Elder, as the noble and learned Lord, Lord Mackay of Drumadoon, will be aware, since they are both Elders in the same church. Noble Lords will therefore see that this is not an easy matter from any point of view.
I shall deal first with the point made by the noble Baroness, Lady Carnegy of Lour, about other Churches in Scotland and the effect of the Scottish parliament. Under the Scotland Bill anything done by the Scottish parliament, or by a Minister of that parliament, which is contrary to the European convention will be void. In relation to the second question, namely the position of the other Churches in Scotland, all Churches in Scotland will be treated on the same basis.
I turn to the point raised the noble and learned Lord, Lord Mackay of Drumadoon; namely, whether the Bill interferes with the Church of Scotland in its dealing with matters spiritual. I confirm that that is not the case. The Bill regulates only human rights. Unless the church courts and the Church itself, in the exercise of their public functions, wish to depart from the concept of human rights in the way in which they conduct their business, there will be no conflict between church and state. I am confident that the Church will do its best to observe the principles of human rights referred to and incorporated by the Bill into domestic law.
As noble Lords will be aware, frequently, although with the best of intentions, people fail to achieve their objectives. In the event that there is a failure to observe human rights there may well be a conflict between the Church and this provision. If there is such a conflict, it is our position that the courts will prevail. The civil courts will deal only with convention rights and not with the spiritual government of the Church.

1285
The purpose of these amendments is to exempt the Church of Scotland Act 1921 from the provisions of the Human Rights Bill and to re-state the recognition under the 1921 Act of the separate and independent government and jurisdiction of the Church in matters spiritual.
In Committee, several noble Lords raised points about the possible impact of the Bill, not only on the Church of Scotland but on other Churches. Some noble Lords, notably the noble Lord, Lord Campbell of Alloway, referred to later amendments to be considered. Subsequent amendments deal with the Church of England. They will be dealt with fully by my noble and learned friend the Lord Chancellor. At this stage we are concerned with amendments relating to the Church of Scotland and the 1921 Act.
So far as the Church of Scotland is concerned, I accept that the amendments are not influenced by party-political considerations. I hope that noble Lords will accept that the position adopted by the Government is equally not influenced by such considerations, or indeed by considerations of any particular religious persuasion. In the case of the Church of Scotland we have to look carefully at the implications of this legislation for the Church of Scotland Act 1921, which the Church of Scotland very properly considers a very important legislative statement of its independence in matters spiritual.
I wish to make it clear that the Government have no intention of interfering with the Church's religious freedom. That is a repetition of a statement that was made by the Government in confirmation of statements made by previous governments in relation to the position of the Church of Scotland. However, I wish to emphasise that the Bill does not interfere with the religious freedom of the Church of Scotland, nor is it intended to do so. I cannot emphasise that point strongly enough. The Church of Scotland Act 1921, to which the Church of Scotland rightly attaches much importance, establishes clearly the independence of the Church in spiritual matters. Such issues are properly matters for the Church and the Church alone.
However, it may be that in some circumstances the authorities of the Church of Scotland could be public authorities for the purposes of the Bill. The noble and learned Lord, Lord Mackay of Drumadoon, properly recognised that certainly in performing certain functions they would come within that category. He referred to care in the community.
The question of whether a church body is a public authority in any particular circumstance will be a matter for the ordinary courts, as it is at the moment. I refer to the case of Logan in 1995 mentioned by my noble and learned friend Lord Hope of Craighead. That was a case where the Court of Session considered whether it had jurisdiction. After the Bill becomes law—if that is your Lordships' wish—the position will be that the Court of Session will consider whether the particular circumstances of an act by the Church indicate that, in performing that act, the Church can be described as a public authority.
1286
If it is a public authority, there seems to be no reason to exempt the institutions of the Church of Scotland from the public authority provisions of the Bill when it is acting in that capacity. The policy of the Government is that if a Church body is a public authority the Bill should apply to it. In this situation it seems to me that the Church would not wish to maintain that breaches of human rights committed by its institutions are purely matters of spiritual concern which should be excluded from the jurisdiction of the ordinary courts. In saying that, I wish to express confidence that the Church of Scotland, as other Churches, will do its utmost to comply with the spirit and intention of the legislation.
It is also clear to me that the civil courts will not want to involve themselves in spiritual matters, as was evidenced by the case of Logan to which the noble and learned Lord, Lord Hope of Craighead, referred. The civil courts will wish to confine themselves in any individual case to the minimum examination necessary to arrive at a decision on whether there has been any infringement of the legislation: in other words, was the Church acting as a public authority and, if so, is it in breach of the legislative provisions?
The civil courts would not want to intrude further into the business of the Church than is required to ensure proper observance of convention rights. Nor will the Bill entitle them to do so. The courts would, I am certain, continue to respect the spiritual independence to which the Church of Scotland properly attaches great importance.
While, as I have acknowledged, there are difficult issues of jurisdiction here, I do not think it would be right to exempt the Church of Scotland Act 1921 from the provisions in the Bill in the way proposed. The policy of the Government, as expressed in the Bill, is to enable the ordinary courts to inquire into proceedings of Church bodies only so far as may be necessary to resolve human rights questions. I hope that, in the light of that explanation, the noble Lords will feel able to withdraw the amendment.
Lord Renton Lord Renton: My Lords, before the noble and learned Lord sits down, would he be so good as to look at page 4 of the Bill? Near the top of that page he will see subsection (3) of Clause 6, which says:
"In this section, 'public authority' includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature".

For the removal of doubt, and to give clear guidance to the courts in deciding the matters which the noble Lord has mentioned, would it not be a good thing to add in that subsection words such as:
"but 'public authority' does not include any kind of Church court or religious court of any kind"?
Lord Hardie: My Lords, I am grateful to the noble Lord, Lord Renton, for that intervention, but, with respect, I do not think that that would meet the point. If a Church court were performing a function which could be described as a function of a public authority and is dealing with something other than a purely spiritual

1287
matter peculiar to the Church, it would not be appropriate to exempt such a body from the provisions of the legislation.
5.45 p.m.
Lord Campbell of Alloway: My Lords, the noble and learned Lord says that the courts will not inquire into spiritual matters. How will one stop a court from doing so if a complaint is made before it? Is the suggestion that the Church of Scotland, the Church of England, or whichever Church, should move to strike out the pleadings? How is one to define the line between spiritual and other matters? I simply ask as a practical, knock-about lawyer. I can see tremendous difficulties in what is being proposed.
Lord Hardie: My Lords, that is precisely the kind of question that the civil courts deal with at present. They would consider the particular circumstances of the situation and decide whether the body was acting as a public authority. If it were acting in a purely spiritual capacity, the courts would decline jurisdiction.
Lord Peston: My Lords, before my noble and learned friend sits down, is this not a matter of much greater generality than the Church of Scotland? It revolves around two matters. One is the ability to define what is spiritual. I speak as a committed atheist, but I would have thought that the fundamental beliefs of the Church are to do with the Church and not with the secular authority. Membership of the Church involves "believing" all kinds of things. I cannot see that the courts ought remotely to consider becoming involved in that.
The counterpart of that is the ability to define human rights. I speak as a strong supporter of the Convention on Human Rights. In my lifetime human rights have grown at an incredible rate. Years ago many things would not have been regarded as human rights which are now. Is not the problem for the Government in incorporating this into legislation that they are taking what might be called a static view of human rights—that is, that no human rights will emerge or be demanded? As an atheist, I can say that, if I were a member of the Church, I should be extremely perturbed by this and by the answers that my noble and learned friend has given so far. He assumes, optimistically, that the civil courts will come up with the right answer all the time. If I were a religious or spiritual person, I should feel very threatened.
Lord Hardie: My Lords, my noble friend is correct that it would not be appropriate for the courts to deal with the theological or fundamental beliefs of members of a Church; nor would they be entitled to do so in terms of this legislation. I simply remind my noble friend of Article 9 of the convention, which confers upon individuals significant rights of freedom of thought, conscience and religion. Those rights are enshrined in the convention itself and in the provisions which are being incorporated.
Lord Mackay of Clashfern: My Lords, just before the Lord Advocate sits down finally, my question is,
1288
would the definition which the Government have put into this Bill, taking the court of Scotland as an example, make a Church court which was deciding a spiritual matter, a matter of faith, a public authority within the meaning of that definition? If not, why not?
Lord Hardie: My Lords, the short answer to my noble and learned friend is, no, it would not include that situation, the reason being that the Scottish courts, as my noble and learned friend will be aware, because of the relationship between Church and state, have been slow to interfere, and indeed have refused to interfere in matters of this nature. Therefore, if the Church court were deciding a matter spiritual, the courts would not be entitled to review that.
Lord Hughes: My Lords, I would like to know the answer to this question. I would know had I read the Bill as thoroughly as I ought to have done. Does the 1921 Act remain on the statute book in its present form, or is it altered in any way by this Bill?
Lord Hardie: My Lords, it is not altered in any way by this Bill. It remains on the statute book.
Lord Donaldson of Lymington: My Lords, perhaps the Minister could help me. I am troubled by various statements that have been made that, in dealing with matters spiritual, the court is not a public authority. As I read Clause 6(3)(a), the question does not arise. The real question is whether the body is a court at all. If it is a court, then it is by definition a public authority. I agree that the civil courts may then say, "It is not appropriate for us to grant a remedy" but, as far as its not being a public authority is concerned, the Act simply says that it is.
Lord Hardie: My Lords, of course, the argument I would anticipate being advanced to establish that it was not a court would be that in dealing with human rights, one has to be dealing with a court which is properly constituted or a tribunal established by law. The Church courts are not courts within that meaning, within that sense.
Viscount Bledisloe: My Lords, in the light of the answer of the noble and learned Lord, perhaps he could answer the point made earlier by the noble Lord, Lord Renton: would he be prepared to undertake at a later stage to put into the statute an amendment which expressly excluded courts exercising spiritual jurisdiction, to define that they were not public authorities within the meaning of the Act?
Lord Howie of Troon: My Lords, we are at the Report stage. This has gone on far too long and it is high time that we had a reply from Lord Mackay of Drumadoon.
Lord Mackay of Drumadoon: My Lords, I regard it as a great compliment that there is any wish to hear from me again, and I am sorry to disappoint your Lordships by saying that I only wish to make very few remarks.

1289
It is obvious from the contributions which have been made by noble Lords who have both supported and spoken against this amendment that the issues which it raises are very important issues indeed. I stand rightly corrected by the noble Lord, Lord Hughes, in having referred to this as not being a political issue; I should have said that it is not a party political issue. It is for that reason that I do not intend to seek the opinion of the House on this amendment. However, I have to say quite frankly that I sense the mood of the House is such that, were I to do so, there would be a serious risk of the House being persuaded that there is merit in my amendment. For that reason, I am most grateful to the noble and learned Lord Advocate for giving a very full reply to the issues which I and others raised, and I very firmly hope that he and his colleagues will think very seriously indeed as to whether some recasting of the provisions of Clause 3 or Clause 6 of this Bill might meet the genuine and very moderately stated concerns that have been raised.
We will all read again not only the questions he was asked but the answers he has given. For my part, I am more than willing to meet with him and his colleagues to see whether some solution can be found. As far as the Church of Scotland is concerned, there appears to be an inherent conflict between the terms of the 1921 Act and this Bill, and it is, in my respectful submission, incumbent upon the Government to come forward with some solution to that conflict. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 9:
Page 2, line 29, at beginning insert ("subject to subsection (3)").
The noble and learned Lord said: My Lords, in moving Amendment No. 9 I shall speak also to Amendments Nos. 10 and 11. Amendment No. 11 is the effective amendment. It preserves in English law a perfectly well established doctrine consonant with an aspect of the sovereignty of Parliament, namely, the rule that if a later Bill is inconsistent with the provisions of an earlier Bill, those provisions of the earlier Bill are impliedly, even if not expressly, repealed. It is known as the doctrine of implied repeal. Although it is very rarely necessary in these days to rely on that doctrine, it is still extant.
It is not necessary these days in general to rely on it because most later Acts which amend earlier Acts have a repeal schedule and, indeed, a schedule of minor and consequential amendments. Nevertheless, the rule remains in English law and it is extremely valuable in relation to the law. It is essential that it should be preserved.
At Committee I put down a number of amendments seeking to extend the Bill, notably by extending the definition of a public authority. My noble and learned friend the Lord Chancellor demurred to being pushed further in that way. At this stage I have only tabled amendments which are well within the parameter of this measure.
The problem which faced the Government in "patriating" the Convention on Human Rights was this: certain provisions of English statute law would be found to offend or to be incompatible with the provisions of the convention. One way to deal with that would have been to allow English courts to strike down the offending measure, as happens in the United States which has a written constitution and where the federal courts strike down and declare null and void measures which are inconsistent with the constitution.
In relation to this measure, the Government decided that it would be inconsistent with the sovereignty of Parliament and, so far as I know, nobody quarrelled with that view. But that faced the Government with a difficult problem; that is, how to maintain the sovereignty of Parliament while allowing the convention to be incompatible with provisions of our previous statutory legislation.
One must draw a distinction—it is useful to do that at this stage—between antecedent statutes which are found to be incompatible and prospective ones; in other words, statutes enacted after the provisions of this Bill come into force. The Government tried, rightly and ingeniously, to minimise the circumstances whereby an Act of Parliament would be found to be inconsistent with the provisions of the convention. They did that by stipulating, as your Lordships know, a new rule relating to statutory construction. Instead of the courts seeking what is the natural meaning of a word or phrase they were to seek a possible meaning, which means a reasonably possible meaning, consistent with the convention. That has been generally accepted and the Government are to be congratulated on coming up with that solution. Admittedly, that leaves some measures which, however construed, will be found to be incompatible with the convention rights.
In relation to future measures, the Government proposed to deal with them in two ways. First, they would minimise the chance of future legislation being incompatible by requiring the Minister in charge of the Bill to make a declaration as to its compatibility. Even then it may be found that there was an incompatibility in future legislation and where that was ascertained the Government established what is being called a "fast-track" for remedial orders. That is, a statutory rule and order on an accelerated process which will correct the incompatibility of the earlier statute. That maintains the sovereignty of Parliament which they were anxious to maintain.
However, the system has two disadvantages. The first is that it involves delay in which somebody aggrieved by the statute may be delayed in any remedy. The second is that it involves a massive extension of Henry VIII provisions; secondary legislation amending primary legislation. Your Lordships have gulped and put up with that on the whole because it is difficult to see how else future legislation could he dealt with. But it is unnecessary in relation to past legislation. So long as the doctrine of implied repeal is maintained—as I said, a manifestation of the sovereignty of Parliament: the doctrine that no Parliament can bind a later Parliament, so that subsequent Parliaments can repeal or amend

1291
earlier legislation—that takes care entirely of all antecedent legislation found to be incompatible, which is more likely to be the case than subsequent legislation.
The amendment does not in any way affect the rule of interpretation. It does not affect the fast-track procedure, even involving Henry VIII provisions in relation to future legislation; but it uses the doctrine of implied repeal to get rid of antecedent legislation which is incompatible. That is entirely consonant with the supremacy of Parliament. I beg to move.
Lord Lester of Herne Hill: My Lords, as the noble Lord, Lord Williams of Mostyn, will recall, I wasted a good deal of Home Office time in the summer attempting to persuade the Government that they should expressly preserve the doctrine of implied repeal in the Bill. I did not succeed. Therefore, I naturally start with a great deal of sympathy for what was said by the noble and learned Lord, Lord Simon of Glaisdale, and I agree with a great deal of it. However, on reflection I wonder whether it is necessary and I should like to explain why.
First, perhaps I can brush to one side a bad argument in the White Paper in paragraph 2.14, where it is suggested that what is wrong with the doctrine of implied repeal is that it involves the courts striking down legislation in some way in conflict with the doctrine of parliamentary sovereignty. As the noble and learned Lord explained, that is not what the doctrine of implied repeal does; it is intended to give effect to the intention of the legislature by regarding what is said in the later statute as reflecting its true intention and reading the earlier statute to conform, if necessary, as impliedly repealing the earlier provision.
The reason why I doubt whether one needs to introduce an amendment of this kind is that it seems to me that the command in the Bill—where possible to construe existing and future legislation to conform with convention rights—is so strong that it leaves entirely open the possibility that the courts will, in effect, use the doctrine of implied repeal or something like it in order to achieve the correct result, which is no mismatch between our statute book and the convention.
I was encouraged in that view, in particular, by a remarkable lecture recently given by the noble and learned Lord the Lord Chancellor, the Tom Sargant Memorial Lecture, under the auspices of Justice. With your permission I would like to refer to one or two of the matters in that lecture which seem to me to show exactly the approach that the courts will be adopting.
The Lord Chancellor pointed out that the Act, when it comes into force, will require new judicial techniques of interpretation. He said:
"The Act will require the courts to read and give effect to the legislation in a way compatible with the convention rights 'so far as it is possible to do so'. This … goes far beyond the present rule. It will not be necessary to find an ambiguity. On the contrary the courts will be required to interpret legislation so as to uphold the convention rights unless the legislation itself is so clearly incompatible with the convention that it is impossible to do so".
The Lord Chancellor continued:
"Moreover, it should be clear from the parliamentary history. and in particular the ministerial statement of compatibility which will be required by the Act, that Parliament did not intend to cut across a
1292
convention right. Ministerial statements of compatibility will inevitably be a strong spur to the courts to find means of construing statutes compatibly with the convention".
1 break off to observe that that, of course, is dealing with post Human Rights Act legislation not pre-Act. Then the Lord Chancellor said this:
"Whilst this particular approach is innovative, there are some precedents which will assist the courts. In cases involving European Community law, decisions of our courts already show that interpretative techniques may be used to make the domestic legislation comply with the community law, even where this requires straining the meaning of words or reading in words which are not there".
He gave as an example the well known Litster case decided in 1990. He also referred to the jurisprudence in New Zealand. He then said this:
"The court will interpret as consistent with the convention not only those provisions which are ambiguous in the sense that the language used is capable of two different meanings but also those provisions where there is no ambiguity in that sense, unless a clear limitation is expressed. In the latter category of case it will he 'possible' (to use the statutory language) to read the legislation in a conforming sense because there will be no clear indication that a limitation on the protected rights was intended so as to make it 'impossible' to read it as conforming".
I apologise for reading all of that but it is very important because it shows. from the highest authority among the makers of the Bill in this House, that there will be a new approach to statutory interpretation. A declaration of incompatibility will be a systemic failure. I believe that that will very rarely happen, and that our courts will act in a similar way to the Judicial Committee of the Privy Council when construing ordinary legislation in the context of Commonwealth constitutional guarantees of human rights; that is, by reading in and reading down: reading in safeguards to save the statute in accordance with human rights; and reading down—reading narrowly restrictions upon human rights; adopting a generous approach, in the words of the noble and learned Lord, Lord Wilberforce, to give human rights their full scope and avoiding what the noble and learned Lord described as the austerity of tabulated legalism.
Against that background it seems to me that to go to the doctrine of implied repeal, which has often been criticised by academic commentators, for reasons that I do not need to go into, is now unnecessary. The new principles described by the Lord Chancellor—although of course it is not a matter for him in the end but for the courts themselves to decide how to interpret the provisions of this Bill—seem to me to take care of the problem which the noble and learned Lord has quite properly raised in his amendment.
May I finally say that I do not share his criticism of the Bill as being a massive extension of Henry VIII clauses but that is a matter to which we will no doubt return at a later stage.
6.15 p.m.
Lord Ackner: My Lords, I would like to support the amendment. It seems to me that the Government's preoccupation with preserving parliamentary sovereignty has caused them to over-complicate the situation. As has been made perfectly clear, we are concerned in this amendment with pre-existing

1293
legislation and not with future legislation. To preserve the sovereignty of Parliament, the slightly complex procedure of the declaration of incompatibility followed, one anticipates, with the reaction by Parliament to put the matter right, is quite unnecessary in relation to pre-existing legislation. The mistake made in the White Paper, to which the noble Lord has just drawn attention, is the clue to the unnecessary application of the declaration of incompatibility approach to pre-existing legislation.
It is perfectly clear that the doctrine of implied repeal is an existing part of English law. I cannot find anything in the Bill to prevent the courts, where appropriate, from using the doctrine of implied repeal. All this necessity to adopt an entirely new approach to interpretation in relation to pre-existing legislation is made quite unnecessary if one follows that doctrine. It involves no problem with regard to infringing parliamentary sovereignty. I think that the strain which is to be imposed upon the judiciary to go through the forensic gymnastics which have been referred to can be so easily relieved in regard to pre-existing legislation, and that is the merit of this amendment.
Lord Coleraine: My Lords, the noble Lord, Lord Lester of Herne Hill, has done the House a service by reading into the record so much of what the noble and learned Lord the Lord Chancellor said in the Tom Sargant Lecture because we have been led to believe that the purpose of the Bill was to avoid allowing the judiciary to strike down Acts of Parliament. But what the Tom Sargant Lecture makes clear is the intention that the striking down of legislation overtly is to be achieved covertly by the interpretation provisions of Clause 1 of the Bill. One should remember that the noble Lord, Lord Lester, said in Committee that the provisions of Clause 1 were perhaps the most important part of the Bill. I would agree with that, but I feel it is wrong to go covertly in a way which the Government are not prepared to go openly.
Lord Donaldson of Lymington: My Lords, it is very rare that I find myself disagreeing, even respectfully, with my noble and learned friend Lord Simon of Glaisdale, but I do not see that the doctrine of implied repeal solves any problems at all. I do not think it is even intended to solve this problem. As I understand it, it arises where you have two statutes: statute A which sets out certain rights, liabilities or procedures, and statute B, a later statute, which sets out certain rights, liabilities or procedures. You look at the two and find that there is an inconsistency between the earlier statute and the later one. The court, in accordance with this doctrine, says, "Parliament must have intended to repeal the first statute or some part of it, so we can forget about the implied repeal part". That does not work with this Bill because here we have, in theory, an earlier statute giving rise to rights, liabilities or procedures, and then we find an incompatibility. But we do not have an alternative set of rights, liabilities or procedures to judge one against the other to see whether there is an implied repeal. All we know is that the earlier statute is inconsistent. We have nothing else to substitute.
1294
I strongly suspect that in most cases there will be more than one way of remedying the incompatibility. You really would be involving the courts in a legislative function of no mean order if it were pointed out to them that there were, say, three ways of remedying the inconsistency and leaving it to them to choose which. I do not think the amendment works in the way in which its proposers intend it to work. Accordingly, I oppose it.
The Lord Chancellor: My Lords, Amendment No. 9 is grouped with Amendments Nos. 10 and 11. I shall speak to all three. I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for again raising the doctrine of implied repeal, but I fear that I must disappoint him by maintaining my opposition to his amendments. That is not because of any unwillingness to contemplate amendments or the possibility of their correctness, but because the amendments go to a central building block in the scheme of the Bill.
The Bill sets out a scheme for giving effect to the convention rights which maximises the protection to individuals while retaining the fundamental principle of parliamentary sovereignty. Clause 3 is the central part of this scheme. Clause 3(1) requires legislation to be read and given effect to so far as it is possible to do so in a way that is compatible with the convention rights. Clause 3(2) provides that where it is not possible to give a compatible construction to primary legislation or to subordinate legislation whose incompatibility flows from the terms of the parent Act, that does not affect its validity, continuing operation or enforcement. This ensures that the courts are not empowered to strike down Acts of Parliament which they find to be incompatible with the convention rights. Instead, Clause 4 of the Bill, together with Clauses 10 to 12, introduces a new mechanism through which the courts can signal to the Government that a provision of legislation is, in their view, incompatible. It is then for government and Parliament to consider what action should be taken. I believe that this will prove to be an effective procedure and it is also one which accords with our traditions of parliamentary sovereignty. That is why the Bill adopts it.
I agree with the observations of the noble and learned Lord, Lord Donaldson of Lymington. The position under the Bill is that, where pre-existing legislation cannot be construed by the courts compatibly with the convention, the intention of the Government is that the courts may make a declaration of incompatibility and then Parliament may make a remedial order.
Adopting and not taking up the time of your Lordships repeating the observations of the noble and learned Lord, Lord Donaldson of Lymington, I would add that it is not the intention of the Bill to repeal any pre-existing legislation that is incompatible with the convention. The noble Lord, Lord Lester of Herne Hill, was kind enough to refer to my recent Tom Sargant Memorial Lecture. I shall not add to whatever authority these extra-judicial observations may have—I doubt much—by repeating in the House anything that I said then.

1295
I invite the noble and learned Lord to withdraw his amendment on the basis that it is contrary to the principles on which we have constructed the Bill.
Lord Simon of Glaisdale: My Lords, my noble and learned friend the Lord Chancellor has repeated in slightly different terms the case he made in Committee. He said then that the amendment was contrary to the scheme of the Bill. What he meant was, "contrary to my scheme for the Bill". He put it today in the way of building blocks—we are interfering with his building blocks. The amendment is entirely compatible with the general building blocks of the Bill. It is confined to the cases where a declaration of incompatibility is made in relation to antecedent legislation. That is the whole scope—the only scope. That declaration of incompatibility will have been made in spite of the attempts to reconcile the convention with the pre-existing legislation.
My noble and learned friend insists that rather than rely on an existing rule of law we have to go through, both for pre-existing legislation as well as subsequent legislation, the paraphernalia of the fast track, the remedial order and so on. That has two disadvantages; first, delay in a remedy and, secondly, Henry VIII provisions which are unacceptable constitutionally unless we are absolutely forced to follow them.
However, my noble and learned friend will not have any alterations to his Bill except on the Government's initiative. We raised no objection when my noble and learned friend appeared to be trying on a cardinal's hat. It is only when he goes on to claim the triple tiara of infallibility that we beg to demur. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 to 12 not moved.]
Clause 4 [Declaration of incompatibility]:
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn) moved Amendment No. 13:
Page 2, line 36, leave out ("one or more of the Convention rights") and insert ("a Convention right").
The noble Lord said: My Lords, in moving Amendment No. 13 I should like to speak to the other government amendments grouped with it: Amendments Nos. 14, 15 and 16, 22, 39, 44 and 45, and to Amendment No. 21 in the name of the noble and learned Lord, Lord Simon of Glaisdale.
These government amendments to Clauses 4, 6 and 10 are a response to the amendment to Clause 6 which the noble and learned Lord tabled for Committee and which he has tabled again for Report. I have to say that his amendment caused a considerable amount of thought within the Government and has met with the open-minded response that is so frequently remarked on by the noble and learned Lord.
At the Committee Stage the noble and learned Lord wanted to replace the words "one or more of the Convention rights" with the different formulation "the
1296
Convention rights". He described that as a drafting improvement but the amendment was designed also to have a substantive effect. He was concerned about what might happen if a public authority were required to comply with one or more of the convention rights. He gave, for instance, the example of a BBC broadcast which was considered to intrude upon someone's privacy, contrary to Article 8, but which might be justified under Article 10 protecting freedom of expression. He thought that the Bill, as drafted, might induce the courts to look only at the Article 8 invasion of privacy and not Article 10.
Lord Simon of Glaisdale: My Lords, I am grateful to the noble Lord for giving way. It was not a case of the court being forced to look at only one article but that an offence would be committed by the public authority if only one was considered without consideration of a counterbalance. That would be if only one convention right were infringed.
6.30 p.m.
Lord Williams of Mostyn: My Lords, I understand that. I was about to say that we entirely agree that a court should be able to take account of convention rights that pull in different directions. The noble and learned Lord the Lord Chancellor and I have said that. It has been readily accepted by noble Lords who have attended that that is the whole purpose of the Bill. But our analysis of the position differs from that of the noble and learned Lord.
Perhaps I may take his example. A claimant will allege that a particular convention right of his or hers has been infringed. The respondent will claim that it has not. I entirely agree, therefore, that the question is this. In what circumstances will the court have to balance his right against the convention right of some other person? The answer comes from the convention itself and the European Court of Human Rights.
As regards the Article 8 example, the claimant will allege infringement of his rights to respect for private and family life, home and correspondence, in Article 8(1). The authority may well reply that the act in question was necessary to pursue one of the aims permitted by Article 8(2), which, of course, include the rights and freedoms of others, including other convention rights. The claim will be that there has been a breach of Article 8(1). The court, in considering that claim, will be able to look beyond Article 8 itself; for example, to Article 10. But the finding will not be that there has been a breach of Article 8 justified by Article 10. The finding in these circumstances will either be that there has been a breach of Article 8 or that there has been no breach of that article.
Even where a claimant relies on an article of the convention which has no built-in reference to other rights, as Article 8 undoubtedly does, there is the overriding effect of Article 17. Clause 1(1) of the Bill

1297
refers to it. I do not believe that it has been mentioned frequently in your Lordships' House, but Article 17 states:
"Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or"—
then these important words—
"at their limitation to a greater extent than is provided for in the Convention".
That is a classic description of the balancing act which the Government believe is the appropriate task for the courts to perform. Therefore, we suggest that the balancing which I have described quite briefly is much more sophisticated and subtle and is designed specifically to be that, rather than the simple case of two litigants, each asserting conflicting convention rights.
The balancing is to be carried out in the context of the particular article on which the claimant bases his claim. So in the Article 8 example, the court will be adjudicating on the question whether that article has been infringed. Plainly, there will be different balancing to be done by the courts in different claims.
We believe, on sound historic experience, that the courts in this jurisdiction are peculiarly well equipped to carry out these balancing exercises as the whole development of the common law tradition in this country has been substantially based on the sort of subtle balancing that the courts will be required to carry out. That leads to the question as to the best formulation. Should the Bill refer to "one or more of the Convention rights," or "the Convention rights" or "a Convention right?" We have genuinely and conscientiously given this a good deal of thought and we believe that the phrase "a Convention right" is the proper one to use. It is shorter than "one or more of the Convention rights" and is preferable in drafting terms and a more natural formulation.
Lord Simon of Glaisdale: My Lords, will the noble Lord allow me to intervene again? I am very grateful to him for his courtesy. It may be shorter than "one or more of the Convention rights", but it is no shorter than "the Convention rights", which is what the amendment proposes.
Lord Williams of Mostyn: My Lords, that is arithmetically and grammatically correct since the definite and the indefinite article in the English language are each one word and I understand that. We have thought quite carefully about the problems that have been identified, real or apparent, by the noble and learned Lord and we have simply come to the conclusion that "a Convention right" properly describes what we are looking for as regards the background to the courts' consideration. We fully understand that balance is what the courts will have to find. I reiterate our absolute confidence in the ability of the courts to carry out that balancing. We suggest that the formulation we have come to after a great deal of
1298
thought, following the noble and learned Lord's interventions, is about right. I hope that he might think that on this occasion we may have done the right thing.
Lord Simon of Glaisdale: My Lords, the phrase "one or more of the Convention rights" occurs frequently in this Bill and in the government amendments. They have been grouped together to amend all of them. None of them needed amendment except as regards Clause 6. In the other amendment the phrase "one or more" was perfectly correct. It is perfectly correct in Clause 4 where the instant amendment is designed to correct the language.
I was concerned with Clause 6, which was the only one where the phrase was wrong. I do not believe that the Government are to be blamed harshly. Having found a phrase which worked elsewhere, they assumed that it would be right for Clause 6. It is not. Clause 6 says that a public authority acts illegally if its act is in contravention of one or more of the convention rights. The word that is objectionable is "one". It directs the attention to one convention right irrespective of the fact that there may be another convention right which out-balances it.
I am very glad that the noble Lord, Lord Williams of Mostyn, said several times and quite categorically that a balancing act was required. I gave as an example in Committee the BBC, which is unquestionably a public authority, being alleged to have infringed a person's right to privacy for himself or his family. The BBC might well say, "Even if we have, it is justified by the right to free expression." The balancing act will then take place, the court deciding where the public interest indicates either that Article 10 (free expression) or Article 8 (privacy) should be preponderant. But the Bill as drafted does not secure that because if Article 8 alone is infringed, an illegal act has been committed.
The noble Lord, Lord Williams, in an extremely ingenious—and perhaps I may say convoluted—argument tried to get round it. He pointed to Article 8(2) which states that the right to privacy shall not be to the detriment of any other person's rights. He said that any other person's rights included the right to freedom of expression under Article 10; in other words, that argument imports the immunity of Article 10 into the very heart of Article 8; it is incorporated in paragraph (2). It means that if an act of invasion of privacy is expressed, as it is likely to be, either in words or pictures, there is a complete answer. There is no right to privacy at all; it is automatically expunged by the importation of Article 10 into Article 8(2). That really will not do. Any judge who interpreted a measure designed to protect human rights in that way would have his wig taken off and his head examined. It is no way to construe such a piece of legislation as this.
Look what is done instead. The mischief aimed at is the contravention of one or more convention rights. What is substituted is "a Convention right". But "a" and "one" mean precisely the same thing in this context. One has only to think of this as a European code. In both French and German one word translates both "a" and "one".

1299
The noble Lord floated the idea of "a Convention right" in Committee. I had no answer although I had been promised consideration, with the result that on 3rd December—about a fortnight after Committee stage—a well informed leader writer in The Times, who had obviously followed this Bill very closely, wrote the following words:
"… Clause 6 … makes it 'unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights'. This wording already gives cause for concern. The phrase 'one or more' could invite a court judgment based on only one of the rights laid down in the Convention … We accept that this is not the intention of Lord Irvine, who insists that the courts will be required to give freedom of expression 'its due high value'. But the Government has yet to accept Lord Simon of Glaisdale's amendment removing this ambiguity. It should do so".
They have not done so. They substituted the word "a" for "one" which does not remove the ambiguity". In view of the fact that I had heard nothing from the Government and in view of that article, on the following day, the 4th December, I wrote pointing out why "a" was as objectionable as "one". I had no answer to that other than a very polite formal acknowledgment from the Secretary to my noble and learned friend the Lord Chancellor. Indeed, I had no answer at all until Wednesday, 14th January, some seven weeks after I had written, when a long letter from the noble Lord, Lord Williams, arrived setting out the case which he has made at the Dispatch Box. Unfortunately, that reached me only late on Wednesday, the letter being dated that day. I had commitments on Thursday and the weekend and was unable to ask to be allowed to put the point why the proposed government amendments were wrong.
To allow that long lapse of time without an answer and for an answer to arrive only one working day and one weekend before Report stage seems to me to be an extraordinary way to conduct business.
The odd feature is that not only do the Government amendments to Clause 6 where the Bill is wrong perpetuate the error—because "a" is the same as "one"—but it alters the expression "one or more of the Convention rights" in other places where it is absolutely the correct expression. Clause 4 deals with a court declaration of incompatibility with one or more convention rights, and that is absolutely right.
The declaration of incompatibility is not freestanding. It leads to a remedial order. The Minister drawing up a remedial order will not want to know whether "a" or "one" convention right has been infringed, but how many and which ones. So, "one or more" then is right, and "a" wrong. What are we to do then? It is difficult not to suggest that that painful inability of the Government to accept any amendments to their Bill, except by their own hand, is pathological—psychopathology politics.
If I have convinced, as I hope I have, the noble Lord, Lord Williams, that his amendment to Clause 6 is wrong, and that my amendment is right, and that his amendment to Clause 4 is wrong, I would ask him to withdraw his amendment and to allow mine to pass. If he feels, with all the pressure of the Government behind
1300
him, that he cannot do that, he should withdraw all his amendments, and I will withdraw mine. That would give us an opportunity to discuss the matter thoroughly again before Third Reading. In conclusion, I must apologise for the state of my voice.
Lord Campbell of Alloway: My Lords, I have listened to the amendment. One owes a duty of frankness to the House. For the life of me, I cannot see what practical difference it makes if you have "one or more" convention rights, or, "a" convention right. I just do not understand what has been said. I say that with deference to the noble and learned Lord who is far more intelligent than I can ever become.
Viscount Colville of Culross: My Lords, I do not suppose that the noble Lord, Lord Williams, will welcome my support, but I would give it to him from, perhaps, a little experience of trying to implement this sort of legislation—at least a convention similar to the one with which the Bill is concerned. He is talking about an exercise in balancing which may have to be done between two different articles of the convention. The same thing applies when dealing with a communication under the international convention where there are conflicting articles similar to those which have been mentioned in the debate. The same exercise has to occur.
A court in this country attempting to apply Clause 4, as it currently is, or, indeed, as the noble Lord, Lord Williams, would have it amended, is bound to try to carry out a balancing exercise. Even if initially just one of the articles concerned is raised by one of the parties before the court, if there is a conflict with another of those articles, I have little doubt that the other party will raise that conflict. Even if it does not, any court that knows the convention which it is bound to apply will be aware that there is more than one article which is binding upon it, and it will be aware of a possible conflict, even of its own motion. Therefore, it will have to carry out the balancing exercise. It is a balancing exercise which both the European Court and the committee upon which I sit have for some time been demonstrating.
I remember doing so last summer in a case in relation to some French legislation where the two articles that we have currently at the forefront of our minds were being looked at in conjunction under the international convention. A balance had to be struck. That is what the courts in this country are being invited to do. If the noble Lord, Lord Williams, says that it will be easier to direct their minds down that path by doing it according to the wording that he now puts forward, then I will support him. I want to make it as easy as possible for the courts to do the balancing exercise; to know that they have to do the balancing exercise; and to follow the example of those tribunals elsewhere which have already been doing the balancing exercise for some time. I therefore give him my support for what it is worth.
Lord Williams of Mostyn: My Lords, I am most grateful for that contribution from the noble Viscount

1301
who, after all, will have to grapple with these practical problems in the future. I have a sneaking sympathy for the robust approach adopted, as usual, by the noble Lord, Lord Campbell of Alloway. On reflection, the noble and learned Lord may think that he has been uncharacteristically acerbic in complaining about the explanation given to him.
I wrote to the noble and learned Lord fully in a three-page letter on 14th January, which gives ample time for consideration for a Report stage on 19th January. The letter included this paragraph:
"I thought you would like to know that your amendment has occasioned a good deal of thought within the Government, and we have decided to table our own amendments in response to it. I attach a copy of these".
That lengthy letter concluded:
"I am sorry to have written at such length. This is a difficult issue. and I wanted to give a full explanation of our reasoning".
I do not believe that that, in all conscience, exhibits any symptoms of a pathological or a psychopathological condition on my part or on the part of the noble and learned Lord the Lord Chancellor. We listened carefully to what the noble and learned Lord said. As I said earlier, we discussed things carefully. When we came to our conclusion the letter was delivered to the noble and learned Lord last Wednesday. I was not to know—pathologically or psychopathologically—that he might have had other things to occupy his attention on Thursday, Friday, Saturday and Sunday.
The noble and learned Lord might agree with me that he has been unduly and unfairly harsh. It is self evident—I say it, and I almost said, "for the last time", but no one is that fortunate—that this point will involve a balancing exercise. Article 8.1 and 8.2 will not just have to be balanced internally, they will have to be balanced, as the noble and learned Lord the Lord Chancellor has told our friends and colleagues in the media, with Article 10. They will have to be balanced—to take up an implied point put by the noble Viscount, Lord Colville of Culross—with the question of a right to a fair trial. There may be many circumstances with which he and I are well familiar in practice over the years where a fair criminal trial for one person may well involve an infringement of someone else's private confidences or family life. That is a commonplace that we all know.
There is nothing difficult about the balancing in principle. It will be an anxious task for the courts to carry out. We believe that we have the formulation right. I respectfully commend our amendments to your Lordships.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 14, 15 and 16:
Page 2, line 38, leave out ("one or more of the Convention rights") and insert ("a Convention right").
Page 2, line 43, leave out ("one or more of the Convention rights") and insert ("a Convention right").
Page 3, line 2, leave out ("one or more of the Convention rights") and insert ("a Convention right").
On Question, amendments agreed to.
Lord Hardie Lord Hardie moved Amendment No. 17:
Page 3, line 11, leave out ("as a court of criminal appeal") and insert ("otherwise than as a trial court").
The noble and learned Lord said: My Lords, in Committee, the noble and learned Lord, Lord Mackay of Drumadoon, tabled an amendment which would have conferred on the High Court of Justiciary, sitting as a trial court, the competence to make a declaration that a provision of primary or secondary legislation was incompatible with one or more of the convention rights.
My noble and learned friend the Lord Chancellor explained that it was not the intention that any such power should be conferred on judges who preside over criminal trials. The noble and learned Lord's amendment, as well as concerns expressed separately by the noble and learned Lord, Lord Hope of Craighead, caused the Government to look again at the provision. As currently drafted, the provision would prevent the High Court of Justiciary from making declarations of incompatibility when considering applications to the nobile officium. That is not the Government's intention which is, as I have explained, only to prevent judges presiding over criminal trials from making such declarations. Amendment No. 17 accordingly provides that such declarations may be made by the High Court of Justiciary, except when it is sitting as a trial court. I beg to move.
Lord Mackay of Drumadoon>: My Lords, I am grateful to the Minister for bringing forward the amendment, which meets in part the matter I raised in Committee. I suggest to the noble and learned Lord the Lord Advocate that the precedent of meeting my amendment with a government amendment is one which he would be well advised to follow in relation to a matter which we discussed earlier.
Lord Hope of Craighead: My Lords, I was among those who asked the noble and learned Lord the Lord Advocate to consider the matter again. I, too, am grateful for the amendment which is tendered. It is an important amendment. It is not commonly appreciated that there is a complete separation between the civil and criminal courts in Scotland. Judicial review as practised in Scotland extends in the civil courts to matters of a civil nature. Without the amendment, it would be difficult for the High Court of Justiciary in all its forms to cover the various situations in which questions of incompatibility might arise. I am particularly grateful for the amendment, therefore, because it will give considerable importance to the way in which criminal jurisdiction in Scotland will develop in the light of the provisions of the Bill.
On Question, amendment agreed to.
7 p.m.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 18:
Page 3, line 14, at end insert—

("(f) in Jersey, the Royal Court or the Court of Appeal;

(g) in Guernsey, the Royal Court or the Court of Appeal;

(h) in the Isle of Man, the High Court.").

The noble Lord said: My Lords, in moving Amendment No. 18, I shall speak also to Amendments Nos. 20, 68 and 69. The purpose of the amendments is to incorporate convention rights into the laws of the Channel Islands and the Isle of Man. Perhaps I may give a brief background. The Channel Islands and the Isle of Man enjoy a unique status as dependencies of the Crown. Although they have their own legislative assemblies and by long-established convention are responsible for the regulation of their own domestic affairs, including taxation, the United Kingdom has ultimate responsibility for their good government and is responsible for their defence and foreign relations. Citizens of the Channel Islands and the Isle of Man are British citizens.
I turn to the power to legislate for the Channel Islands and the Isle of Man. Constitutionally, there is nothing to prevent the United Kingdom Parliament from legislating for the Channel Islands and the Isle of Man. In 1973, the Royal Commission on the Constitution (Cmnd 5460) concluded that,
"Parliament has power to legislate for the Islands and that, in some matter at least, the exercise of this power is not dependent on the Islands' consent being given. It has, however, been the practice not to legislate for the Islands without their consent on matters which are of purely domestic concern to them. There has been strict adherence to the practice over a very long period, and it is in this sense that it can be said that a constitutional convention has been established whereby Parliament does not legislate for the Islands without their consent on domestic matters".
However, the convention is limited when an international obligation—for example, incorporation of the European Convention on Human Rights—is at issue.
The Royal Commission stated, at Paragraph 1472; that,
"despite the existence of the convention, Parliament does have power to legislate for the Islands without their consent on any matter in order to give effect to an international agreement".
It states at Paragraph 1473:
"in the eyes of the courts, Parliament has a paramount power to legislate for the Islands in any circumstances, and we have proceeded on this assumption … But if, exceptionally, circumstances should demand the application to the Islands without their consent of measures of a kind hitherto regarded as domestic, then Parliament would, in our view, have the power to enact the necessary legislation".
I apologise for having quoted from that document, but it is important to be clear that one is acting in accordance with constitutional convention in a matter of this kind. I submit that bringing convention rights home to British citizens of the islands is an exceptional circumstance, so that they may obtain legal redress in the courts of the islands.
I turn briefly to what the precedents show. The power to legislate for the islands has been exercised in the past. For example, the Extradition Act 1989 is extended to
1304
the Channel Islands as if they were part of the United Kingdom. Prerogative powers have also been exercised in relation to the Channel Islands without prior request for such exercise; for example, the prerogative of mercy and the Court of Appeal (Channel Islands) Order 1949. Similar powers have been exercised in relation to the Isle of Man. The Isle of Man Act 1979 gives effect to an agreement between the Government of the United Kingdom and the Government of the Isle of Man by which both countries have been treated as a single area for the purposes of value added tax and car tax. In 1967 the United Kingdom Parliament imposed upon the Isle of Man the Marine Broadcasting (Offences) Act by statutory instrument outlawing broadcasting from marine structures within the British islands and the contiguous sea areas.
I turn to the obligations under the European Convention on Human Rights since that is an important and relevant matter. Under Article 1 of the convention, the Government have an obligation directly to secure to everyone respect for their convention rights in the territories for which the Government have responsibility, including the Channel Islands and the Isle of Man. In the inter-state case of Ireland v. United Kingdom in 1978, the European Court of Human Rights observed:
"By substituting the words 'shall secure' for the s ords 'undertake to secure' in the text of Article 1, the drafters of the Convention also intended to make it clear that the rights and freedoms set out in Section I would be directly secured to anyone within the jurisdiction of the Contracted States".
Although in the case of Gillow v. United Kingdom in 1989, which related to regulations preventing foreigners from occupying property they owned in Guernsey, the British Government initially stated that they had not extended Article 1 of the European Convention to Guernsey, the matter was rectified and the Government wrote to the European Commission in February 1988 confirming that Article 1 had been extended to the Bailiwicks of Guernsey and Jersey. Similarly, the European Court rejected the argument in the Tyrer case in 1978, concerning the practice of birching in the Isle of Man, that the special position of the Isle of Man could justify a difference in the application and enjoyment of convention rights to the Isle of Man.
In Written Answers on 12th January 1998 the noble Lord, Lord Williams of Mostyn, confirmed the obligation of the UK Government to ensuring that the Crown dependencies comply with the European Convention. He also confirmed that at present the courts in the Isle of Man and the Channel Islands are not required or authorised directly to provide remedies for breaches of the convention.
Finally, I turn to the discrimination in relation to legal remedies which will arise if the amendments, or something like them, are not enacted. If British citizens and others living and working in the Channel Islands and the Isle of Man are excluded from the benefits of the Bill, that itself will provide grounds for complaint under the convention of unfair discrimination in relation to legal remedies. In the Belgian Linguistic case (No. 2) in 1968, the European Court explained how Article 14 of the convention—the non-discrimination guarantee—applies with an example concerning state action in

1305
relation to the scope of remedies before domestic courts under Article 6. The court said that it would violate Article 6 read with Article 14,
"were [a state] to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions".
There seems no legitimate reason to exclude the inhabitants of the islands from the benefits of incorporation. Arguments to that effect by successive British governments have never succeeded in Strasbourg in previous cases. In the Tyrer case, a submission that the special position of the Isle of Man could justify a difference in the application and enjoyment of convention rights was rejected. The European Court said:
"Historically, geographically and culturally, the island has always been included in the European family of nations and must be regarded as sharing fully that 'common heritage of political traditions, ideals, freedom and a rule of law' to which the Preamble of the Convention refers … Article 63 was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention".
Therefore, it is quite clear that the European Court has regarded those islands as falling within the area of responsibility of this country in a different way from other, as it were, colonial territories.
I hope that I have explained that there is no constitutional barrier to the extension of the Bill to the Channel Islands and the Isle of Man. For Parliament to fail to exercise that power, while incorporating the convention rights into UK law, would clearly expose the Government to possible action under the convention for failure to provide the citizens of those islands with the same remedies as other British citizens would enjoy once the process of incorporation is complete.
Therefore, I very much hope that the Government will feel able to accept the amendments. I add two points only. First, unless Clause 22 is amended, there will be no power for this Government or a future government to do so except by enacting further primary legislation. That seems to me to be clumsy and ineffectual as a position.
Secondly, if the noble and learned Lord the Lord Chancellor were able to indicate that the Government required further time to take soundings on this matter, I would understand that position, provided that we may return to the matter on Third Reading; otherwise it seems to me that we shall be failing properly to incorporate the convention in areas for which we are responsible and we shall expose this country to avoidable international proceedings. I beg to move.
Lord Renton: My Lords, the noble Lord, Lord Lester of Herne Hill, has raised a delicate and uncertain constitutional point. I speak as one who, like other Members of your Lordships' House—in particular in recent times my noble friends Lady Blatch and Lord Elton—has had responsibility for watching the interests of the Channel Islands and the Isle of Man while serving in the Home Office.
1306
I must say that we must be very careful because, although from time to time the United Kingdom Parliament legislates on those independent territories under the Crown, they do so only when they have the agreements of the parliaments of those territories. Of course, Her Majesty has a direct responsibility for them but, by tradition, her Prime Minister and other Members of her government have been very careful not to impose obligations upon them.
I should be grateful if, in answering these amendments—and I believe it is to be the noble Lord, Lord Williams of Mostyn, which gives one great pleasure—the Minister will tell the House what consultation there has been with the Tynwald and the parliaments of Guernsey and Jersey. If they want to be aligned with the United Kingdom, of which they are not part, on these matters, so be it. But we must be very careful about it.
7.15 p.m.
Lord Monson: My Lords, as a layman and someone who has never been remotely anywhere near government, I am most hesitant to intervene. But it seems to me that it would take us down a very slippery slope if this quartet of amendments—in particular Amendment No. 69 which is the substantive amendment—were accepted.
The Channel Islands and the Isle of Man are extremely ancient jurisdictions. They are not and never have been part of the United Kingdom and they have no representation whatever at Westminster. Therefore, whatever the 'Royal Commission may have declared in 1973, it is surely quite wrong to interfere in their internal affairs unless there is some gross injustice crying out to be remedied, which is certainly not the case here.
Many years ago, those territories agreed of their own free will—and that is the important point—to be bound by the provisions of the European Convention on Human Rights. That surely should be enough to satisfy any reasonable person.
Lord Henley: My Lords, like my noble friend Lord Renton and the noble Lord, Lord Monson, I should like to ask not only the Government but also the noble Lord, Lord Lester, when he comes to respond, what consultations have taken place with the various island governments responsible in this regard.
The noble Lord argued that the consent of the islands is not necessary. I believe that the noble Lord, Lord Monson, expressed the matter much more effectively when he said that even if, in strict law, their consent was not necessary, in all humanity they should be consulted and their consent should be obtained.
I have one further question for the noble Lord which relates to the first amendment in this group; namely, Amendment No. 18. As I understand it, that relates to the various courts of appeal in the three territories mentioned. Am I right to understand that it would allow, for example, the court of appeal in Guernsey to make a declaration of incompatibility in relation to legislation coming from this Parliament? Would it be possible for

1307
the court of appeal in Guernsey to say that legislation relating to, for example, the outlawing of off-shore trusts, something which we have been promised by this Government, could be in breach of their human rights? I should like an answer on that point from the noble Lord, Lord Lester, and also from the noble Lord who speaks for the Government on this occasion.
Lord Williams of Mostyn: My Lords, a diplomatic deafness overtook me when the noble Lord directed his question, I think it was, to the noble Lord, Lord Lester; but I probably misheard.
I am most grateful to the noble Lord, Lord Lester of Herne Hill, for the way in which he has moved the amendment. He has correctly identified, as have other noble Lords, the constitutional position of the Channel Islands and the Isle of Man. It is a fact that there is a great reservoir of ignorance about the true constitutional arrangements between the Channel Islands, the Isle of Man and the United Kingdom. The noble Lord, Lord Renton, and latterly the noble Earl, Lord Ferrers, the noble Baroness, Lady Blatch, and now I—I am sorry, my amnesia was unintended but I forgot the noble Lord, Lord Elton—have all had responsibility for dealing with the Channel Islands. The fact is that they are independent jurisdictions and are extremely and understandably astute that their interests be properly considered; that they be properly consulted; and that every due regard be given to their views. Dare I say, in this evening's context, that that is one of their human rights?
Generally speaking, I do not disagree with the constitutional analysis put forward by the noble Lord, Lord Lester of Herne Hill. The Crown is ultimately—and I stress the word ultimately—responsible for the good government of the islands. We have full power in principle to legislate for the islands, but it is a fact that it would be contrary to constitutional conventions to which all governments of whatever political complexion have adhered for the power to be used in the ordinary course of events without the agreement of the island governments. I respectfully take the points made by the noble Lord, Lord Monson, but they have their own systems of government and are not represented at Westminster in matters which are entirely domestic to the islands. In extremis, we could take that power but we do not regard these circumstances as appropriate for the power to be taken. We prefer to work by co-operation, as did previous governments.
Enabling provisions are included in published Bills only after full consultation with the island governments. Similarly, any orders that the islands subsequently agree should he made are drafted in consultation with the island authorities. Many noble Lords asked, perfectly properly, whether Her Majesty's Government had consulted with the appropriate island governments. The answer is an unambiguous yes. All three stated categorically that they did not wish the Human Rights Bill to be extended to them in the way proposed by the noble Lord, Lord Lester of Herne Hill. All of them said no, and they were quite categoric in that respect.
1308
I respectfully suggest that we ought not to force different arrangements upon them when they have expressed themselves so firmly.
However, it is right that the Isle of Man authorities have announced their intention to introduce insular legislation. I say that knowing that I might be derided but I believe it to be the correct adjective. That insular legislation—it being an island, after all—would give effect to the convention on the islands. They have taken that view. The authorities in the Channel Islands do not intend to take that step for the present, but it is not ruled out for the future.
The Government's position is quite plain. We have our obligations. We have our obligations under the convention. We have consulted the islands fully and have our obligations to consider their views. We have done so, and have come to the conclusion that we ought not to accede to the proposals made by the noble Lord, Lord Lester of Herne Hill.
I am most grateful for the support expressed from various quarters of your Lordships' House. We are dealing with delicate matters and there are sensibilities involved which must properly be attended to and taken into consideration. We believe that the stance we have adopted is the correct one, bearing in mind the conventional history of the relationships between the United Kingdom and three islands which have their own distinct traditions, their own separate views and their own discrete legislatures.
Lord Lester of Herne Hill: My Lords, perhaps the Minister could deal with one matter that I raised. I refer to the problem that if we give remedies to British citizens in the UK but do not give the same remedies to British citizens living in the Isle of Man or in the Channel Islands on the basis of the courts' case law, which I quoted all too extensively, we will be in breach of Article 14 of the convention, read with Article 6, for discriminating in the provision of remedies in the determination of convention rights. The course that I take will depend very much on the answer that I receive to that question.
Lord Williams of Mostyn: No, my Lords, with the greatest of respect we do not accept that argument because there is no discrimination: the jurisdictions are different. Therefore, one is not comparing like with like. We do not believe that we would be in default of our Article 14 obligations. I fully recognise the noble Lord's interest in these different jurisdictions, especially recently in the Isle of Man. Therefore, I dare say it is a kind of gratification to him to know that the Isle of Man has decided to legislate internally on the lines that I suggested.
Baroness Blatch: My Lords, before the Minister sits down, perhaps he will answer one further question. Does he agree that the arguments that have been deployed in response to the amendments—all of which I agree with wholeheartedly—would also be pertinent to the Scottish amendments that we discussed earlier on the Church and those which are to follow? Surely, the arguments are exactly the same.
Lord Williams of Mostyn: My Lords, the arguments are not remotely the same. Indeed, they are utterly distinct. One is to do with the 1922 settlement of the Church of Scotland which is an Act of Parliament. As my noble and learned friend the Lord Advocate said—and he is always right on these occasions—that remains wholly intact. The question of introducing convention rights into the Isle of Man, Guernsey, Sark, Brechou and Jersey has nothing at all to do with the position of the Church of Scotland. I venture to suggest that, were I to ask the wife of my noble and learned friend the Lord Advocate, who is an Elder of the Church of Scotland, whether she lays awake at night worrying about the position of the Channel Islands and whether to have any necessary or sensible connection with them, I think that the answer would be, no.
Lord Lester of Herne Hill: My Lords, I am most grateful to the Minister and all noble Lords who have taken part in this short but important debate. My starting point is that of course there should be effective consultation. I am glad to hear that there has been. I am also glad to hear that the authorities in the Isle of Man have shifted in the way outlined. However, the Channel Islands remain. They have already caused this country to be held to be in breach of the convention in one case. When one is talking about fundamental human rights and freedoms anchored in an international treaty where the UK has international responsibility for breaches of the rights of British citizens in the Channel Islands, as well as in the Isle of Man, I can see no answer to the point that there is a difference of treatment made in the protection of access to courts for enforcing convention rights as between the islands and the mainland.
I turn now to the arguments about distinct traditions and local circumstances. This is an argument which one has heard time and again in the human rights field in this country and beyond. Indeed, we heard that argument in Northern Ireland in the Dudgeon case where the UK was forced to change the criminal law so as to give equality of treatment to homosexuals. We had the same argument with regard to corporal punishment in Scotland; namely, that there was a different tradition there. In each case the UK Parliament was compelled to legislate. and the same would apply to breaches in the Channel Islands.
I turn now to the courts in the Channel Islands which, in answer to the noble Lord, Lord Henley, would not have the power under my amendments to strike down Acts of the Westminster Parliament, any more than the Scottish courts will have the power to do so under the devolution legislation. I have not heard any arguments to suggest that those courts are not capable of providing effective remedies for breaches of the convention. As the rights of British citizens are at stake, it seems to me that the same rights and obligations should apply across the mainland and the offshore islands.
I have quoted the Royal Commission under the chairmanship of the late Lord Kilbrandon indicating that where an international agreement is concerned special considerations are involved. It is in respect for the
1310
citizens of those islands, and not through any disrespect to them, that I believe they should have equal protection. For that reason, I wish to test the opinion of the House.
7.28 p.m.
On Question, Whether the said amendment (No. 18) shall be agreed to?
Their Lordships divided: Contents, 32; Not-Contents, 176.

Division No. 1

CONTENTS

Addington, L.

Newby, L.

Beaumont of Whitley, L. [Teller.]

Nicholson of Winterbourne, B.

Brookes, L.

Ogmore

Calverley, L.

Razzall

Carlisle, E.

Redesdale, L.

Dholakia, L.

Rochester, L.

Falkland, V.

Rodgers of Quarry Bank, L.

Geraint, L.

Russell, E.

Goodhart, L.

Sandberg, L.

Hamwee, B.

Smith of Clifton, L.

Harris of Greenwich, L.

Thomas of Gresford, L.

Hooson, L.

Thomson of Monifieth, L.

Lester of Herne Hill, L.

Thurso, V.

Ludford, B.

Tope, L. [Teller.]

McNally, L

Tordoff, L

Maddock, B.

Wallace of Saltaire, L.

NOT-CONTENTS

Acton, L.

Davies of Oldham, L.

Alexander of Tunis, E.

Dean of Thomton-le-Fylde. B.

Alton of Liverpool, L.

Desai. L

Amos, B.

Dixon, L.

Anelay of St. Johns, B.

Dixon-Smith, L.

Ashboume, L.

Donegall, M.

Bassam of Brighton, L.

Dormand of Easington, L.

Belhaven and Stenton, L.

Eatwell, L.

Bemers, B.

Elliott of Morpeth, L.

Biddulph, L.

Elton. L.

Blackstone, B.

Evans of Parkside. L

Blaker, L.

Falconer of Thornton, L.

Blatch, B.

Farrington of Ribbleton, B.

Blease, L.

Fookes, B.

Borne, L.

Gallacher, L.

Brentford, V.

Gordon of Strathblane, L.

Bridgeman, V.

Gould of Potternewton, B.

Brooke of Alverthorpe, L.

Graham of Edmonton, L.

Brooks of Tremorfa, L.

Gregson, L.

Burlison, L.

Grenfell, L.

Burnham, L.

Haddington, E.

Cadman, L.

Hanworth, V.

Carmichael of Kelvingrove, L.

Hardie, L.

Carnegy of Lour, B.

Hardy of Wath, L.

Carnock. L.

Harris of Peckham, L.

Carter, L. [Teller.]

Haskel, L. (Teller.]

Chandos, V.

Hayhoe, L.

Chelmsford, V.

Hayman, B.

Chesham, L.

Hemphill. L.

Clinton-Davis, L.

Henley, L.

Cocks of Hartcliffe, L

Hilton of Eggardon, B.

Coleraine, L.

Hogg of Cumbemauld, L

Colville of Culross. V.

Hollis of Heigham, B.

Colwyn, L.

HolmPatrick, L.

Cope of Berkeley, L.

Home, E.

Courtown, E.

Hooper, B.

Craig of Radley, L.

Hope of Craighead, L.

Cross, V.

Howie of Troon, L.

Currie of Marylebone, L.

Hoyle, L.

David, B.

Hughes, L.

1311

Hughes of Woodside, L.

Peston, L.

Hunt of Kings Heath, L.

Pitkeathley, B.

Hunt of Wirral, L.

Platt of Writtle, B.

Hylton, L.

Prys-Davies, L.

Iddesleigh, E.

Puttnam, L.

Irvine of Lairg, L. [Lord

Ramsay of Cartvale, B.

Chancellor.]

Randall of St. Budeaux, L.

IsIwyn, L.

Rawlings, B.

Jay of Paddington. B.

Rea, L.

Jeger, B.

Rendell of Babergh, B.

Jenkin of Roding, L.

Rennell, L.

Jenkins of Putney,

Renton, L.

L. Kennedy of The Shaws, B.

Renwick of Clifton, L.

Kennet, L.

Richard, L. [Lord Privy Seal.]

Kilbracken, L.

Ripon, Bp.

Kingsland, L.

St. John of Bletso, L.

Kirkhill, L.

Sefton of Garston, L.

Knight of Collingtree, B.

Selborne, E.

Lawson of Blaby, L.

Sewel, L.

Leigh, L.

Shaw of Northstead, L.

Liverpool, E.

Shepherd, L.

Lofthouse of Pontefract, L.

Simon, V.

Longford, E.

Simon of Highbury, L.

Luke, L.

Smith of Gilmorehill, B.

McIntosh of Haringey, L.

Soulsby of Swaffham Prior, L.

Mackay of Drumadoon, L.

Southwell, Bp.

Marlesford, L.

Stallard, L.

Masham of Ilton, B.

Stewartby, L.

Merlyn-Rees, L.

Stone of Blackheath, L.

Mersey, V.

Strabolgi, L.

Milner of Leeds, L.

Swinfen, L.

Molloy, L.

Symons of Vernham Dean, B.

Molyneaux of Killead, L.

Taylor of Blackburn, L.

Monkswell, L.

Taylor of Gryfe, L.

Monoro of Langholm, L.

Thomas of Gwydir, L.

Monson, L.

Turner of Camden, B.

Montague of Oxford, L.

Ullswater, V.

Montgomery of Alamein, V.

Vivian, L.

Morris of Manchester, L.

Walker of Doncaster, L.

Napier and Ettrick, L.

Waterford, M.

Newall, L.

Watson of Invergowrie, L.

Nicol, B.

Wedderburn of Charlton, L.

Norfolk, D.

Wharton, B.

Northbrook, L.

Whitty. L.

Northesk, E.

Wilberforce, L.

Orme, L.

Williams of Mostyn, L.

Palmer, L.

Winston, L.

Perth, E.

Young, B.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
7. 38 p.m.
Lord Hoyle: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that Report stage does not begin again before 8.38 p.m.
Lord Simon of Glaisdale: My Lords, perhaps I may ask how late we are expected to sit this evening.
Lord Hoyle: My Lords, the answer is that we do not know at this stage.
Lord Simon of Glaisdale: My Lords, perhaps I may ask how soon the noble Lord will know.
Lord Hoyle: My Lords, when we adjourn depends to a large extent on your Lordships. At this stage we cannot give any indication.
Moved accordingly, and, on Question, Motion agreed to.

Lloyds TSB Bill [H.L.]]
7.40 p.m.
Baroness Hooper: My Lords, I beg to move that this Bill be now read a third time.
Since the merger between the TSB Group and Lloyds Bank in December 1995, the banking activities of the two organisations have been carried on separately. The need to have a Private Bill arises out of the fact that the bank may not transfer a customer's money to another body without the consent of the customer. Only through this means can a bank's operations be merged without going through the massive administrative task and the uncertainty of seeking the agreement of each customer individually in order to transfer his or her account from one entity to another. In this way, and in this particular case, some 8 million customers are also therefore spared the accompanying inconvenience. This is the usual and recognised way of dealing with this particular task. An average of one bank Bill each parliamentary Session attests to that. However, it must be said that usually such Bills, like most Private Bills, pass through all their stages without discussion.
Nevertheless, the Lloyds TSB Bill has been making steady progress through this House since its first Reading in January last year and its Second Reading in March last year. At Second Reading we had an interesting and wide-ranging debate. Then, following the general election and the Summer Recess, the Unopposed Bill Committee stage took place on 27th November last year.
As some noble Lords may be aware, the Lloyds TSB Group undertook exhaustive and free-ranging discussions about its future relationship with the Banking Insurance and Finance Union (BIFU) and the Lloyds TSB Union, the LTU. It did so as soon as the merger was announced. It successfully concluded agreements with both BIFU and the LTU to the satisfaction of each of the parties during last year's Summer Recess.
The most significant and relevant features of those agreements were: to give equal recognition rights to BIFU and the LTU up to the same level in both TSB and Lloyds banks; to reaffirm that compulsory redundancy would continue to be very much a policy of last resort; to provide improvements when harmonising terms and conditions of contracts of employment and guarantees as to how the new terms will apply to individual members of staff; further, to agree a process for proposed branch reductions and to reaffirm the assurances previously given regarding the TSB Bank in Scotland.
Certain questions were also raised at earlier stages of the Bill in regard to pensions. The Bill does not have an impact in any way upon any of the schemes within the Lloyds TSB Group. Nevertheless, I am assured that the Lloyds TSB Group takes its responsibilities in this area most seriously. In particular, the schemes in the group are well-funded and provide an excellent package of benefits to pensioners. In addition to strength of funding, the schemes enjoy a comprehensive framework of statutory, regulatory and fiduciary safeguards for their

1313
beneficiaries which are in line with best practice among major corporate pension schemes throughout the United Kingdom. Against the background of the agreements reached with the unions and the assurances given to them, the unions withdrew their petitions against the Bill, which enabled us to have an unopposed Committee stage.
I understand that the noble Lord, Lord St. John of Bletso, wishes to raise again the issue of pensions, albeit at this very late stage. Unfortunately, I have been unable to ascertain the concerns of my noble friend Lord Northbrook, but I look forward with interest to hearing the remarks of both noble Lords. I beg to move.
Moved, That the Bill be now read a third time.—(Baroness Hooper.)
7.45 p.m.
Lord St. John of Bletso: My Lords, while I in broad terms welcome this Bill and the potential benefits to shareholders and customers of Lloyds and TSB, I should like briefly, as the noble Baroness mentioned, to express my concern for the pension rights of the ex-employees of TSB, Hill Samuel and the other companies whose pension funds were amalgamated into the TSB group pension scheme, which currently has a large surplus.
I know that the noble Lord, Lord Northbrook, will be elaborating on the concerns of the TSB Hill Samuel Action Group, representing those ex-employees. The group has over 50,000 members, of whom, at the date of the last accounts, more than 20,000 were current employees; 20,000 were deferred members; and under 9,000 were pensioners.
The Bill draws reference to the,
"transfer to, and vesting in, Lloyds … of the undertakings of TSB … and Hill Samuel".
In essence, I would like to see improved safeguards being put in place to ensure that the surplus pension assets in the TSB pension scheme are used to improve the benefits of existing and former members to the maximum level permitted by Inland Revenue requirements. I was encouraged by the remarks of the noble Baroness, Lady Hooper, who said that Lloyds TSB takes its pension responsibilities very seriously.
There has been a certain amount of press coverage, citing TSB and Noble Lowndes as mis-selling pensions. I also understand that Noble Lowndes advised some of the group's redundant employees of their entitlements, and that they were not happy with the quality of that advice. I should like to know to what extent such cases have been resolved by Lloyds TSB.
In conclusion, I reaffirm my support for the Bill, but hope that my concerns for the rights of the pensioners can be addressed when the undertakings of TSB and Hill Samuel are "transferred to, and vested in", Lloyds.
7.48 p.m.
Lord Northbrook: My Lords, I thank the noble Baroness, Lady Hooper, for her detailed explanation of the background to the Bill. I seek to express some of the concerns of the TSB Hill Samuel Action Group, whose
1314
members are ex-employees of the TSB, Hill Samuel or other companies whose pension funds have been amalgamated into the TSB group pension scheme. They are not opposed in principle to the Lloyds TSB Bill. They recognise that it will bring substantial benefits to the promoter. However, they believe that, in view of those benefits, certain anomalies in the protection available to pensioners and in the treatment of redundant and other ex-employees must be remedied by the promoter before the Bill is passed. In default of such remedy, they will petition the Bill in another place.
As the noble Lord, Lord St. John, has already given details of the current membership of the TSB group pension scheme, I should like to focus on the other ex-employees transferred out of the scheme on terms which, at least with hindsight, were insufficiently generous, so contributing to the large surplus in the fund. From the figures it is apparent that large numbers of employees do not remain for long enough to reach the minimum pensionable age of 50. In view of the continuing staff reductions in the retail banking sector, and at Lloyds TSB in particular, the number of deferred members of the pension scheme can be expected to increase, both in absolute and relative terms. Therefore, bearing in mind that the employees of the Trustee Savings Bank were in many cases relatively lowly paid, that many older pensioners have had their entitlements eroded by inflation and that many of the members will have left before pensionable age, frequently through being made redundant, a significant proportion of the members of the scheme are, or will be, receiving relatively low incomes.
As has been mentioned, there is a substantial surplus in the TSB group pension scheme of at least £850 million, or 48 per cent., at the date of the last accounts, enabling the employer to anticipate a contribution holiday until the year 2015.
In detail, the action group has two major and interrelated concerns: protection of potential benefits out of the fund surplus for the actual and deferred pensioners and equity in distribution to the beneficiaries in general and the poorest pensioners in particular.
As regards the first issue, the action group is concerned about what will happen if there are future mergers between the TSB scheme and other, less well-funded schemes, as well as the consequences of the present planned merger of the undertakings of Lloyds Bank, TSB and Hill Samuel, particularly as the potential cost to the fund of remedying anomalies does not seem to have been addressed. The action group believes that Clause 8 of the Bill, which makes provision for retirement benefit schemes, does not provide sufficient protection for the interests of the members. The rules of the TSB scheme offer no protection if there is alteration to the benefits payable to the members without their consent, to the detriment of those members. Similarly there is no provision that would even prevent the ending of the TSB scheme. The action group believes that protection should be incorporated into the documents which constitute the TSB scheme to ensure that the interests of present and future pensioners are unaffected

1315
by the consequences of the proposed merger. Such protection is needed before the Bill is allowed to pass into law.
The action group is anxious to ensure that the TSB scheme funds should not be used to pay benefits to the members or former members of other pension schemes operated by merged banks which might follow an amalgamation of the schemes. The action group is also determined to ensure that such protection should be extended to any future merger proposed by Lloyds TSB. It is also concerned that no part of the TSB scheme funds should be returned to Lloyds following any winding up of the scheme after the transfers of operations contemplated in the Bill. For these reasons, the action group believes that adequate safeguards should be put in place to ensure that the surplus assets in the TSB scheme are used to improve the benefits of the existing and former members to the maximum levels permitted by Inland Revenue requirements, as stated by the noble Lord, Lord St. John.
The action group is particularly concerned to ensure effective protection of the pension fund surplus. It understands that in the past few years TSB has transferred such surplus to companies acquiring its non-core subsidiaries so that they in turn can enjoy contribution holidays in respect of the staff transferred. It believes that it has not received satisfactory explanations of the numbers of and reasons for several of these transfers which would persuade them that the pension fund surplus was reasonably transferred without detriment to the members.
Moving on to the action group's second major concern, equity in distribution to beneficiaries in general and to poorest pensioners in particular, the action group is particularly concerned by the unsatisfactory explanations it received after it queried apparently unfair and unequal treatment of different groups and categories of pensioners. On the one hand, it is evident from the Lloyds TSB 1996 accounts that certain favoured individuals received substantial exceptional enhancements to their pension entitlements. On the other hand, some pensioners are receiving income support. The action group requires full details of all anomalies for the benefit of all the individuals affected, and not just for those lucky or well enough advised to have discovered discrepancies operating to their own disadvantage. The action group therefore seeks explanations of the numbers of individuals and amounts involved. Without a satisfactory explanation, confirmation will be sought in the other place that all such anomalies have been rectified.
We are not talking about a rerun of the Maxwell situation. However, the concerns of the action group are serious and require a more detailed and satisfactory response than has hitherto been given. If that does not happen, I anticipate further reaction to the Bill in another place.
Baroness Hooper: My Lords, I have listened with interest to my noble friend and to the noble Lord, Lord St. John of Bletso, and I feel sure that the promoters and the company will read with care what has been said in the course of the debate this evening. I must reiterate
1316
that the pension schemes are not affected by the Bill and therefore it is not my task this evening to go into the intricacies of the schemes and their surpluses. I fully appreciate that my noble friend and the noble Lord, Lord St. John of Bletso, felt it important and convenient to take advantage of Third Reading to air this issue. However, as I understand it, there is nothing special about this case; it is no different from any other merger of any two companies and their pension schemes. The schemes enjoy a comprehensive framework of statutory, regulatory and fiduciary safeguards, which cannot be avoided. They were put in place as a result of the Pensions Act 1995, which followed the Goode Committee Report. The beneficiaries benefit in this way in line with best practice among all major corporate pension schemes in this country. To go further and to make wider or more general changes, as has been requested, would be unprecedented and would single out these schemes compared to all other corporate schemes, when the Bill has no impact on them at all.
The unions are content with the situation. While the promoters would be prepared to consider these concerns, I believe the concerns are of a general nature and are more properly addressed to the Government. It is ironic that the Hill Samuel scheme, which was merged with the TSB scheme in 1991, is now considerably better funded as a result.
Lord St. John of Bletso: My Lords, I am grateful to the noble Baroness for giving way. Would the noble Baroness not agree that, despite what she says, this Bill has no connection with the pension schemes and that the Bill makes specific reference in Clause 3 for the transfer to and the vesting in Lloyds of the undertakings of TSB and Hill Samuel? The reference to the undertakings is surely inclusive of the pension surplus of the TSB pension fund.
Baroness Hooper: My Lords, as I understand it, the reference to transfer dates in the Bill is simply a matter of timing and does not in fact affect the contents of the pension schemes or the details of the pension schemes.
Finally, I must reiterate something that I said at Second Reading, that the measure before us today provides simply for an internal reorganisation of the group which is designed to enable Lloyds TSB to get on with what it is good at doing: delivering long-term security and success for the benefit of all its customers and staff and, in doing this, and in seeing the merger through, this is the final full-stop, as it were, in your Lordships' House.
The Bill does go on to another place, where various concerns which may be within or without the terms of the Bill will no doubt be raised again, but I am most grateful to those of your Lordships who have participated in the passage of the Bill through your Lordships' House. I commend the Bill to the House.
On Question, Bill read a third time.
Baroness Hooper: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Hooper.)
On Question, Bill passed, and sent to the Commons.
Lord Haskel: My Lords, I beg to move that the House do now adjourn during pleasure until 22 minutes before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.02 to 8.38 p.m.]

Human Rights Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 5 [Right of Crown to intervene]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 19:
Page 3. line 23, after ("Crown,") insert—
("( ) a Scottish Minister, as defined by section 41(2) of the Scotland Act 1998,").
The noble and learned Lord said: My Lords, the background to this amendment is the different procedures which will apply in Scotland for dealing on the one hand with an allegation that an Act of Parliament of this Parliament is in some way incompatible with convention rights, and the alternative situation where the argument is that an Act of a Scottish Parliament, once it comes into being, is so flawed.
As I have previously mentioned in discussing this Bill, it is quite possible to foresee the situation in the future where in dealing with a similar topic, for example in the field of law and order or education, a statutory provision in identical terms is enacted by this Parliament to that which is also enacted by the Scottish Parliament and forms part of an Act of that Parliament. Therefore it is quite possible to foresee the situation where a challenge is raised to the compatibility of such a provision with convention rights.
If the challenge to the United Kingdom Act of Parliament were to come first, then in terms of Clause 5 of the Bill a Minister of the Crown could apply to be joined as a party to the proceedings—assisted as a party to the proceedings, as I think we would describe it in Scotland—but the Bill would not allow a Minister of the Scottish Parliament to make such an application. Therefore there would be a possibility of a court in Scotland granting a declarator that the provision of the UK Parliament was incompatible with human rights in the knowledge that there was a similar provision in the Act of the Scottish Parliament which no Minister of the Scottish Executive would be in a position to defend.
In my respectful submission, it would be sensible to amend Clause 5 to allow for the possibility of a Scottish Minister as defined under the Scotland Bill—or the Scotland Act as it presumably will become—to join in such proceedings in a situation such as I have described. That is the purpose of this amendment, to preclude the
1318
possibility of a court deciding that the UK statute was incompatible without giving the Scottish Executive the right to be heard. I beg to move.
The Lord Chancellor: My Lords, I am grateful to the noble and learned Lord for moving this amendment. I hope that what I say will give assurance to him. Throughout all stages of the Bill the noble and learned Lord has been assiduous in raising all matters of proper concern to Scotland. The effect of the amendment which he proposes would be to entitle a Scottish Minister—that is, a Minister of the Scottish Parliament once it is established—to be joined in proceedings when a court is considering whether to make a declaration of incompatibility.
This amendment, therefore, raises two issues. The more general question is when, if at all, it is appropriate for one Bill, in this case the Human Rights Bill, to be amended to take account of provisions in another Bill, in this case the Scotland Bill, when neither of them has been enacted. There can be no definite answer to this question because it depends on the linkage between the two Bills. As for the relationship between this Bill and the Scotland Bill, I can assure your Lordships that we have been looking with care at how and where they interlink. There are several issues to address. The noble and learned Lord's amendment has picked out one possible issue but I think it would be premature to consider potential amendments while both Bills are in their first Chamber—in the case of this Bill, in your Lordships' House and in the case of the other Bill, the other place.
I think it would be more sensible to wait a while longer before tackling these questions. That will enable the eventual form of the respective Bills to be known with greater certainty. It will also enable us to consider the various possible amendments en bloc rather than considering them in isolation.
The other point concerns the specifics of this amendment. I can see that a case may arise where a court is considering whether to make a declaration of incompatibility in respect of an Act of the Westminster Parliament which covers subject matters devolved to the Scottish Parliament under the Scotland Bill. There, I agree, Scottish Ministers would clearly have an interest in the legislation at issue. I can assure the noble and learned Lord that we will be giving serious consideration to this issue and to any other related issues but, as I have said, I think it is premature to address this type of amendment specifically today, although the noble and learned Lord is right to have called attention to it. The Human Rights Bill is ahead of the Scotland Bill in the overall parliamentary timetable, but the whole issue of amendments arising from the relationship between these Bills should perhaps more conveniently be taken as a package when both Bills, and in particular the Scotland Bill, are further forward. In the light of the assurance that I have given, I hope the noble and learned Lord will agree to withdraw his amendment.
8.45 p.m.
Baroness Carnegy of Lour: My Lords, before the noble and learned Lord sits down, and with the leave of

1319
the House, may I ask him: is he taking the point that my noble and learned friend has made? I quite see the problem that he is outlining, but it will be very difficult for the House when we get to the Scotland Bill, to remember all the points that have arisen and their context. They are very important points, as he has acknowledged. Is he taking the point that my noble and learned friend has made? Does he consider that something has to be done on this aspect, and will he be producing a solution for it in due course, or is he simply sidestepping the issue?
The Lord Chancellor: My Lords, I am sure it is quite apparent to the noble and learned Lord, Lord Mackay of Drumadoon, that I was doing the opposite of sidestepping the issue. I notice that he is nodding his head with vigour. I was facing up to the issue and making it quite plain that this is a matter which we will have to address positively but at a later stage in the legislative programme of both Bills.
Lord Mackay of Drumadoon: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his constructive response. I can assure my noble friend that in the unlikely event of the noble and learned Lord the Lord Chancellor forgetting this point I will not be slow to remind him. On that basis I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Clause 6 [Acts of public authorities]:
[Amendment No. 21 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 22:
Page 3, line 40, leave out ("one or more of the Convention rights") and insert ("a Convention right").
The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Baroness Young Baroness Young moved Amendment No. 23:
Page 4, line 9, after ("include") insert ("a person listed in Schedule (Persons excluded from section 6) or").
The noble Baroness said: My Lords, in moving Amendment No. 23 I shall, of course, be referring to the other amendments which are grouped with this one. I would like to start by making three general points. The first point is that my amendments are not in any sense party political issues. They arose because my attention was drawn to the whole issue of the definition of a public authority by the Christian Institute in Newcastle and whether indeed the Churches were defined as public authorities under the Bill. I am therefore very grateful for the support for my amendments from the right reverend Prelate the Bishop of Ripon, from the noble Earl, Lord Longford, and from my noble friend the Duke of Norfolk.
I have also had much support from other Members in all parts of the House. Indeed, in my experience—I have been in your Lordships' House for 26 years—I have
1320
never put down amendments which so many noble Lords have asked to sign. The list closed at the number four, with many more wishing to add their names. I have had letters giving general support to the amendments from the Primate of All England, the Archbishop of Canterbury, the Cardinal Archbishop of Westminster, Basil Hume, Dr. Jonathan Sacks from the Jewish Church, and Dr. McDonald from the Church of Scotland. I do not think that I have ever had more support from all parts of the House and from outside than I have had on these amendments.
The second point I wish to make—it has been a recurring theme throughout the debate—is that these amendments are not in any way against human rights. They are not against the principle of the Bill. I and my colleagues supported the Bill at Second Reading. There can be no question at all—I am sure I speak for all those who have supported the amendments—that we support religious freedom and religious tolerance. The purpose of the amendments is to maintain the status quo.
The third general point I wish to make concerns the timetabling of the Bill. All of us—on this occasion I think I speak on behalf of Christians in the House—and members of other faiths have been put into a very difficult position. Let us look at the timetabling. The Bill was published on 23rd October. The White Paper was published on 24th October. In my entire experience I have never known a White Paper on a Bill to be published after the publication of the Bill itself. This is a very serious point, as I hope the Government accept.
I say it is serious because I am not a lawyer. I am a lay person. But when the Bill becomes law it will affect all of us. What do lay people do on legislation? They look particularly at a White Paper—usually it is written in terms they can understand—to see what the Bill is about. We were unable to do so in this case. That is a gross dereliction of duty on behalf of the Government. I have never known it to happen before. Re-reading, in preparation for the debate today, the introduction of the White Paper, I now see that it first saw the light of day as a Labour Party paper. Of course the Labour Party was free before the general election to publish any papers it wished. I do not know to whom I should be addressing my remarks—I do not know whether it is the noble Lord, Lord Williams, who is to reply, or the noble and learned Lord the Lord Chancellor—but clearly the status of a party publication is very different from that of a government publication. To say that they consulted on a party publication is, if I may say so, really not good enough in the context of a very serious measure like this. That is the first difficulty into which we have all been put.
We had no definition of a public authority effectively until the Committee stage of the Bill. That seems to me unbelievable. I hope that the Government will answer the point. Did they consult when writing the White Paper over whether the Churches were to be classed as a public authority? My understanding is that no one recognised the point until the Committee stage of the Bill.
Let us remind ourselves what the White Paper says on this subject. Section 2.2. states:
"The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should he able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves; and, to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as the privatised utilities".
It is of enormous comfort, I am sure, to the Churches to be bracketed with privatised utilities. That is clearly where they fall, according to the Government. It is a very serious dereliction of duty on their part that the Government never made this clear in the White Paper. I say to myself, as an innocent party in all this, are they being disingenuous? Did they make a mistake? Is it deliberate? Is this an attempt to secularise society? I am bound to say to the Government that, as the debates have proceeded, that is what I believe is the intent behind all this. We are all being hoodwinked and the Government think we are too stupid to recognise what is happening. I find it very upsetting and disappointing.
We went through the Committee stage and then we had the Christmas Recess. A week later we come back to all this on Report. The Bill is almost through your Lordships' House before we can understand what the Government have in mind, let alone what we should be thinking about all this. It puts those of us who are not backed up by large staffs and who do not have unlimited amounts of time to attend to these matters in a very difficult position. Perhaps that is what is intended. I find it surprising if it really is.
The practical consequence is that we have not been able to debate this matter thoroughly until Report stage. I have a great deal of sympathy for my noble and learned friend Lord Mackay of Drumadoon as the position in Scotland is somewhat worse than the position, as set out in Clause 6, for the other Churches. Clause 6, far from guaranteeing religious freedoms, makes them wide open to legal challenge. The public acts of Churches will be subject to the scrutiny of the courts in the same way as a government department or a privatised utility. What is absolutely certain is that it will create an enormous amount of uncertainty.
I turn now to my amendments. Amendment No. 23, which is concerned with the schedule, has the effect of keeping the status quo. Churches and denominations—this includes other non-Christian faiths—can continue to regulate their own affairs as they do at the present time. Public ceremonies such as marriage and internal disciplinary and theological matters are to be exempted from the convention. My second amendment concerns religious charities. Where a religious charity is acting in accordance with the religious or ethical principles set out in its trust deed, memorandum or articles of association, the charity is to be exempt from the convention. My third amendment concerns religious schools or colleges. Where a church school or other religious school or college is acting in accordance with the religious or ethical principles set out in its trust deed, memorandum or articles of association, the school or college should be exempt from the convention. The
1322
amendment also applies to church schools or colleges which receive state funding and also to such bodies in the private sector. Perhaps I may make it clear that where I refer to church schools or colleges I mean also those belonging to the Jewish faith and other faiths.
I can perhaps describe what I mean. I give the example of Church commissioners who own a shopping centre. They incorporate into the lease terms forbidding the sale of pornography on their premises. A newspaper vendor breaches the terms. The commissioners seek a court order that the vendor vacates the premises. In his defence the vendor cites his right to freedom of conscience and belief under Article 9, freedom of expression under Article 10 and the right not to be discriminated against under Article 14. He claims that the prohibition is not defensible and is merely an act of discrimination. What the Church believes as a matter of moral standards—that is, selling pornography—under the Bill will not be decided by the Church but by a judge. It is the secularisation of the Church's function.
Perhaps I may take the example of a Christian hospice committed to the care of the terminally ill and completely opposed to euthanasia. It is funded partly by grant aid from the local authority. It is the only hospice providing care for the terminally ill in the region. In providing care for its patients it is carrying out a public function. It is approached by an organisation which campaigns for the legalisation of voluntary euthanasia. It wants to make a presentation in the hospice. The organisation wishes to recruit supporters. For all I know, it may be thinking of perhaps encouraging some of the inmates to support what it is doing. Because it does not believe in euthanasia, the hospice wishes to prevent this. What will happen is that the matter will go to the court and a judge will decide instead of the Church.
I turn to the case of a Church school. How many times have I heard in your Lordships' House the defence of the voluntary-aided Church schools, Jewish schools, or any schools which have a Church behind them. What happens if it is wished to appoint a head to the school. In the case of a Church of England school it is said that he or she should be a communicant member of the Church of England. Then along comes someone who says, "I have been a teacher for 20 years. My classes have always come out at the top of the league tables and of all the measurements for educational success. I am happily married and have a social work qualification. I know and love children, and happen to be a humanist". Instead of this appointment being decided by the school governors—who, as regards Church of England voluntary-aided schools, will be Church of England governors, with their beliefs—it will be decided by a judge.
Perhaps the House believes that that does not really matter. But when people wake up and find what is really going on, I believe that they will be in for a very great surprise. I am not suggesting, if the Bill becomes law, that the following morning all this will happen. Nevertheless, everything that I have quoted is quite possible. I believe that this is a very serious issue indeed for the country and for your Lordships' House.
In preparation for this debate I sought information on what happens on the continent of Europe. Now that Britain enjoys the presidency of the European Union, the Government have told us that they wish to be at the heart of Europe. So let us just look at what happens in Germany on these matters. As I understand it and as I have been advised, Germany has a written constitution. Its provisions on human rights include a general guarantee of freedom of religion. There are specific provisions covering religious corporations.
The main religious denominations have public law status, but they also have extensive religious rights that go with that status. They can even raise taxes on their own members. I am not suggesting that. Of course, there has not been the same kind of campaigning on issues like homosexual marriage and women priests as there has been in this country. But, under the German constitution, religious freedoms have been given to religious corporations and their position appears to be carefully entrenched. For instance, two decisions of the Constitutional Court in effect uphold a right to life for the unborn child. The European Convention on Human Rights is incorporated, but it is regarded as subsidiary to the German constitution.
Let us look at the position in Holland. Here again, it is perhaps less certain than it is in Germany, but it has some very real lessons for us. As my advisers have told me, once one has a Bill of Rights the whole situation takes off and is used by the courts in most unexpected ways. So, although I have quoted situations which might, and I believe will, apply in this country if the Bill becomes law unamended, it has been found in Holland that the new human rights laws have encroached where no one thought that they could. Family law is one example. In Germany human rights laws have even affected leases and tax laws as a result of the actions of the courts.
So one has to take as one's starting point the kind of situations which I believe could and will happen. The House should be under no illusion that there are organisations which will wait to test the law as soon as it becomes law. This is not some kind of academic exercise to see what is going to happen. We know perfectly well that organisations will be out to test the courts.
As a result, organisations and the Churches—not just the Church of England, although I speak as a practising member, and I know that on this occasion I speak for the Roman Catholic Church, the Free Churches, the Jewish Church and others—will have rights which they have taken for granted taken away from them.
Before we go down that path we should consider the role that the Churches have played in our history. But for the great Judaeo-Christian basis of our society, we would not be in the position we are in today. Those who talk so glibly about human rights should recognise the role that the Churches have played in upholding those human rights long before the convention was ever thought of.
Those who believe that the convention will stand as it is today should remember that when it was written in 1950 the world was a very different place. If I were a
1324
betting woman—which I am not—I would bet that those who wrote the convention in 1950 would be astonished by the issues that are now brought before the courts as human rights. When we debate this matter this evening we are not talking about what is going to happen in 1998 but what will happen in 2000, 2005, 2010 or 2020. It is very difficult for us to project ourselves forward to what may happen in the years ahead.
I believe that we have a duty to safeguard the beliefs that we hold dear and regard as part of our constitution and, in a very real sense, part of our rights. They are not against human rights. The noble Lord, Lord Williams of Elvel, who unfortunately is not in his place, made the point very well when he said at the beginning of the debate that to be a member of the Church was not like belonging to the local tennis club. It is something quite different. It is a matter of faith and belief. It is not something for which one just signs up because one believes that one will enjoy an afternoon's entertainment. Therefore, I believe that it falls into a completely different category.
I have tabled these amendments in which I believe profoundly. I hope that the Government, if they will not accept them, will think again. If they do not think again about all of these issues, they will be overturning very longstanding institutions in this country; they will be damaging them and upsetting thousands of believers. They will do something that will be very damaging to the country as a whole. I cannot tell noble Lords how many letters of support I have received. I beg to move.
The Duke of Norfolk: My Lords, I was asked by my noble friend to second this amendment and I readily agreed. Having heard her excellent speech, I am delighted to follow her. All that these amendments seek to do is to say that the religions of Europe—the Church of England's religion of Christianity and the Roman Catholic religion, of which I am a part, Judaism, the Jews in their synagogues and the Moslems in their mosques, are all working for Europe for the past 2000 years. Are we now to say that they must take second place to a human rights convention which started in 1950? We believe that these religions must be left untouched. They have their own credentials, ethics and morals and they should be excluded from the Bill. In no way should this Bill be allowed to curb them. If the Government do not agree to these amendments the situation will be a most dangerous one.
9.15 p.m.
The Lord Bishop of Ripon: My Lords, I thank the noble Baroness for tabling this amendment and speaking so powerfully and ably to it. I am also grateful to the noble Lord, Lord Campbell of Alloway, for the amendment that he has tabled. Both amendments introduce issues of great importance which your Lordships' House has already debated this afternoon in considering the amendment tabled by the noble Lord, Lord Williams of Elvel and, more recently, the amendment relating to the Church of Scotland tabled by the noble and learned Lord, Lord Mackay of Drumadoon. I listened with great sympathy to that debate. I did not intervene in it. Having heard the

1325
contribution of the noble Earl, Lord Russell, about the differences between Scotland and England, I am relieved that I remained silent during that debate. Nevertheless, the issues are very similar.
It is quite clear that the churches and other faith communities are profoundly concerned to support human rights in general. Indeed, we supported this particular Bill. The most reverend Prelate the Archbishop of Canterbury spoke to the Council of Europe in Strasbourg in 1993 and emphasised the support of the Church of England for the basic principles of this Bill. That was echoed by the right reverend prelate the Bishop of Lichfield when he spoke at Second Reading. He is sorry that he is unable to be here this evening; he wanted to be present to speak to these amendments.
Let us be in no doubt that the Churches support the principle of human rights which, as has already been said, were conceived within them and nurtured by them. They are inseparable from our convictions and beliefs, but we do not know what may be included in future. Within human rights, mention has already been made of the great change of scene that has taken place over more than 40 years.
The concerns of the Church of England were expressed by the secretary general of the General Synod in a letter to the permanent secretary of the LCD. I can do no better than quote from that letter. He stated:
"Our anxieties arise particularly at the interface between the right to freedom of religion, coupled with the public rights and functions of the Churches on the one hand, and the other rights enshrined in the Convention on the other. We are anxious not to escape our proper obligations under the Convention but to be assured that the Convention and the new Bill cannot be used to require us to act in ways contrary to our religious principles and beliefs, or the beliefs underlying Church bodies".
That is written with particular reference to the Church of England, but, of course, it applies to other Churches and other faiths.
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.
I shall add to what the noble Baroness, Lady Young, said, when indicating particular areas of concern. It is clear that the clergy of the Church of England will be regarded, when undertaking public responsibilities, as part of a public authority. That will relate, for instance, to marriage. There are all sorts of discussions at the moment about the whole matter of marriage. There is a good deal of debate as to whether marriage necessarily involves those of the opposite gender.
It is at the moment enshrined in legislation that Church of England clergy have the duty to marry those of the right age within their parish who present themselves for marriage. What happens if two people of the same sex present themselves for marriage and require that they should be married by the local vicar? How will he be protected in those circumstances? Could
1326
they not bring an action under the convention to say that they had a right to marry? Article 12 of the convention expresses that matter and states:
"Men and women of marriageable age have the right to marry and to found a family".
Is it not possible that under that right a same sex couple might present themselves to a vicar and say, "Under the convention you have to marry us"?
That is an indication of the kind of matters that concern us. There are others relating also to divorce. Church of England clergy are not required to marry those who are divorced, but is that the case for those of other Churches, or might they find themselves being approached by a couple, one of whom is divorced, with a requirement that they should be married?
There is a further group of issues which does not necessarily relate to clergy but to other organs and people within the Church. The noble Baroness, Lady Young, gave some examples. Perhaps I might add to those. What would be the situation of a Church adoption society that had as part of its policy that it did not give children for adoption to same-sex couples, and did that on the grounds of religious conviction? That belief could also be backed by logical argument. Where would they stand?
The noble Baroness gave the example of the head of an aided school. Could a requirement in a job advertisement, say, for the head of a voluntary-aided school, specifying communicant membership of the Church of England, be ruled as breaching the convention? Those concerns apply not merely to the appointment of such people but to their dismissal. The governors of a voluntary-aided school might feel that certain kinds of behaviour were not in accord with the beliefs and practices of the Church which their trust deed represented. For instance, the head might be involved in an adulterous relationship. The governors might feel that that was not in accord with the ways of the Church which that head was representing to the children. Might those governors be open to accusations of discrimination or unlawful action under the convention? Those are some of the Church's practical concerns.
Another set of concerns relates to the ordination of women to the priesthood and to the episcopate. Your Lordships will be aware that the Church of England allows the ordination of women to the priesthood but not to the episcopate. Might it be possible that the General Synod would be open to the accusation of acting not in accordance with the convention because it did not include bishops among the groups to which women could be ordained? I am pleased to say that, after discussions with the Lord Chancellor's Department and the Home Office, that matter is to be resolved by Amendment No. 46 in the name of the noble Lord, Lord Williams of Mostyn. It is not merely a particular concern about the ordination of women; it is 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.

1327
There are issues of great importance and considerable concern. We shall listen to the Government's reply with great attention.
The Earl of Longford: My Lords, I rise to offer firm support to the noble Baroness, Lady Young, and other speakers. Two issues are involved. The first relates to whether the Bill, unamended, would be damaging to the interests of the Churches and the other religious bodies. Secondly, if that is so, whether those interests should be subordinated to other priorities. There is no doubt about the first issue. The Churches and the other religious bodies, including our Jewish friends, are certain that the Bill will damage them. No one can tell me that anyone knows better than the Churches about their own interests. It would be ludicrous to suggest otherwise.
That leads to the question: how important is Christianity today? I submit that this is still a Christian country. It struggles along with plenty of other interests, but I like to believe that it is a Christian country. I hope and believe that Mr. Tony Blair would say that his is a Christian Cabinet. I believe that he is the most explicit Christian we have had as Prime Minister since Mr. Gladstone. We have had many good Christian Prime Ministers, including some now in this House—I refer to the noble Baroness, Lady Thatcher, and the noble Lord, Lord Callaghan—but we cannot improve on Mr. Blair as an explicit Christian. I believe that he. the Chancellor of the Exchequer, the Home Secretary and two other Cabinet Members are members of the Christian Socialist movement. Does that mean anything or is it merely a form of words? I cannot believe that such a Cabinet would be proud to go down in history as having defied the united religious conscience of this country.
I have high and sincere esteem for the noble and learned Lord the Lord Chancellor, particularly since he compared himself to Cardinal Wolsey. In the Catholic Church we genuflect in front of a cardinal—we treat him with that peculiar deference. However, I remind the noble and learned Lord about another cardinal—Cardinal Newman. What did he say? He said, "If I am asked to drink to the health of the Pope and to conscience, I would drink them both, but I would drink to conscience first". If I am asked to drink to the health of my noble and learned friend the Lord Chancellor and to conscience, I would drink to both with enthusiasm, but I should drink to conscience first. As I said, I offer strong support for the amendment.
Lord Campbell of Alloway: My Lords, I support the amendment. In so doing, I speak to my Amendment No. 24 which is within this group. I reserve the right to divide your Lordships' House, if so advised, on my Amendment No. 24.
Amendment No. 24, which I shall move in due course, is of general application to religious bodies of all creeds recognised as such in the United Kingdom and in Northern Ireland. It seeks to reflect the concerns of the right reverend Prelate the Bishop of Lichfield as expressed in Committee on 24th November 1997 at col. 799 of Hansard.
1328
How much I agree with my noble friend Lady Young. Until we reached the Committee stage, none of us knew what it was all about. It was only in Committee that the penny began to drop. This amendment subsumes also the concerns of the right reverend Prelate the Bishop of Exeter (col. 794) as to the effect of the Bill on the decision-making processes of the General Synod of the Church of England, as implemented by Acts of Parliament. As a result of negotiations which have ensued since this amendment was tabled on 3rd December, that aspect has produced Amendment No. 46 which goes some way to meet those concerns, and I am very grateful for that.
However, it does not include church schools and it does not include any person acting under the authority of the General Synod; for example, the local vicar, to which the right reverend Prelate referred.
The object of this amendment is to exclude religious bodies of all creeds from the fast-track, the generally accepted means of incorporation where there is a declaration of incompatibility by our domestic courts and tribunals. This is a very important argument, as my noble friend stressed, and your Lordships' House, as constituted, affords a unique and singularly appropriate forum to consider the merits of that argument.
According to Rolv Ryssdal, a distinguished and long-serving member of the court at Strasbourg—I think it was about 11 years—this convention is 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 rights of free societies within limits to choose for themselves human rights policies which suit them best.
There are 40 signatory states. This amendment will inhibit the imposition of rigid uniform solutions in this context in the United Kingdom in a situation where I say quite unashamedly that uniformity may never be sought and never imposed. We have heard much about the relevant articles—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 think that alleged breaches of the convention by the General Synod of the Church of England, Church schools, 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, having first exhausted the rights under our domestic law. Your Lordships may also think that it is neither appropriate, acceptable nor indeed necessary that our domestic courts should make declarations in this context as to incompatibility under Clauses 2 to 5, which trigger ministerial remedial measures by affirmative resolution under Clauses 10 to 12—the "fast track".
There is no doubt that, but for the amendment to Clause 6(2), the fast track would apply for all these religious institutions of all creeds. I say that because they are "public authorities" within the meaning of Clause 6(3), as their functions are of a public nature

1329
and the exercise of such functions as regards teaching, guidance, dogma and discipline are not of the nature of private acts within the meaning of Clause 6(5).
I do not often refer to clauses and subsections, but I do so to make it totally clear that what is at stake is an erosion of a very important situation so far as concerns all religions. There is no denying it; there is no mistaking it; and there is no object in minimising it. For the avoidance of doubt as to what is a religious body, it is provided in the amendment that it is a body,
"recognised as such by the Secretary of State".
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 in our courts and tribunals as to incompatibility with the convention? Is that really the proper business of our courts? As to this, there is considerable doubt about how our courts could approach it.
Let us look for a moment at Clause 4 which is in permissive form; it is not mandatory. There is no indication as to how the court will exercise its discretion—whether to refer to the Commission or to grant a declaration. In that context, let us test it on a fairly hard test bed. As regards privacy under Article 8, of which family law is another branch, it is understood to be the view of the noble and learned Lord the Lord Chancellor that the courts would leave it to the Commission. However the view taken by the noble Lord, Lord Williams of Mostyn, in answer to me across the House on more than one occasion (I think only two) was that the courts would, by a series of case by case declarations, trigger remedial action and build up a law of privacy.
What will happen to the family situation under Article 8? Is there to be any difference? Who is right? Is it the noble and learned Lord the Lord Chancellor or the noble Lord, Lord Williams of Mostyn? Who knows? Where are we? I should like to know the answer.
What is family life under Article 8? In this "all-creed" context, are our courts to seek to build up—I return again to Rolv Ryssdal, president—rigid, uniform solutions? It is unthinkable. In that context, is it not the business of the multinational body, the commission, and the Court of Human Rights, which have the composite judicial wisdom appropriate to deal with these matters?
As has been said, we are—and, let us face it, we are proud of it—a predominantly Christian society, tolerant of all manner of creeds: dissenters, agnostics and atheists. Each religion has its own dogma, teaching, rituals, ceremony and discipline according to its own concept of the grace of God. Each religion has its own concept of respect for family life. As the noble Lord, Lord Williams of Mostyn, said, and truly said, on 9th December, families in our society vary infinitely. The Government are not in the business of preaching or prescribing.
I conclude with the winding up of the noble and learned Lord the Lord Chancellor at Committee stage. He failed to recognise the concerns of the right reverend Prelate the Bishop of Lichfield which prompted this
1330
amendment, or those of the right reverend Prelate the Bishop of Exeter which have since been met. When clarification was sought, at col. 800, of the Official Report of 24th November, the noble and learned Lord the Lord Chancellor declined to respond lest what he said should be cited in the courts as an aid to the interpretation of the Bill—seeking sanctuary by grasping the knocker on the door of Pepper v. Hart. There has been no meeting, no distribution of paper, to canvass support for the amendment which is sought only on the merits of the argument on the Floor of your Lordships' House. With an expression of gratitude to my noble friend the Duke of Norfolk, and the right reverend Prelate the Bishop of Lichfield, who put down their names, I shall beg to move the amendment in due course.
Lord Goodhart: My Lords, as I said earlier, this is an issue of conscience. We have not yet had an opportunity to hear a view contrary to that of many speakers who have spoken so eloquently in support of this group of amendments. I am afraid that I have to advance a somewhat different view. This is an issue of conscience, and I do not claim to speak for everyone on these Benches. But in my belief and that of a number of my noble friends, this group of amendments is misguided, unnecessary and possibly damaging.
I recognise that there is a special problem in relation to the Church of England because of its constitutional position as the established Church. It has power to pass legally binding measures and an established and recognised system of church courts. There is, therefore, as I fully accept, a need to ensure that in introducing a human rights Bill we do not upset the constitutional balance between the Church of England and Parliament. However, at the same time I do not think it right for the Church of England to claim the benefits and privileges of established status while rejecting a provision which, when the Human Rights Bill is enacted, will be part of the general law of the land. To a much more limited extent, the same issue attaches to the Church of Scotland.
Other Christian religious denominations, and indeed non-Christian religions, are plainly not in themselves public authorities. In so far as Amendment No. 72 simply restates that fact, it is unnecessary. Religion cannot be exempted generally from the European Convention on Human Rights. Some religions or sects—not any of the mainstream bodies within the principal religions, but some fringe sects within them—may have practices which involve unacceptable violations of human rights. Female genital mutilation is clearly an example. There are also cults, some of them claiming to be Christian, which encourage mass suicide. Those cannot be tolerated by the state; they must be prohibited by the Government. The fact that behaviour of that kind is instigated by religious belief is not, and should not be, a defence. When the noble Lord, Lord Campbell of Alloway, tried to get round that problem in his Amendment No. 24 by restricting the exemption to religious bodies recognised as such by the Secretary of State, it seemed to me that he substituted King Stork for King Log. What could be a greater interference with religious freedom than having religious bodies selected for recognition by the Secretary of State?

1331
But the interference of the European Convention on Human Rights does not go beyond banning these unacceptable practices. Let me remind the House of Article 9(2) of the European Convention, which states:
"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".
I ask those who have spoken whether they really wish the Churches to have a freedom to do things that are contrary to public safety, contrary to public order, health or morals, or contrary to the protection of the rights and freedoms of others.
I accept that Amendment No. 72 does not state that all religious practices are exempt from the European Convention on Human Rights. But in so far as it exempts religious bodies from that convention when discharging public functions, it is gravely wrong. Some non-established denominations and non-Christian religions do indeed have public functions. The provision of education, particularly but perhaps not exclusively education which is provided out of public funds, is unquestionably a public function. However, in providing education of this kind, it is clear that religious schools will have a wide freedom to provide religious education. I should point out that one of the landmark decisions of the European Court of Human Rights was a decision which held that parents in Belgium had the right to send their children to religious schools if they wished to do so. The European convention helps, not hinders, religious education.
In performing that function, schools must comply with the European Convention on Human Rights. Indeed, it would be appalling if they were not required to do so. The noble and learned Lord, Lord Mackay of Drumadoon, agreed that the Church of Scotland would accept that point. However, Amendments Nos. 24 and 27 propose to exempt Church schools from the European convention. I believe that that is wholly objectionable. There is no interference under the European convention with the right of religious teaching, but why should religious schools be exempt from the prohibition under the convention of inhuman or degrading treatment? Why should religious schools be exempt from the obligation to respect a child's family life?
Many of the examples that have been put forward are, I believe, examples of fantasy or of something wholly outside the convention. Let us take the example of the refusal to consider the appointment of somebody who is not a communicant member of the Church of England to the headship of a Church school. Rightly or wrongly, that does not involve a breach of the European convention. The non-discrimination clause, Article 14, concerns only discrimination in the enjoyment of the rights and freedoms set forth in the convention. The convention does not include employment rights and there is therefore no question of someone who is refused a headship of a Church school because they are not a communicant member of the Church having any right of recourse to the courts. The right not to consecrate women as bishops is also something that involves no infringement of the European convention.
1332
I believe that the Churches should welcome the application of the European convention to all schools, including their own. The Church of Scotland is apparently prepared to do so.
Let us take another brief look at the Church of England courts and take as an example an application to remove the incumbent of a benefice from office on the grounds of personal misconduct. Surely the incumbent is entitled to the protection of Article 6 of the European convention, which would give him the right to a fair hearing by an independent and impartial tribunal. Why should an ecclesiastical court be exempt from that obligation?
Finally, in Amendment No. 26 a similar point applies in relation to charities. Charities sometimes, though not by any means always, perform public functions—providing services, for example, to the public in co-operation with the Government, and often with the benefit of government funding. If they do so, I believe that they should be subject to the European Convention on Human Rights.
9.45 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Lord for giving way. Given the noble Lord's interpretation of what the Bill means to Churches, can I give him two examples and ask for a response? First, how free would a Church school be to recruit to its staff only those who practise that particular religion—a Jewish school to recruit Jewish people, a Catholic school to recruit Catholics and an Anglican school to recruit Anglicans? Secondly, how free would a Church school be to reject or decline to recruit someone to the staff at any level who was living in a same-sex relationship, contrary to the practice and beliefs of that particular religion?
Lord Goodhart: My Lords, as I said, the European Convention contains no employment rights; therefore, the European Convention would have no effect whatever on circumstances of that kind. It would be a matter purely for internal domestic legislation to decide whether or not those people had employment rights.
I would conclude therefore by asking your Lordships not to accept what I believe is a wholly exaggerated and misguided belief in the damaging effects that the European Convention on Human Rights will have on the Churches. I welcome the support of the Churches in general for the European Convention on Human Rights, but I believe that they are misguided in seeking exemption for any of their functions, including the function of providing education.
Lord Campbell of Alloway: My Lords, I hope the noble Lord appreciates that I am not saying that the human rights convention will damage the Church. I have never said that. I have said that the Church and all religious bodies are subject to the convention but that the adjudication should be by the international body and

1333
not ad hoc in our courts, piecemeal. That is all. I have never said that the Churches should be free of the human rights convention.
Lord Goodhart: My Lords, with respect to the noble Lord, Lord Campbell of Alloway, that is where this Bill came in. It was meant to replace the need for anybody to go through the lengthy and expensive process of going to Strasbourg by giving remedies in English, Scottish or Northern Ireland courts. I do not see why that should not apply to the Church just as much as it applies to every other institution in this country.
Lord Coleraine: My Lords, would the noble Lord explain to the House—I refer to an earlier stage of his speech—why he believes that the Roman Catholic Church, to which I adhere, is not a public authority? Surely, any Roman Catholic priest qualifies as a person certain of whose functions, such as marriage, are functions of a public nature.
Lord Goodhart: My Lords, some of the functions of the Church may be of a public nature, particularly the provision of Roman Catholic schools. However, I would not take the view that marriages by Roman Catholic priests were the performance of a public function.
The Earl of Perth: My Lords, I would first like to thank the noble Baroness, Lady Young, and all the others who have spoken on this amendment. It is a tremendously important issue.
I speak as a Catholic and it is a matter of interest to me. I, through my mother, am a direct descendant of Sir Thomas More or, as I prefer it, Saint Thomas More. I seem to remember that the issue of Church versus state was critical to his life.
Having listened to the debate this evening, it is quite clear to me that this is an issue of Church versus state. However, we may find other reasons for debating what the Church of Scotland should do, or whatever the topic may be. The fundamental issue tonight is that of the Church versus state. Which is superior? Of course, when I speak about Churches, I refer to all religions, whether it is the Church of England, Catholic, Moslem or Jewish. I believe that this the fundamental fact about which we are talking.
I am very clear that, as the Bill is drafted, it comes down in favour of the state, which I believe is wrong. The state should be superior to the Churches. I believe that the Lord Chancellor himself would confirm that view. I wonder whether it is for this Government or for the state, through the courts, to come to the decision of what is right for Caesar or what is right for God. I am afraid that for us to try to come to a judgment on that is wrong.
The amendment is skilfully worded. It is easy to ask what is a religion and what therefore should apply in this situation. But many strange groups would say, "We are a religion and though our religion says that we should be against certain matters contained in the Human Rights Bill, that is not good enough".
1334
Amendment No. 24 says that the Churches or religions should be recognised as such by the Secretary of State. It provides an ingenious solution to the problem and, however honest they may be, people with curious ideas cannot get round the legislation by claiming to be religious. It is important that we recognise the significance of that. In a way it solves the problem of what is the state's responsibility and what is the Churches' responsibility. It is a combination of the two; namely, that religion can be judged by the state but when they take their stand they are separate and on their own.
As I see it, this is an issue of Church versus state. I hope that your Lordships agree with me that it is like the judgment of Sir Thomas More; namely, that we have to decide in our own consciences and our own beliefs on what we should take a stand. I hope therefore that the amendments will be accepted and that your Lordships will go ahead on that basis. That is the real issue in this debate. What I have been advocating covers not only the Church of England and the Catholic Church as well as other religions, but also the Church of Scotland. It is clear that it too fits into this category.
Lord Lloyd of Berwick: My Lords, I can be brief. I wish to speak to Amendment No. 72, at page 13 of the Marshalled List, and particularly to paragraph 3 of the schedule which proposes to excluastical courts of the Church of England.
There is a court known ade from Section 6 those exercising functions in connection with the ecclesis the Court of Ecclesiastical Causes Reserved. I know of its existence because I was a member of that court. It consists of three diocesan bishops and two appellate judges. It does not meet very often, but when it meets it considers and decides questions of ritual and doctrine, and doctrine is what matters for present purposes.
I have three simple questions to ask in relation to that court. Is it intended that that court, the Court of Ecclesiastical Causes Reserved, should be a court for the purposes of Clause 6(3)(a) of the Bill. The second question is: if so, are its decisions to be subject, for the first time in history, to challenge by way of judicial review in the ordinary civil courts of our country? Decisions of the ecclesiastical courts have never been subject to the jurisdiction of the civil courts in the past for the simple reason that the civil courts and the ecclesiastical courts are courts of co-ordinate jurisdiction.
There is only one method of appeal from the Court of Ecclesiastical Causes Reserved and that is by way of a commission of inquiry appointed by the Queen. That consists not of three bishops and two judges but of two right reverend Prelates and three Law Lords. There is no other way of challenging the decisions of that court.
If it is proposed that for the first time the decisions of the Court of Ecclesiastical Causes Reserved should be subject to the civil courts in some matters but perhaps not others, and if it is proposed, for instance, in the case of matters of doctrine, that it should not be subject to challenge, who, I ask, is to decide what are the matters of doctrine and what are not? That is the very question

1335
asked in the earlier debate by the noble and learned Lord, Lord Mackay of Clashfern. I listened with great interest to the Lord Advocate's reply and I did not consider it satisfactory.
It seems to me that by far the simplest way of resolving any possible dispute between the ecclesiastical courts and the civil courts. in matters of doctrine at any rate, is to exclude the ecclesiastical courts altogether from the ambit of the Bill. In doing so, one would not weaken the beneficial purposes of the Bill—which I support with all my heart—one jot or one tittle.
10 p.m.
Lord Lester of Herne Hill: My Lords, I am very glad to speak immediately after the noble and learned Lord, Lord Lloyd of Berwick, because what I have to say dovetails with what he said. I shall not add to the many points made by my noble friend Lord Goodhart with which I entirely agree.
I make one preliminary point. If one assumes hypothetically—and it is entirely hypothetically—that a religious school of whatever religion was, through its managers, to exclude pupils who were black, no one, I think, would seek to advance the proposition that that school and its managers should not be bound by the education provision in Article 2 of the first protocol to the convention read with the non-discrimination guarantee. I give that example because it simply illustrates that there are situations in which religious bodies might hypothetically violate a fundamental human right.
The second point I make is that this is not a question of church versus state; it is a question of church as state because the only circumstances in which a religious body could be liable under Clause 6 would be if it exercised public functions. The real tension is not between church and state: it is between public authorities and the basic rights of individuals. The real question is whether individuals are to have effective remedies in this country, and not only in the courts in Strasbourg, when their basic human rights and freedoms are violated. Thirdly, I agree with what was said by my noble friend Lord Goodhart. Most of the examples given today are not remotely within the scope of the European convention.
The main point I want to mention—I think it will be helpful to your Lordships—is that our courts have had increasingly to wrestle in recent years with the question of whether religious bodies fall within or outside the scope of judicial review. The case law is all one way. There is no question in my view that that case law would be altered by one jot by the enactment of Clause 6 as it stands.
Perhaps I may give one or two examples. There was a recent case in which the question was whether the decision of the Chief Rabbi, in determining whether a person is morally and religiously fit to occupy the position of rabbi, was judicially reviewable. In the case of ex parte Wachmann, Mr. Justice Simon Brown decided in 1972 that a decision of the Chief Rabbi, exercising this role, was essentially of a religious nature, that it was not the exercise of a public function and that
1336
for this reason it was not judicially reviewable. That case law would apply directly to the way in which one interprets the notion of public authority and public function in Clause 6.
The same reasoning was that of Lord Justice Hoffmann in the Jockey Club case in the Court of Appeal where he approved a decision in the Wachmann case. He said:
"Religion is something to be encouraged but it is not the business of government".
A like decision was reached by the English Court of Appeal in a case called Ali v. the Imam of Bury Park on 12th May 1993 in respect of a decision of the Imam of a mosque. His decision, on the same reasoning, was held not to be judicially reviewable because the sole source of his power was the consensual submission of the mosque community to the provisions of the mosque constitution and he had no public law function.
The most recent example was a decision only in November 1997 of Mr. Justice Lightman in a case involving the Court of the Chief Rabbi, the London Beth Din, licensing the ritual slaughter of animals in accordance with Jewish law. Again, Mr. Justice Lightman explained, relying on all of these cases, that these were all matters for religious courts to determine—they were not matters that the civil courts would determine—because in all these functions the bodies were not public authorities exercising public functions.
I do not see anything in Clause 6 or in any other provision of the Bill to suggest that that case law or the position explained by the noble and learned Lord, Lord Lloyd of Berwick, with regard to ecclesiastical courts would be altered by the Bill provided that what those courts were determining were religious questions. Of course, they might be determining other matters of a public nature. I cannot think of any at the moment but I suppose marriage might be such an example. There might be circumstances in which, to take a ludicrous example, black people were excluded from the marriage ceremony and the right to marry whereby Article 12 of the convention, read with the non-discrimination guarantee, would be violated. It is possible to think of cases where the procedural fairness requirements might be triggered.
I emphasise these cases because people become excited. They think of great church and state clashes when in truth our courts have sensibly drawn the line. There are no exceptions to the cases I have referred to. The position is quite clear. I eagerly await the response of the noble and learned Lord the Lord Chancellor to see whether what I have been saying, speaking from this Bench, represents the Government's view of the position. Speaking for myself, I do not believe it right to elevate this matter into one of those great 17th or 19th century Church and state conflicts. It is simply not about that, but about the rights of the individual to be fairly treated in accordance with the convention, with remedies in our courts and not only in the Strasbourg courts.
Lord Alton of Liverpool: My Lords, in his argument the noble Lord, Lord Lester of Herne Hill, has just cited

1337
the statement that religion is not the business of government. He stated that as being the statement of one of the Lords who sat in judgment in looking at these questions.
It is precisely because I subscribe to that view that I support the amendment which the noble Baroness, Lady Young, has so eloquently and articulately moved this evening. I believe that these clauses as they stand have opened up the argument again about the relationship between Church and state, which had previously been settled. Therefore, I believe that this is an unnecessary argument which has been precipitated because insufficient forethought has been given to the convention as it now stands and as we are about to incorporate it. The Government do not need to be reminded that in politics perception is all. In many ways that is the golden rule of politics.
I was very struck by an editorial comment in this week's The Universe, the Catholic weekly newspaper. The headline states,
"A threat to our freedom".
It speaks about today's legislation. The editorial says,
"The implications of this [Bill] could be devastating, hitting at the very fabric of religious freedoms that have been won with blood and anguish over the centuries".
The editorial concludes,
"In simple terms we live on the very brink of an inconceivable terror—the total state control of our religious institutions".
That is the perception of many people outside your Lordships' House. It is those fears that the Government need to allay today if the golden rule of politics that perception is all is to be dealt with properly.
In the mid-1980s, when I was in another place, I helped to found the Jubilee Campaign, a human rights organisation which campaigns for religious liberties worldwide. Working alongside organisations such as Canon Michael Bordeaux's Keston College, we highlighted individual cases of discrimination and the institutional persecution of believers by oppressive and authoritarian governments.
I was particularly struck that the former Soviet Union had one of the longest and technically admirable charters of human rights ever promulgated. As we all know, reality was very different from that. Along with many others and with the former Chief Rabbi, the noble Lord, Lord Jacobovits, I visited Moscow during that period and met Jewish believers who had been persecuted because of regulations inserted into their state laws that allowed the circumscription of religion.
In the Ukraine I met a bishop who had spent 17 years in prison for his faith. I met the chairman of the Committee for the Defence of the Ukranian Catholic Church, Pavlo Vasylk. He spent 18 years in prison. There was a young priest who had spent six months at Chernobyl clearing radioactive waste as a punishment for being caught celebrating the liturgies in the open. We forget too easily that in this century millions upon millions of Jewish and Christian people have died for their faith which is more than in any of the preceding centuries. Yet for over 70 years Jews and Christians
1338
were systematically persecuted and religious autonomy was outlawed while we in the West did very little about it.
Autonomy is at the heart of the issues which this House has been debating today. By defining "public authority" as a body which performs "public functions", the Bill before your Lordships' House today strikes at the very heart of religious liberty and practice in Britain. There are any number of theological, disciplinary, liturgical and other religious practices which the House may disagree with, but which are matters for the adherents of those religions. Divorce is one very good example. For instance, the Catholic Church does not admit remarriage after divorce. The noble Earl, Lord Perth, has reminded us of Thomas More, a former holder of the office of Lord Chancellor and Speaker of the House of Commons and, happily, not a Cardinal. He said that he was,
"the King's good servant, but God's first".
He went to the block rather than resile on his belief that the King had no right to dispose of his wife and to remarry. Imagine similar circumstances today.
Under the terms of this Bill the aggrieved protagonists would simply claim their civil rights of remarriage in a church and the heirs of Bishop John Fisher and Thomas More would once again be arraigned in court when they refused to comply. Despite what the noble Lord, Lord Goodhart, has said this evening, when a churchman of the Catholic Church performs a marriage in a church it is a public matter; it is not a private question. The spectacle of dissenting clergymen and other believers being fined or imprisoned clearly cannot be what the Government have in mind.
The House should take careful note of the American experience where judicial interference, spurred by the litigious excesses of politically correct groups, has led to extraordinary intolerance. For example, in Missouri a fourth-grade student has been disciplined and subjected to ridicule by his school for attempting to say a private and voluntary prayer before eating his lunch in the school cafeteria. In New York the authorities have attempted to stop two groups of orthodox Jews from gathering for religious purposes. In Hawaii two Buddhist nuns have had to file law suits to be allowed to continue long-standing religious worship in their own homes.
Article 9 may guarantee the right to defend religious liberty, but religious freedom will no longer be a right; it will be an argument that needs to be proven in each and every case. This will be a lawyer's paradise, and a believer's nightmare. Clause 6, as it currently stands, opens the way to endless litigation and debilitating campaigns against the Church by single issue groups and secular institutions. This is not alarmism. Already in the European Union in Bavaria attempts have been made to force Roman Catholic schools to remove the crucifix from their walls.
When one decides to be confirmed in a church it is a personal decision. Words like "private" and "public" are secondary and subservient to the personal nature of that decision. Adherents to a particular faith may not under British law force their views on the majority. Some of

1339
the spurious arguments deployed earlier illustrate the force of what I say. Anyone can today be prosecuted under the criminal law if he or she does something that is criminal. No one seeks to place the Church above the law. Similarly, no one, be he churchman or not, may force his views on the majority, although he may like William Wilberforce seek to persuade the majority of the worth of his views. That arrangement has served us in this country extremely well. I believe that it is extremely ill-advised to impose these new conditions.
This Human Rights Bill comes at the end of a decade in which we have seen a flurry of charters setting out citizens' rights. I believe that more than 40 have been legislated for in the past two Parliaments. I believe that it would be of greater use if we were more interested in the duties, responsibilities and obligations of the citizen. To attack the very religious leaders who have sought to redress the imbalance between rights and responsibilities demonstrates how little has yet been understood of what makes for a healthy civil society. I commend the amendments of the noble Baroness to the House this evening.
Earl Russell: My Lords, the right reverend Prelate the Lord Bishop of Ripon was quite right to remind the House of the distinguished record of the Church in matters of human rights. He was too modest to say that he himself in the course of the passage of the Asylum Bill had made a notable contribution to that end. The noble Lord, Lord Alton of Liverpool, might have said the same for his Church which made an equally distinguished contribution on that occasion. Listening to him, I recalled the extent to which the determination of religious conscience has been one of the determining forces of liberty. At the same time, when the noble Lord mentioned Thomas More—Sir or Saint, whichever—he reminded us that in times past religious liberty was in greater danger than it is today. In his example of the Catholic marriage I believe that he mistook what was intended by the words "public authority". I grant that a Catholic marriage is in no sense a private matter. It is in the face of the congregation, but the words "public authority" mean "as an emanation of the state"; in the phrase used by my noble friend Lord Lester of Herne Hill, "the Church as state". In a Catholic marriage that function is fulfilled by the registrar, not the priest. The action of the registrar would come under the European convention, but my noble friend is surely right, that the action of the Catholic priest does not.
The Bill and the convention can affect the Church only when it is acting as an organ of the state—as an exercise of state authority. I am reminded if we look around the Continent of Europe—I remember for example, visits to places as diverse as Uppsala, Cologne, Chartres, and Toledo—that the place of religion in the life of many other countries in Europe is very central indeed. I am not aware of any cases in which the European convention has in fact caused any great damage to the rich importance of religion in the life of those countries, or to the beauty of many places that I am proud to have had the chance to visit.
1340
According to Article 9 of the convention, there is a clause defending freedom of thought, conscience and religion; and freedom for people to manifest religion or belief in worship, teaching, practice, and observance. As my noble friend Lord Lester of Herne Hill said on Second Reading, one clause of the convention must he construed in context with another. Therefore any case arising under the convention would have to be construed in the light of Article 9 of the convention, so that very much diminishes the risk that some noble Lords have seen.
I listened with care to the noble Baroness, Lady Young, threatening us with the danger—if I may so put it—of rights as yet unborn, like the kings alarming Macbeth at the end of the banquet. I was reminded—not for the first time—listening to speeches from her Benches of what was said to my great grandfather when he introduced the great Reform Bill in 1832. The Conservatives told my great grandfather that the Bill would lead to democracy. My great grandfather said that they were completely wrong. The Conservatives were right on that point. Where they were wrong was in believing that it would lead to disaster if they were right.
People do change their ideas. If my great grandfather had been told that the process that he was setting in motion would lead to the sight of women in Parliament, he would have been horrified, but his son and daughter-in-law would have been completely delighted. Our ideas of what is horrifying change with our concept of rights. Since the one thing changes necessarily in step with the other, the terrors are perhaps not quite as great as we make out.
Since we are dealing with public authorities. Amendment No. 26 is substantially redundant. It is not my understanding that receipt of public money turns one into a public authority. It is also a crucial point that the Bill is going to affect only those Churches which act as organs of the state. It does not affect what used, in 17th century parlance, to be known as a "gathered Church". Now that we have so little establishment of religion, most Churches are, in practice, gathered Churches, however much they would like to be something else.
I cannot see how the Roman Catholic Church, for example, can be regarded as a public authority in this country. I am also extremely concerned, as are others, by the prospect of the Secretary of State deciding what are authorised religions. I shudder to think what that might have done to the history, for example, of the Society of Friends.
I am also well aware of the dangers of setting out to define a religion. I remember that during debates on the poll tax in 1988 it was suddenly realised that it was impossible to impose it on members of religious orders who, of course, had no property. During dinner with one of the right reverend Prelates, I discussed the problem of defining a religion. We had a most enjoyable conversation, but we reached no conclusions.
The problems are considerable. I remember when I arrived in California in 1977 obtaining a local paper and reading about the activities of an organisation which claimed freedom under Article 1 of the US Constitution because it was a religion. Its main business appeared to

1341
be the distribution of drugs. Its way of dealing with those who offended its discipline was to put rattlesnakes through their letterboxes after cutting off the rattle! If we set out to defend everything which calls itself a religion we shall lead ourselves into considerable difficulties.
If a body wants to be a public authority it accepts the convention; it is a necessary consequence. I do not believe that the danger is great. If it does not want to come before the scrutiny of the convention, the alternative is not to be a public authority. It is as simple as that.
Baroness Carnegy of Lour: My Lords, I wish to ask the noble and learned Lord the Lord Chancellor one simple question. The Roman Catholic Church in Scotland has many state schools. The local authorities run them and they work in partnership. The Church always insists that the head teachers of those schools should be Roman Catholics on the ground that the ethos of the school makes it a good school. Whether the children who attend are Roman Catholics, they wish to have a Roman Catholic head.
If the local authority accedes to that request—and as far as I know they all do—might the local authority, the Roman Catholic Church, or both, find themselves in the courts in Scotland? Likewise, it is likely that the two Moslem schools which Mr. Blunkett has recently set up in England will want Moslem head teachers. If they insist on that, and if the local authority accedes, might they find themselves in court in England?
Lord Henley: My Lords, perhaps as the debate is closing I might say a word or two from these Benches. I do not believe that these amendments or others on a similar basis are party political. However, I, too, accept that they are political, and political in the extreme.
This is the third time we have debated these issues. They first appeared at the beginning of the day with the amendment to Amendment No. 1 tabled by the noble Lord, Lord Williams of Elvel. We heard something similar when we debated Scotland, although we ranged wider than Scotland, when my noble and learned friend Lord Mackay of Drumadoon moved his amendments. We then heard the Government's position and—dare I say it?—its weakness on that case. That weakness was again heard in arguments in relation to the Channel Islands and the Isle of Man. My noble friend Lady Blatch made the point that the Government's arguments in relation to the Channel Islands and the Isle of Man were the arguments that could be used to defend the Churches' position. I do not accept the arguments put forward by the noble Lord, Lord Williams of Mostyn, before we broke for dinner some three hours ago.
At this hour I do not wish to run through the points that have been made most clearly and cogently by my noble friend Lady Young and others. However, I wish to pick up one or two issues, particularly those in relation to time.
The first point is the point made by my noble friend in relation to the White Paper. The publication of that White Paper came after the publication of the Bill and
1342
did not herald any of the issues which have now emerged and which have emerged since Committee stage. I too want to ask the question which my noble friend asked. Were the Churches consulted before the Committee stage? Were they asked for their concerns or did the Government just leave those issues to emerge?
The second point is that, as all noble Lords will appreciate, it is now rather late and we have many more amendments with which to deal. I do not know what my noble friend intends to do with this amendment. That is obviously a matter for her. My noble friend Lord Campbell of Alloway must also decide what he wishes to do in relation to his amendment. I have amendments tabled in my name, as do my noble friends on the Front Bench, which require a considerable amount of time for debate and we should wish to pursue those matters at a reasonable hour in due course. We certainly hope that after this amendment, the Government will consider providing an extra day for our deliberations on the Bill. If that is the case, even if my noble friend does not press Amendment No. 23, she may wish to deal at that time with amendments to the schedule or she may wish to return to the matter on Third Reading.
My third and last point is to deal with a matter raised by the noble Lord, Lord Goodhart. He spoke for the Liberal Benches but at times one felt he was almost answering for the Government. In response to the points raised by my noble friend Lady Blatch, the noble Lord, Lord Goodhart, made the extraordinary suggestion that the convention provides no employment rights whatever. I found that very peculiar in the extreme.
Let us take the example given by my noble friend Lady Blatch of a religious school which feels strongly about homosexuality and does not wish to employ practising homosexuals to teach young people. Let us suppose that it employs Mr. X who is not, at the time of the commencement of that employment, a homosexual. However, he becomes a homosexual and the school then decides to dismiss Mr. X from employment of that school. As far as I understand it, Mr. X would be the first to run to the courts to try to say that his human rights had been breached. My guess is that the noble Lord, Lord Lester, would be acting for him in the courts, and not long after, we should be hearing from the noble Lord, Lord Lester, about what had transpired in the courts.
10.30 p.m.
Lord Lester of Herne Hill: My Lords, I am very grateful to the noble Lord for giving way. I have taken on some fairly crazy cases in my time but even I would not dream of advising such a person that he had the slightest chance of success, for the good reason that the convention does not give any right to employment without discrimination. That is one of the defects of the convention but it happens to be the case. If the noble Lord looks at the schedule, he will see that there is a guarantee of non-discrimination only in the enjoyment of other convention rights and there are no other convention rights which deal with employment.
Lord Henley: My Lords, we have heard already from the noble Lord and from the noble and learned Lord the

1343
Lord Chancellor that judges in this country would not be bound by previous cases. They would look at the convention, the Bill and Article 14 which prohibit discrimination. I do not believe it would be a mad case. I am sure that the noble Lord would take that case and would argue that there had been discrimination in that case. That is the fear which the Churches and others have. They do not wish to see their rights diminished in that way. For that reason, these amendments have been tabled and I hope that my noble friend will, either on this or another occasion, press the matter to a Division of the House.
Lord Rochester: My Lords, before the noble Lord sits down, will he accept that the noble Lord, Lord Goodhart, did not say that he was speaking for the Liberal Democrat Benches? He was careful to say that he was speaking only for himself.
Lord Henley: My Lords, I apologise. In all sincerity, I distinctly remember that the noble Lord said exactly that. Similarly, I was not speaking for these Benches but speaking for myself. However, I am sure that most of my noble friends behind me will support much of what I said.
Earl Russell: My Lords, before my noble kinsman sits down, will he also remember that we on these Benches were in favour of the incorporation of the European Convention something like 40 years before the party opposite were?
Lord Henley: My Lords, that may or may not be the case, but I do not believe that it is something upon which I have to respond for the Opposition.
The Lord Chancellor: My Lords, we recognise that these amendments raise important issues regarding the effect of the Bill on Churches, charities and religious schools. Mindful of the position of the hands of the Clock, I shall try to respond to the main concerns that have been expressed, but obviously not to every single one of them.
If she will forgive me, the noble Baroness, Lady Young, began with something of a litany of complaints. For what it is worth, the Bill and the White Paper were actually published on the same day. There is a very powerful case that these issues are so well known that there was no need for a White Paper. However, I find it very difficult to see how it can be a matter of complaint that a Bill is accompanied by an explanatory White Paper.
It is true that we did not consult the Churches about being regarded as a public authority or, indeed, any of the many other organisations which will be affected by the Bill. I have to confess that it did not occur to anyone in government that the Churches would have any particular difficulty in playing their proper part in the enforcement of human rights in Britain. I therefore make no secret at all of the fact that, when this subject was raised in Committee, I was surprised by the suggestion that Churches and religious bodies should wish to be exempted from a Bill designed to enable people to assert
1344
before the courts of this country the basic rights and freedoms which they have enjoyed under the convention since 1953. I would have expected them to be as enthusiastic as any other body for the incorporation of the European Convention.
However, the concerns of the Churches have now been further explained, both in your Lordships' House and by representatives of the Churches, to representatives of the Home Office at a meeting before Christmas; a meeting which I believe gave satisfaction to the Churches. We now understand better the particular anxieties which the Churches, and bodies linked with them, have about the possible impact of the Bill. Therefore, taking the most important examples, I shall try to explain why I think that the concerns are overstated and why it would be wrong to exempt the Churches from the Bill to the extent that it will apply to them at all. I appeal to the Churches to rally to the Bill as eagerly on their own behalf as they have consistently done to incorporation of the European Convention in general.
We have made every effort to understand the Churches' concerns properly. Ultimately, it appears to us that they reduce to a number of discrete points. Perhaps I may deal, first, with the question of schools and charities. 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. No doubt the same applies to a number of charities.
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, but the question of law is whether the Bill would have that effect. The answer is emphatically, "no". The convention rights which are listed in Schedule 1 do not include a right to be appointed to any particular post. The noble Lord, Lord Goodhart, is absolutely correct to say that the convention rights have nothing whatever to do with employment rights. It is of the first importance to appreciate that Article 14 only prohibits discrimination in the convention of employment rights. There are no employment rights enshrined in the convention.
Lord Elton: My Lords, I am most grateful to the noble and learned Lord for giving way. There is a point which has not been clear throughout the debate. Will the noble and learned Lord tell us whether the convention is susceptible to amendment; and whether an amendment may incorporate employment rights? If so, would they then be incorporated into English law?
The Lord Chancellor: My Lords, the convention of course could be altered by an amendment. But that would require agreement on the part of the United Kingdom before the United Kingdom could be bound by any amendment. The noble Baroness, Lady Carnegy of Lour, asked about Roman Catholic state schools in

1345
Scotland. or Moslem schools. The answer is that neither the convention nor its incorporation stands in the way of those schools appointing people who are appropriate in their judgment in a religious sense to be heads of those institutions.
The critical point—noble Lords should not suggest it is otherwise—is that the rights listed in Schedule 1 did not include a right to be appointed to any particular post. Nor would Article 14 which relates to discrimination apply because Article 14 applies only to discrimination in the application of a convention right.
Baroness Blatch: My Lords, I am grateful to the noble and learned Lord for giving way. Will he clarify this point for me? Is the noble and learned Lord saying that in the event of an amendment being proposed any one country has an absolute right of veto? I would respect it if the noble and learned Lord did not always look to the noble Lord, Lord Lester, for an answer to every question that has been posed.
10.45 p.m.
The Lord Chancellor: My Lords, I apologise if I caught the eye of the noble Lord, Lord Lester, while I was listening to the point the noble Baroness made, which was repetitious of a point made earlier, and which I have already answered. It requires the consent of the United Kingdom. The answer is that we would have to ratify any such amendment. It would not bind if we did not ratify. I have said it before; I say it again for the benefit of the noble Baroness.
I hope that in the light of that the House will agree that it would not be right to exempt religious schools and charities from being regarded as public authorities in the various ways that they are.
Amendments Nos. 24 and 72 go further still. Amendment No. 72 would absolutely remove any priest or minister, or any person exercising any functions on behalf of a church, from being regarded as a public authority. Amendment No. 24 would wholly exempt the General Synod and religious bodies recognised as such by the Secretary of State.
I understand the concerns that have prompted the noble Baroness and noble Lords to make these suggestions. Some points made at the meeting, to which I referred, between Church and government representatives, are relevant here. As the Bill stands, a Church which has some public and some private functions will be regarded as a public authority if the courts so decide, although not in respect of its acts which are of a private nature.
I wish to be as particular as possible. Perhaps the most obvious function which churches carry out which is of a public character is the solemnisation of marriages. There is, as we now know, some concern on the part of the Churches that they might find themselves obliged to marry people whom it would be against their doctrines to marry. I do not avoid the difficult questions; I face up to them. In the extreme case, it is feared that the jurisprudence might develop to the point where it was regarded as a breach of the convention rights to
1346
decline to marry people of the same sex. Short of that, there is a fear that the Churches might be called upon, contrary to conscience, to remarry divorced persons.
Let me make the position plain. 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. Again, I do not believe that the Bill will have that effect. Let us take the "marriage" of homosexual couples first. Article 12 of the convention provides that,
"Men and women of marriagable age have the right to marry and to found a family, according to the national laws governing the exercise of this right".
It is plain that the meaning of Article 12 is a right enjoyed by men and women—that is, a marriage of a man to a woman—and does not extend to a "marriage" between two men or a "marriage" between two women. Such jurisprudence as there is from Strasbourg supports that view.
I now turn to marriages where one or both of the parties are divorced. The argument would be that the right of a divorced man or woman under Article 12 to marry was infringed by not being able to marry in the church of his or her choice. However, there is a short answer to what is simply a scare. Article 12 does not go beyond a right to marry. It does not amount to a right to marry in a place or according to a ceremony of one's choice, religious or otherwise.
Finally, the new schedule proposed by the noble Baroness would exempt from being regarded as a public authority any person exercising functions in connection with the ecclesiastical courts of the Church of England. I again question why it should be necessary or appropriate to do this. The courts of the Church of England are courts of the land.
The noble and learned Lord, Lord Lloyd, asked me certain detailed questions about a very particular Church of England court, the Court of Ecclesiastical Causes Reserved, and the Privy Council. If the noble Lord will forgive me, I will write to him in detail upon the point. But that court is plainly in my view a court and under Clause 6(1) it is unlawful for a public authority to act in a way incompatible with any of the convention rights. The courts are covered by the convention, and Church of England courts are covered by the convention.
It is in the highest degree unlikely, for the reasons given by the noble Lord, Lord Lester, that any court of the Church of England could ever conceivably run foul of the convention. I could elaborate upon the matter but that might be thought to be expressing a greater respect for the views of the noble Lord than would be acceptable to part of the Opposition Benches this evening.
Before I conclude, I should mention that there is a further concern, particular to the Church of England, with which I have not dealt. It relates to the power which in its present form the Bill would give to amend a Measure of the General Synod by means of a remedial order. On that matter, too, we have listened carefully to the Church's concern, and we do think that an

1347
amendment to the Bill is appropriate. My noble friend Lord Williams of Mostyn will deal more fully with the matter when we reach Clause 10. The Government believe that the amendment he will move will give satisfaction to the Church.
I have dealt at greater length than is perhaps appropriate at this hour with the concern expressed by the Churches, both directly to the Government and through Members of this House. We are not brushing aside these concerns. After the fullest consideration I am, however, convinced, and the Government are convinced, that the concerns sincerely and fully expressed are not well-founded. I therefore invite the noble Baroness to withdraw her amendment.
Baroness Young: My Lords, I should like to start by thanking all noble Lords who have supported me in the debate this evening, in particular my noble friend the Duke of Norfolk, the noble Earl, Long Longford, the right reverend Prelate the Bishop of Ripon, and many others, including the noble Lord, Lord Alton, and the noble Earl, Lord Perth, from the Cross-Benches, and all those who have stayed until this late hour. I believe it indicates the importance that we all attach to these amendments. They are very serious and go to the heart of the Bill. I am therefore very grateful for the support that I have received all the way through.
Perhaps I might turn to those noble Lords who have not supported me, in particular the noble Lords, Lord Goodhart and Lord Lester. It is always dangerous for a lay person to have an argument with lawyers, but I am bound to say to both of them that, if they were putting a case, they were using the oldest trick in the book: you find a perfectly ridiculous case and then knock it down. The noble Lord, Lord Lester, quoted the case of a Church of England school refusing to admit black children. He might have thought of something better than that! Having built it up, he knocks it down to make us look silly. I do not think that that is very clever; I think we might be taken somewhat more seriously.
Lord Goodhart: My Lords, does the noble Baroness agree that that accusation against my noble friend and myself is a case of the pot calling the kettle black? The examples given by the noble Baroness about circumstances in which the courts might interfere with the working of the Churches were at least as far-fetched.
Baroness Young: No, my Lords, I do not accept that at all. The noble Lord, Lord Goodhart, quoted a lot of cases to indicate the difficulty of defining a religious organisation. He talked about what all noble Lords would agree might be regarded as crank organisations which supported mass murder, female mutilation, and so on. Those are acts which would come up against the criminal law. Nobody is suggesting for one moment that they would be supported by the Churches or anybody else.
Earl Russell: My Lords, the noble Baroness would be unwise to forget that the Emperor Nero regarded all Christians as cranks.
Baroness Young: I do not think that Members of this House will consider the opinions of the Emperor Nero
1348
tonight—except, of course, members of the Liberal Democrat Party. I think we should concentrate on more relevant issues and need not worry about the Emperor Nero, although I recognise that in addressing the noble and learned Lord the Lord Chancellor I am effectively addressing Cardinal Wolsey. Perhaps we should call him Your Eminence instead!
The House should not be taken in by unreal examples which are intended to make the Churches and the arguments that I have put forward look ridiculous. Far from doing that, I believe it has been shown that those are ridiculous examples indeed.
If I may go on to take up the question of employment law, the noble and learned Lord the Lord Chancellor said in effect: "Don't worry about all this. It's perfectly all right. Everything is for the best in the best of all possible worlds and you are making a fuss about nothing".
I understand that in Holland an employment law case is pending involving an institute for Bible study at which somebody wishes to be employed to teach who is very knowledgeable about the Bible and is perfectly capable of teaching everything in it from the beginning to the end but who does not happen to believe in anything in it. The organisation does not wish to employ that person and a case is now pending. The idea that all this is illusory is simply not true. Once this provision is on the statute book, unless there are these protections, cases will be brought, there will be litigation and the whole area will be expanded further.
I turn to what the noble and learned Lord the Lord Chancellor said in his winding-up speech. He first accused me of having a litany of complaints. I hope that he has understood my complaints; I have not forgotten them. If we had done something like that when we were in government we would never have heard the end of it. He is very lucky that he is replying to somebody as meek and mild as myself.
The fact is that he has already admitted that he did not consult the Churches; he actually told the House that he did not think it was necessary. After all, they are a hit like the privatised water companies; but perhaps those companies are more important in his scheme of things. In any event, he thought that it was not worth consulting the Churches. Now, of course, he has come to the House and it has suddenly dawned on him that perhaps there was a point, that the Churches—the Church of England, the Catholic Church, the Jewish Church, the Moslems and the Buddhists—actually had something to contribute and to be considered. I suppose that we should be flattered that he has changed his mind. He obviously believes, at last, that we have a point. We are now being considered in all of this, so I thank him for that. I am so pleased that he has grasped this point.
The fact is that he is asking us to take it for granted that everything will be all right. But what he is in effect saying to the Churches is., "You are going to have to defend yourself if anybody does come along"; but there can be no guarantee. The Lord Chancellor cannot give a guarantee; the noble Lord, Lord Lester, who is briefing everybody, cannot give a guarantee; the noble Lord,

1349
Lord Goodhart cannot give a guarantee that nobody is going to come to court and that nobody is going to raise these issues.
Who will be caught? The Churches are going to be put in the dock; they are going to be guilty until they prove themselves to be innocent. They are going to have to pay for the litigation. That is fine for the lawyers. They are going to do all right, Jack, thank you very much, whichever way it goes. It will be the Church and the poor congregations who support these people who will have to raise the money. Of course the noble and learned Lord the Lord Chancellor looks pleased. The whole of the legal profession is going to do very well indeed out of this Bill. Perhaps I am rather envious. I have always thought I should have read law and I realise that it was a terrible mistake that I did not. The lawyers will do very well but the Churches will be put in the dock because, in effect, we do not know what is going to happen in the future. No one can give a guarantee that things will remain as they are.
We have had some wonderful discussions this evening. The Liberal Democrats quite properly raised the 1832 Reform Bill. No doubt we could go back through the 19th century to a great many issues. But those of us who have actually lived since 1950 do not have to go back to 1832 to see the different issues that have been raised which would have been unthinkable in 1950. The mere thought that one would even suggest a marriage between same sex couples would have been completely unthought of in 1950, and yet all these things are commonly discussed nowadays. We are legislating not for 1998 but into the 21st century. We have to make an effort of the imagination to see what it is going to be like in the years to come for our grandchildren, not just for ourselves. We have not had any real answers.
If the noble and learned Lord the Lord Chancellor really thinks that there is nothing to worry about, why does he not accept the amendment? It would make no difference and it would give the assurance that we want. But he will not do that because he cannot be quite sure that there is nothing to worry about and he believes, therefore, that things must stay as they are.
We have had a long debate tonight and I am prepared to keep the House as long as I have to.
Noble Lords Noble Lords: Hear, hear!
Baroness Young: My Lords, there were plenty of people earlier this afternoon who spent a lot of time on their speeches, and one thing is for sure. I was not born yesterday and I can see what has been happening in the House. I make no apology therefore for speaking at length and keeping the House until 11 o'clock at night. I should very much like to divide the House because I believe that there are a great many people here who came particularly for that purpose.
Noble Lords: Hear, hear!
Baroness Young: My Lords, your Lordships wish me to divide the House, and I shall do so. I commend the amendment to your Lordships.
11 p.m.
On Question, Whether the said amendment (No. 23) shall be agreed to?
Their Lordships divided: Contents, 82; Not-Contents, 93.

Division No. 2

CONTENTS

Alton of Liverpool, L.

Kilbracken, L.

Ashbourne, L.

Kingsland, L.

Belhaven and Stenton, L.

Kinloss. Ly.

Belstead, L.

Knight of Collingtree, B.

Berners, B.

Liverpool, E.

Biddulph, L.

Lloyd of Berwick, L.

Blatch, B.

Longford, E.

Brabazon of Tara, L.

Lucas of Chilworth, L.

Brentford, V.

Luke, L.

Bridgeman, V.

Lyell, L.

Burnham, L.

McColl of Dulwich, L.

Cadman, L.

Mackay of Drumadoon, L.

Campbell of Alloway, L.

Masham of Ilton, B.

Carnegy of Lour, B.

Miller of Hendon, B.

Carnock, L.

Molyneaux of Killead, L.

Chesham, L.

Monson, L.

Coleraine, L.

Norfolk, D.

Courtown. E.

Northesk, E.

Craig of Radley, L.

Oxfuird, V.

Cranbome, V.

Park of Monmouth, B.

Crickhowell, L.

Pearson of Rannoch, L.

Cross, V.

Perth, E

Dean of Harptree, L.

Pilkington of Oxenford, L.

Denham. L.

Renton, L.

Dixon-Smith, L.

Robertson of Oakridge, L.

Donegal], M.

Rochester, L.

Elles, B.

Rowallan, L.

Elton, L. [Teller.]

Seccombe, B.

Fitt, L.

Shaw of Northstead, L.

Fookes, B.

simon of Glaisdale, L.

Greenway, L.

Stallard, L.

Halsbury, E.

Stewartby, L.

Hankey, L.

Stoddart of Swindon, L.

Harmsworth, L.

Strange, B.

Harris of Peckham, L.

Strathclyde, L.

Hemphill, L.

Thomas of Gwydir, L.

Henley, L.

Ullswater, V.

Hooper, B.

Waterford, M.

Hylton. L.

Wilberforce, L.

Iddesleigh, E.

Wilcox. B.

Jenkin of Roding, L.

Young, B. [Teller.]

NOT-CONTENTS

Ackner, L.

Dorrnand of Essington, L.

Acton. L.

Evans of Parkside. L.

Amos, B.

Falconer of Thornton, L.

Bassarn of Brighton, L.

Farrington of Ribbleton, B.

Blackstone, B.

Gallacher, L.

Borrie, L.

Gilbert, L

Brassey of Apethorpe, L.

Goodhart, L.

Burlison, L.

Gordon of Strathblane, L.

Carlisle. E.

Gould of Pottemewton, B.

Carmichael of Kelvingrove, L.

Graham of Edmonton, L.

Carter, L. [Teller.]

Gregson, L.

Chandos, V.

Grenfell, L.

Clinton-Davis, L.

Hamwee, B.

Cocks of Hartcliffe, L.

Hanworth, V.

Colville of Cuhoss, V.

Hardie. L.

David, B.

Hardy of Wath, L.

Davies of Oldham, L.

Harris of Greenwich, L.

Dean of Thornton-le-Fylde, B.

L.Haskel,

Desai, L.

Hayman, B.

Dixon, L

Hilton of Eggardon, B.

1351

Hogg of Cumbemauld, L.

Pitkeathley, B.

Hollis of Heigham, B.

Ponsonby of Shulbrede, L.

Hooson, L.

Prys-Davies, L.

Howie of Troon, L.

Puttnam. L.

Hoyle, L.

Ramsay of Cartvale, B.

Hughes, L.

Randall of St. Budeaux, L.

Hughes of Woodside, L.

Rea, L.

Hunt of Kings Heath, L.

Rendell of Babergh, B.

Irvine of Lairg. L. [Lord Chancellor.]

Richard, L. [Lord Privy Seal.]

Islwyn, L.

Russell, E.

Jay of Paddington, B.

Sefton of Garston, L.

Kennedy of The Shaws, B.

Sewel, L.

Kennet, L.

Shepherd, L.

Lester of Herne Hill, L.

Simon, V.

Lockwood, B.

Simon of Highburv, L.

Lofthouse of Pontefract, L.

Smith of Gilmorehill, B.

McIntosh of Haringey, L. [Teller.]

Stone of Blackheath, L.

Merlyn-Rees, L.

Symons of Vemham Dean, B.

Milner of Leeds, L.

Taylor of Blackburn, L.

Molloy, L.

Tordoff, L.

Monkswell, L.

Turner of Camden, B.

Montague of Oxford, L.

Walker of Doncaster, L.

Nicholson of Winterboume, B.

Watson of Invergowrie, L.

Nicol, B.

Wedderbum of Charlton, L.

Orme, L.

Whitty, L.

Williams of Mostyn, L.

Winston, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
Lord Henley: My Lords, I wonder whether I may ask the Government, particularly in the presence of the Chief Whip, just exactly what their intentions are on timing this evening. It is already 11.10 p.m. and many of us feel that we have been at the Bill for some considerable hours. We are less than half way through the Marshalled List of amendments. We have a number of amendments of considerable importance coming up later on. For example, there is the amendment of my noble friend Lord Campbell of Alloway, Amendment No. 25, to which the noble and gallant Lord, Lord Craig of Radley, wishes to speak. Later on, my noble friend Lord Kingsland has amendments, as does my noble and learned friend Lord Mackay of Drumadoon. More importantly, there are amendments on the fast-track procedure which all noble Lords would like to discuss in good time, at the proper time. At 11.10 p.m., having had a debate that lasted some two and a quarter hours on a matter of great importance, it would be useful if the Chief Whip could give some indication as to when we can have some extra time so that we can debate the rest of the Bill in good time.
Lord Simon of Glaisdale: My Lords, I am glad that the noble Lord, Lord Henley, has revived the question that I asked earlier. As he said, this is a most important Bill and one of which I am myself an enthusiastic supporter. It is quite intolerable that matters of importance on it should be discussed at this hour of the night. I also point out that we had the Rippon report on the Sittings of the House in which it was agreed that we should adjourn at reasonable hours. In a very short time
1352
there is a day scheduled for the Third Reading of the Bill which could well be used for the remainder of the Report stage.
Lord Carter: My Lords, I am not sure that it is altogether the fault of the Government side that we have made as little progress as we have on the Bill. We have to make some progress with the Bill. It is very important. I understand the interests of your Lordships. But I propose to continue the debate and to consult the usual channels at midnight.
Lord Henley: My Lords, the noble Lord said that it has not been the fault of the Government. I am not sure that that is strictly correct. Our Front Bench has not wasted any time, either at this stage or at earlier stages of the Bill. In fact, we have contributed a great deal to getting through the Bill—three days in Committee. The noble Lord himself will vouch for the fact that on that third day we made rapid progress. We are committed to giving the Government their Bill in due time. But we need time for an important Bill of this kind. As I said, some very important amendments are coming up and we cannot debate them at all hours of the night, particularly those of us who have been at this since three o' clock this afternoon. I do think that we could have a slightly more sympathetic response from the Chief Whip.
Lord Carter: My Lords, in the time we have spent discussing this point we could probably have dealt with an amendment. I propose to consult the usual channels at midnight.
Lord Campbell of Alloway Lord Campbell of Alloway had given notice of his intention to move Amendment No. 24:
Page 4, line 10, at end insert ("or
( ) the General Synod of the Church of England, church schools and religious bodies recognised as such by the Secretary of State, and any person exercising functions under the authority of any such institution.").
The noble Lord said: My Lords. I made it plain to your Lordships that this amendment differs from the other amendment. I wish to study with great care what has been said on the other amendment. It is an important matter. It is not a simple issue. I should like to return to this at Third Reading.
[Amendment No. 24 not moved.]
11.15 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 25:
Page 4, line 10, at end insert ("or
( ) Her Majesty's Armed Forces, or any person exercising functions under their authority.").
The noble Lord said: My Lords, the object of this amendment is to exclude,
"Her Majesty's Armed Forces, or any person exercising functions under their authority",
from the fast track procedure of this Bill. The amendment has the strong support of the noble and gallant Lord, Lord Inge, who sought to put down his name but has written to me to say that he was unable to do so because there were other supporters.
It is accepted that the Armed Forces are subject to the civil and criminal jurisidiction of our courts and to the jurisdiction of the commission and the European Court of Human Rights, an international body to which there is an individual right of access, subject to the exhaustion of our domestic remedies. It is accepted that due account of the convention must be had by the Government, the Armed Forces and such persons. It is also accepted that the judgment of the ECHR in McCann in 1996, which was the SAS action in Gibraltar, remains the cause of deep dismay.
However that may be, your Lordships may well think that it is neither necessary nor appropriate that in this context alleged breaches of convention on a case-by-case basis should be dealt with by our domestic courts and that declarations of incompatibility as regards Clause 6(3) and (5) should not be granted to trigger ministerial remedial action under Clauses 10 and 11, which is the fast track procedure. It is not the business of government or of the judiciary in this context, on a case-by-case basis, to seek to construct—and this is a similar point—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 disparate provisions and system of maintaining good order and discipline. It is not the object of the convention, as, I remind your Lordships even at this hour, the distinguished president Rolv Rysell said, to impose rigid, uniform solutions, but, within limits, to recognise the rights of free societies to choose for themselves.
Would it not be contrary to good order and effective discipline to afford a domestic forum in our courts to every barrack room lawyer or disgruntled or aggrieved serviceman in which to allege breaches of the convention? I think back to my days in the BEF. There was always someone grousing about something. It seems to me quite incongruous that one can keep really good, tight discipline with the system proposed by the fast track procedure.
In conclusion, I make a short point. If we had not won the war there would not be any human rights convention. If there had not been good discipline in the forces they would not have won the war. The discipline and conduct of our Armed Forces, according to our long traditions, is essential to our national security. I know that it is accepted by the noble Lord, Lord Gilbert, as our number one priority. I beg to move.
Lord Goodhart: My Lords, this amendment has been tabled by the noble Lord, Lord Campbell of Alloway, on the basis that it just keeps the Armed Forces out of the fast track. That is not exactly the effect of the amendment. If that is the intention it is not the effect. Subsection (1) of Clause 6 provides:
"It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".
1354
Subsection (3) goes on to define "public authority". The amendment will apply not only to the fast track legislation procedure in subsection (2) but the whole basic structure in subsection (1).
With all respect to the noble Lord, this amendment is astonishing. It would exempt the Armed Forces altogether from the jurisdiction of the English courts under the European Convention on Human Rights. The English courts know perfectly well—no doubt better than the European Court of Human Rights—the importance of discipline in the British Army and will apply the law sensibly and properly. British forces have an extremely good record on human rights. For example, in Bosnia, at great cost to themselves, British forces have preserved the human rights of the citizens of that country. But the experience of other countries demonstrates that armed forces can be, and frequently are, the most serious infringers of human rights. One has only to look, for example, at the situation in Argentina before the Falklands war. Therefore, armed forces above all need to be subject to the European Convention on Human Rights.
It is extraordinarily unlikely that the British Armed Forces will behave in this way, but the fact that it is extremely likely that they will not commit violations of human rights is no reason why they should be exempt from the jurisdiction of the English courts in that respect. There is nothing in the European Convention that is inconsistent with the maintenance of proper discipline in the Armed Forces. I believe that this amendment has no justification whatsoever.
Lord Craig of Radley: My Lords, I rise to support the amendment to which my name has been added in the Marshalled List. I support it because I believe that Her Majesty's Armed Forces should be excluded from the embrace of the widely-drawn concept of a public authority. I have studied the explanations given at Second Reading and in Committee about how a public authority will be identified. I accept that it is wisest to leave it to the courts to decide as cases come before them. I do not seek to challenge that. The Armed Forces are a public authority, but I believe that special considerations apply to service personnel. We need to judge these against the arguments for not excluding the Armed Forces as a public authority from this Bill—arguments which say that exceptions lead to problems and that individuals in the Army, Navy and Royal Air Force should have as much right to the protection of the convention as any other of Her Majesty's subjects.
But strong as these and similar arguments may be, they are not the only ones. Servicemen and women are subject to the Armed Forces Acts. There are offences of conduct prejudicial to good order and discipline, of disobeying a lawful command, and so on, which have no direct parallel in civilian life. These are enacted because they underpin and are vital to the operational effectiveness and discipline of the Armed Forces.
Without further elaboration, the conclusion is self evident. The Armed Forces may be, and often are, treated differently by legislation. Even though we have all-volunteer services, whose members are made aware of the particular constraints which will apply to them

1355
for as long as they remain in the forces, there have been moves to treat service personnel more in line with contemporary civilian practice rather than leave them without the ambit of civilian law. It is not the time to debate whether that trend has gone far enough. too far, or been altogether in the best interests of the country and the services themselves.
Several experienced voices have expressed concern about some of the changes to court martial procedures, the high level of litigation which now persists throughout the Armed Forces, and about other challenges to the responsibility and authority of command. An inference has begun to emerge that civilian-style management rather than military-style leadership is what the services should adopt, particularly in peacetime.
Of itself, each individual change may not be significant or even damaging, but the cumulative effect of a whole series of them is a different matter. The old adage of straws on a camel's back springs to mind. There is unease about the progressive impact of so much upheaval at the very heart of service discipline, ethos and culture, even though effort is made to work with the grain of the changes. It is against that background that I am seriously worried about further uncertainties which could arise in the Armed Forces if they are not excluded from the gamut of public authorities to which the Bill will apply.
How tempting, as the noble Lord, Lord Campbell of Alloway, said, will it be for the occasional crackpot, barrack room lawyer, or hobbyhorse rider, to instigate proceedings once they can be brought in a local court. Would there be a yet greater increase in litigation tending, wittingly or unwittingly, to undermine the cohesion and normal command structure of the Armed Forces—structures which are the essence of military effectiveness? Is there any likelihood that incompatibility might arise between the Armed Forces Act and the convention? Is it not conceivable that convention rights may be added to one day? How should convention matters be treated if our forces are at war or on operations overseas short of war? How confident can we be that different British courts will adopt a consistency of approach when dealing with any service case? A difference between the services, on one matter or another, could cause great difficulty.
Even if every one of those concerns could be satisfied—at this late hour my list is far from complete—they all outweigh the arguments for not making an exception for the Armed Forces. Without an assurance that not excluding the Armed Forces as a public authority will not be detrimental to their effectiveness, we embark upon a risky course. As the noble Baroness, Lady Young, said, this is not an academic exercise.
Will the noble and learned Lord the Lord Chancellor advise whether the MoD and the chiefs of staff have been consulted? I hope that they have.
I urge the Government to accept the amendment. If it is adopted, service men and women would not, of course, lose their right to apply to the Strasbourg court. There are those who argue that that is too slow and
1356
subject to delay. Perhaps we could be told what effect the Bill will have on such delay. If most of the cases are dealt with in the UK, then surely the load on Strasbourg will be greatly relieved. I support the amendment.
11.30 p.m.
Viscount Colville of Culross: My Lords, I respect what my noble and gallant friend said about the special position of the Armed Forces. However, I have had two telling experiences in the field in relation to human rights and the security forces. In the early 1980s I was sent as special rapporteur to Guatemala in order to report on the extent to which the population and the security forces were living in accordance with the United Nations' human rights rules. There is no doubt that in the extremely unpleasant situation which then existed in that country excesses were being committed by the security forces against the civilian population, which was not being controlled internally by the armed forces. I made reports which were accepted by the Government. We did everything we could by persuasion to improve matters.
I then moved to a similar inquiry in Northern Ireland. There was also concern that the way in which the security forces and the population interacted might lead to human rights abuses. It is perhaps a tribute to the Armed Forces, rightly mentioned by my noble and gallant friend, that even at the height of all the troubles the only derogation and reservation that this country had to make to the European Convention is set out in Schedule 2 to the Bill, and it is concerned only with the length of detention during interrogations. None of the other provisions of the emergency provisions legislation in Northern Ireland fell into the category that required a reservation. Indeed, noble Lords who have read my reports may have seen that for a period of seven years I was able to report to the House that the security forces had behaved with remarkable control and regard to the rules, and that they were ever ready to improve their performance in this respect.
That does not indicate a situation in which the Armed Forces in this country, as regards their human rights record, would have anything to be afraid of if they were subject to the oversight of the domestic courts in Great Britain. As regards Armed Forces personnel, I am sure that the noble and gallant Lord is not opposed to the right to a fair trial, for instance, at a court martial or to due process. I see that he agrees with me that he is not.
Is it not better that we should judge our own cases and allow members of the Armed Forces and those who have any complaint against them to go, first, to the British courts to see whether they can be vindicated rather than being the only people excluded as public authorities and the only people who have to go to Strasbourg or against whom the complainants would have to take the case to Strasbourg? I do not consider that the reputation, history and record of the Armed Forces that I have seen in operation in this country, let

1357
alone in Bosnia, requires any such exemption or exception and it does them less than justice to suggest that they need any such protection.
Lord Lester of Herne Hill: My Lords, I am pleased to be able to speak immediately after the noble Viscount, Lord Colville. I agree with everything he said. I wish to add only two points. I had the privilege of defending the United Kingdom against Ireland in the inter-state case. It was an unhappy case, with serious allegations of torture and inhuman and degrading treatment at interrogation centres in Northern Ireland. That case went before the European Court and I well remember that in the end every one of us on the government team considered that it had been beneficial for the issues to be aired as they were. Lessons were learnt as a result.
I never discovered any resentment on our side of the scrutiny that was necessary in that case on the part of the Commission and the court. Of course, it would have been very much better had it been possible to achieve speedy and effective remedies in the courts of Northern Ireland that would have made it less necessary for that unhappy matter to have gone to the European Court.
The second example was the McCann case. I fully share the criticism that has been made of the wafer-thin majority of the European Court in that case. What is more, I wrote about it in the Irish press, explaining my dissatisfaction with the judgment of the European Court. But again, I have no doubt that if the McCann case could have been dealt with by our own courts, using the criteria of the convention, it might well have led to a different outcome in Strasbourg. It seems to me that so far from having anything to fear about our own courts, the right and sensible approach by the Armed Forces should be to welcome the fact that those cases will be dealt with in the first instance by our courts and that, if the matter then went to Strasbourg, the European Court would then have the benefit of British judicial scrutiny of those matters.
The last point I make is that I am perfectly sure that the Armed Forces would not wish to be considered other than as a public authority. I cannot think of any greater public authority in this country than the Armed Forces and the police who need to be respectful, as they are, of the basic human rights and freedoms of us all but accountable to the courts, as well as to Parliament and the Executive, if they get it wrong.
Earl Russell: My Lords, my only complaint of the speech of the noble and gallant Lord, Lord Craig of Radley, is that it is made 47 years too late. The convention is already binding on us in its entirety. We cannot pick and choose which parts of it we accept.
The Armed Forces are, in the very nature of the case, a public authority, and thank God they are! The alternative, if they were not, is really too terrible to contemplate. Therefore, the only choice facing us is
1358
whether those rights are enforceable in Strasbourg or in this country. Having them enforced in this country, as well as its other advantages, is a great deal cheaper.
Lord Kingsland: My Lords, I rise from the Opposition Front Bench to support, in principle, the amendment tabled by my noble friend Lord Campbell of Alloway. In doing so, an important distinction should be made between two situations. The first is the situation in which our Armed Forces are ranged against a particular military target. It is widely accepted that, in those circumstances, the military target, if his human rights are abused, should enjoy the benefits of the Act.
But the situation to which my noble friend Lord Campbell of Alloway refers is in relation to the commander and the man under command. In that situation, in my submission, it would be wrong to give the man under command the benefits of the rights of the European Convention because then complete obedience to orders is required. The European Convention could or might interfere with the success of military operations. Therefore, to that extent the Opposition Front Bench supports the amendment.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. He is a great champion of European Community matters and law. Is he then saying that European Community law is wrong in forbidding sex discrimination in the Armed Forces? That is a prohibition which, as he will know, led to the various cases in which women in the Armed Forces were able to recover effective redress when they had been dismissed, for example, for becoming pregnant.
Lord Kingsland: My Lords, that is an entirely different matter. I said that the Opposition Front Bench supports the principle of my noble friend's amendment. It may need refining to limit it to operational matters. I wholly agree that there may be circumstances in which such discrimination is wrong. I shall not go into the detail of what those circumstances are. I am simply talking about operational situations where it is absolutely essential that the orders given by a commander are obeyed and the commander cannot fear any kind of come-back based on the European Convention.
I add another matter. It has been said that these rights are already given to troops under the European Convention as interpreted by the European Court of Human Rights in Strasbourg. However, that seems to me to be not a final argument; because we now know that the Government do not intend to make the jurisprudence of the European Court of Human Rights binding in this country. The matter will be up to our own judges. The fact that a particular jurisprudence may or may not have developed with respect to the commander and those under command in Strasbourg does not, therefore, answer the question.
The Lord Chancellor: My Lords, this amendment would exempt Her Majesty's Armed Forces, or any person exercising functions under their authority, from being public authorities under Clause 6 of the Bill. The

1359
noble Lord, Lord Goodhart, is therefore right in his contention that this amendment, if accepted, would exempt them from being challenged under the Bill when it is alleged that their actions are contrary to the convention rights. What we have sought to do in Clause 6 is to set out a principle: first, that the effects of Clauses 6 to 8 should apply in the first place to bodies which are quite plainly public authorities; and, secondly, to other bodies whose functions include functions of a public nature. In the latter case, the provisions of the Bill would not apply to the private acts of the bodies in question.
Her Majesty's Armed Forces would seem to come squarely within the category of an "obvious" public authority and I cannot for one moment see what principal justification there would be or could be for excluding them from being a public authority under the Bill. Whether we have a widely drawn definition of a public authority, as we have in the Bill, or a definition based on a narrower list of specified bodies—which we do not have—the Armed Forces are obviously at the heart of government and ought to be included within any definition. I am not aware that the chiefs of staff have made any representations to government for an exemption along the lines of this amendment. The Government are plainly answerable in Strasbourg for the actions of the Armed Forces which plainly engage the responsibility of the state. Individuals who were aggrieved at the actions of the Armed Forces would, if the Bill were amended in the way proposed, still be required to go to Strasbourg to argue their case because they would be unable to rely on their convention rights before our domestic courts.
One major purpose of this Bill is to allow our citizens to enforce their convention rights in their own courts, and I firmly believe that the overwhelming majority of cases will begin and end here. I therefore oppose the amendment and invite the noble Lord to withdraw it.
Lord Campbell of Alloway: My Lords, I am most grateful to all noble Lords who have spoken both for and against the amendment. At this hour one does not want to go into a detailed analysis, but I just say that of course there is no issue of whether the Armed Forces are a public authority; of course they are. The issue is whether one should exclude them because of operational matters relating to discipline.
It is all very well but there are not many people in the Chamber who served in the previous war. There are not many people in the Chamber who have been on operations. Many of our operations are "near" war, short of war operations. With respect, I think that the House might defer to those noble and gallant Lords who have practical experience of operations, in particular the noble and gallant Lord, Lord Inge, who wrote,
"I strongly support your amendment to Clause 6 of the Human Rights Bill".
Why should he bother? Why should a man of that calibre bother to write to me along those lines, expressing his sorrow that he could not be here to speak?
1360
I am not prepared to pack in this amendment, but I would like the opportunity to read with very great care what the noble and learned Lord said and in particular what the noble Lord, Lord Goodhart, said. On that basis and with the leave of the House, I beg leave to withdraw the amendment, but I should like to return to it at a later stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 26 and 27 not moved.]
11.45 p.m.
Clause 7 [Proceedings]:
Lord Lester of Herne Hill Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 28:
Page 4, line 28, 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 not be moving this amendment. It is of great importance and I know that the noble Lord, Lord Alexander of Weedon, wished to be here, as did the Master of the Rolls and other noble Lords. Therefore, I do not think it appropriate at this hour to move an amendment of this importance. I shall return to it at Third Reading.
[Amendment No. 28 not moved.]
[Amendment No. 29 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 30:
Page 5, line 8, at end insert—
("(9A) The Minister who has power to make rules in relation to a particular tribunal may by order give that tribunal jurisdiction—

(a) to determine such questions arising in connection with the Convention rights, or

(b) to grant in respect of acts (or proposed acts) of public authorities which are (or would be) unlawful as a result of section 6(1) such relief or remedy of a kind that it has power to grant,

as he considers appropriate.
(9B) An order made under subsection (9A) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate.").
The noble Lord said: My Lords, in moving Amendment No. 30, perhaps I may deal also with the matters raised in Amendments Nos. 38, 66 and 73. As your Lordships know, the amendments to Clauses 7 and 20 respond to specific concerns expressed by the noble Earl, Lord Russell, in Committee. He referred to appeals in asylum cases heard by the special adjudicator under the Asylum and Immigration Appeals Act 1993. He pointed out that the jurisdiction of the adjudicator was restricted under that Act to considering claims under the 1951 Convention on Refugees and suggested that the adjudicators should be allowed also to consider claims dependent on the European Convention on Human Rights. On that occasion, I indicated our preliminary view that the noble Earl was probably right and I also indicated-1 paraphrase, bearing in mind the lateness of

1361
the hour—that we would see what we could do to attend to his concerns. We concluded that the noble Earl's analysis of the 1993 Act is correct.
A person appearing in difficult circumstances before the special adjudicator would not be able to rely on the convention rights. He would not be left without any remedy under the Human Rights Bill, because he would be able to rely on those rights in separate proceedings under Clause 7(1)(a) of the Bill. The better course, however, would be for him to be able to rely on convention points at the time when the case was before the special adjudicator. I explained in Committee that that was our intention and that we would consider the form of amendment.
The outcome of our deliberation is the amendments currently before your Lordships. The effect of Amendment No. 30 is to enable a Minister to confer jurisdiction on a tribunal to determine convention issues or to grant a remedy where a public authority has acted incompatibly with the convention rights. The jurisdiction is to be conferred by order. It will be in addition to the existing statutory provisions relating to tribunal jurisdiction. In the particular case of concern to the noble Earl, it will enable the Secretary of State to confer jurisdiction on the adjudicator to consider claims relating to convention rights, notwithstanding the restriction in the 1993 Act, and to provide a remedy if a public authority acts in a way which is incompatible with those rights.
The intention would be to use the order-making power to extend the jurisdiction of the special adjudicators who hear asylum appeals so as to allow a person appealing on one of the grounds set out in Section 8 of the 1993 Act to appeal also on the ground that his removal from the United Kingdom would be unlawful under Clause 6(1) of the Human Rights Bill. An appellant who succeeded on that ground would not be granted asylum but would be irremovable from the United Kingdom and eligible for exceptional leave to remain. Therefore, the effect of such an order would be to make the ECHR jurisdiction in asylum appeals consistent with that in non-asylum appeals under Section 19 of the Immigration Act 1971.
The order conferring jurisdiction is to be subject to affirmative resolution under the scheme that we propose. We sought to make general provision of this kind rather than to operate directly on the Act of 1993. That is because we do not think it appropriate for a Bill of general application, such as this one, to remedy problems in a particular piece of legislation. Moreover, we are not certain that the problem identified by the noble Earl is necessarily confined to tribunal hearings in immigration appeals cases. We are not aware at present of similar problems arising from statutory restrictions on the jurisdiction of other tribunals, but if such problems do emerge we would look to a general provision which I hope the noble Earl can welcome because, although consonant with his approach, it goes beyond the ambit of his particular concern. We are looking for a general provision in order to deal with such problems.
I recognise that that is a short-term solution but, when a suitable opportunity arises, we will seek to amend the relevant primary legislation. On the basis of that explanation, which is as reasonably short as I can conveniently make it, I hope that the House will agree that the government's amendments meet a mischief which was identified. I also hope that the noble Earl will think that this is an appropriate solution—perhaps a little more so than his solution—and on behalf not only of the Government but also of your Lordships' House, I thank the noble Earl for his persistence in identifying that gap. I beg to move.
Earl Russell: My Lords, to be given what one asks for in this House is a luxury; to be given more than one asks for is an exceptional luxury. I thank the Minister most warmly. I had intended to probe one or two points in the amendment, but the Minister has already answered entirely to my satisfaction the main question that I wished to ask. In any case, it is too late at night for looking gift horses in the mouth. I thank the Minister again and advise the House that I shall not be moving my own amendments.
Lord Lester of Herne Hill: My Lords, I very much welcome these government amendments. During the debate of the immigration appeals Bill I remember that the Minister indicated that the mere fact of incorporation of the convention would solve the Chahal-type problem. The advantage of these amendments is that, for the avoidance of doubt as well as dealing with any inconsistencies in primary legislation, they ensure that the position of adjudicators, and of all tribunals, can be dealt with.
I have but one observation to make. If only this had happened under the European Communities Act 1972 it would have been most beneficial as years were wasted in argument—for example, before industrial tribunals—as to whether they had jurisdiction to give effect to Community law. The advantage of this approach is that it will enable the Minister in charge of the procedures and the rules at each tribunal to deal with the matter tribunal by tribunal, without relying upon the command to the judges and tribunals to construe legislation where possible to accord with the convention. I therefore regard this as admirable as, for the avoidance of doubt, it deals with an important practical problem. I go well beyond the immigration sphere in saying so.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 31:
Page 5, line 8, at end insert—
("( ) The provisions of this Act do not affect any rule of law which prevents the High Court of Justiciary and the Court of Session in Scotland from reviewing the decision of the Lord Advocate as to whether or not to prosecute a particular individual.").
The noble and learned Lord said: My Lords, Amendment No. 31 involves returning to an issue that I raised in Committee; namely, the question of whether the provisions of the Bill would have the effect of introducing into the law and procedure of Scotland review by the courts of a decision by the Lord Advocate as to whether or not to prosecute an individual accused.
When the matter was debated on the second day of the Committee stage on 24th November, at col. 803 of the Official Report, I set out the position that currently applies in Scotland. It is clearly an important matter. In view of the lateness of the hour, I shall not repeat in detail what I said then.
The current procedure in practice is that neither the civil nor the criminal courts in Scotland will entertain proceedings, whether at the instance of an accused man or his alleged victim, seeking to review the decisions as to whether the Lord Advocate should prosecute in a particular case and, if he decides to do so, on what charge such a prosecution should be brought. There is also the position in relation to the procurators fiscal who, as your Lordships know, initiate and conduct summary criminal proceedings in the various sheriff courts throughout Scotland.
In moving the amendment, I do not for a moment suggest that all the activities of the Lord Advocate, and his colleagues in the Crown Office and the procurator fiscal service should be excluded from the ambit of the Bill. Indeed, I am sure that any Lord Advocate, discharging his duties as an independent public prosecutor, would not only wish to follow but would seek to enforce a policy designed to achieve adherence with convention rights. However, the courts in Scotland, at least until this moment, will not seek to inquire of a Lord Advocate why he has reached his decisions and will not therefore seek to review the soundness of them.
When the issue was last debated, the noble and learned Lord the Lord Chancellor promised to write to me about the matter. Again I am grateful to the noble Lord, Lord Williams, for having taken the trouble to do so in ample time for me to put down the amendment. In his letter, the noble Lord confirms what had been accepted on all sides during our debates in Committee; namely, that the Lord Advocate is a public authority within the meaning of Clause 6. He also confirmed what I asserted in Committee; namely, that it is possible to envisage circumstances in which a decision as to whether or not to prosecute could arguably be said to infringe a convention right. He therefore accepted what I think the noble and learned Lord the Lord Chancellor had been reluctant to accept when we last looked at the issue: that these decisions might infringe convention rights.
The noble Lord went on to suggest that it would seem natural for any judicial challenge to a decision to be brought, as appears to be the position in England, by way of judicial review in the civil courts. In a kindly manner, and with the sense of humour with which we now associate the noble Lord, his letter went on to reassure me by stating that he did not believe this should be a matter of concern. He stated that decisions not to prosecute have already been reviewed in England where the courts have not adopted the strict self-denying ordinance followed by the Scottish courts. I pause to observe that I had not previously associated members of the judiciary in Scotland with self-denying ordinances. He went on to say that the case law here—referring to England—has shown the courts to be very careful when exercising their jurisdiction. They have used their
1364
discretion to intervene sparingly and their role has not been to second guess the decision taken by the prosecutor.
I have no difficulty in accepting that were such a jurisdiction to be introduced in Scotland. it would be exercised with caution. Nevertheless, I believe that it would be a serious mistake to proceed along those lines—a view which I have reason to believe is shared by others involved in the criminal justice system in Scotland.
One thing that troubles me about this jurisdiction is that it is a necessary consequence of the Bill in its present terms which was entirely unheralded by any form of consultation, which yet again failed to receive any mention in the White Paper, and which so far as I am aware has not received any attention in speeches by government Ministers. Indeed, until the very helpful letter was received by me from the noble Lord, Lord Williams, no public recognition had been made by any Minister that the decisions of a Lord Advocate might be susceptible to review against convention rights. I have to wonder whether this is the correct way to go about introducing major constitutional change. It is a major change that will affect the constitutional relationship between the Lord Advocate and the courts in Scotland. Your Lordships are being invited to approve the provision without being informed of the considered views of those involved in the criminal justice system.
Not only the courts, but Parliament itself, has refrained from seeking from the Lord Advocate reasons why a decision has been taken in a particular court. That is evidenced by the practice observed by successive Lord Advocates in responding to Written and Oral Questions in Parliament; in the standing order which governs the remit of the Select Committee on Scottish Affairs in another place; in the remit of the Parliamentary Commissioner for Administration; and in the practice that has been observed in establishing and operating successive inquiries, most recently in the Dunblane inquiry following the tragedy in Dunblane.
Clause 26 of the Scotland Bill provides that in answering questions to the Scottish Parliament it is proposed that the Lord Advocate and the Solicitor-General may decline to answer any question or produce any document relating to a particular criminal prosecution if he considers that to do so might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest. It is therefore surprising that in one Bill this convention is being recognised while in another it is being breached to some extent.
As I have indicated, others share my concern. The Dean of the Faculty of Advocates, to whom I have spoken since this matter was before the House at Committee stage, advises me that the Faculty of Advocates considers that there are strong public policy grounds for excluding the Lord Advocate's decision from review. The Dean's own view is that it is difficult to see how the system could function effectively if Crown Office decisions were open to challenge by individuals intent on causing delay, disruption and expense.
Notwithstanding the firm, albeit polite, terms of the letter I have received from the noble Lord, Lord Williams, I do not hold any great hopes of persuading the Government to change their mind. However, I do pose a number of questions which I hope will be answered and may prompt at least some movement on the Government's part. It would be of assistance to the House for the noble and learned Lord the Lord Advocate to inform your Lordships as to why there has been no consultation on this proposal. It might be helpful if he explained to the House, and ultimately to the courts which might have to exercise this jurisdiction, why it is considered necessary to depart from a practice that has served the criminal justice system in Scotland well.
Why is the jurisdiction to be one exercised by judicial review, which as I understand it would involve the jurisdiction being exercised by the Court of Session, the superior civil court in Scotland? That is a fundamental issue. That court traditionally has had no role to play in criminal prosecutions. Moreover, for the jurisdiction to lie with that court would admit the possibility of appeals to the Appellate Committee of this House. As noble Lords will be aware, there is no right of appeal in criminal cases from the High Court of Justiciary to the Appellate Committee, and hence there would be a novelty there as well. If there is to be this jurisdiction, should it not lie with the High Court of Justiciary?
These are important matters. It is most unfortunate that they arise without any proper focusing, either in a White Paper or any other quarter. I move the amendment in order to give other noble Lords present the opportunity of contributing to the debate; but, more importantly, I move it in order to enable the noble and learned Lord the Lord Advocate to address and provide answers to the questions I have raised. I beg to move.
Lord Clyde: My Lords, it is unfortunate that matters of such immense significance so far as Scotland, its history and constitution are concerned are raised at the hour of midnight among an assembly which, while distinguished, is small in number. I share the serious concern expressed by the noble and learned Lord, Lord Mackay of Drumadoon, on this issue. Your Lordships will recall the more extensive explanation which he gave when this matter arose at earlier stages.
The problem may be one of interpretation and construction of the words "public" and "private". I venture to return to the suggestion that I made earlier that those words will require close construction. I have listened to much of the debate this afternoon, this evening and this night in order to try to obtain a clearer understanding of what they mean. While, as I suggested earlier, they are well used in England to try to work towards a distinction between matters which may be subject to judicial review and matters which may not, as far as I am aware no one has yet given a satisfactory, substantial construction and understanding of them.
It may be that in effect the words do no more than provide a label to represent those things which the courts will think it right to consider and those which they will not. If they are simply labels to refer to the
1366
supervisory jurisdiction, it may well be that the courts can continue to observe the respect which they have had or, as the noble and learned Lord put it, the self-denying ordinance which the Scottish judges have so far exercised. If that is what the words mean, it could well be that the noble and learned Lord the Lord Advocate, as a public authority, is, where he is exercising the function of determining whether to prosecute or not, performing what in this case is a private function because it is a function which is not open to the scrutiny of the court. If that is what the words mean, I am satisfied that the amendment is unnecessary. If it is not, I continue to have the gravest concern about them. I too should be grateful to hear from the noble and learned Lord the Lord Advocate what the function, effect, purpose and object of this provision is and how he can, consistent with the long traditions of the office which he holds, see what has been a treasured and respected right disappear, if that is the intention of the legislation.
The Lord Chancellor: My Lords, I am disappointed that I have to disappoint the noble and learned Lord, Lord Clyde, and reply to the amendment myself on behalf of the Government. The reason that the Government are not willing to accept the amendment is that to do so would, given the central role played in our criminal justice system by independent public prosecutors, create a significant gap in the protection provided by the Bill. The amendments seek to restrict the ability of individuals to rely on their convention rights; the public authority in question is the Lord Advocate or the Director of Public Prosecutions.
This is a subject on which my noble friend Lord Williams of Mostyn has written to the noble and learned Lord at some length. The noble and learned Lord complains about a want of consultation. We are content to consider any further representations that the noble and learned Lord chooses to make. Indeed, my noble friend Lord Williams of Mostyn has already given a response which the noble and learned Lord has been good enough to acknowledge is a very full one.
It is the case that decisions not to prosecute have been reviewed in England where the noble and learned Lord suggests that the Scottish courts would be unwilling to review. Certainly, case law in England has shown the courts to be very careful when exercising their discretion in this area. I am sure that the courts in Scotland, when considering whether to review a decision concerning the bringing of a prosecution on convention grounds, would pay due regard to the factors which have influenced the prosecution and would allow the Lord Advocate an appropriately generous discretion.
The noble and learned Lord asks: why the Court of Session rather than the High Court of Justiciary? We will consider any representations that are made; but the immediate response would be that the natural court to consider complaints of denial of convention rights would be a civil court and not a criminal court. Nor, is it argued, is there any inconsistency with the established rule—established, I believe, since the Act of Union—that on matters of criminal law no appeal lies in Scotland to the House of Lords.

1367
For these reasons, although we are content to consider any further representations that the noble and learned Lord chooses to make or, indeed, that the noble and learned Lord. Lord Mackay, chooses to make, we do not share their concern about the implications of the Bill for the Lord Advocate or for the Director of Public Prosecutions. We therefore invite the noble and learned Lord to withdraw his amendment.
Lord Mackay of Drumadoon: My Lords, I have to say very frankly to the noble and learned Lord the Lord Chancellor that I find his response disappointing in a number of respects. He did not explicitly face up to the point made by the noble and learned Lord, Lord Clyde, as to whether the decisions with which this amendment is concerned are what one would call public functions or private functions.
More importantly, he seemed to suggest that it was for me to go off and consult the major elements in the criminal justice system—the court, the faculty, the Law Society and any other body which might have an interest in this matter—and that it was for me to collect together any views they may have and consider whether any further amendment is required.
With the greatest respect, I find that mildly surprising. I would have thought that it was incumbent upon the Government, who, on any view, are introducing a constitutional change into the criminal justice system on the eve of handing over the criminal justice system to a devolved parliament, to seek the views on, for example, the critical issue of whether this jurisdiction is to be exercised by the High Court of Justiciary on the one hand or the Court of Session on the other. That is a matter I would have expected the Government to have
1368
raised with the Lord Justice General so that he could consult with his colleagues, and a report as to their collective view could then be made known to the Government so that they could consider the position and consider whether an amendment is required. I am quite happy to do so; but I have to say that it is a somewhat strange jurisdiction for an Opposition spokesman to have to exercise.
In the light of the invitation that has been given, I propose to do so; and in the light of the lateness of the hour, I seek leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Henley: My Lords, Amendment No. 32 was originally grouped with Amendment No. 31. We should like to take this separately from Amendment No. 31. I wonder whether now would be the moment when we might hear from the Chief Whip.
Lord Carter: My Lords, I beg to move that further consideration on Report be now adjourned. For the convenience of the House, I hope to make a statement after Questions tomorrow regarding further progress on the Bill.
Moved accordingly, and, on Question, Motion agreed to.

Shrewsbury and Atcham Borough Council Bill [H.L.]
Presented and read a first time.
House adjourned at fifteen minutes past midnight.