§ Consideration of amendments on Report resumed.
§ Clause 5 [Right of Crown to intervene]:
§ 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 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 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.1321
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.1323
§ 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.
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.
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.
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: Hear, hear!
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.
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, 93.1351
|Division No. 2|
|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.]|
|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.|
|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 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 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.1353
§ 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 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 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—
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.1362
§ 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 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.1363
§ 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.1365
§ 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.