§ 3.5 p.m.
§ Report received.
§ Clause 1 [The Convention and the First Protocol]:
§ Lord Mishcon moved Amendment No. 1:
Page 1, line 6, at beginning insert?—
("( ) The main purpose of this Act is to provide effective remedies for violation of the Convention rights within the jurisdiction of the United Kingdom.").
§ The noble Lord said: My Lords, your Lordships will recollect that in Committee the subject matter, as well as the principle of this amendment, was discussed and from all sides of the Committee there appeared to be support for the proposition, if this were brought forward on Report, that it is a good thing from a legislative point of view to have the purpose of the Act set forth in summary form. I hope that the House will agree that that summary is correctly contained in the amendment.
§ Perhaps I may anticipate the amendment to Amendment No. 1, which I believe may be moved. The principle must be to summarise the main purposes of an Act and not to include in that summary exceptions that there may be or other provisions which are of a fairly minor character compared with the main objects of the Bill. Having said that, I beg to move.
§ Lord Williams of Elvel moved, as an amendment to Amendment No. 1, Amendment No. 2:
Line 2, after ("remedies") insert ("subject to exemption on grounds of religious law and practice").
§ The noble Lord said: My Lords, I should first perhaps disagree with my noble friend in that he said that the matters which I am about to raise are of minor importance. I believe that they are matters of major importance. Secondly, I should declare an interest in the sense that I am a practising member of the Church of England; I am and have been for many years a member of the Ecclesiastical Committee of both Houses of Parliament; and I should further add that I do not regard this as a party issue. This is an issue for the House rather than a party political matter.
§ I have general support for the amendment moved by my noble friend. There is no doubt that a general expression of the content of a Bill is desirable. Therefore, I have no quarrel with my noble friend in that regard. But the expression "effective remedies" caught my eye because the nub of the problem go forward—is that adherence to a religious faith is unlike membership of any other organisation. It is not like joining the MCC or, indeed, the Labour or Conservative parties. Those who join that religious faith recognise a higher authority that under usual procedures—and I shall come to those in a minute—can declare what should be the rules of that particular club.1253
In Committee my noble and learned friend quite clearly stated that if a church or a religious body has any functions of a public nature, it qualifies as a public authority under the Bill. He went on to say that certain acts by public authorities were covered by Clause 6(5) of the Bill (as it then was) and that:
In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private".
From my noble and learned friend's remarks, there is no doubt that the Church of England and the Church of Scotland, both Churches by law established—whatever that may mean; and I am sometimes in some doubt about it—have in many of their functions actions and activities of a public nature. Therefore, if my noble and learned friend is to be taken at his word, as he should be, they would undoubtedly qualify as public authorities under the Bill.
§ That may arguably be true of other religious faiths, but I cannot speak—and, indeed, would not wish to—for other religious faiths. I would certainly not wish to speak for the Church of Scotland as there will be others much more qualified than myself to do so. However, I believe that I can argue for the Church of England. There is undoubtedly a conflict between Article 9 and Article 14 of the convention when it comes to amendment of the canon law of the Church of England. It may well be that there is an argument about that for other religious faiths and, when I turn to practice, it is possible that that will also be the case. But certainly so far as concerns the Church of England, it has been well established under the law that the procedures for changing the canon law of the Church (which is the religious law governing it) under the 1919 Act fall under the process of measures which are produced through the synodical process at present. They come to your Lordships' House and another place to be approved or disapproved having been considered by the Ecclesiastical Committee, which noble Lords will know is a joint committee of both Houses, with the remit of declaring whether or not such a measure is expedient.
§ Perhaps I may give the House just one example. The conflict arose in a recent measure on the ordination of women, where the measure amending the canon law of the Church of England specifically excluded women from becoming bishops. As I understand it, and on any reasonable definition of Article 14, that would be considered to be discriminatory. But under Article 9 there is the freedom to practise religion in whatever way anyone feels is appropriate to conscience.
§ In my view, it would be absurd if the whole structure of the synodical relationship as regards the Synod, the Church of England and Parliament became disrupted by the fast-track procedure at present in the Bill. I am glad to have the assurance that the fast-track procedure, if your Lordships accept forthcoming amendments, will not apply to measures of the Church of England. Again, it is not for me to pronounce what may happen in the Church of Scotland.
§ However, that does not necessarily solve the fundamental problem; namely, that a measure, if so declared by a higher court—to use the words of the 1254 Bill—and deemed to be contrary to Article 14 of the convention, can be replaced by another measure which, presumably, if the Synod so decides, would be in accordance with the convention on human rights now incorporated into UK law. But what happens if the Synod in its wisdom decides that it does not want to conform to what the higher court has decided? There is still the problem of a conflict between Articles 9 and 14 of the convention.
§ I do not want to detain your Lordships for long, so I turn now to the question of practice. As noble Lords will be aware, in the Church of England a number of priests decided that, although they would not leave the Church of England as a result of the ordination of women measure, they would seek alternative episcopal authority. So that was arranged. It is an unhappy compromise but, nevertheless, one that was accepted by the House of Bishops and the Church of England in general.
§ Clearly, any priest who performs an act of a public nature, which is a marriage or a burial, and decides that he cannot accept that the act is performed by a woman priest, is in contravention of Article 14 of the convention. But, on the other hand, he is working according to Article 9 of the convention. Having said that, I leave aside the whole question of other Churches; for example, the Roman Catholic Church where the canon law in fact prohibits the ordination of women to the priesthood. What happens in the case where those provisions of religious law and practice of the Churches are challenged by the courts and a higher court decides that they are contrary to the convention which is now part of UK law?
§ I wish to be supportive of the Government because, in the first place, basically I support my noble friend in his amendment. I support the idea of the convention being put into UK law. However, I am afraid that I have to part company with the noble Baroness, Lady Young, in her amendment which she will move later because I do not believe that charities should be exempt from the convention. However, I make this suggestion to the Government. I believe that there are solutions. First—and I believe that this will happen—fast-track procedures for amendment of Church of England measures or Church of Scotland legislation should be ruled out. Secondly, measures can only be amended by other measures going through the normal synodical process.
§ That is the minor problem. The major problem is that there must be some way of indicating to the courts, in whatever way appropriate, that Parliament intends that Article 9(1)—that is, the freedom of conscience of "everyone"—should, if challenged, take precedence over Article 14 which is the anti-discrimination article. If my noble and learned friend could just move that little pace further, I, at least, would be much happier. I beg to move.
§ Lord Hughes of Woodside
My Lords, I rise to oppose Amendment No. 2. My noble friend Lord Williams of Elvel has declared his interest in the Church of England. I should perhaps declare my interest as 1255 chairman of the all-party humanists group, although I do not speak on behalf of that group which has not discussed the issue.
I agree with the noble Lord, Lord Williams of Elvel, to this extent. This is not a minor matter, but one of major importance. The amendment put forward is of a sweeping nature and refers to remedies,subject to exemption on grounds of religious law and practice".That goes far wider than the amendment introduced by the noble Lord. It is a blanket exclusion from the provisions of the Bill on the grounds of religious law and practice.
What is religious law and practice? The meaning is not defined in the Bill, nor so far as I am aware is it defined anywhere else. I do not argue in any sense that there should be any infringement of the rights of people to practise religion of whatever kind they wish to follow. That has never been my position. I believe in the inclusion of people of religion in the civic affairs of our country. However, I object to the way in which the Church seeks to exclude itself from the Human Rights Bill. Apart from matters of practice—I believe that that was mentioned today—for the life of me I cannot think of any reason that any Church should seek to exclude itself from the upholding of human rights. It may seem paradoxical, but I argue that one of the main functions of religion is to uphold human rights. Therefore to pass such a wide amendment would lead us into grave difficulties.
I refer to what I call the peculiar religions such as the so-called Moonies—they may take offence at that—which declare themselves to be religions. Some of their practices undoubtedly are totally against the spirit and practice of this legislation. Would such religions be able to creep in under the amendment, and say, "The law can't touch us in our activities because we are excluded"? The issue needs to be looked at closely. For the House to exclude religion on such wide grounds would be extremely dangerous and highly damaging, not just to the Bill, but to the fabric of our society.
§ Lord Simon of Glaisdale
My Lords, I have put my name to Amendment No. 1 in the name of the noble Lord, Lord Mishcon. A purpose clause is not always appropriate, but there was general agreement in Committee that this was a case where a purpose clause would be of advantage. There was general approval of the way in which the noble Lord, Lord Mishcon, had framed the purpose clause which is now put forward again.
I desire to intervene only on two points. The first is in relation to what service a purpose clause is for. It is an aid to interpretation; and it is nothing else. Your Lordships have heard two speeches cogently argued and, if I may say so, deeply impressive. After hearing them, no one would minimise the importance of the considerations which they raise, even if one had been inclined to do so before.
However, the arguments relate to one amendment, or perhaps more than one, which will be moved later by the noble Baroness, Lady Young; and perhaps to one to be moved by the noble Lord, Lord Steel, in relation to 1256 the Church of Scotland. As one who was formerly concerned on many occasions with statutory interpretation, I can only say that if one were to start inscribing exceptions into a purpose clause one would only confuse the court. The function of a purpose clause, when it is appropriate, is to give a general guidance to the general spirit of a Bill—an Act of Parliament as it becomes. It is not in the least designed to fish out this or that exception. To do that not only serves no useful purpose but will derogate from the value of any purpose clause.
There is only one other thing I should like to add: it is in relation to the last amendment on the Marshalled List, and the last in the list of groupings. I refer to the amendment to the Title. Frequently a Title can serve a useful and valuable purpose. Instead of or with a purpose clause, it can indicate to the court of interpretation the overriding force impelling the Act of Parliament. The two are not mutually exclusive. They may be cumulative. Therefore I can support wholeheartedly the amendment of the noble Lord, Lord Mishcon, without anticipating in any way by way of derogation the amendment that I shall move in due course in relation to the Title.
§ Lord Campbell of Alloway
My Lords, 1 would have supported the amendment moved by the noble Lord, Lord Williams of Elvel, subject to a hit of tightening up of the drafting—but that is neither here nor there—if I could have supported Amendment No. I. But I cannot. It is a purpose clause. I stand four square behind the recommendations of the Renton committee on purpose clauses, at paragraphs 11.6 to 11.18 on pages 62 and 63 of the report. These appear under the heading, Aids to Understanding. It is stated quite clearly in the report that they should not be used as a mere manifesto incorporation—in this case to reflect page 35 of the Labour manifesto—to enforce human rights in our courts. That is clearly the main purpose of the Bill. Everyone knows that. It is a tightly crafted Bill, and no aid to understanding or construction would be afforded by the introduction of a purpose clause.
I accept the view of the report. The report states that it is not appropriate to introduce a purpose clause. It is suggested that it is certainly not appropriate to introduce a purpose clause at the outset of any stage of the Bill where amendments are tabled which, if carried, could afford exceptions to the main purpose. The noble Lord, Lord Williams of Elvel, referred to that in outline and I need not make the point again. I agree with him.
As in the case of the Long Title, to which the noble and learned Lord, Lord Simon of Glaisdale, referred, the purpose clause should be postponed to the end of the Bill, where amendments to the Title are considered. However, as yet no such procedure has evolved. Such procedure may not have evolved because it is not often that your Lordships' House introduces purpose clauses. It is stated clearly in the report that these clauses should he used only as an aid to,better understanding of the legislative intention",(as to which there is no question here), to resolve doubts and ambiguities (as to which there are none), and to limit or clarify the scope and effect of legislation. This 1257 amendment does not seek to limit the scope of legislation. There is no obscurity in the drafting of the Bill which warrants clarification. For those reasons, based on the Renton report, which I accept, I oppose Amendment No. 1.
§ 3.30 p.m.
§ Lord Lester of Herne Hill
My Lords, I wish to speak in support of Amendment No. 1, standing also in my name, and explain why I oppose Amendment No. 2 as an amendment to it. In answer to the noble Lord, Lord Campbell of Alloway, perhaps I may begin by explaining why I believe the noble Lord is mistaken about the Renton report, and also as to the reasons why this is a valuable provision. I am glad to see the noble Lord, Lord Renton, in his place. The Renton report made one exception to the paragraphs to which the noble Lord, Lord Campbell of Alloway, referred. The report stated that there is one circumstance in which a purpose clause should be used; namely, where a Bill seeks to give effect to an international treaty obligation. That is exemplified by the present Bill.
Why is that the case? It is because there is a discrepancy between what was stated in the White Paper both by the Prime Minister, on behalf of the Government as a whole, and statements by the noble and learned Lord the Lord Chancellor in the course of debate, which need to be clarified. It may be that they can be clarified when the noble and learned Lord the Lord Chancellor replies, in which case the need for this clause may be reconsidered.
Perhaps I may explain the discrepancy. In his preface to the White Paper the Prime Minister said:We are committed to a comprehensive programme of constitutional reform … The elements are well-known … new rights based on bringing the European Convention … into United Kingdom law".The introduction and summary stated:The Government has a Manifesto commitment to introduce legislation to incorporate"—I emphasise the word "incorporate"—the European Human Rights Convention into United Kingdom law. The Queen's speech … announced that the Government would bring forward a Bill for this purpose",that is to say, for the purpose of incorporating convention rights into domestic law. Paragraph 1.19 of the White Paper states:to make more directly accessible the rights which the British people already enjoy under the convention. In other words, to bring those rights home".All that is very plain—although not plainly stated on the face of the Bill. In Committee, however, the noble and learned Lord the Lord Chancellor stated:convention rights will not … in themselves become part of … substantive domestic law".—[Official Report, 18/11/97; col. 508.]It is very important to assist the courts and members of the public to know whether, as the White Paper states, the purpose of the Bill is to provide effective remedies to the violation of convention rights by incorporating convention rights into domestic law. I hope, and believe, 1258 that the noble and learned Lord the Lord Chancellor will be able to confirm that the main purpose is indeed to provide effective remedies for violation of convention rights. That is what is meant by bringing convention rights home.
Article 2 of the convention obliges the United Kingdom to secure convention rights for everyone within the jurisdiction of this country; and Article 13 obliges the UK to provide effective domestic remedies. It has not been argued in previous debates either by the noble and learned Lord the Lord Chancellor or the noble Lord, Lord Williams of Mostyn, that there is any practical objection to a purpose clause of this kind. For those reasons, I very much hope that the Government will be sympathetic to the amendment tabled by the noble Lord, Lord Mishcon.
I turn briefly to the amendment to the purpose clause tabled by the noble Lord, Lord Williams of Elvel. With great respect to the noble Lord, this amendment is not at all well-conceived. First, it is quite clear from the case law under the European Human Rights Convention that Article 9—the religious freedom provision of the convention—gives ample scope for canon law making, for the ordination of women, for all the practices, procedures, rituals and dogmas of the established Churches, and indeed, other religions.
One of the most dramatic examples occurred in a case in which I was involved in this country, but not in Strasbourg; namely, the Salman Rushdie case. As noble Lords will remember, an attempt was made to extend the law of blasphemy to cover not only the Anglican faith and Christianity but also Islam. It was argued successfully in the English courts, using the convention, that to extend the law in that way would be to set one religion against another and would be divisive, and that any suggestion of discrimination was misconceived. The European Commission of Human Rights agreed with that argument, which had been accepted by the Divisional Court, and threw out a challenge based upon Article 14 by some fundamentalist Moslems who sought to challenge discrimination, and found the case to be manifestly ill-founded. The kind of problems raised by the noble Lord, Lord Williams of Elvel, would simply not arise under the convention in a proper case in this country. Were they to be raised I am confident that no British court would be likely to find that any of those established practices could not pass muster under Article 14—the non-discrimination guarantee—and Article 9.
However, I agree with the noble Lord's remark that there are some religions, whether real or supposed, which may violate basic human rights and freedoms; and it would be quite wrong in principle, especially in a purpose clause but also in the body of the Bill, to carve out an exception, or immunity, when no such immunity exists under the European Convention itself. We cannot use the Bill to diminish the rights given by the convention by imposing immunities on particular interest groups. Therefore, I hope that that amendment will not be pressed.
My Lords, I am in favour of the main amendment moved by the noble Lord, Lord Mishcon, 1259 and opposed to the amendment to it moved by the noble Lord, Lord Williams of Elvel. With deep respect to my noble friend Lord Campbell of Alloway, I believe he has drawn the wrong conclusions from the recommendations of the committee of which I had the honour to be chairman.
We were very anxious in making all of our recommendations that Acts of Parliament should be understood not only by lawyers—in fact, better understood than lawyers are sometimes capable of doing because of the ambiguities so often found in legislation—but clearly understood also by all the users of legislation and all those who were subject to it or who needed to enforce it as laymen. That was the main reason underlying our desire to declare the intention of Parliament so far as possible in general terms through purpose clauses, statements of principle and, as the noble and learned Lord, Lord Simon of Glaisdale, said, by giving aid to the interpretation of Acts of Parliament. It was with those thoughts in mind that we recommended purpose clauses—I hope not in too limited a way, although looking back over the many years since we reported we might have put the matter forward in a more general way.
In relation to the Bill, the amendment moved by the noble Lord, Lord Mishcon, would be very helpful Clause 1 goes straight into a definition of the convention rights. Surely it would help users of the statute to be told at the outset what is set out in Amendment No. 1. In particular, and with deep respect to him, I have to disagree with my noble friend Lord Campbell of Alloway that purpose clauses should come at or towards the end of a Bill. Clearly their value comes if they are put at the beginning. All such purpose clauses that I can remember over many years in parliament and in your Lordships' House have come at the beginning of a Bill or the beginning of a part of a Bill. Sometimes it is necessary to have more than one purpose clause in a Bill which is widespread in effect and has several different parts dealing with different matters. So far as this Bill is concerned, I believe it is a valuable way of starting the Bill and I warmly support it.
I now come to the amendment of the noble Lord, Lord Williams of Elvel. I have not always agreed with him but I have always respected his sincerity, and do so today. He referred us to Articles 9 and 14 of the convention, which are set out in the schedule. It seems to me that both those articles give protection to religious attitudes in a very broad way. I do not propose to read them because they have already been referred to by the noble Lord; but, if noble Lords will be kind enough to refresh their memories of the contents of those two articles, they will see that freedom of thought and various other matters, including religion, are set out. It is not just a Christian religion; any established religion would benefit in the same way in our courts when the convention comes to be applied in them.
The noble Lord, Lord Williams of Elvel, raised one matter which, I confess, took me a little by surprise, regarding the ordination of women. I shall be interested to hear the Government's response on that point. We have a Sex Discrimination Act, but in all the discussions that took place in the Church of England on the 1260 ordination of women I never heard the Sex Discrimination Act invoked. Indeed, in relation to the law and practice of the Church of England—of which I am a member—I wonder whether it has any bearing.
We have had a valuable discussion and I do not propose to trouble your Lordships further, except to say—I hope I am not out of order in doing so—that at about eight o'clock on Wednesday evening I am committed to opening a debate on purpose clauses and statements of principle.
§ Lord Campbell of Alloway
My Lords, before the noble Lord sits down, will he accept that I do not know what the Renton Committee intended but that I quoted verbatim from its report? Secondly, of course I realise that purpose clauses come at the beginning of a statute. What I was suggesting—and my noble friend misunderstood because I put it badly—was that they should be discussed at the end with the Long Title because the Bill might be amended during the course of discussion.
My Lords, I did not suggest that my noble friend had misquoted the report of our committee; I merely said that I thought he had drawn the wrong conclusions from it, and I stand by that.
§ Lord Browne-Wilkinson
My Lords, I believe that I am the only speaker so far who is likely to have to construe this Bill. Your Lordships are being asked to consider what is possibly the most important constitutional Bill for some time. I do not believe that our time is usefully spent discussing the technicalities of statutory interpretation. Speaking purely for myself, the first amendment seems to clarify what is self-evident anyway; it does no harm and may do good. As to the religious amendments, those are matters which occur later in the Bill. May we please get on with the substance of this important Bill and not discuss minor technicalities?
§ 3.45 p.m.
§ The Lord Bishop of Ripon
My Lords, perhaps I may comment briefly before we move on. In the amendment of the noble Lord, Lord Williams of Elvel, we are discussing matters to which we shall return in later amendments, but I should like to make two brief responses. To the noble Lord who spoke after the noble Lord, Lord Williams of Elvel, I should like to say that of course the Churches are deeply supportive of the human rights movement and of this Bill, and I shall say more about that in a moment. However, as the noble Lord. Lord Williams of Elvel, made clear, there are times when there is a conflict between rights.
The ordination of women was mentioned both by the noble Lord, Lord Williams of Elvel, and the noble Lord, Lord Renton. My understanding is that when that measure was introduced an exemption was obtained for it from the Sex Discrimination Act. There were clauses in the measure which required that exemption, notably the clauses that allowed parishes not to receive the ministrations of a woman ordained priest.
1261 In relation to the more general point made by the noble Lord, Lord Williams of Elvel, who referred to the Church of England as "by law established", my understanding, as far as I have any of that particular phrase, is that it does not mean that the Church of England is founded by law or upon law—it was founded by Jesus Christ—but is by law given certain responsibilities, such as the responsibility, within certain constraints, to marry any who in the parish present themselves for marriage, and certain opportunities, such as the opportunity of bishops to be present and to speak in your Lordships' House.
The noble Lord referred to the difficulty that might be raised by canon law being in some ways subject to this Bill. This matter has been raised by the General Synod and was discussed in its standing committee, where I strongly made the point that by history the Church of England had been given certain freedoms in relation to law and that for this Bill to take those freedoms back, as it seemed to be doing, was to reverse history and to put the Church of England in a difficult position. My understanding is that the Government have heard that comment from the Church of England and will respond to it in due course. We await that response with great interest.
We shall return to the remaining issues, which are of considerable importance, on later amendments.
§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, Amendment No. 1 is grouped with Amendment No. 2. It was formerly grouped with Amendments Nos. 3, 5, 53, 70 and 75, but they are now grouped separately; I therefore do not attend to those amendments but to Amendments Nos. 1 and 2.
Dealing first with the amendment of the noble Lord, Lord Mishcon, the Government have reflected carefully on this matter since Committee stage but continue to believe that there is nothing to be gained by including a statement of purpose in the Bill, as the amendment seeks to do. We believe that the purpose of the Bill can be readily understood from the scheme of the Bill, which is well understood, as was demonstrated in Committee. The Bill provides a clear and coherent scheme by which the convention rights are to be given further effect in our domestic law. The purpose of the Bill is obvious: it is to enable convention rights to be asserted directly in our domestic courts. The medium of achieving that is, among others, Clause 3, the interpretative principle that, so far as possible, the courts are to construe primary legislation and subordinate legislation compatibly with convention rights. I agree also with the noble and learned Lord, Lord Simon of Glaisdale, that in any event it is not appropriate to have an exception in a purpose clause.
I turn now to the amendment of my noble friend Lord Williams of Elvel. The more appropriate place in your Lordships' discussions today for considering these matters is no doubt when we come to consider the amendments to Clause 6 and, in particular, Amendments Nos. 23, 24, 26, 27 and 72. My noble friend Lord Williams of Elvel looked ahead to Amendments Nos. 40 1262 to 43, in the name of my noble friend Lord Williams of Mostyn. They impose limits upon remedial orders and address the question of Church Measures. That perhaps is the appropriate stage at which to consider in detail those questions.
As my noble friend Lord Williams of Elvel explained, his amendment is not about Article 13 or the provision of remedies; it is about the implications of the Bill for the Churches. I do not want to say a great deal about that in the debate on these amendments because we shall be debating those subjects in some detail later.
Looking first at the detail of my noble friend's amendment, it appears to me that the declaratory statement inserted by the amendment about the purpose of the Bill is not to apply where religious law and institutions are concerned. However, because the noble Lord has not tabled any amendments giving substantive effect to his exemption, his amendment to Amendment No. 1 does not achieve anything, unless it is intended to cross-refer to the provisions which would be inserted in the Bill if the amendments tabled to Clause 6 by the noble Baroness, Lady Young, and others were to be carried. It would not affect the position in the Bill where the Churches, to the extent that they are a public authority, are subject to the requirement to comply with convention rights.
More generally, the Bill provides for a wide interpretation of the term "public authority" because we want to provide as wide a protection as possible for the human rights of individuals against an abuse of those rights. There is an exemption for Parliament so as to protect the principle of parliamentary sovereignty; but nothing in the proceedings on this Bill has so far convinced us that it would be right to create any further exemptions. We must remember that the purpose of the Bill is to enhance the basic human rights of the people of this country. The idea that those rights should not be available in matters of concern to the Church is one to which I, and no doubt others, find it hard to subscribe. However, we shall be debating those matters in more detail later and therefore I confine myself to those observations at this stage.
§ Lord Williams of Elvel
My Lords, I am grateful to my noble and learned friend the Lord Chancellor for what he said. No doubt he will be more forthcoming when the further amendments he mentioned are debated later on.
I wish to make only one point. If the noble Lord, Lord Lester of Herne Hill, is right—and I am sure that he is right—about the jurisprudence in the European Court of Human Rights, particularly the affairs of Salman Rushdie and others; if that jurisprudence is to be followed by the UK courts and if my noble and learned friend could declare that in some form or other, then many of my worries would be removed. No doubt my noble and learned friend will address that subject when we debate the amendments to which we shall come later this evening. In the meantime, I beg leave to withdraw the amendment.
1263 Amendment No. 2, as an amendment to Amendment No. 1, by leave withdrawn.
§ Lord Mishcon
My Lords, little did I think when I tabled Amendment No. 1 that 49 minutes of your Lordships' time would be devoted to it. I am duly flattered, but nevertheless feel that I can serve your Lordships best by saying that I shall read the learned speeches that have been made on canon law, ecclesiastical law, on women and on bishops with the utmost care before deciding what I should do. In the meantime, I beg leave to withdraw the amendment.
§ On Question, Amendment No. 1 negatived.
§ Lord Simon of Glaisdale moved Amendment No. 3:
§ Page 1, line 8, leave out ("l2 and").
§ The noble and learned Lord said: My Lords, I am somewhat surprised to find myself moving this amendment. I believed that the noble Lord, Lord Lester of Herne Hill, was to move it and I shall leave to him the main explanation of it. He is the leading expert on jurisprudence in the European Court of Human Rights.
§ Amendment No. 3 concerns Article 13, which is left out of the schedule setting out the articles which apply. Indeed, that is reflected in Clause 1. Amendment No. 3 will make the reference to the articles run from 1, with no exception at the end of 12, straight on through to Article 18.
§ In addition, I need say only this. There is a consequential amendment to the schedule, and the noble and learned Lord, Lord Mackay of Drumadoon, attached his name to that amendment. Therefore, presumably he also supports Amendment No. 3 or Amendment No. 5 which says the same thing in a slightly different way.
§ There is an alternative. My noble and learned friend Lord Ackner tabled Amendment No. 33 which in effect reproduces the force of Article 13 and incorporates it into the body of the Bill. I shall have to leave him to say how he wants that treated. The course I prefer and which I am now following is the simpler one; namely, making Article 13 also part of the schedule to the Bill. The form is simpler in Amendment No. 3 than in Amendment No. 5. They have precisely the same effect, but on the ground of simplicity Amendment No. 3 may be preferred.
§ I wish to make one last point. I am leaving the main argument to the noble Lord, Lord Lester of Herne Hill, and he ordinarily has no right to speak again at the end of the debate. The Minister has the last word, subject to my being formally entitled to reply to the debate. I hope your Lordships will give the noble Lord, Lord Lester, leave to speak a second time in reply to the debate on the understanding that I shall not myself exercise the right to do so. I beg to move.
§ 4 p.m.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for what he has said. I would like to speak in support of Amendment No. 3, which stands in my name, and also to the other amendments that are grouped, Amendments Nos. 5, 33 and 70.
1264 Amendment No. 5 is not so neatly and simply expressed as the amendment of the noble Lord, Lord Simon of Glaisdale, and would certainly not need to be further considered were Amendment No. 3 to be accepted. Amendment No. 33 is not in my name, it is in the name of the noble and learned Lord, Lord Ackner. It seeks in a different way to achieve the same result. Amendment No. 70 is consequential.
I can deal with the matter briefly because it was debated fairly fully in Committee. It is clear from its place in the convention that Article 13 is one of the rights guaranteed by the states parties to the convention. It is also clear that a breach of Article 13 can be the subject of a complaint on the international plane under Article 25 of the convention.
To take the most recent example, in the Chahal case the United Kingdom was found to have breached Article 13 separately in a judgment of the European Court of 15th November 1996. That made it necessary for Parliament to enact special immigration appeals legislation. The European Court observed in Chahal that Article 13:guarantees the availability at national level of a remedy to enforce the substance of the convention rights and freedoms in whatever form they happen to be secured in the domestic legal order. The effect of this article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant convention complaint and to grant appropriate relief'.So the European Court has made it quite clear that Article 13 imposes binding obligations on the United Kingdom to provide effective national remedies for arguable breaches of the convention. That is why it is very important that our courts do not consider cases under this Bill in blinkers and why they are permitted to look at all relevant provisions of the cnvention, including Article 13. They already do so even though the convention has not been domesticated.
I give two examples. In the Esther Rantzen case and the Elton John case, in considering how it should exercise its discretion to interfere with excessive damages awards in libel cases under Section 8 of the Courts and Legal Services Act, the English Court of Appeal indicated that it had regard to Article 13 and the obligation on it to ensure effective remedies in relation to the free speech guaranteed in Article 10.
To take another example, in a case called ex parte Khan last year two Law Lords of the Appellate Committee again expressly referred to their obligations as a court under Article 13. It is therefore a curious gap, and in my view one of the only three imperfections in this otherwise brilliant Bill, that when one comes to look at the very first part of the Bill, one finds reference made to Articles 2 to 12 as provisions at which the courts can look, and then it leaps from 12 to 14 leaving out Article 13.
Two different explanations for this omission have been given by Ministers so far in the course of debates. One given by the noble Lord, Lord Williams of Mostyn, was that it is not necessary because the Bill is giving effect to Article 13 by providing effective domestic remedies. The other answer, given by the noble and learned Lord the Lord Chancellor, was to indicate some 1265 anxiety in government circles that if Article 13 were to be incorporated into our law this might lead our courts to be excessively creative in fashioning new remedies in proceedings under the Bill. But Amendment No. 3 is not directly incorporating Article 13. What it does is to permit our courts to have regard to Article 13. I have no objection to incorporating Article 13. I do not believe our courts would stray as a result, but I think it is objectionable to exclude Article 13 altogether from the matters to be taken into account by the court. It would be quite wrong for there to be a gap between what is enacted by this Bill and our international obligations under the convention, and by excluding Article 13 altogether one would be only partially incorporating the convention and not giving full effect to all its provisions.
I apologise for taking so long to try to explain the matter as I see it but it is quite an important matter and there are some outside this House who harbour all kinds of unworthy suspicions about machiavellian reasons for excluding Article 13. I do not share any of those doubts but I believe it is important that Article 13 should be one of the provisions in Section 2 of the convention to which the courts can have regard.
My Lords, this group of amendments and other amendments which will follow to my mind raise a very important question of principle. We are purporting to incorporate the European Convention on Human Rights into the jurisdiction of our own courts. In doing so we should not pick and choose as to which articles of the convention we think should apply and which should not. But in relation to Article 13, set out in Amendment No. 70, we have to bear in mind that it does not state rights; it states an obligation upon persons acting in an official capacity. It has that limitation.
It so happens that Clause 6 of the Bill deals with that very matter. So to my mind, rightly or wrongly, the Government were justified in avoiding repetition by omitting the reference to Article 13. If we turn to Clause 6, under the heading Public authorities, we see in subsection (1):It is unlawful for a public authority to act in a way which is incompatible with one or more of the convention rights".Although the wording is slightly different in Article 13, that conveys the same message and therefore, although I am strongly opposed to our varying the terms of the Convention on Human Rights, I think that on this particular matter, to avoid repetition or conflict, the Government would be justified in inserting Clause 6 and omitting Article 13.
§ The Lord Chancellor
My Lords, I am grateful to both noble Lords for giving us another opportunity to consider a set of amendments which relate essentially to Article 13 and the provision of remedies. All of this was debated in some detail in Committee. I am grateful for the support of the noble Lord, Lord Renton, on the 1266 decision not expressly to include Article 13. He referred to Clause 6 of the Bill. I would refer also to Clause 8, which provides:In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its jurisdiction as it considers just and appropriate".Our courts are rich in remedies and have every freedom under Clause 8.
No one supporting the amendment has suggested any respect in which the Bill is deficient in providing effective remedies to those who have been victims of an unlawful act. That is what determines it for me. The noble Lord, Lord Lester of Herne Hill, said that there may be some elsewhere who harbour suspicions that the Government must have some secret or hidden motive for rejecting the amendments. If they do, I do not know what they are. The Bill has been constructed in a way that affords ample protection for individuals' rights under the convention. We have adopted an intentionally wide definition of public authority under Clause 6, and Clause 8(1), which I have already read, gives the courts ample scope for doing justice when unlawful acts are committed. I would say that these are measures of a government determined to deliver a strong form of incorporation, not a government fighting shy of enhancing our citizens' rights.
Our objection is that the amendments add nothing to the scheme in the Bill. On the contrary, the only effect they could have is to disturb the carefully crafted structure of the Bill in some unforeseen way. I do not know what the courts would make of amendments which, on the face of it, contain nothing new. I therefore suggest that the amendments would either cause confusion or uncertainty. In our judgment, the Bill as it stands does the job that we wish it to do and we see no advantages—only disadvantages—in taking up any of the amendments relating to Article 13 or the provision of remedies. I therefore urge noble Lords who have supported the amendments to withdraw them.
§ Lord Ackner
My Lords, before my noble and learned friend sits down, I wonder whether he can help on one matter. The noble Lord, Lord Lester, referred to an observation which my noble and learned friend made during the Committee stage. The noble and learned Lord the Lord Chancellor said that,to incorporate expressly Article 13 may lead to the courts fashioning remedies about which we know nothing other than the Clause 8 remedies which we regard as sufficient and clear".—[Official Report, 18/11/97: col. 477.]Perhaps my noble and learned friend the Lord Chancellor can identify what the remedies with which he is concerned might be and also how they might lawfully be fashioned in view of the terms of Clause 8, to which I shall seek at a later stage to move an amendment.
§ The Lord Chancellor
My Lords, I have not the least idea what the remedies the courts might develop outside Clause 8 could be if Article 13 was included. The noble and learned Lord has really made my point for me. Clause 8(1) is of the widest amplitude. No one is 1267 contending that it will not do the job. When we have challenged the proponents of the amendment on a number of occasions in Committee to say how Clause 8 might not do the job, they have been unable to offer a single example. Therefore, the argument is all one way. What we have done is sufficient.
§ Lord Hoyle
My Lords, it is quite clear from the Companion to the Standing Orders and Guide to the Proceedings that the noble and learned Lord, Lord Simon, may not transfer his right of reply to the noble Lord, Lord Lester, because the latter has already spoken and is prohibited by Standing Order 28 from speaking twice.
§ Lord Simon of Glaisdale
My Lords, I understood the rule of order to be that a noble Lord could speak twice at the Report stage provided he was given leave to do so. That is what I referred to in inviting the noble Lord, Lord Lester, to ask for leave to speak again by sacrificing my right to speak again.
§ Lord Lester of Herne Hill
My Lords, I am in some difficulty. If I did, with the leave of the House, speak again, it would be to say one sentence. However, it might not be the sentence that the noble and learned Lord, Lord Simon of Glaisdale, would himself speak. Therefore, I am not sure what is the appropriate course. If I were given leave, what I would say is that I am satisfied by the Lord Chancellor's assurance that Clause 8 is of the widest amplitude.
§ Lord Hoyle
My Lords, I am sorry but the position is very clear. The Companion states:Only the mover of an amendment speaks after the Minister on Report save for short questions for elucidation to the Minister before he sits down; except that, where the Minister wishes to speak early".
§ 4.15 p.m.
§ Lord Simon of Glaisdale
My Lords, it seems to me, however reluctantly, that it falls to me to say the final words. I desire only to say this. Absolutely nothing is to be lost by including Article 13. My noble and learned friend the Lord Chancellor obviously thinks that he has served all the purposes of Article 13 in the Bill, which in his view is inviolate from envious hands being laid upon it. It may be so. There is a famous example in legislative history when a most momentous Act was passed bringing together the systems of equity and the systems of common law which had previously been disparately administered and considered. The Bill, which became the Judicature Act 1875, set out various respects in which the rules of equity and the rules of common law had diverged and resolved them in favour of equity. But there is one final paragraph, which said:In the event of any further divergence, the rules of equity shall prevail".No one at that time could think of any further divergence, just as my noble and learned friend the Lord Chancellor can think of no way in which his Bill is defective in carrying out the purposes of Article 13.
Oddly enough, some time after the 1875 Act, a discrepancy emerged which nobody thought of at the time. It fell to be decided by the provision to which I 1268 have just referred. So however certain my noble and learned friend may be that he has covered every possible contingency for which Article 13 might call, he may have been mistaken. In another connection at an earlier stage, I quoted the famous words of Oliver Cromwell to the General Assembly of the Church of Scotland and I venture to repeat them at this stage. I hope that it will not be necessary to do so again later. The words that Cromwell used to the General Assembly were,I beseech you, in the bowels of Christ, [to consider that] you may be mistaken".
§ On Question, amendment negatived.
§ [Amendments Nos. 4 and 5 not moved.]
§ Clause 2 [Interpretation of Convention rights]:
Lord Kingsland moved Amendment No. 6:
Page 2, line 2, leave out from ("right") to end of line 4 and insert ("shall be hound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, and must take into account any—").
§ The noble Lord said: My Lords, I am tempted to ask the noble and learned Lord, Lord Simon of Glaisdale, to move this amendment for me, so eloquently has he just spoken. I tabled this amendment at Committee stage and the noble and learned Lord the Lord Chancellor very kindly said that he would go away and think about it. I do not see any accommodating amendment at Report stage, so I assume that he has decided against me.
§ The reason that I have tabled this amendment is to draw the attention of the House to the fact that, by requiring our own judges only to take account of the jurisprudence of the European Court of Human Rights and not to be bound by it, we would be incorporating the substance of the convention, but not its jurisprudence. The effect would be to make the incorporation of the convention a domestic Bill of human rights. Our own judges could range over its interpretation without the discipline of the decisions of the European Court of Human Rights.
§ One of the consequences would be that a litigant, dissatisfied, or only partially satisfied, by the judgment of our courts, could go off to the European Court of Human Rights and obtain a judgment which is more favourable than he or she received domestically. What will the Government's reaction be to that decision in those circumstances? Under the terms of the convention, if the European Court of Human Rights decides that the law of the United Kingdom falls short in some way or other of the convention, it is bound to alter its legislation to reflect that judgment. Do the Government continue to consider themselves under such an obligation? If they do incorporate the judgment of the European Court of Human Rights in those circumstances, what do they believe the attitude of our own domestic courts will be? I beg to move.
§ Lord Lester of Herne Hill
My Lords, this amendment was fully debated at Committee stage. Briefly, my reasons for opposing it can be summarised in this way. First, the only judgments of the European Court of Human Rights that are strictly binding on this country are in cases involving the United Kingdom directly. In international law we are not bound by any 1269 other judgments. Therefore, very boringly and technically, the amendment is too wide in any event in suggesting that our courts should be bound by any judgment because that would be to go further than the European Convention itself requires.
Secondly—and I hope that the noble Lord, Lord Kingsland, will not mind a mild tease about this—it is a little strange for his party, which is not noted for its passionate enthusiasm for the European dimension to be brought home to this country, to be more European than the convention itself requires. It certainly does not require our courts to be slavishly bound by the judgments of the European Court.
Thirdly, if our courts get it wrong and there is a mismatch between what they decide and what the convention requires, the aggrieved individual can always go to Strasbourg. Fourthly—and I hope I say this diplomatically and with respect—the European Court of Human Rights is growing larger and larger, having, I believe, up to 40 judges who come from very diverse backgrounds and from countries in eastern, central and western Europe. Therefore this enormous court will find itself having great difficulty in developing consistent principles of law. There will be the danger of variable geometry developing in the human fights area. I hope that I will never be accused of undue chauvinism, but, speaking for myself, I believe that our judges will be able to give a lead to Strasbourg in developing jurisprudence under the convention. I would not like to fetter them in any way. It seems to me sufficient to require them to have regard to Strasbourg case law, but not to be bound by it as though it were a question of stare decisis under our domestic law.
§ Lord Browne-Wilkinson
My Lords, I believe I had something to say about this amendment at Second Reading. As a serving judge, I shall be concerned if this amendment is agreed to, and broadly for the reasons to which my noble friend Lord Lester of Herne Hill has referred. The starting point is that it is a unique feature of English common law, as regards Europe, that we have this concept of being bound by it. With the possible exception of Eire, I believe that we would be the only member of the European Union which would regard the decisions of Strasbourg as binding on our local courts.
I see no reason that we should fetter ourselves in that way in dealing with a jurisprudence that is by definition a shifting one. I am particularly concerned, for the reasons to which my noble friend Lord Lester has referred, because, although until now the jurisprudence of Strasbourg has been powerful, with the expansion of the European Union there are now a number of judges from jurisdictions which in the past at least have not been famous for their defence of human rights. To find that we were bound by a decision of such a court would be unfortunate.
In practice there will be every encouragement to follow and produce a uniform jurisprudence. But to say that the courts of this country have to produce a result which in their view is unfair, in the sense of being bound by it, would produce an inertia in the development of 1270 human rights law which would be undesirable. For those reasons I prefer that we were required to have regard to the jurisprudence of Strasbourg, but not to be technically bound to follow it whether, in our view, it is right, wrong or indifferent.
§ 4.30 p.m.
§ Lord Meston
My Lords, since this is the second innings in terms of what took place in Committee, I should like to amplify the points that I would have wished to make at that stage. I believe that the Bill is right in its existing wording and that the amendment is wrong in looking at the matter in regard to the English law of precedent. As I understand it, there are three main reasons. First, the decision for the court is usually whether an individual's rights have been violated in a particular case. It is most unlikely that there will be any need to be bound by a particular judgment of the European Court of Human Rights. It is entirely appropriate that any pre-existing judgment is used for guidance only and nothing more. Secondly, as I understand the established jurisprudence from Strasbourg, the convention must be treated as a living instrument that reflects present circumstances that may not be the same as those existing at the time of any earlier decision of the court, which may have derived from facts arising in a different signatory's state. Thirdly, the primary judgment in any particular case will rest with the national court which is to be given a margin of appreciation. In those circumstances, the wording of the Bill which requires our courts to take into account the decisions of the European court is firm enough.
§ The Lord Chancellor
My Lords, I said at Committee stage that I would reflect on the noble Lord's amendment, as indeed I did. I also hoped that he would have taken the opportunity to reflect on whether to persist with his amendment. As other noble Lords have said, the word "binding" is the language of strict precedent but the convention has no rule of precedent. The amendment would therefore go further than the convention required and, for reasons that I shall give in a moment, in an undesirable direction.
Perhaps I may be permitted the following observation. The Opposition has become the Janus party with two faces looking in the opposite direction. On the one hand, it opposes a Bill which in principle gives domestic effect to rights contained in an international treaty, while at the same time it seeks to amend the Bill so that the judgments of an international court are binding upon the courts in this country. We take the view that the expression "take in account" is clear enough. Should a United Kingdom court ever have a case before it which is a precise mirror of one that has been previously considered by the European Court of Human Rights, which I doubt, it may be appropriate for it to apply the European court's findings directly to that case; but in real life cases are rarely as neat and tidy as that. The courts will often be faced with cases that involve factors perhaps specific to the United Kingdom which distinguish them from cases considered by the European court. I agree with the noble and learned Lord, 1271 Lord Browne-Wilkinson, that it is important that our courts have the scope to apply that discretion so as to aid in the development of human rights law.
There may also be occasions when it would be right for the United Kingdom courts to depart from Strasbourg decisions. We must remember that the interpretation of the convention rights develops over the years. Circumstances may therefore arise in which a judgment given by the European Court of Human Rights decades ago contains pronouncements which it would not be appropriate to apply to the letter in the circumstances of today in a particular set of circumstances affecting this country. The Bill as currently drafted would allow our courts to use their common sense in applying the European court's judgment to such a case. We feel that to accept this amendment removes from the judges the flexibility and discretion that they require in developing human rights law.
Also in his contribution the noble and learned Lord, Lord Browne-Wilkinson, echoed a point that I believe I made in Committee. Clause 2 requires the courts to pay heed to all the judgments of the European Court of Human Rights regardless of whether they have been given in cases involving the United Kingdom. The United Kingdom is not, of course, bound in international law to follow the court's judgments in cases to which it has not been a party and it would be strange to require courts in the United Kingdom to be bound by such decisions. In view of the observations of others and what I have just said in reply, I hope that the noble Lord will seek leave to withdraw his amendment.
§ Lord Kingsland
My Lords, before the noble and learned Lord sits down perhaps I may repeat one part of my opening remarks. If a domestic court makes a decision which is then incorporated into domestic law under the fast-track procedure, and meanwhile the litigant goes to the European Court of Human Rights and gets a decision that is different from that which has been incorporated in domestic law, does it mean that the government of the day will not under any circumstances incorporate the decision of the European Court of Human Rights in domestic law to the extent that it differs from their reaction to the domestic decision? Put another way, if a declaration of inconsistency by a domestic court has been incorporated in our own law does that set the limits of what the Government are prepared to accept from a decision of the European Court of Human Rights, whatever it is?
§ The Lord Chancellor
My Lords, I am not sure that I entirely understand the force of the question. As I understand it, the supposition is that the courts of the United Kingdom make a declaration of incompatibility and give their reasons for holding a statute to be incompatible; alternatively, Parliament moves fast and passes a remedial order which is of legislative effect in a certain legislative sense. As I understand the question, I am asked further to suppose that the European Court of Human Rights in Strasbourg pronounces on that point, or something very close to it, in a sense not quite in accord with the reasons given by the court in making 1272 its declaration of incompatibility or the purpose of the remedial order. I can only say that in those circumstances the Government would obviously think again.
§ Lord Kingsland
My Lords, I am much obliged to the noble and learned Lord for that response. He said in his first response that the Opposition was behaving Janus-like, looking in two directions or with two faces. I hope he did not intend to say that the Opposition was being two-faced in the way that it treated this Bill. I am happy to see the noble and learned Lord nodding in confirmation.
I was struck by three interventions which drew the attention of the House to the doctrine of precedent. It is true that the doctrine of precedent in our law is almost unique in Europe. I believe that it is also true of Ireland. But the issue goes beyond the issue of precedent. Since we are not bound by the jurisprudence of the European Court of Human Rights our judges can range very widely over possible interpretations of the terms of the convention. As a result of whatever decision they make, the legislature is obliged to incorporate that decision into law. This represents a profound constitutional shift from the way that we have done our work in this country over many centuries. From the reactions around the Chamber it appears that noble Lords are ready to accept that shift. Your Lordships should not do that without being aware of its implications. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 [Legislation]:
§ [Amendment No. 7 not moved.]
§ The noble and learned Lord said: My Lords, the amendment deals with the position of the Church of Scotland under the Bill, and, in particular, the relationship of the Bill to the provisions of the Church of Scotland Act 1921. I shall speak also to Amendment No. 12 in the names of the noble Lord, Lord Steel of Aikwood, and the noble Baroness, Lady Linklater of Butterstone. I talked to the noble Lord, Lord Steel, at the weekend. He told me that he might be delayed in reaching your Lordships' House this afternoon, and asked me to apologise if he did not arrive—and he does not appear to have done—before the amendment were called.
§ I hope that the House will accept that the fact that I feel able to put my name to the second of the two amendments indicates that no question of party politics lies behind either of the amendments. The noble Lord, Lord Steel, and myself, and I am sure also the noble Baroness, are united by a desire to lay before your Lordships the concerns of the Church of Scotland and its members, that one of the unintended consequences of the Bill, as presently drafted, is that it may seek to disturb and undermine the constitutional settlement that has existed between the Church of Scotland and the state since 1921.1273
§ I am not sure whether it is strictly necessary to declare any interest in a debate of this nature, but it would not surprise noble Lords to learn that the noble Lord, Lord Steel, and I are members of the Church of Scotland. We are united in another respect, in that we are both the sons of the manse. We speak therefore with a common voice. I hope that what I have to say will strike a chord with and find support on other sides of the House.
At the outset I wish to make it clear, as the Church of Scotland has already made it clear to the Government, that it is not seeking a blanket exclusion from the Bill's provisions. Neither of the amendments would have such an effect. The Church seeks to safeguard the exclusive jurisdiction of its Church courts to legislate and adjudicate upon matters spiritual which involve—I quote from the fourth Declaratory Article set out in the schedule to the 1921 Act—
all matters of doctrine, worship, government, and discipline in the Church, including the right to determine all questions concerning membership and office in the Church. the constitution and membership of its Courts, and the mode of election of its office-bearers, and to define the boundaries of the spheres of labour of its ministers and other office-hearers".
§ The Church of Scotland is content that the Bill's provisions would apply to other activities in which it is engaged as a public authority; for example, work that it does to implement care-in-the community provisions, funded by central or local government. I am informed by the principal clerk of the General Assembly that the Church has no difficulty with the Bill's general purposes, and recognises that in relation to matters which are not matters spiritual the Church should properly come under the Bill's provisions. In that respect, the Church of Scotland may be in a different position from other Churches. The Church would wish your Lordships to consider its position from a different standpoint; namely, the constitutional settlement incorporated in the 1921 Act to which I shall refer in a moment.
§ Earlier in the debate, reference was made to the Church of Scotland being the established church of Scotland. Strictly speaking, that is not correct. The position of the Church of Scotland is different from that of the Church of England. While some people refer to the Church of Scotland as the national church of Scotland, it is not an established Church; it is a free Church. That is a matter which it holds dear.
§ Other noble Lords have said that they find it difficult to understand why a Church should seek to exclude itself, to any extent, from a Bill dealing with human rights. That was a point made by the noble Lord, Lord Hughes of Woodside, and was supported by other noble Lords.
§ To understand the nature of the concerns of the Church of Scotland, it is necessary to deal briefly with the historical background to the 1921 Act. When that background is considered, it will be readily appreciated, as I firmly believe, that the Government neither intended nor anticipated that the Bill's provisions would bring about the problem which has arisen between the Bill and the provisions of the 1921 Act. No such conflict was heralded in the White Paper. and, as far as I am aware, 1274 no such conflict was discussed or anticipated in any consultation that took place before the Bill was introduced.
§ In the 18th and 19th centuries there was a considerable history of conflict between Church and state in Scotland. Each asserted an exclusive jurisdiction to certain matters, which the other denied. That remains the position today. The jurisdiction of the Church is claimed by the Church to have been derived only from the Lord Jesus Christ, as the 1921 Act makes clear, and not from Parliament.
§ Unfortunately, many of those disputes resulted in litigation in the civil courts. That was perceived by members of the Church at that time as state interference. It led directly to what is known as the disruption of 1843, when many members and congregations left the Church of Scotland and the Free Church of Scotland was established. That latter Church had a history of divisions and unions, but by the turn of the century there had been formed what is known as the United Free Church of Scotland. Members of that Church adhered to the position that in certain matters it was entitled to exercise exclusive jurisdiction free from state interference. In that regard, the jurisdiction referred to was both legislative and a judicial one.
§ In 1929, the United Free Church of Scotland and other Churches united again with the Church of Scotland. An essential precursor to that union was the enactment of the Church of Scotland Act 1921. Before the Act was presented to Parliament the General Assembly of the Church of Scotland prepared what are known as Declaratory Articles which set out the constitution of the Church in matters spiritual. Those claimed the exclusive jurisdiction of the nature I have described. The Act was then passed. Section 1 of the Act provided that Parliament recognised that those Declaratory Articles were lawful articles in which the constitution of the Church was set forth, and no limitation of the liberty, rights and powers in matters spiritual could be derived from any statute or law affecting the Church.
§ Parliament thus recognised that the Church of Scotland had an exclusive jurisdiction of the nature that I have described—a jurisdiction free from interference by the civil authority. A serious concern has now arisen. It is that the Bill's provisions constitute an unavoidable breach of the provisions of the 1921 Act.
§ As those Members who were present in Committee on 18th November will recollect, I raised that matter for the first time. In particular, I raised the issue of whether the courts of the Church would fall within the definition of "public authority" in Clause 6. At the conclusion of the debate, the noble and learned Lord the Lord Chancellor kindly undertook to reply in writing to my questions. I am grateful to the noble Lord, Lord Williams of Mostyn, for the letter which he sent to me last week. It followed certain meetings between Church officials and officials of the Lord Chancellor's Department.
§ The noble Lord's letter acknowledges that the courts of the Church would appear to be courts for the purposes of the Bill and, accordingly, ought to be regarded as 1275 public authorities. He considers that it is right that that should be the case. That means that the courts will be subject to the provisions of the Bill and must have regard to relevant convention jurisprudence in order to avoid challenge in the civil courts. In other words, the Government acknowledge that the Bill seeks to regulate the way in which the courts of the Church of Scotland go about their legislative and judicial functions in matters spiritual.
§ The noble Lord, Lord Williams, recognised the problem with jurisdiction and undertook to consider it further. However, his comments in the letter did not amount to an undertaking to bring forward an amendment which would address the problem. That was a great disappointment not only to me but to those in the Church of Scotland who have been following the matter with considerable interest.
§ I move the amendment today with the clear request that in reply the noble and learned Lord the Lord Advocate, on behalf of the Government, will acknowledge whether such a conflict exists; whether the Bill will permit the civil authorities to interfere with the way in which the Church courts conduct their business; and whether the Bill will admit the possibility of the Court of Session entertaining an application under Clause 4 to have a declarator of incompatibility granted in respect of the 1921 Act. If such acknowledgements are given, I hope that the noble and learned Lord the Lord Advocate will also be able to say that the Government will bring forward an amendment which eliminates such a conflict.
§ If, on the other hand, the Government's position is that having considered the matter since November last year such a conflict exists and the provisions of the Bill must and should prevail, it is incumbent upon the Minister to make that clear. The members of the General Assembly of the Church of Scotland, when they gather together in May, will then be aware of what has happened and can consider their reaction to what many in the Church will perceive as an attempt to undermine the constitutional settlement that has existed since 1921.
§ Successive governments since 1921 have reaffirmed their support for that settlement. I understand that the present Government did so shortly after coming to power. That is why I believe that what has happened has been unintended. I put that forward in a constructive mood because, as I indicated at the outset, I do not for one minute regard the issue as being one of party politics. I beg to move.
My Lords, I put my name to the amendment, although I am not a member of the Church of Scotland nor a Scot. However, I understand the point made by the noble and learned Lord, Lord Mackay of Drumadoon, and I understand the same point which arises in Amendment No. 12, to which I have also attached my name. As the noble and learned Lord said, this is in no sense a party political matter.
I believe that the Church of Scotland is right to be concerned that the White Paper makes no mention of the fact that it is to be treated as a public authority. 1276 While in no way wishing to anticipate the arguments that I shall put forward in relation to my amendments, that is a serious omission.
>The noble and learned Lord clearly set out the history behind the 1920 Act. My reason for supporting the principle of the amendments—and I hope that the Government will agree to them or bring forward their own amendments on Third Reading if these are incorrectly drafted—is that I have been advised that Clause 6 is in conflict with the 1921 Act. Clause 6 classifies the Church as a public authority when it performs public functions. The result is that the freedoms which were enshrined in the 1921 Act will be restricted by the Bill before us. The Convention on Human Rights will override the 1921 agreement.
I understand that that came at the end of a great deal of difficulty for the Church and was a final settlement. It is wrong that it should be overturned in this way. I have every sympathy with the concerns of the Church of Scotland. At the end of last week, I was able to talk to Dr. McDonald of the Church of Scotland. I am sympathetic to all the points that have been made and I believe that we are agreed that the Church is directly affected by the Bill which amounts to the secularisation of what have previously been matters for the Church.
§ Lord Goodhart
My Lords, as regards my party and others, I believe that Amendment No. 8 is a matter of conscience. Two of the names in support of Amendment No. 12 are members of this party. However, speaking for myself and not for the party, I must express anxiety about the amendment. I do so largely for the reason expressed by my noble friend Lord Lester of Herne Hill in discussing Amendment No. 2.
I welcome the acceptance by the Church of Scotland, expressed by the noble and learned Lord, Lord Mackay of Drumadoon, that in its capacity as a public authority it will be subject to the Human Rights Bill, except in respect of the discipline of the Church courts as regards matters of faith. It is extremely unlikely that, in acting as a public authority, the Church of Scotland will find it is in breach of the European Convention on Human Rights. Article 9 of the convention, set out in Schedule 1 to the Bill, is extremely broad and gives great width to religious bodies and organisations. The Church of Scotland is asking for exemption for its courts from the limitations in Article 9(2).
I accept that if the Church of England has a similar exemption, the Church of Scotland will also have that exemption. But the real problem is that if exemption is given to the Church of Scotland or, as we shall be debating later, to the Church of England, I am extremely concerned that it is opening the door to other religious bodies, some of whose practices in some cases are unquestionably contrary to the European Convention on Human Rights.
I do not object to an amendment which simply has the effect of preserving the constitutional separation of the Church of Scotland from the state without weakening the application of that Church to the European Convention on Human Rights. If the Government believe that they are able to table an 1277 amendment which will have that effect, we shall support it. But for my part, I must express my personal concern about this matter and we shall return to it on later amendments.
§ 5 p.m.
§ Lord Dean of Harptree
My Lords, I wish to express support for the case which has just been put so very powerfully by my noble and learned friend Lord Mackay of Drumadoon. I do not belong to the Church of Scotland but I do declare a non-financial interest as a lay server in the Church of England. I assure my noble and learned friend that the fears which he expressed about the possible effect of this Bill on the Church of Scotland are shared equally by the Church of England and I believe are shared by all other established Churches in the land.
I am sure it is agreed generally that people have human rights which should be protected, particularly against abuse of power by the state or its agencies. But of course, there are also duties. Rights and duties are two sides of the same coin. Equally, institutions have rights as well as duties. In our nation, institutions are essential to our general health. They provide stability, continuity and succour for individuals and families. Indeed, they are a powerful protection for people against undue influence by the state.
When we deal with Churches, we are dealing with a special type of institution because they are concerned with the spiritual needs of people and their religious freedoms. Churches could not possibly function effectively without membership conditions, rules and the means to uphold them. They are autonomous bodies; they have run their affairs over the centuries within the law; and there is a strong feeling, which I believe the Government recognise well, among all the Churches that the Bill as drafted could mean that the essential privileges and beliefs of the Churches could be undermined.
I am absolutely certain that the Government have no intention whatever of doing that. But I must suggest with great respect that, in the debate so far on this subject, nothing has been said which has effectively stilled the fears expressed by the Churches. I realise that this amendment deals with the Church of Scotland and my noble and learned friend has described the position. In regard to the Church of England, there is an equally strong case. That is an established Church and I rejoice that it is. That is good for both the Church and the state. But certainly in the case of the Church of England, Parliament already has effective control. Many of the measures which are passed by the Synod must be approved by Parliament. If Parliament does not approve those measures, they are null and void. In my recollection, that has happened on a number of occasions during my time in Parliament. That is not by any means a dead letter. Therefore I suggest that Parliament has ample opportunity, when it scrutinises Church legislation, to satisfy itself that the legislation is compatible with human rights.
1278 As my noble and learned friend mentioned in his opening remarks, there have been many clashes between the Church and the state over the centuries. It has never done anybody any good. I suggest that we should wish to avoid creating a new potential for friction and conflict which could arise from this Bill as drafted at present.
I realise that the Government have tabled later amendments which may deal with this point and I shall look forward with great interest to hearing the noble Lord, Lord Williams of Mostyn, explain the purport of those amendments. However, I hope that the Government will at least accept the spirit if not the letter of this and allied amendments. I suggest that they can do so without in any way undermining the principle of the Bill and I very much hope that they will do so.
§ Lord Howie of Troon
My Lords, I yield to no one in my admiration for the Church of Scotland. I was brought up in it some while ago. However, I must confess that I do not adhere to any of its doctrines or beliefs. I speak as a total neutral in this religious matter.
I recall that Lenin was greatly attracted to the democratic practices of the Church of Scotland, although I do not imagine that he followed them very closely in his political activities. But it is those democratic practices of the Church which are attractive to such an unbeliever as myself.
However, the amendment worries me. We are dealing here with a Bill which is intended to extend, expand and safeguard human rights. I believe that everyone in this House agrees that that is desirable. But here we have a situation in which a body is trying to limit that extension of human rights.
I wonder what the Church of Scotland fears. Knowing many Presbyterians as I do, I cannot imagine that they would, in the Church, wish to do anything which limited human rights. Therefore, why are they fearful? In what way are they limited and confined? I cannot see it at all. The Church, by its very nature, must be compassionate—even Presbyterians are occasionally compassionate—and it must have regard for human rights. I believe that with the best of intentions this amendment is mistaken and I sincerely hope that my noble and learned friend the Lord Chancellor will advise against acceptance of the amendment.
§ Lord Campbell of Alloway
My Lords, perhaps I may deal very briefly with this matter because I have a subsequent amendment, Amendment No. 24, which encompasses all religious bodies and which is obviously linked with this amendment. I do not anticipate what I shall say on that amendment which I propose to move.
However, this amendment is wholly requisite. It is not in fact met by Amendment No. 46, which was tabled, I believe, this morning. It is right to say, for the assistance of the House, that Amendment No. 24, which is concerned in its general application with all religious bodies of all creeds recognised as such in the United Kingdom and Northern Ireland, was tabled on 3rd December. In the wake of that fact serious discussions ensued between representatives of the General Synod and the Home Office. As a result, 1279 I received a letter today from Lambeth Palace to say that Ministers had agreed that Church of England Measures are to be removed from the remedial order making process—a rather grand way of describing the fast track procedure.
I do not wish to detain your Lordships for much longer, but it is most important that similar negotiations and discussions, with a view to establishing a satisfactory arrangement—that is, far more satisfactory than that suggested in Amendment No. 46—should be undertaken between now and Third Reading. Alternatively, some such assurances should be given today. I do not want to mislead the noble Lord, Lord Williams of Mostyn, but when we deal with Amendment No. 24 I shall be looking most carefully at the detail, the nature and the extent of such assurances that are given before deciding whether or not to divide the House.
As regards the Church of England legislation, I have to point out that the most reverend Primate the Archbishop of Canterbury has sent a message of congratulation and gratitude on the initiative taken as regards Amendment No. 24. I hope that a similar course of discussion can follow the very powerful initiative of my noble and learned friend Lord Mackay of Drumadoon today.
§ Earl Russell
My Lords, the problem we face here is not one about relations between the Church of Scotland and human rights; it is a problem about relations between the Church of Scotland and the state. In case noble Lords should wonder why someone has intervened who is neither a Scot nor a Christian, I do so strictly in my capacity as a historian. This area of church/state relations is one where misunderstanding between these two countries has been endless. Indeed, I once described England and Scotland as two nations divided by a common language. It was specifically on a matter of church/state relations that I was speaking when I did so.
Scotland and the Netherlands are in effect the only countries in Europe where the Reformation came and was established from below. It means that the whole structure of church authority was quite different from that with which we in England are familiar. I listened earlier to the right reverend Prelate the Bishop of Ripon. Obviously I agree with him that the spiritual authority of the Church of England is in no way derived from the state, but its powers of jurisdiction are, I believe, generally recognised as legally, in their coercive capacity, derived from the state.
There has been a long struggle there for autonomy and enjoying the defence of the idea of academic freedom, which is very largely derived from the efforts of the church. I observe those with sympathy. But it is a quite different story from that of the Church of Scotland, which never recognised that it was established by any authority derived from the state. Its ultimate authority rested in the body of its members. It is the continual inability of English people to understand that which has caused a great deal of conflict between the two countries.
1280 The Church of Scotland has always claimed that it was not subject to Parliament. I understand that modifications in modern times have been reached on that point. However, the question remains: is the Church of Scotland a public authority within the meaning of the Act? As the noble and learned Lord, Lord Mackay of Drumadoon, said, obviously in relation to its work in things like community care, which deserves a great deal of respect from us all, there would not be a problem. But where we get into spiritual matters we might save ourselves a great deal more trouble than we imagine if we could find a way of wording the Bill which secured the full agreement of the General Assembly.
§ 5.15 p.m.
§ Baroness Carnegy of Lour
My Lords, the noble Earl has just told the House something most important. I hope that noble Lords listen to him most carefully. I strongly support the amendments. The noble Lord, Lord Howie of Troon, said that he did not know what the Church of Scotland was afraid of. In a letter to the noble Lord, Lord Steel—of which I have had sight and which formed the basis of the speech of my noble and learned friend Lord Mackay—the Church of Scotland has set out the exact nature of its fears, so they will be on the record. I hope that the Government will pay attention to them.
I have a few questions that I hope the noble and learned Lord the Lord Advocate will cover in his response. This seems to be the right time to ask such questions, as I understand the noble and learned Lord will be replying. First, what is the position of the other Churches in Scotland under the Bill? Is it the same as all other non-established Churches in the rest of the United Kingdom, or is it different? Secondly, will that relationship be changed when the Scots parliament is created? We understand that the legislation of the Scots parliament will be subject to different treatment under the Bill from that of the Westminster Parliament. Will that affect the other Churches? If it does not affect them at all and if their relationship is precisely the same as that of other non-established Churches in the UK, then we can discuss such Churches under the amendment of my noble friend Lady Young. I shall be content if that is the position.
I should be most grateful to receive a precise reply from the noble and learned Lord the Lord Advocate because there is anxiety in Scotland in the Roman Catholic Church which, as the noble and learned Lord knows, is as big as the Church of Scotland, and in the Free Church of Scotland. My own Church, the Scottish Episcopal Church, is at present sanguine. It has not yet begun to discuss the matter. I would like to know whether that Church will find itself in the same position as other non-established Churches in the UK. I would be most grateful if the noble and learned Lord could cover those points in his response.
§ Lord Milverton
My Lords, I support the amendment in principle as, indeed, I shall support the noble Baroness, Lady Young, in her later amendments. I do so very firmly because, as what I may call an ordinary rank and file clergyman, I believe that we can see this 1281 in perspective and the dangers involved. If we are going to be able to uphold, practise and proclaim as far and as fully as we can our belief—and the same applies to other Churches—are we going to feel that because we are doing so we are preventing some people from having human rights? I do not believe that that is the case. If they cannot agree with our principles and beliefs, then, in a sense, one has to say, "Sorry, go somewhere where you will be able to find something of your outlook."
I believe that there is a danger involved in using the argument that the Churches will find themselves being taken up for denying human rights and liberties. I deny that they have or that they will deny human rights and liberties to any person in conducting baptism, marriages, funerals, and so on, because they are holding to the proclaimed beliefs of their Church. In baptism, for example, some of my fellow clergymen and even perhaps right reverend Prelates might think that, in some ways, I was too easy because I never said to any couple who came to me, "Now I must be convinced that you are Christian; I must be convinced by that because of your way of life and by the fact that you come regularly to church"—which really meant, most probably, every Sunday—"before I will think of baptising your child". I baptised anyone whether or not of the congregation, because I believed that something in them felt for God and the Church; and we are there to give, not to deny. The only time I have refused a request is with regard to marriage. I have married divorced people and I have let the bishop know. I have married divorcées. We should be able graciously to say to people, "We have this belief. We have this custom. Try to understand it", and if they cannot do so, one has to say, "Sorry" to their request. But on the whole those people will not make such a request. They may feel that they can go to another of the many traditions within the Church of England, or to some other church.
Speaking seriously, it is dangerous to dismiss these dangers as regards the Church of England, the Church of Scotland or any of the main Churches. I support the amendment in principle. I have great admiration for the Scottish Episcopal Church. My daughter married an Irish-Scot and lives in Helensburgh. She attends the Scottish Episcopalian Church in Helensburgh; and it is a jolly good church. Perhaps it could give a lead to some English parishes.
§ Lord Lester of Herne Hill
My Lords, we have allowed individuals to bring cases before the European Commission since January 1966. I am not aware of a single case involving this country in which any of the problems referred to by any noble Lord have been raised. I am not aware of any textbook in which anyone has suggested that any of the issues ever would be raised.
Although I accept the sincerity and force with which noble Lords speak, it seems to me undesirable if the main debates on the Bill should be dominated by a 1282 matter which, before the Bill was brought in, no one ever suggested raised any problems under the convention.
§ Lord Clyde
My Lords, perhaps I may add my voice as another member of the Episcopal Church, which seems to be well represented here. Underlying this issue may be uncertainty as to precisely what is meant in the Bill by the word "public". It appears in the phrase "public authority" which is not definitively defined. However, in Clause 6(3) one has some flavour of it. The greater problem is the reference to "functions … of a public nature".
One associates this clause with the processes of judicial review. One is well aware of the distinctions drawn between public and private activities as a means of trying to define the scope of the English supervisory jurisdiction. But if those terms are taken to have substantial meaning they may not serve adequately to provide a sufficiently exact definition. In Scotland the courts have turned their face against the use of such language and have rejected the public/private distinction as a test for the jurisdiction of the supervisory powers of the court. It may be that the word "public" in this context will be open to definition and interpretation.
I have understood—I hope that I am right; but those who know far more about the history and substance of the European Convention on Human Rights will correct me—that in essence the rights laid down are rights for the benefit of the private individual against the state and not against anyone else. If that is right, it may be that it is essentially the state quality of public authority to which attention should be paid in defining what will be Section 6. If that is right, there may be an answer to the problem. Just as the courts in the past have respected the internal operations of ecclesiastical bodies, so also the scope of this article should be limited so as to exclude such operations.
My Lords, I, too, am a member of the Church of Scotland. In that capacity I find myself in almost total agreement with the case so ably stated by the noble and learned Lord, Lord Mackay of Drumadoon. The only exception I take is that he stated that this is not a political matter. He is a little wrong in that. It is not a party political matter; but it is a political matter. As the noble Earl, Lord Russell, said, this is a matter of the relations between the Church and the state. The relations have existed happily under successive governments for the past 76 years. That is rather remarkable in religious history in Scotland. If we go back to the last century, the experience was not of seeking to reach agreement but of finding out on how many occasions one could be different from other people. We are remarkably free from that aspect and we should not be taking any risk in the Bill.
My noble friend Lord Howie said that the Church should be compassionate. Of course it should. But I cannot believe that in this Bill the Church of Scotland will be infringing the human rights of its own members.
My Lords, when I heard my noble and learned friend Lord Mackay of Drumadoon move his 1283 amendment, I naturally wondered what there was in the Bill which interfered in any way with an ecclesiastical court of any Church; and I could find nothing. However, when he mentioned the broad definition that can be Oven to public authority, I thought that he had a point. However, the point can be better dealt with by amending Clause 6, which deals with public authority, by making it clear that public authority in the context of the Bill does not include any kind of ecclesiastical court. I believe that that would be a far better way of solving the problem.
§ Lord Mackay of Clashfern
My Lords, I am not a member of the Church of Scotland. However, I believe that this is an important point not only for the Church of Scotland but in general. The issue raised is perhaps best focused by asking the question whether, in the Government's view, when referring to a public authority, the Bill includes an ecclesiastical court or authority of a Church deciding what is a spiritual question in the words of the Act of 1921. For example, is a court of the Church of Scotland, in deciding a spiritual question, a public authority within the meaning of Clause 6(3) of the Bill?
§ Lord Hope of Craighead
My Lords, the suggestion has been made, in particular by the noble Lord, Lord Lester, that no case has been brought which suggests that a problem might arise which would be affected by the matter we are discussing. To set the record straight, perhaps I should mention that a case came before the Court of Session in Scotland in 1995 in which the Court of Session had to ask itself whether it had jurisdiction to examine the way in which a Church court, a presbytery of the Church of Scotland, had conducted a particular affair. The Court of Session, I think that it is right to say, saw this as a dispute as to its jurisdiction to review the activities of what it considered to be another court.
It has been said that there is an issue here as between church and state. But it should also be regarded as a question which would affect the relationship between the church as a court and the Court of Session as a civil court. I should be grateful if the noble and learned Lord the Lord Advocate, in replying, would direct some comments to that matter.
§ 5.30 p.m.
§ Lord Lester of Herne Hill
My Lords, before the noble and learned Lord sits down, I wonder whether he is aware that, in England, similar issues have arisen in English judicial review courts, notably recently in relation to the Beth Din and the Chief Rabbi in dealing with matters of Jewish law and discipline. The English judicial review courts have consistently held that they have no jurisdiction to use the powers under Order 53 to review decisions taken in that way, for reasons that are rather similar to those outlined by the noble and learned Lord in relation the Court of Session.
§ Lord Hope of Craighead
My Lords, the case in Scotland that I have in mind was not one of judicial review. It was brought for a declaration in relation to 1284 the activities of the church court. It more precisely addressed the real issue which may underlie the whole problem; namely, the distinction between matters spiritual and matters which are properly open to review in regard to human rights.
§ Lord Elton
My Lords, as a bewildered layman, I believe the matter is becoming rather clear. It seems quite right that the temporal authority should have precedence in temporal matters and that the spiritual authority must have precedence in spiritual matters. It appears from reading the Bill that the legislation has blurred the line between what is temporal and what is spiritual. The appointment of persons and their qualification to appointment may be very largely a spiritual matter but under the Bill will be treated as a temporal matter. Therefore the spiritual authority may be overridden by the temporal authority by the action of this legislation. It is from that eventuality that my noble friends and others seek to protect the Church of Scotland and, later on, other Churches.
§ The Lord Advocate (Lord Hardie)
My Lords, I declare an interest in this matter in two regards. In view of the question put to me by the noble Baroness, Lady Carnegy of Lour, I should declare that I am, as she suggested, a Roman Catholic; and in relation to this particular debate I should also declare that I am married to a member of the Church of Scotland. My wife is an Elder, as the noble and learned Lord, Lord Mackay of Drumadoon, will be aware, since they are both Elders in the same church. Noble Lords will therefore see that this is not an easy matter from any point of view.
I shall deal first with the point made by the noble Baroness, Lady Carnegy of Lour, about other Churches in Scotland and the effect of the Scottish parliament. Under the Scotland Bill anything done by the Scottish parliament, or by a Minister of that parliament, which is contrary to the European convention will be void. In relation to the second question, namely the position of the other Churches in Scotland, all Churches in Scotland will be treated on the same basis.
I turn to the point raised the noble and learned Lord, Lord Mackay of Drumadoon; namely, whether the Bill interferes with the Church of Scotland in its dealing with matters spiritual. I confirm that that is not the case. The Bill regulates only human rights. Unless the church courts and the Church itself, in the exercise of their public functions, wish to depart from the concept of human rights in the way in which they conduct their business, there will be no conflict between church and state. I am confident that the Church will do its best to observe the principles of human rights referred to and incorporated by the Bill into domestic law.
As noble Lords will be aware, frequently, although with the best of intentions, people fail to achieve their objectives. In the event that there is a failure to observe human rights there may well be a conflict between the Church and this provision. If there is such a conflict, it is our position that the courts will prevail. The civil courts will deal only with convention rights and not with the spiritual government of the Church.
1285 The purpose of these amendments is to exempt the Church of Scotland Act 1921 from the provisions of the Human Rights Bill and to re-state the recognition under the 1921 Act of the separate and independent government and jurisdiction of the Church in matters spiritual.
In Committee, several noble Lords raised points about the possible impact of the Bill, not only on the Church of Scotland but on other Churches. Some noble Lords, notably the noble Lord, Lord Campbell of Alloway, referred to later amendments to be considered. Subsequent amendments deal with the Church of England. They will be dealt with fully by my noble and learned friend the Lord Chancellor. At this stage we are concerned with amendments relating to the Church of Scotland and the 1921 Act.
So far as the Church of Scotland is concerned, I accept that the amendments are not influenced by party-political considerations. I hope that noble Lords will accept that the position adopted by the Government is equally not influenced by such considerations, or indeed by considerations of any particular religious persuasion. In the case of the Church of Scotland we have to look carefully at the implications of this legislation for the Church of Scotland Act 1921, which the Church of Scotland very properly considers a very important legislative statement of its independence in matters spiritual.
I wish to make it clear that the Government have no intention of interfering with the Church's religious freedom. That is a repetition of a statement that was made by the Government in confirmation of statements made by previous governments in relation to the position of the Church of Scotland. However, I wish to emphasise that the Bill does not interfere with the religious freedom of the Church of Scotland, nor is it intended to do so. I cannot emphasise that point strongly enough. The Church of Scotland Act 1921, to which the Church of Scotland rightly attaches much importance, establishes clearly the independence of the Church in spiritual matters. Such issues are properly matters for the Church and the Church alone.
However, it may be that in some circumstances the authorities of the Church of Scotland could be public authorities for the purposes of the Bill. The noble and learned Lord, Lord Mackay of Drumadoon, properly recognised that certainly in performing certain functions they would come within that category. He referred to care in the community.
The question of whether a church body is a public authority in any particular circumstance will be a matter for the ordinary courts, as it is at the moment. I refer to the case of Logan in 1995 mentioned by my noble and learned friend Lord Hope of Craighead. That was a case where the Court of Session considered whether it had jurisdiction. After the Bill becomes law—if that is your Lordships' wish—the position will be that the Court of Session will consider whether the particular circumstances of an act by the Church indicate that, in performing that act, the Church can be described as a public authority.
1286 If it is a public authority, there seems to be no reason to exempt the institutions of the Church of Scotland from the public authority provisions of the Bill when it is acting in that capacity. The policy of the Government is that if a Church body is a public authority the Bill should apply to it. In this situation it seems to me that the Church would not wish to maintain that breaches of human rights committed by its institutions are purely matters of spiritual concern which should be excluded from the jurisdiction of the ordinary courts. In saying that, I wish to express confidence that the Church of Scotland, as other Churches, will do its utmost to comply with the spirit and intention of the legislation.
It is also clear to me that the civil courts will not want to involve themselves in spiritual matters, as was evidenced by the case of Logan to which the noble and learned Lord, Lord Hope of Craighead, referred. The civil courts will wish to confine themselves in any individual case to the minimum examination necessary to arrive at a decision on whether there has been any infringement of the legislation: in other words, was the Church acting as a public authority and, if so, is it in breach of the legislative provisions?
The civil courts would not want to intrude further into the business of the Church than is required to ensure proper observance of convention rights. Nor will the Bill entitle them to do so. The courts would, I am certain, continue to respect the spiritual independence to which the Church of Scotland properly attaches great importance.
While, as I have acknowledged, there are difficult issues of jurisdiction here, I do not think it would be right to exempt the Church of Scotland Act 1921 from the provisions in the Bill in the way proposed. The policy of the Government, as expressed in the Bill, is to enable the ordinary courts to inquire into proceedings of Church bodies only so far as may be necessary to resolve human rights questions. I hope that, in the light of that explanation, the noble Lords will feel able to withdraw the amendment.
Lord Renton: My Lords, before the noble and learned Lord sits down, would he be so good as to look at page 4 of the Bill? Near the top of that page he will see subsection (3) of Clause 6, which says:
In this section, 'public authority' includes—
For the removal of doubt, and to give clear guidance to the courts in deciding the matters which the noble Lord has mentioned, would it not be a good thing to add in that subsection words such as:
but 'public authority' does not include any kind of Church court or religious court of any kind"?
§ Lord Hardie
My Lords, I am grateful to the noble Lord, Lord Renton, for that intervention, but, with respect, I do not think that that would meet the point. If a Church court were performing a function which could be described as a function of a public authority and is dealing with something other than a purely spiritual 1287 matter peculiar to the Church, it would not be appropriate to exempt such a body from the provisions of the legislation.
§ 5.45 p.m.
§ Lord Campbell of Alloway
My Lords, the noble and learned Lord says that the courts will not inquire into spiritual matters. How will one stop a court from doing so if a complaint is made before it? Is the suggestion that the Church of Scotland, the Church of England, or whichever Church, should move to strike out the pleadings? How is one to define the line between spiritual and other matters? I simply ask as a practical, knock-about lawyer. I can see tremendous difficulties in what is being proposed.
§ Lord Hardie
My Lords, that is precisely the kind of question that the civil courts deal with at present. They would consider the particular circumstances of the situation and decide whether the body was acting as a public authority. If it were acting in a purely spiritual capacity, the courts would decline jurisdiction.
§ Lord Peston
My Lords, before my noble and learned friend sits down, is this not a matter of much greater generality than the Church of Scotland? It revolves around two matters. One is the ability to define what is spiritual. I speak as a committed atheist, but I would have thought that the fundamental beliefs of the Church are to do with the Church and not with the secular authority. Membership of the Church involves "believing" all kinds of things. I cannot see that the courts ought remotely to consider becoming involved in that.
The counterpart of that is the ability to define human rights. I speak as a strong supporter of the Convention on Human Rights. In my lifetime human rights have grown at an incredible rate. Years ago many things would not have been regarded as human rights which are now. Is not the problem for the Government in incorporating this into legislation that they are taking what might be called a static view of human rights—that is, that no human rights will emerge or be demanded? As an atheist, I can say that, if I were a member of the Church, I should be extremely perturbed by this and by the answers that my noble and learned friend has given so far. He assumes, optimistically, that the civil courts will come up with the right answer all the time. If I were a religious or spiritual person, I should feel very threatened.
§ Lord Hardie
My Lords, my noble friend is correct that it would not be appropriate for the courts to deal with the theological or fundamental beliefs of members of a Church; nor would they be entitled to do so in terms of this legislation. I simply remind my noble friend of Article 9 of the convention, which confers upon individuals significant rights of freedom of thought, conscience and religion. Those rights are enshrined in the convention itself and in the provisions which are being incorporated.
§ Lord Mackay of Clashfern
My Lords, just before the Lord Advocate sits down finally, my question is, 1288 would the definition which the Government have put into this Bill, taking the court of Scotland as an example, make a Church court which was deciding a spiritual matter, a matter of faith, a public authority within the meaning of that definition? If not, why not?
§ Lord Hardie
My Lords, the short answer to my noble and learned friend is, no, it would not include that situation, the reason being that the Scottish courts, as my noble and learned friend will be aware, because of the relationship between Church and state, have been slow to interfere, and indeed have refused to interfere in matters of this nature. Therefore, if the Church court were deciding a matter spiritual, the courts would not be entitled to review that.
My Lords, I would like to know the answer to this question. I would know had I read the Bill as thoroughly as I ought to have done. Does the 1921 Act remain on the statute book in its present form, or is it altered in any way by this Bill?
§ Lord Donaldson of Lymington
My Lords, perhaps the Minister could help me. I am troubled by various statements that have been made that, in dealing with matters spiritual, the court is not a public authority. As I read Clause 6(3)(a), the question does not arise. The real question is whether the body is a court at all. If it is a court, then it is by definition a public authority. I agree that the civil courts may then say, "It is not appropriate for us to grant a remedy" but, as far as its not being a public authority is concerned, the Act simply says that it is.
§ Lord Hardie
My Lords, of course, the argument I would anticipate being advanced to establish that it was not a court would be that in dealing with human rights, one has to be dealing with a court which is properly constituted or a tribunal established by law. The Church courts are not courts within that meaning, within that sense.
My Lords, in the light of the answer of the noble and learned Lord, perhaps he could answer the point made earlier by the noble Lord, Lord Renton: would he be prepared to undertake at a later stage to put into the statute an amendment which expressly excluded courts exercising spiritual jurisdiction, to define that they were not public authorities within the meaning of the Act?
§ Lord Howie of Troon
My Lords, we are at the Report stage. This has gone on far too long and it is high time that we had a reply from Lord Mackay of Drumadoon.
§ Lord Mackay of Drumadoon
My Lords, I regard it as a great compliment that there is any wish to hear from me again, and I am sorry to disappoint your Lordships by saying that I only wish to make very few remarks.
1289 It is obvious from the contributions which have been made by noble Lords who have both supported and spoken against this amendment that the issues which it raises are very important issues indeed. I stand rightly corrected by the noble Lord, Lord Hughes, in having referred to this as not being a political issue; I should have said that it is not a party political issue. It is for that reason that I do not intend to seek the opinion of the House on this amendment. However, I have to say quite frankly that I sense the mood of the House is such that, were I to do so, there would be a serious risk of the House being persuaded that there is merit in my amendment. For that reason, I am most grateful to the noble and learned Lord Advocate for giving a very full reply to the issues which I and others raised, and I very firmly hope that he and his colleagues will think very seriously indeed as to whether some recasting of the provisions of Clause 3 or Clause 6 of this Bill might meet the genuine and very moderately stated concerns that have been raised.
We will all read again not only the questions he was asked but the answers he has given. For my part, I am more than willing to meet with him and his colleagues to see whether some solution can be found. As far as the Church of Scotland is concerned, there appears to be an inherent conflict between the terms of the 1921 Act and this Bill, and it is, in my respectful submission, incumbent upon the Government to come forward with some solution to that conflict. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6 p.m.
Lord Simon of Glaisdale moved Amendment No. 9:
Page 2, line 29, at beginning insert ("subject to subsection (3)").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 9 I shall speak also to Amendments Nos. 10 and 11. Amendment No. 11 is the effective amendment. It preserves in English law a perfectly well established doctrine consonant with an aspect of the sovereignty of Parliament, namely, the rule that if a later Bill is inconsistent with the provisions of an earlier Bill, those provisions of the earlier Bill are impliedly, even if not expressly, repealed. It is known as the doctrine of implied repeal. Although it is very rarely necessary in these days to rely on that doctrine, it is still extant.
§ It is not necessary these days in general to rely on it because most later Acts which amend earlier Acts have a repeal schedule and, indeed, a schedule of minor and consequential amendments. Nevertheless, the rule remains in English law and it is extremely valuable in relation to the law. It is essential that it should be preserved.
§ At Committee I put down a number of amendments seeking to extend the Bill, notably by extending the definition of a public authority. My noble and learned friend the Lord Chancellor demurred to being pushed further in that way. At this stage I have only tabled amendments which are well within the parameter of this measure.1290
§ The problem which faced the Government in "patriating" the Convention on Human Rights was this: certain provisions of English statute law would be found to offend or to be incompatible with the provisions of the convention. One way to deal with that would have been to allow English courts to strike down the offending measure, as happens in the United States which has a written constitution and where the federal courts strike down and declare null and void measures which are inconsistent with the constitution.
§ In relation to this measure, the Government decided that it would be inconsistent with the sovereignty of Parliament and, so far as I know, nobody quarrelled with that view. But that faced the Government with a difficult problem; that is, how to maintain the sovereignty of Parliament while allowing the convention to be incompatible with provisions of our previous statutory legislation.
§ One must draw a distinction—it is useful to do that at this stage—between antecedent statutes which are found to be incompatible and prospective ones; in other words, statutes enacted after the provisions of this Bill come into force. The Government tried, rightly and ingeniously, to minimise the circumstances whereby an Act of Parliament would be found to be inconsistent with the provisions of the convention. They did that by stipulating, as your Lordships know, a new rule relating to statutory construction. Instead of the courts seeking what is the natural meaning of a word or phrase they were to seek a possible meaning, which means a reasonably possible meaning, consistent with the convention. That has been generally accepted and the Government are to be congratulated on coming up with that solution. Admittedly, that leaves some measures which, however construed, will be found to be incompatible with the convention rights.
§ In relation to future measures, the Government proposed to deal with them in two ways. First, they would minimise the chance of future legislation being incompatible by requiring the Minister in charge of the Bill to make a declaration as to its compatibility. Even then it may be found that there was an incompatibility in future legislation and where that was ascertained the Government established what is being called a "fast-track" for remedial orders. That is, a statutory rule and order on an accelerated process which will correct the incompatibility of the earlier statute. That maintains the sovereignty of Parliament which they were anxious to maintain.
§ However, the system has two disadvantages. The first is that it involves delay in which somebody aggrieved by the statute may be delayed in any remedy. The second is that it involves a massive extension of Henry VIII provisions; secondary legislation amending primary legislation. Your Lordships have gulped and put up with that on the whole because it is difficult to see how else future legislation could he dealt with. But it is unnecessary in relation to past legislation. So long as the doctrine of implied repeal is maintained—as I said, a manifestation of the sovereignty of Parliament: the doctrine that no Parliament can bind a later Parliament, so that subsequent Parliaments can repeal or amend 1291 earlier legislation—that takes care entirely of all antecedent legislation found to be incompatible, which is more likely to be the case than subsequent legislation.
§ The amendment does not in any way affect the rule of interpretation. It does not affect the fast-track procedure, even involving Henry VIII provisions in relation to future legislation; but it uses the doctrine of implied repeal to get rid of antecedent legislation which is incompatible. That is entirely consonant with the supremacy of Parliament. I beg to move.
§ Lord Lester of Herne Hill
My Lords, as the noble Lord, Lord Williams of Mostyn, will recall, I wasted a good deal of Home Office time in the summer attempting to persuade the Government that they should expressly preserve the doctrine of implied repeal in the Bill. I did not succeed. Therefore, I naturally start with a great deal of sympathy for what was said by the noble and learned Lord, Lord Simon of Glaisdale, and I agree with a great deal of it. However, on reflection I wonder whether it is necessary and I should like to explain why.
First, perhaps I can brush to one side a bad argument in the White Paper in paragraph 2.14, where it is suggested that what is wrong with the doctrine of implied repeal is that it involves the courts striking down legislation in some way in conflict with the doctrine of parliamentary sovereignty. As the noble and learned Lord explained, that is not what the doctrine of implied repeal does; it is intended to give effect to the intention of the legislature by regarding what is said in the later statute as reflecting its true intention and reading the earlier statute to conform, if necessary, as impliedly repealing the earlier provision.
The reason why I doubt whether one needs to introduce an amendment of this kind is that it seems to me that the command in the Bill—where possible to construe existing and future legislation to conform with convention rights—is so strong that it leaves entirely open the possibility that the courts will, in effect, use the doctrine of implied repeal or something like it in order to achieve the correct result, which is no mismatch between our statute book and the convention.
I was encouraged in that view, in particular, by a remarkable lecture recently given by the noble and learned Lord the Lord Chancellor, the Tom Sargant Memorial Lecture, under the auspices of Justice. With your permission I would like to refer to one or two of the matters in that lecture which seem to me to show exactly the approach that the courts will be adopting.
The Lord Chancellor pointed out that the Act, when it comes into force, will require new judicial techniques of interpretation. He said:The Act will require the courts to read and give effect to the legislation in a way compatible with the convention rights 'so far as it is possible to do so'. This … goes far beyond the present rule. It will not be necessary to find an ambiguity. On the contrary the courts will be required to interpret legislation so as to uphold the convention rights unless the legislation itself is so clearly incompatible with the convention that it is impossible to do so".The Lord Chancellor continued:Moreover, it should be clear from the parliamentary history. and in particular the ministerial statement of compatibility which will be required by the Act, that Parliament did not intend to cut across a 1292 convention right. Ministerial statements of compatibility will inevitably be a strong spur to the courts to find means of construing statutes compatibly with the convention".1 break off to observe that that, of course, is dealing with post Human Rights Act legislation not pre-Act. Then the Lord Chancellor said this:Whilst this particular approach is innovative, there are some precedents which will assist the courts. In cases involving European Community law, decisions of our courts already show that interpretative techniques may be used to make the domestic legislation comply with the community law, even where this requires straining the meaning of words or reading in words which are not there".He gave as an example the well known Litster case decided in 1990. He also referred to the jurisprudence in New Zealand. He then said this:The court will interpret as consistent with the convention not only those provisions which are ambiguous in the sense that the language used is capable of two different meanings but also those provisions where there is no ambiguity in that sense, unless a clear limitation is expressed. In the latter category of case it will he 'possible' (to use the statutory language) to read the legislation in a conforming sense because there will be no clear indication that a limitation on the protected rights was intended so as to make it 'impossible' to read it as conforming".I apologise for reading all of that but it is very important because it shows. from the highest authority among the makers of the Bill in this House, that there will be a new approach to statutory interpretation. A declaration of incompatibility will be a systemic failure. I believe that that will very rarely happen, and that our courts will act in a similar way to the Judicial Committee of the Privy Council when construing ordinary legislation in the context of Commonwealth constitutional guarantees of human rights; that is, by reading in and reading down: reading in safeguards to save the statute in accordance with human rights; and reading down—reading narrowly restrictions upon human rights; adopting a generous approach, in the words of the noble and learned Lord, Lord Wilberforce, to give human rights their full scope and avoiding what the noble and learned Lord described as the austerity of tabulated legalism.
Against that background it seems to me that to go to the doctrine of implied repeal, which has often been criticised by academic commentators, for reasons that I do not need to go into, is now unnecessary. The new principles described by the Lord Chancellor—although of course it is not a matter for him in the end but for the courts themselves to decide how to interpret the provisions of this Bill—seem to me to take care of the problem which the noble and learned Lord has quite properly raised in his amendment.
May I finally say that I do not share his criticism of the Bill as being a massive extension of Henry VIII clauses but that is a matter to which we will no doubt return at a later stage.
§ 6.15 p.m.
§ Lord Ackner
My Lords, I would like to support the amendment. It seems to me that the Government's preoccupation with preserving parliamentary sovereignty has caused them to over-complicate the situation. As has been made perfectly clear, we are concerned in this amendment with pre-existing 1293 legislation and not with future legislation. To preserve the sovereignty of Parliament, the slightly complex procedure of the declaration of incompatibility followed, one anticipates, with the reaction by Parliament to put the matter right, is quite unnecessary in relation to pre-existing legislation. The mistake made in the White Paper, to which the noble Lord has just drawn attention, is the clue to the unnecessary application of the declaration of incompatibility approach to pre-existing legislation.
It is perfectly clear that the doctrine of implied repeal is an existing part of English law. I cannot find anything in the Bill to prevent the courts, where appropriate, from using the doctrine of implied repeal. All this necessity to adopt an entirely new approach to interpretation in relation to pre-existing legislation is made quite unnecessary if one follows that doctrine. It involves no problem with regard to infringing parliamentary sovereignty. I think that the strain which is to be imposed upon the judiciary to go through the forensic gymnastics which have been referred to can be so easily relieved in regard to pre-existing legislation, and that is the merit of this amendment.
§ Lord Coleraine
My Lords, the noble Lord, Lord Lester of Herne Hill, has done the House a service by reading into the record so much of what the noble and learned Lord the Lord Chancellor said in the Tom Sargant Lecture because we have been led to believe that the purpose of the Bill was to avoid allowing the judiciary to strike down Acts of Parliament. But what the Tom Sargant Lecture makes clear is the intention that the striking down of legislation overtly is to be achieved covertly by the interpretation provisions of Clause 1 of the Bill. One should remember that the noble Lord, Lord Lester, said in Committee that the provisions of Clause 1 were perhaps the most important part of the Bill. I would agree with that, but I feel it is wrong to go covertly in a way which the Government are not prepared to go openly.
§ Lord Donaldson of Lymington
My Lords, it is very rare that I find myself disagreeing, even respectfully, with my noble and learned friend Lord Simon of Glaisdale, but I do not see that the doctrine of implied repeal solves any problems at all. I do not think it is even intended to solve this problem. As I understand it, it arises where you have two statutes: statute A which sets out certain rights, liabilities or procedures, and statute B, a later statute, which sets out certain rights, liabilities or procedures. You look at the two and find that there is an inconsistency between the earlier statute and the later one. The court, in accordance with this doctrine, says, "Parliament must have intended to repeal the first statute or some part of it, so we can forget about the implied repeal part". That does not work with this Bill because here we have, in theory, an earlier statute giving rise to rights, liabilities or procedures, and then we find an incompatibility. But we do not have an alternative set of rights, liabilities or procedures to judge one against the other to see whether there is an implied repeal. All we know is that the earlier statute is inconsistent. We have nothing else to substitute.
1294 I strongly suspect that in most cases there will be more than one way of remedying the incompatibility. You really would be involving the courts in a legislative function of no mean order if it were pointed out to them that there were, say, three ways of remedying the inconsistency and leaving it to them to choose which. I do not think the amendment works in the way in which its proposers intend it to work. Accordingly, I oppose it.
§ The Lord Chancellor
My Lords, Amendment No. 9 is grouped with Amendments Nos. 10 and 11. I shall speak to all three. I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for again raising the doctrine of implied repeal, but I fear that I must disappoint him by maintaining my opposition to his amendments. That is not because of any unwillingness to contemplate amendments or the possibility of their correctness, but because the amendments go to a central building block in the scheme of the Bill.
The Bill sets out a scheme for giving effect to the convention rights which maximises the protection to individuals while retaining the fundamental principle of parliamentary sovereignty. Clause 3 is the central part of this scheme. Clause 3(1) requires legislation to be read and given effect to so far as it is possible to do so in a way that is compatible with the convention rights. Clause 3(2) provides that where it is not possible to give a compatible construction to primary legislation or to subordinate legislation whose incompatibility flows from the terms of the parent Act, that does not affect its validity, continuing operation or enforcement. This ensures that the courts are not empowered to strike down Acts of Parliament which they find to be incompatible with the convention rights. Instead, Clause 4 of the Bill, together with Clauses 10 to 12, introduces a new mechanism through which the courts can signal to the Government that a provision of legislation is, in their view, incompatible. It is then for government and Parliament to consider what action should be taken. I believe that this will prove to be an effective procedure and it is also one which accords with our traditions of parliamentary sovereignty. That is why the Bill adopts it.
I agree with the observations of the noble and learned Lord, Lord Donaldson of Lymington. The position under the Bill is that, where pre-existing legislation cannot be construed by the courts compatibly with the convention, the intention of the Government is that the courts may make a declaration of incompatibility and then Parliament may make a remedial order.
Adopting and not taking up the time of your Lordships repeating the observations of the noble and learned Lord, Lord Donaldson of Lymington, I would add that it is not the intention of the Bill to repeal any pre-existing legislation that is incompatible with the convention. The noble Lord, Lord Lester of Herne Hill, was kind enough to refer to my recent Tom Sargant Memorial Lecture. I shall not add to whatever authority these extra-judicial observations may have—I doubt much—by repeating in the House anything that I said then.
1295 I invite the noble and learned Lord to withdraw his amendment on the basis that it is contrary to the principles on which we have constructed the Bill.
§ Lord Simon of Glaisdale
My Lords, my noble and learned friend the Lord Chancellor has repeated in slightly different terms the case he made in Committee. He said then that the amendment was contrary to the scheme of the Bill. What he meant was, "contrary to my scheme for the Bill". He put it today in the way of building blocks—we are interfering with his building blocks. The amendment is entirely compatible with the general building blocks of the Bill. It is confined to the cases where a declaration of incompatibility is made in relation to antecedent legislation. That is the whole scope—the only scope. That declaration of incompatibility will have been made in spite of the attempts to reconcile the convention with the pre-existing legislation.
My noble and learned friend insists that rather than rely on an existing rule of law we have to go through, both for pre-existing legislation as well as subsequent legislation, the paraphernalia of the fast track, the remedial order and so on. That has two disadvantages; first, delay in a remedy and, secondly, Henry VIII provisions which are unacceptable constitutionally unless we are absolutely forced to follow them.
However, my noble and learned friend will not have any alterations to his Bill except on the Government's initiative. We raised no objection when my noble and learned friend appeared to be trying on a cardinal's hat. It is only when he goes on to claim the triple tiara of infallibility that we beg to demur. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 10 to 12 not moved.]
§ Clause 4 [Declaration of incompatibility]:
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn) moved Amendment No. 13:
Page 2, line 36, leave out ("one or more of the Convention rights") and insert ("a Convention right").
§ The noble Lord said: My Lords, in moving Amendment No. 13 I should like to speak to the other government amendments grouped with it: Amendments Nos. 14, 15 and 16, 22, 39, 44 and 45, and to Amendment No. 21 in the name of the noble and learned Lord, Lord Simon of Glaisdale.
§ These government amendments to Clauses 4, 6 and 10 are a response to the amendment to Clause 6 which the noble and learned Lord tabled for Committee and which he has tabled again for Report. I have to say that his amendment caused a considerable amount of thought within the Government and has met with the open-minded response that is so frequently remarked on by the noble and learned Lord.
§ At the Committee Stage the noble and learned Lord wanted to replace the words "one or more of the Convention rights" with the different formulation "the 1296 Convention rights". He described that as a drafting improvement but the amendment was designed also to have a substantive effect. He was concerned about what might happen if a public authority were required to comply with one or more of the convention rights. He gave, for instance, the example of a BBC broadcast which was considered to intrude upon someone's privacy, contrary to Article 8, but which might be justified under Article 10 protecting freedom of expression. He thought that the Bill, as drafted, might induce the courts to look only at the Article 8 invasion of privacy and not Article 10.
§ Lord Simon of Glaisdale
My Lords, I am grateful to the noble Lord for giving way. It was not a case of the court being forced to look at only one article but that an offence would be committed by the public authority if only one was considered without consideration of a counterbalance. That would be if only one convention right were infringed.
§ 6.30 p.m.
§ Lord Williams of Mostyn
My Lords, I understand that. I was about to say that we entirely agree that a court should be able to take account of convention rights that pull in different directions. The noble and learned Lord the Lord Chancellor and I have said that. It has been readily accepted by noble Lords who have attended that that is the whole purpose of the Bill. But our analysis of the position differs from that of the noble and learned Lord.
Perhaps I may take his example. A claimant will allege that a particular convention right of his or hers has been infringed. The respondent will claim that it has not. I entirely agree, therefore, that the question is this. In what circumstances will the court have to balance his right against the convention right of some other person? The answer comes from the convention itself and the European Court of Human Rights.
As regards the Article 8 example, the claimant will allege infringement of his rights to respect for private and family life, home and correspondence, in Article 8(1). The authority may well reply that the act in question was necessary to pursue one of the aims permitted by Article 8(2), which, of course, include the rights and freedoms of others, including other convention rights. The claim will be that there has been a breach of Article 8(1). The court, in considering that claim, will be able to look beyond Article 8 itself; for example, to Article 10. But the finding will not be that there has been a breach of Article 8 justified by Article 10. The finding in these circumstances will either be that there has been a breach of Article 8 or that there has been no breach of that article.
Even where a claimant relies on an article of the convention which has no built-in reference to other rights, as Article 8 undoubtedly does, there is the overriding effect of Article 17. Clause 1(1) of the Bill 1297 refers to it. I do not believe that it has been mentioned frequently in your Lordships' House, but Article 17 states:Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or"—then these important words—at their limitation to a greater extent than is provided for in the Convention".That is a classic description of the balancing act which the Government believe is the appropriate task for the courts to perform. Therefore, we suggest that the balancing which I have described quite briefly is much more sophisticated and subtle and is designed specifically to be that, rather than the simple case of two litigants, each asserting conflicting convention rights.
The balancing is to be carried out in the context of the particular article on which the claimant bases his claim. So in the Article 8 example, the court will be adjudicating on the question whether that article has been infringed. Plainly, there will be different balancing to be done by the courts in different claims.
We believe, on sound historic experience, that the courts in this jurisdiction are peculiarly well equipped to carry out these balancing exercises as the whole development of the common law tradition in this country has been substantially based on the sort of subtle balancing that the courts will be required to carry out. That leads to the question as to the best formulation. Should the Bill refer to "one or more of the Convention rights," or "the Convention rights" or "a Convention right?" We have genuinely and conscientiously given this a good deal of thought and we believe that the phrase "a Convention right" is the proper one to use. It is shorter than "one or more of the Convention rights" and is preferable in drafting terms and a more natural formulation.
§ Lord Simon of Glaisdale
My Lords, will the noble Lord allow me to intervene again? I am very grateful to him for his courtesy. It may be shorter than "one or more of the Convention rights", but it is no shorter than "the Convention rights", which is what the amendment proposes.
§ Lord Williams of Mostyn
My Lords, that is arithmetically and grammatically correct since the definite and the indefinite article in the English language are each one word and I understand that. We have thought quite carefully about the problems that have been identified, real or apparent, by the noble and learned Lord and we have simply come to the conclusion that "a Convention right" properly describes what we are looking for as regards the background to the courts' consideration. We fully understand that balance is what the courts will have to find. I reiterate our absolute confidence in the ability of the courts to carry out that balancing. We suggest that the formulation we have come to after a great deal of 1298 thought, following the noble and learned Lord's interventions, is about right. I hope that he might think that on this occasion we may have done the right thing.
§ Lord Simon of Glaisdale
My Lords, the phrase "one or more of the Convention rights" occurs frequently in this Bill and in the government amendments. They have been grouped together to amend all of them. None of them needed amendment except as regards Clause 6. In the other amendment the phrase "one or more" was perfectly correct. It is perfectly correct in Clause 4 where the instant amendment is designed to correct the language.
I was concerned with Clause 6, which was the only one where the phrase was wrong. I do not believe that the Government are to be blamed harshly. Having found a phrase which worked elsewhere, they assumed that it would be right for Clause 6. It is not. Clause 6 says that a public authority acts illegally if its act is in contravention of one or more of the convention rights. The word that is objectionable is "one". It directs the attention to one convention right irrespective of the fact that there may be another convention right which out-balances it.
I am very glad that the noble Lord, Lord Williams of Mostyn, said several times and quite categorically that a balancing act was required. I gave as an example in Committee the BBC, which is unquestionably a public authority, being alleged to have infringed a person's right to privacy for himself or his family. The BBC might well say, "Even if we have, it is justified by the right to free expression." The balancing act will then take place, the court deciding where the public interest indicates either that Article 10 (free expression) or Article 8 (privacy) should be preponderant. But the Bill as drafted does not secure that because if Article 8 alone is infringed, an illegal act has been committed.
The noble Lord, Lord Williams, in an extremely ingenious—and perhaps I may say convoluted—argument tried to get round it. He pointed to Article 8(2) which states that the right to privacy shall not be to the detriment of any other person's rights. He said that any other person's rights included the right to freedom of expression under Article 10; in other words, that argument imports the immunity of Article 10 into the very heart of Article 8; it is incorporated in paragraph (2). It means that if an act of invasion of privacy is expressed, as it is likely to be, either in words or pictures, there is a complete answer. There is no right to privacy at all; it is automatically expunged by the importation of Article 10 into Article 8(2). That really will not do. Any judge who interpreted a measure designed to protect human rights in that way would have his wig taken off and his head examined. It is no way to construe such a piece of legislation as this.
Look what is done instead. The mischief aimed at is the contravention of one or more convention rights. What is substituted is "a Convention right". But "a" and "one" mean precisely the same thing in this context. One has only to think of this as a European code. In both French and German one word translates both "a" and "one".
1299 The noble Lord floated the idea of "a Convention right" in Committee. I had no answer although I had been promised consideration, with the result that on 3rd December—about a fortnight after Committee stage—a well informed leader writer in The Times, who had obviously followed this Bill very closely, wrote the following words:… Clause 6 … makes it 'unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights'. This wording already gives cause for concern. The phrase 'one or more' could invite a court judgment based on only one of the rights laid down in the Convention … We accept that this is not the intention of Lord Irvine, who insists that the courts will be required to give freedom of expression 'its due high value'. But the Government has yet to accept Lord Simon of Glaisdale's amendment removing this ambiguity. It should do so".They have not done so. They substituted the word "a" for "one" which does not remove the ambiguity". In view of the fact that I had heard nothing from the Government and in view of that article, on the following day, the 4th December, I wrote pointing out why "a" was as objectionable as "one". I had no answer to that other than a very polite formal acknowledgment from the Secretary to my noble and learned friend the Lord Chancellor. Indeed, I had no answer at all until Wednesday, 14th January, some seven weeks after I had written, when a long letter from the noble Lord, Lord Williams, arrived setting out the case which he has made at the Dispatch Box. Unfortunately, that reached me only late on Wednesday, the letter being dated that day. I had commitments on Thursday and the weekend and was unable to ask to be allowed to put the point why the proposed government amendments were wrong.
To allow that long lapse of time without an answer and for an answer to arrive only one working day and one weekend before Report stage seems to me to be an extraordinary way to conduct business.
The odd feature is that not only do the Government amendments to Clause 6 where the Bill is wrong perpetuate the error—because "a" is the same as "one"—but it alters the expression "one or more of the Convention rights" in other places where it is absolutely the correct expression. Clause 4 deals with a court declaration of incompatibility with one or more convention rights, and that is absolutely right.
The declaration of incompatibility is not freestanding. It leads to a remedial order. The Minister drawing up a remedial order will not want to know whether "a" or "one" convention right has been infringed, but how many and which ones. So, "one or more" then is right, and "a" wrong. What are we to do then? It is difficult not to suggest that that painful inability of the Government to accept any amendments to their Bill, except by their own hand, is pathological—psychopathology politics.
If I have convinced, as I hope I have, the noble Lord, Lord Williams, that his amendment to Clause 6 is wrong, and that my amendment is right, and that his amendment to Clause 4 is wrong, I would ask him to withdraw his amendment and to allow mine to pass. If he feels, with all the pressure of the Government behind 1300 him, that he cannot do that, he should withdraw all his amendments, and I will withdraw mine. That would give us an opportunity to discuss the matter thoroughly again before Third Reading. In conclusion, I must apologise for the state of my voice.
§ Lord Campbell of Alloway
My Lords, I have listened to the amendment. One owes a duty of frankness to the House. For the life of me, I cannot see what practical difference it makes if you have "one or more" convention rights, or, "a" convention right. I just do not understand what has been said. I say that with deference to the noble and learned Lord who is far more intelligent than I can ever become.
Viscount Colville of Culross
My Lords, I do not suppose that the noble Lord, Lord Williams, will welcome my support, but I would give it to him from, perhaps, a little experience of trying to implement this sort of legislation—at least a convention similar to the one with which the Bill is concerned. He is talking about an exercise in balancing which may have to be done between two different articles of the convention. The same thing applies when dealing with a communication under the international convention where there are conflicting articles similar to those which have been mentioned in the debate. The same exercise has to occur.
A court in this country attempting to apply Clause 4, as it currently is, or, indeed, as the noble Lord, Lord Williams, would have it amended, is bound to try to carry out a balancing exercise. Even if initially just one of the articles concerned is raised by one of the parties before the court, if there is a conflict with another of those articles, I have little doubt that the other party will raise that conflict. Even if it does not, any court that knows the convention which it is bound to apply will be aware that there is more than one article which is binding upon it, and it will be aware of a possible conflict, even of its own motion. Therefore, it will have to carry out the balancing exercise. It is a balancing exercise which both the European Court and the committee upon which I sit have for some time been demonstrating.
I remember doing so last summer in a case in relation to some French legislation where the two articles that we have currently at the forefront of our minds were being looked at in conjunction under the international convention. A balance had to be struck. That is what the courts in this country are being invited to do. If the noble Lord, Lord Williams, says that it will be easier to direct their minds down that path by doing it according to the wording that he now puts forward, then I will support him. I want to make it as easy as possible for the courts to do the balancing exercise; to know that they have to do the balancing exercise; and to follow the example of those tribunals elsewhere which have already been doing the balancing exercise for some time. I therefore give him my support for what it is worth.
§ Lord Williams of Mostyn
My Lords, I am most grateful for that contribution from the noble Viscount 1301 who, after all, will have to grapple with these practical problems in the future. I have a sneaking sympathy for the robust approach adopted, as usual, by the noble Lord, Lord Campbell of Alloway. On reflection, the noble and learned Lord may think that he has been uncharacteristically acerbic in complaining about the explanation given to him.
I wrote to the noble and learned Lord fully in a three-page letter on 14th January, which gives ample time for consideration for a Report stage on 19th January. The letter included this paragraph:I thought you would like to know that your amendment has occasioned a good deal of thought within the Government, and we have decided to table our own amendments in response to it. I attach a copy of these".That lengthy letter concluded:I am sorry to have written at such length. This is a difficult issue. and I wanted to give a full explanation of our reasoning".I do not believe that that, in all conscience, exhibits any symptoms of a pathological or a psychopathological condition on my part or on the part of the noble and learned Lord the Lord Chancellor. We listened carefully to what the noble and learned Lord said. As I said earlier, we discussed things carefully. When we came to our conclusion the letter was delivered to the noble and learned Lord last Wednesday. I was not to know—pathologically or psychopathologically—that he might have had other things to occupy his attention on Thursday, Friday, Saturday and Sunday.
The noble and learned Lord might agree with me that he has been unduly and unfairly harsh. It is self evident—I say it, and I almost said, "for the last time", but no one is that fortunate—that this point will involve a balancing exercise. Article 8.1 and 8.2 will not just have to be balanced internally, they will have to be balanced, as the noble and learned Lord the Lord Chancellor has told our friends and colleagues in the media, with Article 10. They will have to be balanced—to take up an implied point put by the noble Viscount, Lord Colville of Culross—with the question of a right to a fair trial. There may be many circumstances with which he and I are well familiar in practice over the years where a fair criminal trial for one person may well involve an infringement of someone else's private confidences or family life. That is a commonplace that we all know.
There is nothing difficult about the balancing in principle. It will be an anxious task for the courts to carry out. We believe that we have the formulation right. I respectfully commend our amendments to your Lordships.
§ On Question, amendment agreed to.
§ Lord Williams of Mostyn moved Amendments Nos. 14, 15 and 16:
§ Page 2, line 38, leave out ("one or more of the Convention rights") and insert ("a Convention right").1302
§ Page 2, line 43, leave out ("one or more of the Convention rights") and insert ("a Convention right").
§ Page 3, line 2, leave out ("one or more of the Convention rights") and insert ("a Convention right").
§ On Question, amendments agreed to.
Lord Hardie moved Amendment No. 17:
Page 3, line 11, leave out ("as a court of criminal appeal") and insert ("otherwise than as a trial court").
§ The noble and learned Lord said: My Lords, in Committee, the noble and learned Lord, Lord Mackay of Drumadoon, tabled an amendment which would have conferred on the High Court of Justiciary, sitting as a trial court, the competence to make a declaration that a provision of primary or secondary legislation was incompatible with one or more of the convention rights.
§ My noble and learned friend the Lord Chancellor explained that it was not the intention that any such power should be conferred on judges who preside over criminal trials. The noble and learned Lord's amendment, as well as concerns expressed separately by the noble and learned Lord, Lord Hope of Craighead, caused the Government to look again at the provision. As currently drafted, the provision would prevent the High Court of Justiciary from making declarations of incompatibility when considering applications to the nobile officium. That is not the Government's intention which is, as I have explained, only to prevent judges presiding over criminal trials from making such declarations. Amendment No. 17 accordingly provides that such declarations may be made by the High Court of Justiciary, except when it is sitting as a trial court. I beg to move.
§ Lord Mackay of Drumadoon
>: My Lords, I am grateful to the Minister for bringing forward the amendment, which meets in part the matter I raised in Committee. I suggest to the noble and learned Lord the Lord Advocate that the precedent of meeting my amendment with a government amendment is one which he would be well advised to follow in relation to a matter which we discussed earlier.
§ Lord Hope of Craighead
My Lords, I was among those who asked the noble and learned Lord the Lord Advocate to consider the matter again. I, too, am grateful for the amendment which is tendered. It is an important amendment. It is not commonly appreciated that there is a complete separation between the civil and criminal courts in Scotland. Judicial review as practised in Scotland extends in the civil courts to matters of a civil nature. Without the amendment, it would be difficult for the High Court of Justiciary in all its forms to cover the various situations in which questions of incompatibility might arise. I am particularly grateful for the amendment, therefore, because it will give considerable importance to the way in which criminal jurisdiction in Scotland will develop in the light of the provisions of the Bill.
§ On Question, amendment agreed to.1303
§ 7 p.m.
Lord Lester of Herne Hillmoved Amendment No. 18:
Page 3, line 14, at end insert—
§ The noble Lord said: My Lords, in moving Amendment No. 18, I shall speak also to Amendments Nos. 20, 68 and 69. The purpose of the amendments is to incorporate convention rights into the laws of the Channel Islands and the Isle of Man. Perhaps I may give a brief background. The Channel Islands and the Isle of Man enjoy a unique status as dependencies of the Crown. Although they have their own legislative assemblies and by long-established convention are responsible for the regulation of their own domestic affairs, including taxation, the United Kingdom has ultimate responsibility for their good government and is responsible for their defence and foreign relations. Citizens of the Channel Islands and the Isle of Man are British citizens.
I turn to the power to legislate for the Channel Islands and the Isle of Man. Constitutionally, there is nothing to prevent the United Kingdom Parliament from legislating for the Channel Islands and the Isle of Man. In 1973, the Royal Commission on the Constitution (Cmnd 5460) concluded that,
Parliament has power to legislate for the Islands and that, in some matter at least, the exercise of this power is not dependent on the Islands' consent being given. It has, however, been the practice not to legislate for the Islands without their consent on matters which are of purely domestic concern to them. There has been strict adherence to the practice over a very long period, and it is in this sense that it can be said that a constitutional convention has been established whereby Parliament does not legislate for the Islands without their consent on domestic matters".
However, the convention is limited when an international obligation—for example, incorporation of the European Convention on Human Rights—is at issue.
The Royal Commission stated, at Paragraph 1472; that,
despite the existence of the convention, Parliament does have power to legislate for the Islands without their consent on any matter in order to give effect to an international agreement".
It states at Paragraph 1473:
in the eyes of the courts, Parliament has a paramount power to legislate for the Islands in any circumstances, and we have proceeded on this assumption … But if, exceptionally, circumstances should demand the application to the Islands without their consent of measures of a kind hitherto regarded as domestic, then Parliament would, in our view, have the power to enact the necessary legislation".
§ I apologise for having quoted from that document, but it is important to be clear that one is acting in accordance with constitutional convention in a matter of this kind. I submit that bringing convention rights home to British citizens of the islands is an exceptional circumstance, so that they may obtain legal redress in the courts of the islands.
§ I turn briefly to what the precedents show. The power to legislate for the islands has been exercised in the past. For example, the Extradition Act 1989 is extended to 1304 the Channel Islands as if they were part of the United Kingdom. Prerogative powers have also been exercised in relation to the Channel Islands without prior request for such exercise; for example, the prerogative of mercy and the Court of Appeal (Channel Islands) Order 1949. Similar powers have been exercised in relation to the Isle of Man. The Isle of Man Act 1979 gives effect to an agreement between the Government of the United Kingdom and the Government of the Isle of Man by which both countries have been treated as a single area for the purposes of value added tax and car tax. In 1967 the United Kingdom Parliament imposed upon the Isle of Man the Marine Broadcasting (Offences) Act by statutory instrument outlawing broadcasting from marine structures within the British islands and the contiguous sea areas.
I turn to the obligations under the European Convention on Human Rights since that is an important and relevant matter. Under Article 1 of the convention, the Government have an obligation directly to secure to everyone respect for their convention rights in the territories for which the Government have responsibility, including the Channel Islands and the Isle of Man. In the inter-state case of Ireland v. United Kingdom in 1978, the European Court of Human Rights observed:
By substituting the words 'shall secure' for the s ords 'undertake to secure' in the text of Article 1, the drafters of the Convention also intended to make it clear that the rights and freedoms set out in Section I would be directly secured to anyone within the jurisdiction of the Contracted States".
§ Although in the case of Gillow v. United Kingdom in 1989, which related to regulations preventing foreigners from occupying property they owned in Guernsey, the British Government initially stated that they had not extended Article 1 of the European Convention to Guernsey, the matter was rectified and the Government wrote to the European Commission in February 1988 confirming that Article 1 had been extended to the Bailiwicks of Guernsey and Jersey. Similarly, the European Court rejected the argument in the Tyrer case in 1978, concerning the practice of birching in the Isle of Man, that the special position of the Isle of Man could justify a difference in the application and enjoyment of convention rights to the Isle of Man.
§ In Written Answers on 12th January 1998 the noble Lord, Lord Williams of Mostyn, confirmed the obligation of the UK Government to ensuring that the Crown dependencies comply with the European Convention. He also confirmed that at present the courts in the Isle of Man and the Channel Islands are not required or authorised directly to provide remedies for breaches of the convention.
Finally, I turn to the discrimination in relation to legal remedies which will arise if the amendments, or something like them, are not enacted. If British citizens and others living and working in the Channel Islands and the Isle of Man are excluded from the benefits of the Bill, that itself will provide grounds for complaint under the convention of unfair discrimination in relation to legal remedies. In the Belgian Linguistic case (No. 2) in 1968, the European Court explained how Article 14 of the convention—the non-discrimination guarantee—applies with an example concerning state action in
relation to the scope of remedies before domestic courts under Article 6. The court said that it would violate Article 6 read with Article 14,
were [a state] to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions".
There seems no legitimate reason to exclude the inhabitants of the islands from the benefits of incorporation. Arguments to that effect by successive British governments have never succeeded in Strasbourg in previous cases. In the Tyrer case, a submission that the special position of the Isle of Man could justify a difference in the application and enjoyment of convention rights was rejected. The European Court said:
Historically, geographically and culturally, the island has always been included in the European family of nations and must be regarded as sharing fully that 'common heritage of political traditions, ideals, freedom and a rule of law' to which the Preamble of the Convention refers … Article 63 was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention".
§ Therefore, it is quite clear that the European Court has regarded those islands as falling within the area of responsibility of this country in a different way from other, as it were, colonial territories.
§ I hope that I have explained that there is no constitutional barrier to the extension of the Bill to the Channel Islands and the Isle of Man. For Parliament to fail to exercise that power, while incorporating the convention rights into UK law, would clearly expose the Government to possible action under the convention for failure to provide the citizens of those islands with the same remedies as other British citizens would enjoy once the process of incorporation is complete.
§ Therefore, I very much hope that the Government will feel able to accept the amendments. I add two points only. First, unless Clause 22 is amended, there will be no power for this Government or a future government to do so except by enacting further primary legislation. That seems to me to be clumsy and ineffectual as a position.
§ Secondly, if the noble and learned Lord the Lord Chancellor were able to indicate that the Government required further time to take soundings on this matter, I would understand that position, provided that we may return to the matter on Third Reading; otherwise it seems to me that we shall be failing properly to incorporate the convention in areas for which we are responsible and we shall expose this country to avoidable international proceedings. I beg to move.
My Lords, the noble Lord, Lord Lester of Herne Hill, has raised a delicate and uncertain constitutional point. I speak as one who, like other Members of your Lordships' House—in particular in recent times my noble friends Lady Blatch and Lord Elton—has had responsibility for watching the interests of the Channel Islands and the Isle of Man while serving in the Home Office.
1306 I must say that we must be very careful because, although from time to time the United Kingdom Parliament legislates on those independent territories under the Crown, they do so only when they have the agreements of the parliaments of those territories. Of course, Her Majesty has a direct responsibility for them but, by tradition, her Prime Minister and other Members of her government have been very careful not to impose obligations upon them.
I should be grateful if, in answering these amendments—and I believe it is to be the noble Lord, Lord Williams of Mostyn, which gives one great pleasure—the Minister will tell the House what consultation there has been with the Tynwald and the parliaments of Guernsey and Jersey. If they want to be aligned with the United Kingdom, of which they are not part, on these matters, so be it. But we must be very careful about it.
§ 7.15 p.m.
§ Lord Monson
My Lords, as a layman and someone who has never been remotely anywhere near government, I am most hesitant to intervene. But it seems to me that it would take us down a very slippery slope if this quartet of amendments—in particular Amendment No. 69 which is the substantive amendment—were accepted.
The Channel Islands and the Isle of Man are extremely ancient jurisdictions. They are not and never have been part of the United Kingdom and they have no representation whatever at Westminster. Therefore, whatever the 'Royal Commission may have declared in 1973, it is surely quite wrong to interfere in their internal affairs unless there is some gross injustice crying out to be remedied, which is certainly not the case here.
Many years ago, those territories agreed of their own free will—and that is the important point—to be bound by the provisions of the European Convention on Human Rights. That surely should be enough to satisfy any reasonable person.
§ Lord Henley
My Lords, like my noble friend Lord Renton and the noble Lord, Lord Monson, I should like to ask not only the Government but also the noble Lord, Lord Lester, when he comes to respond, what consultations have taken place with the various island governments responsible in this regard.
The noble Lord argued that the consent of the islands is not necessary. I believe that the noble Lord, Lord Monson, expressed the matter much more effectively when he said that even if, in strict law, their consent was not necessary, in all humanity they should be consulted and their consent should be obtained.
I have one further question for the noble Lord which relates to the first amendment in this group; namely, Amendment No. 18. As I understand it, that relates to the various courts of appeal in the three territories mentioned. Am I right to understand that it would allow, for example, the court of appeal in Guernsey to make a declaration of incompatibility in relation to legislation coming from this Parliament? Would it be possible for 1307 the court of appeal in Guernsey to say that legislation relating to, for example, the outlawing of off-shore trusts, something which we have been promised by this Government, could be in breach of their human rights? I should like an answer on that point from the noble Lord, Lord Lester, and also from the noble Lord who speaks for the Government on this occasion.
§ Lord Williams of Mostyn
My Lords, a diplomatic deafness overtook me when the noble Lord directed his question, I think it was, to the noble Lord, Lord Lester; but I probably misheard.
I am most grateful to the noble Lord, Lord Lester of Herne Hill, for the way in which he has moved the amendment. He has correctly identified, as have other noble Lords, the constitutional position of the Channel Islands and the Isle of Man. It is a fact that there is a great reservoir of ignorance about the true constitutional arrangements between the Channel Islands, the Isle of Man and the United Kingdom. The noble Lord, Lord Renton, and latterly the noble Earl, Lord Ferrers, the noble Baroness, Lady Blatch, and now I—I am sorry, my amnesia was unintended but I forgot the noble Lord, Lord Elton—have all had responsibility for dealing with the Channel Islands. The fact is that they are independent jurisdictions and are extremely and understandably astute that their interests be properly considered; that they be properly consulted; and that every due regard be given to their views. Dare I say, in this evening's context, that that is one of their human rights?
Generally speaking, I do not disagree with the constitutional analysis put forward by the noble Lord, Lord Lester of Herne Hill. The Crown is ultimately—and I stress the word ultimately—responsible for the good government of the islands. We have full power in principle to legislate for the islands, but it is a fact that it would be contrary to constitutional conventions to which all governments of whatever political complexion have adhered for the power to be used in the ordinary course of events without the agreement of the island governments. I respectfully take the points made by the noble Lord, Lord Monson, but they have their own systems of government and are not represented at Westminster in matters which are entirely domestic to the islands. In extremis, we could take that power but we do not regard these circumstances as appropriate for the power to be taken. We prefer to work by co-operation, as did previous governments.
Enabling provisions are included in published Bills only after full consultation with the island governments. Similarly, any orders that the islands subsequently agree should he made are drafted in consultation with the island authorities. Many noble Lords asked, perfectly properly, whether Her Majesty's Government had consulted with the appropriate island governments. The answer is an unambiguous yes. All three stated categorically that they did not wish the Human Rights Bill to be extended to them in the way proposed by the noble Lord, Lord Lester of Herne Hill. All of them said no, and they were quite categoric in that respect. 1308 I respectfully suggest that we ought not to force different arrangements upon them when they have expressed themselves so firmly.
However, it is right that the Isle of Man authorities have announced their intention to introduce insular legislation. I say that knowing that I might be derided but I believe it to be the correct adjective. That insular legislation—it being an island, after all—would give effect to the convention on the islands. They have taken that view. The authorities in the Channel Islands do not intend to take that step for the present, but it is not ruled out for the future.
The Government's position is quite plain. We have our obligations. We have our obligations under the convention. We have consulted the islands fully and have our obligations to consider their views. We have done so, and have come to the conclusion that we ought not to accede to the proposals made by the noble Lord, Lord Lester of Herne Hill.
I am most grateful for the support expressed from various quarters of your Lordships' House. We are dealing with delicate matters and there are sensibilities involved which must properly be attended to and taken into consideration. We believe that the stance we have adopted is the correct one, bearing in mind the conventional history of the relationships between the United Kingdom and three islands which have their own distinct traditions, their own separate views and their own discrete legislatures.
§ Lord Lester of Herne Hill
My Lords, perhaps the Minister could deal with one matter that I raised. I refer to the problem that if we give remedies to British citizens in the UK but do not give the same remedies to British citizens living in the Isle of Man or in the Channel Islands on the basis of the courts' case law, which I quoted all too extensively, we will be in breach of Article 14 of the convention, read with Article 6, for discriminating in the provision of remedies in the determination of convention rights. The course that I take will depend very much on the answer that I receive to that question.
§ Lord Williams of Mostyn
No, my Lords, with the greatest of respect we do not accept that argument because there is no discrimination: the jurisdictions are different. Therefore, one is not comparing like with like. We do not believe that we would be in default of our Article 14 obligations. I fully recognise the noble Lord's interest in these different jurisdictions, especially recently in the Isle of Man. Therefore, I dare say it is a kind of gratification to him to know that the Isle of Man has decided to legislate internally on the lines that I suggested.
§ Baroness Blatch
My Lords, before the Minister sits down, perhaps he will answer one further question. Does he agree that the arguments that have been deployed in response to the amendments—all of which I agree with wholeheartedly—would also be pertinent to the Scottish amendments that we discussed earlier on the Church and those which are to follow? Surely, the arguments are exactly the same.
§ Lord Williams of Mostyn
My Lords, the arguments are not remotely the same. Indeed, they are utterly distinct. One is to do with the 1922 settlement of the Church of Scotland which is an Act of Parliament. As my noble and learned friend the Lord Advocate said—and he is always right on these occasions—that remains wholly intact. The question of introducing convention rights into the Isle of Man, Guernsey, Sark, Brechou and Jersey has nothing at all to do with the position of the Church of Scotland. I venture to suggest that, were I to ask the wife of my noble and learned friend the Lord Advocate, who is an Elder of the Church of Scotland, whether she lays awake at night worrying about the position of the Channel Islands and whether to have any necessary or sensible connection with them, I think that the answer would be, no.
§ Lord Lester of Herne Hill
My Lords, I am most grateful to the Minister and all noble Lords who have taken part in this short but important debate. My starting point is that of course there should be effective consultation. I am glad to hear that there has been. I am also glad to hear that the authorities in the Isle of Man have shifted in the way outlined. However, the Channel Islands remain. They have already caused this country to be held to be in breach of the convention in one case. When one is talking about fundamental human rights and freedoms anchored in an international treaty where the UK has international responsibility for breaches of the rights of British citizens in the Channel Islands, as well as in the Isle of Man, I can see no answer to the point that there is a difference of treatment made in the protection of access to courts for enforcing convention rights as between the islands and the mainland.
I turn now to the arguments about distinct traditions and local circumstances. This is an argument which one has heard time and again in the human rights field in this country and beyond. Indeed, we heard that argument in Northern Ireland in the Dudgeon case where the UK was forced to change the criminal law so as to give equality of treatment to homosexuals. We had the same argument with regard to corporal punishment in Scotland; namely, that there was a different tradition there. In each case the UK Parliament was compelled to legislate. and the same would apply to breaches in the Channel Islands.
I turn now to the courts in the Channel Islands which, in answer to the noble Lord, Lord Henley, would not have the power under my amendments to strike down Acts of the Westminster Parliament, any more than the Scottish courts will have the power to do so under the devolution legislation. I have not heard any arguments to suggest that those courts are not capable of providing effective remedies for breaches of the convention. As the rights of British citizens are at stake, it seems to me that the same rights and obligations should apply across the mainland and the offshore islands.
I have quoted the Royal Commission under the chairmanship of the late Lord Kilbrandon indicating that where an international agreement is concerned special considerations are involved. It is in respect for the 1310 citizens of those islands, and not through any disrespect to them, that I believe they should have equal protection. For that reason, I wish to test the opinion of the House.
§ 7.28 p.m.
§ On Question, Whether the said amendment (No. 18) shall be agreed to?
§ Their Lordships divided: Contents, 32; Not-Contents, 176.1311
|Division No. 1|
|Addington, L.||Newby, L.|
|Beaumont of Whitley, L. [Teller.]||Nicholson of Winterbourne, B.|
|Carlisle, E.||Redesdale, L.|
|Dholakia, L.||Rochester, L.|
|Falkland, V.||Rodgers of Quarry Bank, L.|
|Geraint, L.||Russell, E.|
|Goodhart, L.||Sandberg, L.|
|Hamwee, B.||Smith of Clifton, L.|
|Harris of Greenwich, L.||Thomas of Gresford, L.|
|Hooson, L.||Thomson of Monifieth, L.|
|Lester of Herne Hill, L.||Thurso, V.|
|Ludford, B.||Tope, L. [Teller.]|
|McNally, L||Tordoff, L|
|Maddock, B.||Wallace of Saltaire, L.|
|Acton, L.||Davies of Oldham, L.|
|Alexander of Tunis, E.||Dean of Thomton-le-Fylde. B.|
|Alton of Liverpool, L.||Desai. L|
|Amos, B.||Dixon, L.|
|Anelay of St. Johns, B.||Dixon-Smith, L.|
|Ashboume, L.||Donegall, M.|
|Bassam of Brighton, L.||Dormand of Easington, L.|
|Belhaven and Stenton, L.||Eatwell, L.|
|Bemers, B.||Elliott of Morpeth, L.|
|Biddulph, L.||Elton. L.|
|Blackstone, B.||Evans of Parkside. L|
|Blaker, L.||Falconer of Thornton, L.|
|Blatch, B.||Farrington of Ribbleton, B.|
|Blease, L.||Fookes, B.|
|Borne, L.||Gallacher, L.|
|Brentford, V.||Gordon of Strathblane, L.|
|Bridgeman, V.||Gould of Potternewton, B.|
|Brooke of Alverthorpe, L.||Graham of Edmonton, L.|
|Brooks of Tremorfa, L.||Gregson, L.|
|Burlison, L.||Grenfell, L.|
|Burnham, L.||Haddington, E.|
|Cadman, L.||Hanworth, V.|
|Carmichael of Kelvingrove, L.||Hardie, L.|
|Carnegy of Lour, B.||Hardy of Wath, L.|
|Carnock. L.||Harris of Peckham, L.|
|Carter, L. [Teller.]||Haskel, L. (Teller.]|
|Chandos, V.||Hayhoe, L.|
|Chelmsford, V.||Hayman, B.|
|Chesham, L.||Hemphill. L.|
|Clinton-Davis, L.||Henley, L.|
|Cocks of Hartcliffe, L||Hilton of Eggardon, B.|
|Coleraine, L.||Hogg of Cumbemauld, L|
|Colville of Culross. V.||Hollis of Heigham, B.|
|Colwyn, L.||HolmPatrick, L.|
|Cope of Berkeley, L.||Home, E.|
|Courtown, E.||Hooper, B.|
|Craig of Radley, L.||Hope of Craighead, L.|
|Cross, V.||Howie of Troon, L.|
|Currie of Marylebone, L.||Hoyle, L.|
|David, B.||Hughes, L.|
|Hughes of Woodside, L.||Peston, L.|
|Hunt of Kings Heath, L.||Pitkeathley, B.|
|Hunt of Wirral, L.||Platt of Writtle, B.|
|Hylton, L.||Prys-Davies, L.|
|Iddesleigh, E.||Puttnam, L.|
|Irvine of Lairg, L. [Lord||Ramsay of Cartvale, B.|
|Chancellor.]||Randall of St. Budeaux, L.|
|IsIwyn, L.||Rawlings, B.|
|Jay of Paddington. B.||Rea, L.|
|Jeger, B.||Rendell of Babergh, B.|
|Jenkin of Roding, L.||Rennell, L.|
|Jenkins of Putney,||Renton, L.|
|L. Kennedy of The Shaws, B.||Renwick of Clifton, L.|
|Kennet, L.||Richard, L. [Lord Privy Seal.]|
|Kilbracken, L.||Ripon, Bp.|
|Kingsland, L.||St. John of Bletso, L.|
|Kirkhill, L.||Sefton of Garston, L.|
|Knight of Collingtree, B.||Selborne, E.|
|Lawson of Blaby, L.||Sewel, L.|
|Leigh, L.||Shaw of Northstead, L.|
|Liverpool, E.||Shepherd, L.|
|Lofthouse of Pontefract, L.||Simon, V.|
|Longford, E.||Simon of Highbury, L.|
|Luke, L.||Smith of Gilmorehill, B.|
|McIntosh of Haringey, L.||Soulsby of Swaffham Prior, L.|
|Mackay of Drumadoon, L.||Southwell, Bp.|
|Marlesford, L.||Stallard, L.|
|Masham of Ilton, B.||Stewartby, L.|
|Merlyn-Rees, L.||Stone of Blackheath, L.|
|Mersey, V.||Strabolgi, L.|
|Milner of Leeds, L.||Swinfen, L.|
|Molloy, L.||Symons of Vernham Dean, B.|
|Molyneaux of Killead, L.||Taylor of Blackburn, L.|
|Monkswell, L.||Taylor of Gryfe, L.|
|Monoro of Langholm, L.||Thomas of Gwydir, L.|
|Monson, L.||Turner of Camden, B.|
|Montague of Oxford, L.||Ullswater, V.|
|Montgomery of Alamein, V.||Vivian, L.|
|Morris of Manchester, L.||Walker of Doncaster, L.|
|Napier and Ettrick, L.||Waterford, M.|
|Newall, L.||Watson of Invergowrie, L.|
|Nicol, B.||Wedderburn of Charlton, L.|
|Norfolk, D.||Wharton, B.|
|Northbrook, L.||Whitty. L.|
|Northesk, E.||Wilberforce, L.|
|Orme, L.||Williams of Mostyn, L.|
|Palmer, L.||Winston, L.|
|Perth, E.||Young, B.|
|Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7. 38 p.m.
§ Lord Hoyle
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that Report stage does not begin again before 8.38 p.m.
§ Lord Hoyle
My Lords, when we adjourn depends to a large extent on your Lordships. At this stage we cannot give any indication.
§ Moved accordingly, and, on Question, Motion agreed to.