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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

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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,

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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

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its declaration of incompatibility or the purpose of the remedial order. I can only say that in those circumstances the Government would obviously think again.

Lord Kingsland: My Lords, I am much obliged to the noble and learned Lord for that response. He said in his first response that the Opposition was behaving Janus-like, looking in two directions or with two faces. I hope he did not intend to say that the Opposition was being two-faced in the way that it treated this Bill. I am happy to see the noble and learned Lord nodding in confirmation.

I was struck by three interventions which drew the attention of the House to the doctrine of precedent. It is true that the doctrine of precedent in our law is almost unique in Europe. I believe that it is also true of Ireland. But the issue goes beyond the issue of precedent. Since we are not bound by the jurisprudence of the European Court of Human Rights our judges can range very widely over possible interpretations of the terms of the convention. As a result of whatever decision they make, the legislature is obliged to incorporate that decision into law. This represents a profound constitutional shift from the way that we have done our work in this country over many centuries. From the reactions around the Chamber it appears that noble Lords are ready to accept that shift. Your Lordships should not do that without being aware of its implications. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Legislation]:

[Amendment No. 7 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 8:


Page 2, line 23, after ("legislation") insert ("(save for the Church of Scotland Act 1921)").

The noble and learned Lord said: My Lords, the amendment deals with the position of the Church of Scotland under the Bill, and, in particular, the relationship of the Bill to the provisions of the Church of Scotland Act 1921. I shall speak also to Amendment No. 12 in the names of the noble Lord, Lord Steel of Aikwood, and the noble Baroness, Lady Linklater of Butterstone. I talked to the noble Lord, Lord Steel, at the weekend. He told me that he might be delayed in reaching your Lordships' House this afternoon, and asked me to apologise if he did not arrive--and he does not appear to have done--before the amendment were called.

I hope that the House will accept that the fact that I feel able to put my name to the second of the two amendments indicates that no question of party politics lies behind either of the amendments. The noble Lord, Lord Steel, and myself, and I am sure also the noble Baroness, are united by a desire to lay before your Lordships the concerns of the Church of Scotland and its members, that one of the unintended consequences of the Bill, as presently drafted, is that it may seek to disturb and undermine the constitutional settlement that has existed between the Church of Scotland and the state since 1921.

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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-bearers".

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,

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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

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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.


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