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Lord Goodhart: My Lords, as I said, the European Convention contains no employment rights; therefore, the European Convention would have no effect whatever on circumstances of that kind. It would be a matter purely for internal domestic legislation to decide whether or not those people had employment rights.

I would conclude therefore by asking your Lordships not to accept what I believe is a wholly exaggerated and misguided belief in the damaging effects that the European Convention on Human Rights will have on the Churches. I welcome the support of the Churches in general for the European Convention on Human Rights, but I believe that they are misguided in seeking exemption for any of their functions, including the function of providing education.

Lord Campbell of Alloway: My Lords, I hope the noble Lord appreciates that I am not saying that the human rights convention will damage the Church. I have never said that. I have said that the Church and all religious bodies are subject to the convention but that the adjudication should be by the international body and

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not ad hoc in our courts, piecemeal. That is all. I have never said that the Churches should be free of the human rights convention.

Lord Goodhart: My Lords, with respect to the noble Lord, Lord Campbell of Alloway, that is where this Bill came in. It was meant to replace the need for anybody to go through the lengthy and expensive process of going to Strasbourg by giving remedies in English, Scottish or Northern Ireland courts. I do not see why that should not apply to the Church just as much as it applies to every other institution in this country.

Lord Coleraine: My Lords, would the noble Lord explain to the House--I refer to an earlier stage of his speech--why he believes that the Roman Catholic Church, to which I adhere, is not a public authority? Surely, any Roman Catholic priest qualifies as a person certain of whose functions, such as marriage, are functions of a public nature.

Lord Goodhart: My Lords, some of the functions of the Church may be of a public nature, particularly the provision of Roman Catholic schools. However, I would not take the view that marriages by Roman Catholic priests were the performance of a public function.

The Earl of Perth: My Lords, I would first like to thank the noble Baroness, Lady Young, and all the others who have spoken on this amendment. It is a tremendously important issue.

I speak as a Catholic and it is a matter of interest to me. I, through my mother, am a direct descendant of Sir Thomas More or, as I prefer it, Saint Thomas More. I seem to remember that the issue of Church versus state was critical to his life.

Having listened to the debate this evening, it is quite clear to me that this is an issue of Church versus state. However, we may find other reasons for debating what the Church of Scotland should do, or whatever the topic may be. The fundamental issue tonight is that of the Church versus state. Which is superior? Of course, when I speak about Churches, I refer to all religions, whether it is the Church of England, Catholic, Moslem or Jewish. I believe that this the fundamental fact about which we are talking.

I am very clear that, as the Bill is drafted, it comes down in favour of the state, which I believe is wrong. The state should be superior to the Churches. I believe that the Lord Chancellor himself would confirm that view. I wonder whether it is for this Government or for the state, through the courts, to come to the decision of what is right for Caesar or what is right for God. I am afraid that for us to try to come to a judgment on that is wrong.

The amendment is skilfully worded. It is easy to ask what is a religion and what therefore should apply in this situation. But many strange groups would say, "We are a religion and though our religion says that we should be against certain matters contained in the Human Rights Bill, that is not good enough".

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Amendment No. 24 says that the Churches or religions should be recognised as such by the Secretary of State. It provides an ingenious solution to the problem and, however honest they may be, people with curious ideas cannot get round the legislation by claiming to be religious. It is important that we recognise the significance of that. In a way it solves the problem of what is the state's responsibility and what is the Churches' responsibility. It is a combination of the two; namely, that religion can be judged by the state but when they take their stand they are separate and on their own.

As I see it, this is an issue of Church versus state. I hope that your Lordships agree with me that it is like the judgment of Sir Thomas More; namely, that we have to decide in our own consciences and our own beliefs on what we should take a stand. I hope therefore that the amendments will be accepted and that your Lordships will go ahead on that basis. That is the real issue in this debate. What I have been advocating covers not only the Church of England and the Catholic Church as well as other religions, but also the Church of Scotland. It is clear that it too fits into this category.

Lord Lloyd of Berwick: My Lords, I can be brief. I wish to speak to Amendment No. 72, at page 13 of the Marshalled List, and particularly to paragraph 3 of the schedule which proposes to exclude from Section 6 those exercising functions in connection with the ecclesiastical courts of the Church of England.

There is a court known as the Court of Ecclesiastical Causes Reserved. I know of its existence because I was a member of that court. It consists of three diocesan bishops and two appellate judges. It does not meet very often, but when it meets it considers and decides questions of ritual and doctrine, and doctrine is what matters for present purposes.

I have three simple questions to ask in relation to that court. Is it intended that that court, the Court of Ecclesiastical Causes Reserved, should be a court for the purposes of Clause 6(3)(a) of the Bill. The second question is: if so, are its decisions to be subject, for the first time in history, to challenge by way of judicial review in the ordinary civil courts of our country? Decisions of the ecclesiastical courts have never been subject to the jurisdiction of the civil courts in the past for the simple reason that the civil courts and the ecclesiastical courts are courts of co-ordinate jurisdiction.

There is only one method of appeal from the Court of Ecclesiastical Causes Reserved and that is by way of a commission of inquiry appointed by the Queen. That consists not of three bishops and two judges but of two right reverend Prelates and three Law Lords. There is no other way of challenging the decisions of that court.

If it is proposed that for the first time the decisions of the Court of Ecclesiastical Causes Reserved should be subject to the civil courts in some matters but perhaps not others, and if it is proposed, for instance, in the case of matters of doctrine, that it should not be subject to challenge, who, I ask, is to decide what are the matters of doctrine and what are not? That is the very question

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asked in the earlier debate by the noble and learned Lord, Lord Mackay of Clashfern. I listened with great interest to the Lord Advocate's reply and I did not consider it satisfactory.

It seems to me that by far the simplest way of resolving any possible dispute between the ecclesiastical courts and the civil courts, in matters of doctrine at any rate, is to exclude the ecclesiastical courts altogether from the ambit of the Bill. In doing so, one would not weaken the beneficial purposes of the Bill--which I support with all my heart--one jot or one tittle.

10 p.m.

Lord Lester of Herne Hill: My Lords, I am very glad to speak immediately after the noble and learned Lord, Lord Lloyd of Berwick, because what I have to say dovetails with what he said. I shall not add to the many points made by my noble friend Lord Goodhart with which I entirely agree.

I make one preliminary point. If one assumes hypothetically--and it is entirely hypothetically--that a religious school of whatever religion was, through its managers, to exclude pupils who were black, no one, I think, would seek to advance the proposition that that school and its managers should not be bound by the education provision in Article 2 of the first protocol to the convention read with the non-discrimination guarantee. I give that example because it simply illustrates that there are situations in which religious bodies might hypothetically violate a fundamental human right.

The second point I make is that this is not a question of church versus state; it is a question of church as state because the only circumstances in which a religious body could be liable under Clause 6 would be if it exercised public functions. The real tension is not between church and state; it is between public authorities and the basic rights of individuals. The real question is whether individuals are to have effective remedies in this country, and not only in the courts in Strasbourg, when their basic human rights and freedoms are violated. Thirdly, I agree with what was said by my noble friend Lord Goodhart. Most of the examples given today are not remotely within the scope of the European convention.

The main point I want to mention--I think it will be helpful to your Lordships--is that our courts have had increasingly to wrestle in recent years with the question of whether religious bodies fall within or outside the scope of judicial review. The case law is all one way. There is no question in my view that that case law would be altered by one jot by the enactment of Clause 6 as it stands.

Perhaps I may give one or two examples. There was a recent case in which the question was whether the decision of the Chief Rabbi, in determining whether a person is morally and religiously fit to occupy the position of rabbi, was judicially reviewable. In the case of ex parte Wachmann, Mr. Justice Simon Brown decided in 1972 that a decision of the Chief Rabbi, exercising this role, was essentially of a religious nature, that it was not the exercise of a public function and that

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for this reason it was not judicially reviewable. That case law would apply directly to the way in which one interprets the notion of public authority and public function in Clause 6.

The same reasoning was that of Lord Justice Hoffmann in the Jockey Club case in the Court of Appeal where he approved a decision in the Wachmann case. He said:

    "Religion is something to be encouraged but it is not the business of government".

A like decision was reached by the English Court of Appeal in a case called Ali v. the Imam of Bury Park on 12th May 1993 in respect of a decision of the Imam of a mosque. His decision, on the same reasoning, was held not to be judicially reviewable because the sole source of his power was the consensual submission of the mosque community to the provisions of the mosque constitution and he had no public law function.

The most recent example was a decision only in November 1997 of Mr. Justice Lightman in a case involving the Court of the Chief Rabbi, the London Beth Din, licensing the ritual slaughter of animals in accordance with Jewish law. Again, Mr. Justice Lightman explained, relying on all of these cases, that these were all matters for religious courts to determine--they were not matters that the civil courts would determine--because in all these functions the bodies were not public authorities exercising public functions.

I do not see anything in Clause 6 or in any other provision of the Bill to suggest that that case law or the position explained by the noble and learned Lord, Lord Lloyd of Berwick, with regard to ecclesiastical courts would be altered by the Bill provided that what those courts were determining were religious questions. Of course, they might be determining other matters of a public nature. I cannot think of any at the moment but I suppose marriage might be such an example. There might be circumstances in which, to take a ludicrous example, black people were excluded from the marriage ceremony and the right to marry whereby Article 12 of the convention, read with the non-discrimination guarantee, would be violated. It is possible to think of cases where the procedural fairness requirements might be triggered.

I emphasise these cases because people become excited. They think of great church and state clashes when in truth our courts have sensibly drawn the line. There are no exceptions to the cases I have referred to. The position is quite clear. I eagerly await the response of the noble and learned Lord the Lord Chancellor to see whether what I have been saying, speaking from this Bench, represents the Government's view of the position. Speaking for myself, I do not believe it right to elevate this matter into one of those great 17th or 19th century Church and state conflicts. It is simply not about that, but about the rights of the individual to be fairly treated in accordance with the convention, with remedies in our courts and not only in the Strasbourg courts.

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