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Lord Henley: My Lords, I rise briefly to give the House some idea of our thinking on these amendments and those tabled in the name of my noble friend Lady Young, with which we shall deal later. My noble friend Lord Campbell of Alloway made it quite clear that his amendment was one approach to this particular problem and that that of my noble friend was another. He also made it clear that both sets of amendments were entirely free standing and could exist on their own. However, I suspect my noble friend will agree that it would not be wise for the House to try to press both sets of amendments and try to include both of them in the Bill.

As this is the fourth--or, possibly, the fifth--time that we have discussed such matters, I do not intend to rehearse the arguments which were put forward at some considerable length at previous stages. Indeed, I made it quite clear earlier, especially on Report, where we stood on this sort of amendment and that we offered our support. However, I must now give some indication to my noble friend Lord Campbell of Alloway and to my noble friend Lady Young as to how I would recommend those of us on these Benches exercise our choice.

I prefer the amendments of my noble friend Lady Young. Therefore, when my noble friend Lord Campbell of Alloway considers how he should proceed with his amendments, I hope that he will feel it appropriate to withdraw them and leave it to my noble friend Lady Young to argue the case for her amendments and to press them at a later stage this afternoon.

The Lord Chancellor (Lord Irvine of Lairg): My Lords, the grouping is perhaps not entirely satisfactory. It is a difficult question how fully to respond to this debate on the first grouping of amendments without trespassing on the ground to be covered by Amendment No. 3 in the name of the noble Baroness, Lady Young, in the third grouping of amendments we shall consider.

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But having regard to the extent to which some of your Lordships have ranged in this debate I think it better if I reply comprehensively so that the Church may be satisfied that we have given the fullest possible responses to its concerns. Therefore when we reach the amendments of the noble Baroness, Lady Young, I shall endeavour not to repeat, at any rate excessively, what I say now, although much of it applies equally there.

Let us remember that the European Convention was drawn up after the Second World War in response to the devastation it caused, accompanied by the grossest denials of human rights. It is a convention for the protection of human rights and fundamental freedoms. I emphasise the word "fundamental". For nearly 50 years the United Kingdom has been bound under international law to observe those basic human rights of people within its jurisdiction. I echo what the noble Lord, Lord Lester of Herne Hill, said. Over the some half century that we have been signed up to the convention, the Church has not experienced any problem whatever--that I am aware of--with the convention. It has been the clear desire of all the main political parties, and has had their general assent, that we comply with our convention obligations. That has been so for 50 years. The purpose of this Bill is to bring those rights home. It is to enable people to enforce their human rights in the courts of the United Kingdom rather than having to take their case to Strasbourg. The Bill does not create new human rights or take any existing human rights away. It provides better and easier access to rights which already exist.

In short, human rights are valuable and they deserve protection at home--equal protection to the protection to which they are entitled at Strasbourg. It is these central beliefs that lie at the heart of the Bill. When we introduced the Bill we did not expect it to meet with unanimous acclaim. But we did think that the principle of improving people's access to human rights would gain the strongest general support. I have to confess, as I did on Report, that it certainly did not occur to us that a campaign--admittedly, a very limited one--to deny access to human rights would be led by those claiming to speak on behalf of the Churches. What I have just said is in no way intended to belittle the sincerity or anxiety of those in the Churches who have expressed some concern about the impact on them of allowing human rights to be the subject of litigation in our own courts. I cannot claim--and I did not claim on Report--that we anticipated these concerns when the Bill was being prepared. But I can say that we listened carefully to the concerns as soon as we were made aware of them. I desire to persuade your Lordships' House that our responses have been full and satisfactory.

I remind your Lordships about events so far. First, a meeting was arranged with Home Office officials before Christmas. The meeting was at the request of the Church of England but helpfully included representatives of the other Churches. I think it fair to say that the Churches' representatives were given every conceivable opportunity to identify and present whatever anxieties they had. Following that meeting, a letter was sent to the Churches giving a considered response to all the

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points that had been raised. I believe that a number of your Lordships will have seen and read that letter. No suggestion has been received, in response to that letter, that the assurances which it gave on the particular points which it addressed were in any way inadequate.

Subsequently, at Report stage, we discussed a number of amendments dealing with the position of the Churches. On one point--the action to be taken when a measure of the General Synod of the Church of England is declared incompatible with a convention right--the Government felt able to bring forward an amendment. That amendment was proposed by my noble friend Lord Williams of Mostyn and dealt with a proper concern which had been expressed and was particular to the Church of England. It was graciously received by the right reverend Prelate the Bishop of Ripon, and by the House, and it has disposed of that aspect of the Church's concerns. The Government did not feel able to agree to the amendments brought forward at that stage by the noble Baroness, Lady Young, but I took the opportunity to reassure the Churches and the House in detailed terms about the Churches' expressed concerns.

Having heard the Government's response the right reverend Prelate the Bishop of Ripon said on Report,


    "The Government have begun to take note of the deep concerns of the Churches. I am grateful to the noble and learned Lord the Lord Chancellor and to the noble Lord, Lord Williams of Mostyn, for the great care and attention that they have given to our concerns, and to their officials for the careful work that they have done".--[Official Report, 19/1/98; col. 1325.]
At col. 1326 the right reverend Prelate referred to,


    "a more general concern about the right of the General Synod to introduce measures and the degree of control which Parliament would be taking back were it to subject General Synod legislation to the provisions of the Bill. However, I believe that when we reach Amendment No. 46 we will find that our concerns have been met".
Amendment No. 46 was in the name of my noble friend Lord Williams of Mostyn. The right reverend Prelate continued, at col. 1327,


    "There are issues of great importance and considerable concern. We shall listen to the Government's reply with great attention".
I was gratified by those observations of the right reverend Prelate. Following the assurances which I gave I observed with pleasure that no bishop thought it right to vote against the Government on the amendments. I have therefore to ask myself whether it is the case that there is anything of real practical substance in the concerns that have been expressed.

Let us talk in general terms about the European Convention on Human Rights. Article 2 deals with the right to life. The Church will not breach that. Article 3 deals with prohibition of ill treatment, torture and degrading or inhuman treatment or punishment. The Church will not breach that, nor Article 4 which concerns the prohibition of forced labour, nor Article 5 which concerns the guarantee of liberty. To the extent that the Church courts are subject to Article 6, that, too, has not so far proved to be a problem. We have no submissions on that. Article 7 can hardly be relevant--the prohibition of retrospective criminal penalty. Articles 8, 10 and 11 all contain provisions which allow a proper reflection of the rights and freedoms of others, including, we say, the rights and freedoms of Church

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members. Article 9 guarantees religious freedom, so that cannot be a problem either. Article 12 concerns the right to marry. I shall discuss that in more detail in a moment. As I explained on Report, Article 14 is not a freestanding, generalised guarantee against discrimination but merely refers to discrimination in respect of the specific convention rights listed in the convention which are not enlarged by Article 14.

If we move to the protocols, the Church will not interfere with an individual's right to the peaceful enjoyment of his possessions--or deprive him of them--guaranteed by Article 1 of Protocol 1. Article 2 of the protocol guarantees the right of parents to choose education in conformity with their own religious and philosophical convictions. I cannot see how this could be any problem for the Church. Article 3 is about elections, and again is a matter which does not touch the Churches.

I analyse the convention shortly in this way just to show that there is nothing in the Bill which in practice will pit the Church and the secular courts against each other. Let us therefore focus on particular concerns and not on generalised concerns. I submit that we should not be using language to suggest that here we are on the brink of some Olympian clash between Church and state. Of course we are not. We are discussing a very few particular points and, I hope, looking at them with a sense of proportion to see whether there is anything to worry about.

One of them is the question of appointments to key positions in Church schools or religious charities. The answer to that is simple. I submit to the House that it is compelling. Nowhere in the convention rights is there a right to be appointed or to remain in a particular position or post. Article 14 has no impact upon the accuracy and width of that proposition. That point is really as simple as that.

The other question--and it really is the only other question--which has been of some concern to the Churches is the question whether they might be required to perform marriages of which they would disapprove from the standpoint of religious doctrine and therefore conscience. The first case cited is that of persons of the same sex who wish to be married to each other. I expressed my clear view on that on Report. I do not repeat it. I simply tell your Lordships that what I said is amply borne out by a decision of the European Court of Human Rights which has clearly held that the right to marry in Article 12 of the convention refers to,


    "the traditional marriage between persons of the opposite biological sex".
That is exactly what I advised your Lordships on Report. The case was one against the United Kingdom, and the court held that the legal impediment in the United Kingdom on the marriage of persons who were not of the opposite biological sex could not be said to have the effect of impairing the right to marry in Article 12.

But our domestic law is of the same effect. The legal impediment to which the European Court of Human Rights referred is an explicit statutory one in our own country. Section 11 of the Matrimonial Causes Act 1973, which applies in England and Wales, provides in

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terms that a marriage is to be void if, among other things, the parties are not respectively male and female. There is similar provision in Scotland in Section 5 of the Marriage (Scotland) Act 1977, which clearly states that there is a legal impediment to a marriage if both parties are of the same sex. So even if the British courts were to lay aside the convention jurisprudence, which of course they are not going to do, a decision by Parliament would be needed before any such views could be given effect. I do not think that any of us have any serious doubt about what the view of Parliament would be on that.

The remaining specific concern--I find it difficult to deal with anything other than specifics--expressed by the Churches is about the remarriage of divorced persons, to which some but not all ministers of religion are opposed. The point here is that while the convention clearly recognises a right to marry, it does not recognise a right to marry, or to re-marry, according to a particular form of ceremony of one's own choice. Not only is that what the convention means, that is also in accordance with our own domestic law. Section 8 of the Matrimonial Causes Act 1965 specifically provides, in respect of clergymen of the Church of England and the Church of Wales, who alone of the Churches have any obligation to conduct marriages anyway, that they shall not be compelled to solemnise the marriage of any person whose former marriage has been dissolved and whose former spouse is still living.

These are the concerns which have been presented to us; and these are the fullest responses, in frankness to the House, that I can give. It is against that background that I turn to the amendments tabled by the noble Lord, Lord Campbell of Alloway.

Amendment No. 8 would prevent a court making a declaration of incompatibility in relation to any provision of primary legislation if it concerned any spiritual matter, a term which is given a wide definition. That is the main amendment because Amendment No. 4 would simply make the provisions of Clause 2 subject to the religious provisions inserted into Clause 4 by Amendment No. 8, and Amendment No. 1 is of a purely declaratory nature.

The practical effect of Amendment No. 8 would be to prevent the remedial order procedure being used to correct an incompatibility between the convention rights and primary legislation on a spiritual matter. It does so by removing the trigger for the use of the remedial order procedure, namely a declaration of incompatibility.

I do not think that it is either necessary or even sensible to amend the Bill in this way. If one thinks of primary legislation on a spiritual matter, one thinks first of Measures of the General Synod of the Church of England. Your Lordships accepted a government amendment at Report stage which removed such measures from the scope of the order-making power. I cannot think of extant examples of Acts of Parliament as opposed to Measures of the General Synod which are both concerned with the decisions of a religion relating to teaching, ritual, and so on, and which raise a convention issue. I cannot think of an example. If such legislation did exist, then it would continue to operate under this Bill despite its incompatibility with the

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convention rights. The Bill protects primary legislation, whatever its subject matter may be. If it cannot be interpreted compatibly with the convention rights, then in our view the higher courts should be free to say so. But a declaration would not be binding on the parties concerned and would not of itself create any liability. That is completely different from a finding that a public authority has acted unlawfully by breaching the convention right when that breach is not sanctioned by statute. Those are entirely different things.

I turn to the amendment tabled by the noble Lord, Lord Renton. His amendment is in very wide terms. I think that it is helpful to address it because it is grouped with these amendments. It takes us straight back to a full-blooded exemption for the Churches.

I shall pass over quickly the question of what effect is achieved by inserting the word "corporate" before "religious body". Religious bodies are not normally categorised according to whether or not they are incorporated. But I leave that aside. The very real question of principle is whether it is right to exempt the Churches from the duty not to act incompatibly with the convention rights and from the liability which rests on them to the extent that they are properly to be regarded as public authorities to answer for their actions. That is really the issue which the House determined at Report stage, and I believe that the House should answer the same question and give the same answer today. We think it right as a matter of principle that the Bill should bear equally on all bodies which, on a reasonable view of the part they play in public life, can properly be regarded as public authorities. We do not believe that the Bill will encourage the ordinary courts, or that the ordinary courts will even be disposed, to interfere in purely spiritual matters. But if--and it is a very large "if"--a religious body should find itself, no doubt inadvertently, acting in a manner that is incompatible with basic human rights and fundamental freedoms, we believe that it ought to be amenable to correction in the same way as any other organisation playing a similar role and that the Churches should embrace that.

4.30 p.m.


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