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Lord Lloyd of Berwick: My Lords, I shall speak briefly in support of Amendment No. 12. On Report, I asked the Government a number of questions about what would be the position of the ecclesiastical courts in England if the Bill passed through Parliament in its present form. I have to say that I received a very full and helpful reply for which I am grateful. It appears to be accepted that the decisions of the ecclesiastical courts have never before been subject to review by secular courts on their merits, whether by way of judicial review or any other judicial process, with the possible exception of an order obtained for something called "prohibition" but that certainly has not been applied for, or obtained, for 200 or 300 years. So the present position is that ecclesiastical courts are not subject to review by the secular courts.

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However, this Bill seems to be doing just that for the first time. It is possible that there would not often be a case of overlap between human rights and anything which might be decided by way of doctrine in the Church courts. However, that could arise. If that overlap arises, who will make the decision? Will it be the ecclesiastical courts of the secular courts? I am concerned not only for the Court of Ecclesiastical Causes Reserved, about which I spoke on Report and upon which I sit, but the same also applies to the Court of Arches which is presided over by Mr. Justice Owen, a very distinguished High Court judge. What is the purpose of making the decision of one High Court judge subject, on judicial review, to another High Court judge's decision? The same applies exactly to the Court of Ecclesiastical Causes Reserved, which has not one but two judges and also three bishops. What is the point of doing that? Because, I would urge your Lordships, there really is no point, I hope that the noble and learned Lord the Lord Chancellor will at least think of accepting Amendment No. 12, whatever attitude he may take to the other amendments. However, if he is unwilling to accept even Amendment No. 12, will he possibly consider what I understood him to say he would consider in relation to the Armed Forces; namely, designating the ecclesiastical courts as the appropriate court under Clause 7(1) of the Bill?

6.15 p.m.

Lord Coleraine: My Lords, I have attached my name in support of my noble friend's paving amendment to her substantive amendments. As she said, the amendments are more modest than those she moved on Report. I believe they are better amendments because they do not attempt to take the Churches outside the general obligation to observe convention rights. Indeed, that point was made by the right reverend Prelate.

It should be plain by now that the Bill and, consequently, the noble and learned Lord the Lord Chancellor, are still widely perceived as unfriendly to the religious freedoms of organised religions. I do not believe that we have far to look for the cause of that situation. If a Church is a public authority subject to the requirement to observe convention rights, it should be recognised in the Bill that it is a public authority of unique hybrid character. I say that because the Churches have their own human rights, which they have for the benefit of their members and adherents. It is these which require the special protective provision under the Bill which the amendments of my noble friend would provide.

Perhaps I may give your Lordships an example. The headteacher of a Christian Church school becomes a Moslem, or vice versa. The public authority concerned dismisses him, and he complains to a court that the action is unlawful under Clause 6(1) of the legislation as being incompatible with his convention rights under Article 9. Indeed, Article 9 provides for his freedom of thought, conscience and religion, including freedom to change his religion or belief and to manifest his religion or belief in worship, teaching, practice and observance. Were that headteacher to take his case to Strasbourg, I believe that he would be told that the United

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Kingdom, as a high contracting party, was not liable under Article 1 of the convention. The reason given would be that the laws of the United Kingdom secure to him adequate rights under Article 9, even if they do not allow him to exercise those rights in a situation detrimental to the religious rights of others.

I am much less certain about the position under the Bill. It seems to me that it may not be possible for a non-governmental public authority to put forward a defence to a Clause 6(1) action by replicating what I might call the defence by way of Article 1, which is available to a government in an application to Strasbourg. The dismissed headteacher will not be trying to demonstrate to the commission or the court in Strasbourg that UK laws do not secure his Article 9 rights. He will be arguing that the Church authority, in breach of Clause 6(1) of the legislation, has acted in a way which is incompatible with his individual rights to religious freedom. The result in such a case may be entirely different. It seems to me to point to a very real need to give protection to Churches by way of a defence in such a case.

It is easy to overlook the fact that religious practices, culture, disciplines and the like, which are the hallmark of a particular organised religion, add up to the religious freedom of those who belong to that organisation. The rights of organised religions to conduct themselves autonomously in the religious field are not sufficiently protected by the Bill. The position of Churches is, I believe, unique among public authorities in that they are susceptible to attacks against their own religious rights. Those rights are also human rights, so it is not a question of seeking special treatment but of asking, on behalf of religious organisations, for parity of treatment and regard.

Lord Ashbourne: My Lords, I express my support for this group of amendments so patiently argued by my noble friend Lady Young. It may be helpful to consider what has happened in other countries where this legislation has been introduced. For example, in Germany there is not the same sort of special interest group campaigning that there is in this country. In any event, the constitutional court, which judges human rights issues, is itself very conservative. All in all, the position of the Churches and mainstream religions in Germany is a protected one. As my noble friend explained, in effect, the Churches' position is ring fenced.

The situation is different in Holland. The convention is incorporated into ordinary law to be applied by ordinary courts. There have even been extraordinary cases where individuals have sought to use human rights legislation to force religious groups to employ atheists in positions of religious leadership. Noble Lords will of course judge for themselves, but it seems to me that that is an eminently unsatisfactory situation. If it has happened in Holland, it may well happen here if the amendment is not carried and the legislation comes into force in its present form. I commend the amendments to the House.

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Lord Rochester: My Lords, I think that those of my noble friends who have so far spoken this afternoon are aware that while I am a firm supporter of the Bill, on this particular issue of conscience, as I see it, my view differs from theirs. It is said that the terms of the European Convention, of legislation in this country and the present state of case law both in the United Kingdom and in Europe are such that the supporters of amendments like these have nothing to fear. My view is simply that representatives of Christian Churches, and, in the words of Amendment No. 15,


    "religious tradition ... in Great Britain"--
unlike my noble friend Lord Russell I think that is rather well phrased--should be explicitly protected in defence of decisions that they take that accord with their beliefs. In this conflict, actual or potential, between their rights and those of respective plaintiffs, it seems to me that the rights of the organisation should prevail and should be preserved in this statute. That being so, I find myself in support of the amendments of the noble Baroness, Lady Young. If they are pressed to a Division, I shall vote for them.

Lord Milverton: My Lords, I fully support the amendments of the noble Baroness, Lady Young. They are essential. If one is a minister in a Church or a lay person deeply involved in a Church, one realises how essential these amendments are. I am sure that other Churches recognise that. I hope that Her Majesty's Government will listen to the Scottish Church and give more leeway there.

The Lord Chancellor: My Lords, the noble Baroness, Lady Young, told your Lordships that her mailbag had been full of mail on this subject. For what it is worth, we have not received a great volume of correspondence on this issue, perhaps 20 or 30 letters at most, and of these there was a pretty even balance between those who support a special position for the Church and those who do not. I say particularly to the noble Earl, Lord Perth, that I think we can fairly claim that the totality of our response to the concerns of the Church shows both our responsiveness and our flexibility--the opposite of rigidity.

We have discussed these issues quite fully in our first debate on the amendments tabled by the noble Lord, Lord Campbell of Alloway. I made my general observations in that debate which are equally applicable here. I hope that I satisfied every specific concern of the Church. I think it is right to say that it is notable that not one of your Lordships has sought to challenge the correctness of the assurances which I gave both in relation to the convention and in relation to the meaning and effect of our existing statute book.

Amendment No. 3 would provide that the convention rights were to have effect for the purposes of the Bill subject to the religious provisions inserted into Clauses 2 and 7 by Amendments Nos. 6 and 15. Amendment No. 6 would provide that when convention points were raised in legal proceedings, it

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would be a defence for a person to show that he had acted in pursuance of a manifestation of religious belief. That phrase is defined broadly to include worship, observance, conformity to a moral or ethical principle, practice, teaching and employment policies.

I acknowledge that the wording of the noble Baroness's amendment borrows to some extent from the wording of Article 9 of the convention. To the extent that it does so, the amendment merely has the effect that a religious body would be able to invoke its own rights under Article 9, which is precisely what it can do anyway. But the real significance of the amendment, and its difficulty, is that the noble Baroness has not resisted the temptation to add a few glosses of her own. The amendment seeks to push matters beyond the point at which reliance can properly be placed on Article 9, or on any other article, and to that extent we believe that it is unhelpful. The most obvious illustration of that is in the reference in the amendment to employment policies. As I have already mentioned, this is something with which the convention simply does not deal at all. Therefore we do not think it is helpful for the Bill to deal with it in the way suggested in this amendment. I have certainly acknowledged the complete propriety of the Churches appointing persons of the appropriate belief and manner of life to key positions in religious schools but we do not think that any employment policy should receive automatic protection by means of an amendment like this, even if a convention point is at issue.

Amendment No. 15 to Clause 7 would exempt from the Bill a minister of religion or similar person who refused to conduct a marriage on the ground that it was contrary to his religious conviction. It would also exempt religious schools and religious charities from the Bill in relation to the appointment or dismissal of their senior officers. I acknowledge that this amendment addresses a specific concern that the Churches have voiced. I have done my best both at Report stage and earlier today to explain why these anxieties are misplaced and why there is no need at all for a fresh statutory guarantee of this kind to be granted. The point is that the Bill preserves primary legislation, unless and until Parliament decides to alter it, and allows legislation to be passed subsequent to the enactment of this Bill which will have effect notwithstanding this Bill. The particular matters that we are discussing are surely ones which are proper subjects for specific legislation, if the need were ever to arise. As I have tried to demonstrate, I do not believe for a single second that the need will ever arise. I believe that adequate legislation is in place and I believe that we have demonstrated that today.

But, if the Bill ever needs amendment, let it be amended with due consideration to all aspects of the issue, be it marriage or Church appointments which is in question. However, no one seems to be suggesting that the law needs amendment. I submit that that approach is greatly preferable to an attempt to anticipate every conceivable outcome--and a fair number of inconceivable ones as well--by means of general waivers from the Bill.

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I make this appeal if not to the noble Baroness at least to those in the Churches in whose interest she claims to act. Let us imagine a reader of the Human Rights Act in years to come, if this amendment succeeds and prevails. The reader would find that there were three contingencies which this Bill aimed to head off. The first is that primary legislation might be struck down by the courts. That would be well understood by our successors because of the acknowledged sovereignty of Parliament. But the second contingency that the Bill would try to head off would be that the courts of the United Kingdom might make a judgment obliging clergymen to celebrate same-sex marriages, and the third is that they might hold that an atheist or an adulterer or whatever must be appointed to be head of a Church school. The reader would be curious to know why the Act should be concerned with these two instances. He would look up the debate and find that those provisions represented the contribution of the Church to the debate on this issue. I am sure your Lordships will forgive me, but I respectfully suggest that our imaginary reader would find some lack of proportion in this and a good element of overreaching.

The point was made, "Let's have this on the face of the Bill because some people might have a go at impossible cases and the Churches will be put to the trouble and expense of defending them". I simply say this. We do not scatter our statute book with statements about cases that cannot be brought unless to correct some specific consequence which one can rationally say would otherwise follow as part of the effect of the Bill. We leave matters to gain their intended effect in accordance with the intentions of Parliament.

In theory we could try to anticipate--and who better than the noble Lord, Lord Lester, to assist us in this endeavour--every case which might conceivably come before the courts against literally any public authority, have a debate as to how we think it should be decided, and then put on the face of the Bill a multiplicity of single instances. That is simply not the way that we should legislate on matters of general principle. If your Lordships will reflect on it, it is a quite extraordinary proposition: that if one puts forward concerns which are comprehensibly demonstrated to be completely unfounded and are not subject to any attempt at rebuttal, one then says, "Never mind, let us still put these assurances on the face of the Bill as regards particular instances, although the Bill is concerned with a high general principle".

I ask the Church and the House whether they wish to send the message that those are matters with which the Churches are preoccupied in relation to this Bill, which is designed to guarantee human rights and fundamental freedoms being accorded by every public authority.

I turn briefly to Amendment No. 12 in the name of the noble and learned Lord, Lord Mackay of Drumadoon. The amendment would exempt from Clause 6 a court or tribunal,

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    "exercising a jurisdiction, recognised but not created by Parliament"--
I emphasise the words "not created by Parliament"--


    "in matters spiritual".
It would also exempt any religious body or person acting on its behalf if the religious body exercised such a jurisdiction. I suspect that the inspiration for the noble and learned Lord's amendment is the Church of Scotland. But the amendment is intended to be of general application. Our position is as explained earlier. 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--and that emphatically includes the courts. We do not believe that the Bill will encourage the ordinary courts, or that the ordinary courts will be disposed, to interfere in purely spiritual matters. But if--and it is a big "if"--any religious body should find itself, no doubt inadvertently, acting in a manner which is incompatible with basic human rights we believe that it ought to be amenable to correction in the same way as any other organisation playing a similar role.


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