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Baroness Young moved Amendment No. 6:


Page 2, line 21, at end insert--
("(4) Where a court or tribunal is determining a question which has arisen under this Act in connection with a Convention right it shall be a defence for a person to show that he has acted in pursuance of a manifestation of religious belief in accordance with the historic teaching and practices of a Christian or other principal religious tradition represented in Great Britain.
(5) For the avoidance of doubt, the teaching and practices referred to in subsection (4) above do not include any teaching or practice which contravenes the criminal law.
(6) Subject to subsection (5) above, the teaching and practices referred to in subsection (4) above shall include teaching or practice in accordance with a relevant historic creed, canon, confession of faith, catechism or formulary.
(7) In this section "manifestation of religious belief" shall be taken to include actions such as worship, observance, conformity to a moral or ethical principle, practice, teaching and employment policies.").

On Question, amendment agreed to.

Clause 3 [Legislation]:

Lord Mackay of Drumadoon moved Amendment No. 7:


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

The noble and learned Lord said: My Lords, this amendment is grouped with Amendment No. 21 and deals with the position of the Church of Scotland under the Church of Scotland Act 1921. In the light of the result of the Division that has just taken place, it is possible that the noble and learned Lord the Lord Advocate will agree that the matters covered by these two amendments merit further consideration by the Government. If he is prepared to give an undertaking to that effect, it may not be necessary for me to speak to the amendment in detail and consider whether to divide the House in the light of his reply. I see that that is not the case and I therefore turn to the merits of the matter.

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As I set out in some detail at both Committee and Report stages, there is concern about the incompatibility of the Bill's provisions with the Church of Scotland Act 1921. I need not rehearse the detail because it will be well known to those of your Lordships who have followed the debate. To pick up a phrase used by the noble and learned Lord the Lord Chancellor earlier this afternoon, the Church of Scotland considers the constitutional settlement acknowledged and recorded in the 1921 Act a matter of substance relevant to the history of the Church and the form of church government which it enjoys.

Since the union of the Church of Scotland and the Free Church in 1929 following the enactment of the 1921 Act, the constitutional settlement between Church and state has been recognised by successive governments of different political complexions. Indeed, I am informed that when the Moderator of the General Assembly of the Church of Scotland, to whom I referred earlier, visited No. 10 Downing Street during his annual visit at St. Andrew's tide last year and met the Prime Minister, he was impressed and pleasantly surprised at how well briefed the Prime Minister was about the contents of the 1921 Act and the constitutional settlement enshrined therein. I am told that at that meeting the Prime Minister sought to reassure the Moderator, and through him the Church of Scotland, that the present Government intended to respect that settlement. Against that background it is hardly surprising that the Moderator used the words:


    "We are dismayed that the Government apparently intends that this inconsistency should remain".
When the noble and learned Lord the Lord Chancellor replied to the amendment moved by my noble friend Lady Young I intervened to inquire about the proposition he articulated that it was right as a matter of principle that the Bill should cover all bodies, including Churches and Church courts, and that, if any religious body, however inadvertently, breached convention rights, it was right that the civil courts should intervene and regulate the situation. I firmly believe, and invite your Lordships to accept, that giving the civil courts the right--which goes beyond the jurisdiction they exercise at the moment to consider whether a matter is a spiritual one--to investigate how a spiritual matter has been conducted and whether Church courts, in adjudicating or legislating upon a spiritual matter, had breached a convention right as set out in the Bill would give rise to an incompatibility with the 1921 Act. It is therefore necessary for me to move this amendment and in due course a subsequent one to make it clear that, if the Government are not prepared to move, they will bring about this inconsistency. I beg to move.

The Lord Bishop of Ripon: My Lords, I said earlier in your Lordships' House that I did not pretend to understand this issue, and I probably still do not. In so far as I do understand it, I believe that the issue is whether the spiritual jurisdiction of the courts in Scotland derives from the spiritual authority of the Church rather than from Parliament. My understanding is that the Church of Scotland seeks to keep that

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separation, that the constitutional settlement of 1921 embodied it and that it is for that reason that the Church of Scotland describes itself as a free Church rather than an established Church, something which has come as a surprise to some noble Lords, not least those on these Benches.

I have debated the issue with some of my colleagues. We believe that the Church of Scotland's point is well made. We in the Church of England are perhaps a little envious of the 1921 settlement which embodies it so clearly. As I said before, I hope that the Government will be able to be generous to the Church of Scotland in their consideration of this matter.

7 p.m.

The Lord Advocate (Lord Hardie): My Lords, I should say at the outset that I make no apology for dealing with this debate at rather more length than is perhaps usual at Third Reading. I propose to deal with the points referred to by the noble and learned Lord, Lord Mackay of Drumadoon, under reference to points made by him and the history of the Church at Report stage.

This issue was raised, as noble Lords will be aware, by the noble and learned Lord and other noble and learned Lords at Report stage. It is an issue to which the Government have given considerable thought during the period since Report and I shall revert to deal with the point raised by the right reverend Prelate the Bishop of Ripon in due course. I wish to say at the outset that it is not accurate to suggest that the Government have been intransigent, have not given way and have not been willing to listen to try to accommodate the Church of Scotland. I shall return to that in due course.

We received letters on this subject from the noble and learned Lords, Lord Mackay of Drumadoon and Lord Mackay of Clashfern. My right honourable friend the Secretary of State for Scotland and I had a meeting with the Moderator of the General Assembly. The noble and learned Lord, Lord Mackay of Drumadoon, referred to the meeting with the Secretary of State and I should indicate that I was in attendance by video link--perhaps somewhat disembodied.

Following that meeting we had further discussions between Ministers and reached an understanding of what the Church of Scotland's concerns are. It is my purpose today to set out the Government's attitudes to those concerns. I wish to do this fully so that it is on the record. I hope that noble Lords and Members in the other place will appreciate that the matter has been given the full consideration it deserves.

I shall touch briefly on the historical background; secondly, I will deal with the Government's view of the practical problem which the Church faces; and, thirdly, I will go into what I might call the more theoretical implications of the amendment. At the end I shall deal with the point raised by the right reverend Prelate the Bishop of Ripon.

The Church of Scotland occupies a unique position in the constitutional framework of the United Kingdom. Prior to the Act of Union the Church was, to a great extent, regulated by Acts of the Scottish Parliament.

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Some of that legislation remains on the statute book to this day. The Act of Union, after referring to various Acts of the Scottish Parliament, provides that,


    "The foresaid true Protestant religion ... and its presbyterian Church, government and discipline that is to say the government of the Church by kirk sessions, presbyteries, provincial synods and general assemblies all established by the foresaid Acts of Parliament ... shall remain and continue unalterable".

There can be little doubt--and it is not surprising--that the Scottish Parliament was accustomed to regulating the Church of Scotland. But the relationship did not continue to be a harmonious one. It was what the Church saw as the interference of the state in its spiritual affairs which led to the disruption to which the noble and learned Lord referred in debate. That unhappy period of dispute between Church and state ended with the Act of 1921. By passing that Act, Parliament dissociated itself from the doctrine, worship, government and discipline of the Church of Scotland while reserving the jurisdiction of the civil courts in relation to civil matters.

The effect of the 1921 Act was to end the status of the Church as the established Church of Scotland and change it instead into a national Church. The 1921 Act recognised the independent jurisdiction of the Church of Scotland in matters spiritual. It is worth recalling exactly what was meant by that. I refer noble Lords to Article IV of the Declaratory Articles appended to the 1921 Act which provide, so far as is material for present purposes, that,


    "This Church, as part of the universal Church wherein the Lord Jesus Christ has appointed a government in the hands of Church office-bearers, receives from him, its divine King and Head, and from him alone, the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government and discipline in the Church".
The effect of that article was considered by the Inner House of the Court of Session in the case of Ballantyne v. Presbytery of Wigtown in 1936. I shall not trouble your Lordships with the detail of that case. Suffice it to say that the court ruled that any matter contained within Article IV of the Declaratory Articles, by virtue of being so contained, was a spiritual matter in relation to which the civil authority had no jurisdiction. Since Article IV of the Declaratory Articles mentions the government and discipline of the Church, those matters are spiritual.

For the purposes of the 1921 Act, as interpreted by the Court of Session in 1936, "spiritual matters" do not include only those matters relating to doctrine and worship, which one might have thought, on an ordinary view of the question, were included in that term, but include also the practical and administrative procedures by which the government and disciplinary procedures of the Church of Scotland are carried out.

The concern of the Church of Scotland is that if this Bill is not amended it is possible that the courts of the Church of Scotland will be held to be public authorities for the purposes of Clause 6 of the Bill and, indeed, may be held to be courts within the meaning of that clause. That in turn would mean that actions by those courts which were incompatible with a convention right would be reviewable in the Court of Session. In the Church's

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view that would amount to a reversal of the recognition by Parliament of the independence of the Church under the 1921 Act.

That is a brief summary of the background of the present legal position of the Church of Scotland and, more particularly and more importantly, of the genuine concern which the Church has in relation to this Bill. I shall now move to the second part of my remarks to consider how much of a practical, as opposed to a theoretical, problem there is. The acts, which the Bill treats as acts of a public authority, include, as your Lordships will see from Clause 6(3)(a), on the one hand, acts of a court or tribunal. On the other hand, as Clause 6(3)(b) provides, there are included acts of a person certain of whose functions are functions of a public nature. But, as is clear from Clause 6(5), acts of a private nature are not included.

The Church is concerned that its courts may be held to be public authorities within the meaning of Clause 6. As I indicated at Report, in response to a question from the noble and learned Lord, Lord Mackay of Clashfern, it is my view that the courts of the Church of Scotland are not courts for the purposes of this Bill. I should like to take a moment to explain why.

Courts of the Church of Scotland do not, as a matter either of their constitution or practice, carry out any judicial functions on behalf of the state. Nor do they adjudicate upon a citizen's legal rights or obligations, whether common law or statutory. They operate in relation to matters which are essentially of a private nature. Unlike the courts of the Church of England--this is one of the differences--they do not have the right to compel the attendance of witnesses or the production of documents.

During the period when, as I briefly described, the Church of Scotland was to a greater or lesser extent regulated by Acts of the Scottish and thereafter the British Parliament, it would have been easy to maintain that its courts were courts of the land exercising a different but, within their own area, an equal jurisdiction to the civil courts. But the effect of the 1921 Act, which, as I have said, recognised the independence of the Church from regulation by Parliament, was to define the Church as a non-public or private institution in the sense that its affairs were of no concern to the state. The 1921 Act effectively disestablished the Church of Scotland. It would seem to me illogical to say that the state had no interest or jurisdiction over the affairs of the Church and its courts while at the same time saying that those courts were nevertheless courts for the purposes of a public general Act. That is the Government's view on whether the courts of the Church of Scotland are courts for the purposes of this Bill. Clause 6, when read with Clause 2, is of course designed to invite the civil courts of the United Kingdom, as far as possible, to treat as a "public authority" those bodies which the Strasbourg institutions would treat as bodies whose acts engage the responsibility of the state. However, as I said at Report, whether or not the courts of the Church of Scotland are courts for the purposes of the Bill, it is possible that they might in some circumstances be public authorities.

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At the meeting which the Secretary of State and I had with the Moderator, who was accompanied by the Principal Clerk to the Church of Scotland, the procurator to the Church of Scotland and the solicitor to the Church of Scotland, no one in the party from the Church of Scotland was able to suggest a concrete example of a case in which a court of the Church of Scotland would clearly be acting as a public authority within the meaning of Clause 6. I may say that the meeting took some time. The matter was explored. The Church came prepared for the meeting. It was given plenty of time to come up with examples and it was significant that it was not able to do so. Within government there have been extensive discussions of this point among officials from the Lord Chancellor's Office, the Home Office, the Foreign and Commonwealth Office, the Scottish Office, the Cabinet Office, parliamentary counsel's office and my own office. Therefore, to suggest that this matter has been treated lightly is not a fair comment.


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