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Baroness Williams of Crosby: Before the noble Baroness sits down, perhaps in this brief moment between lawyers I may press her on something she said about which I am a little confused. Is not the EOC already able to intervene in an organisation that, for example, refuses employment to someone on grounds of race, sexual orientation, or whatever it may be? I am not clear what new matters the European convention would bring to this beyond what the EOC, the CRE and other such bodies can already do.
My other question relates to Churches. Could she say what happens, for example, in the case of a voluntary aided school? In a sense it is clearly a public authority. It is part of the public system of education, but it may stem from a religious foundation. What would be the consequence therefore in dividing the responsibility of schools were the amendment to be accepted?
Baroness Young: Voluntary aided schools form one of the groups about which I was speaking. As I understand it, those schools have considerable freedom to select on religious grounds. A Catholic school would want a Catholic head. I am not clear whether that right would remain under all of this. That is one of the points that must be cleared up. I am not a lawyer. I cannot pretend to interpret what is happening. I am merely asking the questions. These are serious questions. A governor is someone like myself trying to cope with something which is complicated.
Of course I recognise equal opportunities and other similar legislation, but the points about which I was thinking related to the Church. Let us take marriage, for instance. Is the Church allowed to say that it will not, as it were, "marry" a homosexual couple? That is the kind of thing that the Church should be able to decide. Will that be allowed? Can the Church be overruled because it is a public authority? There are many cases--I have mentioned just a few--where there could be difficulties, and a conflict of rights might arise: the rights of the homosexual as opposed to the rights of the Church. I do not know which would have dominance. This is a real point. I am seeking clarity on this matter, particularly with regard to what constitutes a public authority.
Lord Lester of Herne Hill: We are now dealing with an important set of amendments. I should like to speak to Amendments Nos. 36, 38 and 40 and make one or two introductory remarks before I turn to each of them. The drafters of the Bill have wisely included a broad, inclusive definition of what constitutes a public authority. They have done so because it is only possible on a case-by-case basis, looking at the particular body, the nature of the functions and the circumstances in which they are discharged, for the courts to come to a conclusion as to whether the activity falls on the side of a public function.
It is not a new problem. Indeed, the courts have been seeking to distinguish between those bodies that are subject to the supervisory jurisdiction of the courts in judicial review and those which are not for a number of years. By now, they have developed clear and coherent criteria of a general kind to decide which side of the line a particular body comes within. Therefore, I entirely agree with the need for a broad and inclusive definition rather than some kind of exhaustive list.
One noble Lord referred to the problem of privatised industries. It is clear from the case law of the European Court of Human Rights that, where a body that is private in form is performing a function that would otherwise be performed by a public authority, there would be international liability if that body does not comply properly with the convention. Perhaps we can imagine, for example, the privatisation of the Prison Service. It would be unthinkable if a body which was private in form but public in function could escape liability under the convention.
Lord Henley: As a matter of interest, can the noble Lord say whether that would mean that in a former Communist state, where everything was in the public sector, everything would therefore be a former public sector body, whether or not we would consider it to be totally private?
Lord Lester of Herne Hill: Even in a Communist state there are individual human beings who do things to each other without doing so in public clothing. Therefore, even in a Marxist totalitarian state it would not be the case that everything that was done by individuals would fall within the scope of the convention or the international covenant.
I was seeking to explain that my understanding is that in drawing the line between what is and what is not a public authority, the courts have developed clear principles in the context of judicial review in England, Scotland and Northern Ireland. In doing so, they have held, for example, that the functions of the Chief Rabbi acting in interpreting Rabbinical law fall plainly outside the scope of judicial review. Similarly--and we discussed this on the first day of Committee on 18th November in connection with another amendment--it is quite clear that the decisions of the Synod, or those of the bishops of the Catholic Church, or, indeed, those of any other church organisation or body, would not normally fall within the scope of a public authority.
Lord Lester of Herne Hill: The question to be asked is whether the functions performed by the person concerned are or are not functions of a public nature. That is exactly the same kind of question as arises all the time under Order 53 of the Rules of the Supreme Court and its counterpart under the Scots rules for judicial review. One has the broad question raised which has to be answered by the courts on a case-by-case basis.
The noble Lord, Lord Campbell of Alloway, raised the problem as to whether a ban on marrying homosexual couples would incur liability on a Church body which failed to do so. My answer would be that the Church body would not itself be liable. If the UK were to prevent marriages or the recognition of permanent unions of homosexual couples, that might or might not give rise to liability under Article 8 of the convention on the international plane. But in my opinion the Church itself would not be liable as a public authority.
I turn now to the specific amendments. Amendment No. 36 would create a yawning chasm between what is required by the convention and what would be done by the Bill. Under the amendment the only public authorities obliged to comply with convention rights would be local authorities, the police, immigration officers and the Prison Service. There can be no justification for excluding central government, a Scottish parliament, a Welsh senate, regional authorities and the wide range of government, quasi-government and other bodies performing public functions.
I turn now to Amendment No. 38 tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale. This amendment seeks to borrow the language of Section 29 of the Sex Discrimination Act 1975 in defining public authorities and public functions. The snag in that respect is that such statutory language was interpreted by a majority decision of the House of Lords in Re Amin  2AC 818 as confined to so-called "marketplace" activities. It would, therefore, have the reverse effect of what is intended by the noble and
Amendment No. 40 seeks to immunise from the duty to comply with convention rights religious organisations, hospices, voluntary-aided religious schools and religious charities. To the extent that any of those bodies were to exercise their powers in breach of convention rights, and to do so in a way that was characterised as a public function, it is hard to see why they should be immune from liability. Having said that, I find it difficult to conceive of circumstances in which any of those bodies would be directly liable as a public authority, with the possible exception of those in charge of voluntary-aided schools, if, for example--and this would be inconceivable--they were to exclude people of a particular colour or race and interfere with Article 2 of the first protocol to the convention, read with Article 14, in a context where there was no domestic remedy, which in fact there is.
However, I should have thought that even in respect of those bodies such matters can be safely left to the courts to consider in the light of Strasbourg case law and the facts of the case. I do not know of any decision that has been made by the courts in this country about what is a public authority which has created any difficult problem. Therefore, to sum up, I consider that the broad inclusive definition marches properly with the courts' functions. For the reasons that I have given, I believe that any attempt to be exhaustive and to be entirely prescriptive would be a mistake.
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