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Sir Brian Mawhinney: I was one of the few closer to the pace, in that I knew the outcome. That was not the point of citing that example. The point is that someone whom the Home Secretary told us would almost always be acting in a private capacity was designated by the European Commission of Human Rights as primarily operating in a public capacity. That blurring of the distinction was at the heart of the Home Secretary's presentation. We should be grateful for the Secretary of State's views on that.

Mr. Dewar: I have neither the time nor the inclination to rehearse the facts of the case, but I understand that it turned greatly on the circumstances of this gentleman's private life, which became a matter of contention.

I mentioned the Tyler case because the commission considered the Court of Arches and the consistory court, and found that they were public authorities, but complied with article 6. Under the 1921 Act, the courts of the Church of Scotland would not, I believe, be held to be public authorities. That is the distinction, and the reason why I argue strongly that there is no significant risk that they would be held to be public authorities and therefore open to intervention in the civil courts under the European convention on human rights.

If one looks at the record--this is important, and it is of course a matter of interpretation, but I ask the House to take my side of the argument--one will see that, even in the Scottish domestic courts, there has been a great reluctance to intervene in these matters.

The right hon. Member for North-West Cambridgeshire asked me about Strasbourg decisions, and to quote examples. Unashamedly, I say to him that I cannot quote examples, because there have been none--certainly in Scotland, on which I can speak with a little more clarity.

The European convention on human rights has been available for use since 1953. I understand that it may be a little easier to get to the courts once the convention has been imported into the ambit of the domestic courts, but human rights cases are often contentious and difficult cases. The fact that, in the past 45 years, no one has gone to the European Court of Human Rights and tried to

20 May 1998 : Column 1068

challenge my interpretation and understanding of the situation is of some significance--I put it no higher than that.

It is a little bit--I hope that no one thinks that it is undignified to say so--the case of the dog that did not bark, but, if we are going to have these problems, I think that we would have had at least a few yaps in those 45 years, and they have been conspicuous by their absence.

I know that I am repeating the point that I made in an intervention in the speech of the hon. Member for Gainsborough (Mr. Leigh), but I hold firmly to the point that the convention has been in being for more than 45 years. The fabric of our religious freedoms has not crumbled. The fact that we are now allowing the British courts--the Scottish and English courts respectively--to deal with the issues that come up under the convention of human rights represents no alteration of substance to the relationship between the Church and the courts.

I am not terribly impressed--although I understand it, and I do not want to be swept into an unsympathetic stance--with the idea that suddenly the floodgates will open, when no one can point me to any single change other than the forum in which the cases may be heard that will result from the Bill. It does not ring true.

I referred to the attitude of the Scottish domestic courts. They might be said to have a tendency to ca' canny on the matter. In considering ministers' relationship with the Church, the courts usually hold that they are not determining civil rights because the Church as a court is not a public authority.

I accept the point made by the hon. and learned Member for Orkney and Shetland, that the Logan case did not proceed beyond the interdict stage. I do not know why the counsel who appeared for the minister at the opening hearings did not draw attention to the 1921 Act, but, when he did, Lord Osborne sent the case packing in no uncertain terms, with some fairly robust obiter of one sort or another. That reinforces what seems to me to be the general situation. The picture is one in which the powers and the structure will continue, with the one change being the court to which one can go. The fears that have been expressed have not been realised in the past.

The jurisprudence to date, both domestic and in Strasbourg, indicates the extreme reluctance of the civil courts to become involved in any matters of religious worship, government, discipline or doctrine. It is my firm belief that that will continue. The measure is not based on whim: it is based on 45 years of experience in both jurisdictions.

I do not believe--[Interruption.] I shall finish shortly. I must say that the one thing that happens in government is that the Whips become very efficient.

I do not believe that there is a practical danger. I do not believe that the Scottish courts, given the 1921 Act, will be held to be public authorities. I do not want to hide from the House, but, if that does happen, there will of course be a difficulty. I do not believe that it will happen, and I am founding on that, but I have in honesty to say that, if they were held to be public authorities, it would be difficult to justify an exception for that public authority to pick it out from all the other public authorities. However, that is not an argument in which we need to be embroiled at the moment, because all the evidence so

20 May 1998 : Column 1069

strongly holds together to suggest that the danger will not emerge. That point has been put by the Lord Advocate and looked at thoroughly, and I believe it to be valid.

We have made considerable efforts to find a way forward, but we have not been able to find a form of amendment that meets in full the concerns of the Church of Scotland while preserving the integrity of our policy as a Government, as set out in "Bringing Rights Home". I doubt whether further reflection at this late stage will change that. Of course, my right hon. Friend the Home Secretary and I are prepared to consider any further representations from the Church of Scotland. I am conscious that the letter quoted this evening arrived literally in the past 24 hours; obviously, it must be looked at with care.

11 pm

I do not want to slam doors shut, but I have set out what I believe to be a genuine difficulty, and I cannot envisage its being easily resolved. I have to agree that no law is set in stone. In another context, we have spoken much of parliamentary sovereignty and the sovereignty of the House of Commons, and, if the unexpected difficulties that I have suggested will not happen turn out to be very real, I hope that neither I nor my Government would be too proud to look again at the situation. However, I do not think it sensible to legislate on the basis of a situation that we genuinely believe does not exist and will not happen. On that basis, I ask that amendment No. 46 be withdrawn.

Question put, That the amendment be made:--

The Committee divided: Ayes 308, Noes 128.

Division No. 283
[11.1 pm


AYES


Abbott, Ms Diane
Ainger, Nick
Alexander, Douglas
Allan, Richard
Anderson, Donald (Swansea E)
Anderson, Janet (Rossendale)
Ashdown, Rt Hon Paddy
Ashton, Joe
Atherton, Ms Candy
Atkins, Charlotte
Austin, John
Baker, Norman
Ballard, Mrs Jackie
Banks, Tony
Barnes, Harry
Battle, John
Bayley, Hugh
Beith, Rt Hon A J
Benton, Joe
Berry, Roger
Betts, Clive
Blackman, Liz
Blears, Ms Hazel
Blizzard, Bob
Boateng, Paul
Bradley, Keith (Withington)
Bradley, Peter (The Wrekin)
Bradshaw, Ben
Brake, Tom
Brand, Dr Peter
Breed, Colin
Brinton, Mrs Helen
Brown, Rt Hon Nick (Newcastle E)
Brown, Russell (Dumfries)
Browne, Desmond
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Burnett, John
Burstow, Paul
Byers, Stephen
Caborn, Richard
Campbell, Alan (Tynemouth)
Campbell, Mrs Anne (C'bridge)
Campbell, Menzies (NE Fife)
Campbell, Ronnie (Blyth V)
Campbell-Savours, Dale
Cann, Jamie
Caton, Martin
Chapman, Ben (Wirral S)
Chaytor, David
Chidgey, David
Church, Ms Judith
Clapham, Michael
Clark, Rt Hon Dr David (S Shields)
Clark, Paul (Gillingham)
Clarke, Charles (Norwich S)
Clarke, Rt Hon Tom (Coatbridge)
Clarke, Tony (Northampton S)
Clelland, David
Clwyd, Ann
Coaker, Vernon
Coffey, Ms Ann
Cohen, Harry
Colman, Tony
Cooper, Yvette
Corbett, Robin
Corbyn, Jeremy
Corston, Ms Jean
Cotter, Brian
Cranston, Ross
Crausby, David
Cryer, Mrs Ann (Keighley)
Cryer, John (Hornchurch)
Cunningham, Rt Hon Dr John
(Copeland)
Cunningham, Ms Roseanna
(Perth)
Dalyell, Tam
Darvill, Keith
Davey, Edward (Kingston)
Davey, Valerie (Bristol W)
Davidson, Ian
Davies, Rt Hon Denzil (Llanelli)
Davies, Geraint (Croydon C)
Davies, Rt Hon Ron (Caerphilly)
Davis, Terry (B'ham Hodge H)
Dawson, Hilton
Denham, John
Dewar, Rt Hon Donald
Dobbin, Jim
Dobson, Rt Hon Frank
Doran, Frank
Dowd, Jim
Drew, David
Eagle, Maria (L'pool Garston)
Edwards, Huw
Efford, Clive
Ellman, Mrs Louise
Ennis, Jeff
Fearn, Ronnie
Field, Rt Hon Frank
Fisher, Mark
Flint, Caroline
Follett, Barbara
Foster, Rt Hon Derek
Foster, Don (Bath)
Foster, Michael Jabez (Hastings)
Foster, Michael J (Worcester)
Fyfe, Maria
Gardiner, Barry
George, Andrew (St Ives)
George, Bruce (Walsall S)
Gerrard, Neil
Gibson, Dr Ian
Gilroy, Mrs Linda
Godman, Dr Norman A
Godsiff, Roger
Goggins, Paul
Golding, Mrs Llin
Gordon, Mrs Eileen
Gorrie, Donald
Griffiths, Nigel (Edinburgh S)
Grocott, Bruce
Grogan, John
Hall, Mike (Weaver Vale)
Hall, Patrick (Bedford)
Hamilton, Fabian (Leeds NE)
Hanson, David
Harris, Dr Evan
Healey, John
Heath, David (Somerton & Frome)
Hepburn, Stephen
Heppell, John
Hesford, Stephen
Hewitt, Ms Patricia
Hill, Keith
Hinchliffe, David
Hodge, Ms Margaret
Hoon, Geoffrey
Hope, Phil
Hopkins, Kelvin
Howarth, George (Knowsley N)
Howells, Dr Kim
Hoyle, Lindsay
Hughes, Ms Beverley (Stretford)
Hughes, Simon (Southwark N)
Humble, Mrs Joan
Hutton, John
Iddon, Dr Brian
Illsley, Eric
Jackson, Ms Glenda (Hampstead)
Jackson, Helen (Hillsborough)
Jamieson, David
Jenkins, Brian
Johnson, Alan (Hull W & Hessle)
Johnson, Miss Melanie
(Welwyn Hatfield)
Jones, Barry (Alyn & Deeside)
Jones, Mrs Fiona (Newark)
Jones, Helen (Warrington N)
Jones, Jon Owen (Cardiff C)
Jones, Dr Lynne (Selly Oak)
Jones, Martyn (Clwyd S)
Kaufman, Rt Hon Gerald
Keeble, Ms Sally
Kemp, Fraser
Kennedy, Jane (Wavertree)
Khabra, Piara S
Kidney, David
Kilfoyle, Peter
King, Andy (Rugby & Kenilworth)
King, Ms Oona (Bethnal Green)
Kingham, Ms Tess
Kumar, Dr Ashok
Lawrence, Ms Jackie
Laxton, Bob
Lepper, David
Leslie, Christopher
Lewis, Ivan (Bury S)
Liddell, Mrs Helen
Linton, Martin
Livingstone, Ken
Livsey, Richard
Lloyd, Tony (Manchester C)
Lock, David
Love, Andrew
McAllion, John
McAvoy, Thomas
McCabe, Steve
McCafferty, Ms Chris
McDonnell, John
McGuire, Mrs Anne
Mackinlay, Andrew
Maclennan, Rt Hon Robert
McNamara, Kevin
MacShane, Denis
Mactaggart, Fiona
McWilliam, John
Mahon, Mrs Alice
Mallaber, Judy
Mandelson, Peter
Marsden, Gordon (Blackpool S)
Marsden, Paul (Shrewsbury)
Martlew, Eric
Maxton, John
Meale, Alan
Merron, Gillian
Michael, Alun
Michie, Bill (Shef'ld Heeley)
Michie, Mrs Ray (Argyll & Bute)
Milburn, Alan
Miller, Andrew
Mitchell, Austin
Moffatt, Laura
Moonie, Dr Lewis
Moran, Ms Margaret
Morgan, Alasdair (Galloway)
Morgan, Rhodri (Cardiff W)
Morley, Elliot
Mudie, George
Mullin, Chris
Murphy, Jim (Eastwood)
Norris, Dan
Oaten, Mark
O'Brien, Mike (N Warks)
O'Hara, Eddie
O'Neill, Martin
Organ, Mrs Diana
Osborne, Ms Sandra
Pearson, Ian
Pendry, Tom
Perham, Ms Linda
Pickthall, Colin
Pike, Peter L
Plaskitt, James
Pond, Chris
Pope, Greg
Pound, Stephen
Prentice, Ms Bridget (Lewisham E)
Primarolo, Dawn
Quinn, Lawrie
Radice, Giles
Rammell, Bill
Reed, Andrew (Loughborough)
Reid, Dr John (Hamilton N)
Robertson, Rt Hon George
(Hamilton S)
Rooker, Jeff
Rooney, Terry
Ross, Ernie (Dundee W)
Rowlands, Ted
Roy, Frank
Ruddock, Ms Joan
Russell, Bob (Colchester)
Russell, Ms Christine (Chester)
Salmond, Alex
Salter, Martin
Sanders, Adrian
Savidge, Malcolm
Sawford, Phil
Sheerman, Barry
Singh, Marsha
Skinner, Dennis
Smith, Rt Hon Andrew (Oxford E)
Smith, Angela (Basildon)
Snape, Peter
Soley, Clive
Southworth, Ms Helen
Spellar, John
Squire, Ms Rachel
Steinberg, Gerry
Stewart, Ian (Eccles)
Stinchcombe, Paul
Stoate, Dr Howard
Strang, Rt Hon Dr Gavin
Straw, Rt Hon Jack
Stuart, Ms Gisela
Stunell, Andrew
Sutcliffe, Gerry
Swinney, John
Taylor, Rt Hon Mrs Ann
(Dewsbury)
Taylor, Ms Dari (Stockton S)
Taylor, David (NW Leics)
Taylor, Matthew (Truro)
Thomas, Gareth (Clwyd W)
Tipping, Paddy
Todd, Mark
Tonge, Dr Jenny
Touhig, Don
Trickett, Jon
Twigg, Derek (Halton)
Twigg, Stephen (Enfield)
Tyler, Paul
Vaz, Keith
Wallace, James
Walley, Ms Joan
Ward, Ms Claire
Welsh, Andrew
White, Brian
Whitehead, Dr Alan
Wicks, Malcolm
Williams, Rt Hon Alan
(Swansea W)
Williams, Alan W (E Carmarthen)
Willis, Phil
Wills, Michael
Winnick, David
Winterton, Ms Rosie (Doncaster C)
Wise, Audrey
Woolas, Phil
Wright, Anthony D (Gt Yarmouth)
Wright, Dr Tony (Cannock)

Tellers for the Ayes:


Mr. Kevin Hughes and
Mr. Robert Ainsworth.


NOES


Ainsworth, Peter (E Surrey)
Amess, David
Ancram, Rt Hon Michael
Arbuthnot, James
Atkinson, Peter (Hexham)
Baldry, Tony
Bercow, John
Beresford, Sir Paul
Blunt, Crispin
Boswell, Tim
Bottomley, Peter (Worthing W)
Bottomley, Rt Hon Mrs Virginia
Brady, Graham
Brazier, Julian
Brooke, Rt Hon Peter
Browning, Mrs Angela
Bruce, Ian (S Dorset)
Butterfill, John
Cash, William
Chope, Christopher
Clappison, James
Clifton-Brown, Geoffrey
Collins, Tim
Cormack, Sir Patrick
Cran, James
Curry, Rt Hon David
Davis, Rt Hon David (Haltemprice)
Day, Stephen
Dorrell, Rt Hon Stephen
Duncan Smith, Iain
Evans, Nigel
Faber, David
Fabricant, Michael
Fallon, Michael
Flight, Howard
Forth, Rt Hon Eric
Fowler, Rt Hon Sir Norman
Fox, Dr Liam
Fraser, Christopher
Gale, Roger
Garnier, Edward
Gibb, Nick
Gill, Christopher
Gray, James
Green, Damian
Greenway, John
Grieve, Dominic
Hamilton, Rt Hon Sir Archie
Hammond, Philip
Hawkins, Nick
Hayes, John
Heald, Oliver
Heathcoat-Amory, Rt Hon David
Hogg, Rt Hon Douglas
Horam, John
Howard, Rt Hon Michael
Howarth, Gerald (Aldershot)
Hunter, Andrew
Jack, Rt Hon Michael
Jackson, Robert (Wantage)
Jenkin, Bernard
Johnson Smith,
Rt Hon Sir Geoffrey
Key, Robert
Kirkbride, Miss Julie
Laing, Mrs Eleanor
Lait, Mrs Jacqui
Lansley, Andrew
Leigh, Edward
Letwin, Oliver
Lewis, Dr Julian (New Forest E)
Lidington, David
Lilley, Rt Hon Peter
Loughton, Tim
Luff, Peter
Lyell, Rt Hon Sir Nicholas
McIntosh, Miss Anne
Maclean, Rt Hon David
McLoughlin, Patrick
Malins, Humfrey
Maples, John
Maude, Rt Hon Francis
Mawhinney, Rt Hon Sir Brian
May, Mrs Theresa
Moss, Malcolm
Nicholls, Patrick
Norman, Archie
Ottaway, Richard
Page, Richard
Paterson, Owen
Prior, David
Randall, John
Robathan, Andrew
Robertson, Laurence (Tewk'b'ry)
Roe, Mrs Marion (Broxbourne)
Rowe, Andrew (Faversham)
Ruffley, David
St Aubyn, Nick
Sayeed, Jonathan
Shephard, Rt Hon Mrs Gillian
Simpson, Keith (Mid-Norfolk)
Smyth, Rev Martin (Belfast S)
Soames, Nicholas
Spicer, Sir Michael
Spring, Richard
Stanley, Rt Hon Sir John
Steen, Anthony
Streeter, Gary
Swayne, Desmond
Syms, Robert
Taylor, Ian (Esher & Walton)
Taylor, Sir Teddy
Tredinnick, David
Trend, Michael
Tyrie, Andrew
Viggers, Peter
Walter, Robert
Wardle, Charles
Waterson, Nigel
Wells, Bowen
Whitney, Sir Raymond
Widdecombe, Rt Hon Miss Ann
Wilkinson, John
Willetts, David
Winterton, Mrs Ann (Congleton)
Winterton, Nicholas (Macclesfield)
Woodward, Shaun
Yeo, Tim
Young, Rt Hon Sir George

Tellers for the Noes:


Mr. John M. Taylor and
Mr. John Whittingdale.

Question accordingly agreed to.

20 May 1998 : Column 1072

Amendment made: No. 118, in clause 1, page 1, line 16, leave out 'section or Schedule 1' and insert 'Act'.--[Mr. Mike O'Brien.]

Question put, That the clause, as amended, stand part of the Bill:--

The Committee divided: Ayes 303, Noes 128.


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