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Mr. Edward Leigh (Gainsborough): At first sight, the debate may seem to involve lawyers dancing on the head of a pin and talking about whether we "may" or "must" take account of the jurisprudence of the European Court of Human Rights or whether we should be bound by it. Anyone listening to our debate would wonder what on earth we are going on about and why it is so important. Before the Minister nods too vigorously, I shall explain why the debate is important.

We had a lengthy debate a couple of weeks ago on the impact of the Bill on religious liberties, Church schools and the rest. The constant refrain of the Secretary of State for Scotland, who summed up for the Government and replied to the points made by me and other hon. Members, was, "I don't know what hon. Members are going on about. The convention has been around since 1951, and if it was such a threat to religious liberties or to Church schools, and if people were going to take organisations to court, that would have happened a long time ago." The problem is that the jurisprudence of the European Court is limited. I have the figures: of the 45 applications to Strasbourg on article 9, only five have been allowed to proceed to the European Court. The article 9 point is important, because the Government have constantly argued that it will protect conventions. The point that I have made all along is that the jurisprudence is weak.

The Minister has had a bit of fun today, because he has obviously read the debate in the other place, as I have. He maintains that Conservatives there argued that we should be bound by the jurisprudence of the Strasbourg court, while we are saying the opposite. Leaving aside the fact that we are perfectly entitled to probe the Government, the reason for that is that many of us are fundamentally unhappy about incorporating the convention and are unhappy about the Bill. We believe that it is virtually impossible for the Government to resolve the dilemma.

Let us assume that we go down the route advocated by my noble Friend Lord Kingsland, the shadow Lord Chancellor. He made the sensible point, with which I agree, that, if we are to protect our religious liberties, we should give more cognisance and more authority to the jurisprudence of the European Court, because it has been conservative in moral, social and religious matters.

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I think that Lord Kingsland's argument was entirely justifiable. The Lord Chancellor disagreed, and said that our judges would be bound too closely. However, Lord Kingsland's argument--and my argument--is that we are in danger of not simply incorporating the convention in our law, but going much further. What we are creating is an entirely new Bill of Rights. We are giving our judges--who, under clause 2, must "take into account" the matters specified--considerable flexibility in how they interpret the convention.

5.30 pm

My hon. Friends and I have referred to religious liberties, and the threat that the convention might pose to Church schools and other religious charities. The European Court has been very conservative, and, for that reason, the jurisprudence is very limited. The European Court has constantly applied the margin of appreciation, telling people that the cases that they have brought to it are really matters for the national courts.

Our judges, however, will not be bound by the European jurisprudence, and we anticipate a rash of cases of the kind that we were discussing a couple of weeks ago. An example is a Catholic school being taken to court because it has dismissed a head teacher following her divorce. We feel that our judges, rather than being in the conservative mould of the European judges, might go much further, and that there could be a real threat to religious freedoms.

That is why I consider Lord Kingsland's argument perfectly logical. The problem is that anyone wishing to advance such an argument must be pretty pro-Europe. The Lord Chancellor teased his shadow, accusing him of being "Janus-like". Another Law Lord who has already been mentioned--I think it was Lord Browne-Wilkinson--disagreed with the amendments that we were pressing in the other place. His point, which I think has already been referred to, was that the European Court had been much expanded, and now contained judges not just from western Europe but from central and eastern Europe. Some of those countries do not have our long traditions of freedom.

Mr. Edward Garnier (Harborough): I think Lord Kingsland's point was one that he made on Second Reading last November. He feared that the jurisprudence of the European convention, and of the Court in Strasbourg, would not be exactly replicated in the decision making of British judges. I think he said that it would not be "an exact photograph".

Mr. Leigh: I am grateful to my hon. and learned Friend. The visual image conveyed by the phrase "an exact photograph" is very powerful.

Mr. Hogg: I have listened to my hon. Friend with great interest and some surprise. As I understand it, he is saying that he feels safer with the interpretation of the convention by the European Court than with the prospect of its interpretation's being at the discretion of our judges. That is a most unusual position for my hon. Friend to adopt, and I am anxious to confirm that I have not misunderstood him.

Mr. Leigh: My right hon. and learned Friend, with his piercing intellect and acute mind, has gone to the heart of

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the difficulty that I face. He is, of course, absolutely right. I am afraid that there is no easy way out of the dilemma, except to reject the Bill entirely, which we are not going to do--or, rather, the House of Commons is not going to do. We must try to argue our way out of the problem.

As my right hon. and learned Friend implied, given the track record of the European Court's jurisprudence over the past 50 years, I have more confidence in it than in the jurisprudence that may develop in our own courts.

Mr. Hoon: Perhaps I can help the hon. Gentleman. Does he believe that the Conservative party should reject incorporation?

Mr. Leigh: My personal view, which I have argued all along, is that we should reject it. Along with those of my hon. Friends who, like me, have a particular interest in religious liberties, I have said that we are going down a very dangerous route.

Mr. John Bercow (Buckingham): I hope that my hon. Friend will not be self-effacing about his opposition to incorporation. It is extremely robust, very articulate and widely shared.

Mr. Leigh: My hon. Friend is typically generous. I claim no particular virtue in opposing incorporation, except to make a general point. I believe that, over many centuries, our country has developed a rigid demarcation between the role of judges, which is to interpret the law, and the role of Parliament, which is to make the law. Those of us who oppose incorporation do so because we believe that judges will be given a new, expanded role that will eventually politicise them in the way in which they have been politicised in the United States.

Mr. Hogg: As this is a Committee stage, I hope that I shall be forgiven for intervening again--and, no doubt, again and again.

I know the background from which my hon. Friend comes, and I know that he is concerned about the religious issues raised by the convention. May I suggest, however, that while his conclusion that he is safer with the European judges' interpretation of the convention may be justified in the context of religious freedoms, it is not justified in the wider context?

I am sure my hon. Friend will agree that the judges of the European Court have extended the convention well beyond what the founding fathers originally contemplated, in, for instance, the sphere of unusual punishments. I suggest that, because of his concern about one particular point--religious freedoms, and what has been done in the European Court to safeguard them--my hon. Friend has reached the general conclusion that he is safer in the hands of the European Court than in those of the courts of England and Wales.

Mr. Leigh: My right hon. and learned Friend may be making a valid point. I hope that he will not mind if I see my role in this short debate as that of spokesman for religious organisations. As he will know, there is a great deal of concern, especially in the religious press and among religious organisations such as the Roman Catholic

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and Anglican Churches. Those bodies need to be reassured, and I therefore thought it important to mention them today, as I did a couple of weeks ago.

Mr. Clappison: My hon. Friend has moved on to important terrain. Religious organisations will be looking for protection from the European Court, within the conservative frame of reference that we have been discussing. As they will no longer have an absolute defence, as the Lords Committee voted to take it out of the Bill, will they not now look for a certain amount of judicial self-restraint from judges in this country and in the European Court to protect them from the vexatious litigants that many fear will follow decisions that we have already made?

Mr. Leigh: My hon. Friend makes an important point, and I hope that the Minister will make a similar point. There are vexatious litigants waiting out there--people with an anti-Church agenda. I assume that the Bill will be passed as it is now drafted, given the parliamentary arithmetic. Our judges will therefore not feel bound by the conservative jurisprudence that has developed in Europe over the past 40 or 50 years. They will have to apply many self-denying ordinances to ensure that they do not go down a dangerous route. I can see no way out of the dilemma. If the Bill is enacted, our judges may be bound by European jurisprudence. I do not want that, because I have great confidence in our judges.

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