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The Lord Bishop of Exeter: I shall speak to Amendment No. 40 in support of the remarks made by the noble Baroness, Lady Young, especially as regards her plea for clarity and definition. I very much regret that our timetable in this Chamber has given the Church of England very little time to scrutinise the legislation. However, some anxiety was expressed in that other place--the General Synod--this afternoon on the matter. We shall try to continue to do so.
I should like, in particular, to raise the point about the fast-track procedure. If a Minister believes that there is a conflict between the decisions of the General Synod, which are in legislative form--the law of the land--and the convention, he or she can amend the measures of the General Synod by order. The measures of the Synod are passed by Parliament. But in this case a Minister will be able to amend Synodical legislation by order without consulting the Synod. I believe that we shall find this unacceptable and shall want to continue to scrutinise the legislation in its further stages.
I assure the Committee of the determination, certainly of the established Church, to improve its procedures on accountability. I am myself a member of a working party that is seeking to revise the ecclesiastical jurisdiction measure of 1963 which has been found in
practice to be an unwieldy measure. We are trying to improve the whole process of accountability and discipline of the clergy. But having said that, I make the practical point that there is a necessity surely to avoid legislation that becomes unworkable because of lack of finance. This is where Churches differ from other public bodies, many of which can draw upon taxes to create the necessary machinery for dealing with the kind of procedures envisaged in the convention. However, the finances of Churches are almost entirely voluntary. The people in the pew would finance the very procedures by which they could make complaints. That may not work well in practice. I support the plea of the noble Baroness, Lady Young, for greater clarity and definition.6 p.m.
Baroness Carnegy of Lour: I have listened to the discussion carefully as a lay person who does not know an enormous amount about the subject. Will the noble and learned Lord the Lord Chancellor in his reply make it plain to the Committee how a body knows, under the Bill, whether it is liable to be caught by Clause 6 or not? That is the critical question: how a body which is not easily understood to be a public authority knows whether the Bill applies to it or not.
The Lord Chancellor: I am rightly reminded by the noble Baroness, Lady Young, that lay people are entitled to understand Acts of Parliament. I entirely agree. I am mindful of the Shavian maxim that professions are a conspiracy against the laity. Therefore I shall endeavour not to participate in that conspiracy but to make matters as clear as I can.
I am urged by the noble and learned Lord, Lord Simon of Glaisdale, not to don my mephistophelean hat. The problem is that the noble and learned Lord regards me as Mephistopheles whenever I do not accept an amendment moved by him. As the noble and learned Lord will appreciate, there is a distinction between amendments which challenge the basic scheme and the structure of the Bill--which, if you believe in the basic scheme and the structure of the Bill, you will not accept--and amendments which one must consider with an open mind if, without doing violence to the basic scheme of the Bill, they offer collateral improvements. As regards the Government being willing to consider an amendment that was moved before this group as a possible collateral improvement, that was readily accepted by my noble friend Lord Williams of Mostyn.
The point about the Bill is that it has a coherent intellectual structure. It rests upon giving the strongest jurisdiction possible to the judges to interpret Acts of Parliament so as to make them, whenever possible, compatible with the convention. But then the Bill reflects the decision that when a court is unable to do that and make a declaration of incompatibility the Bill does not embrace the doctrine of implied repeal--which it could have done--and allow the courts to strike down Acts of Parliament; it goes down the route of a declaration of incompatibility which then leaves Parliament free, a sovereign Parliament which must decide whether to pass a remedial order or indeed a full
amending Bill. That is part of the central scheme of the Bill, as also is the definition of public authority which I shall endeavour to explain.
- "It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".
There are some bodies which are obviously public authorities such as the police, the courts, government departments and prisons. They are obviously public authorities under Clause 6(1). However, under Clause 6(3)(c) the term "public authority" includes,
- "any person certain of whose functions are functions of a public nature".
I ask the noble Baroness, Lady Young, to abstain from asking herself the question: is this a public authority just looking at the body in the round? That is what Clause 6(1) invites us to do. However, Clause 6(3)(c) asks whether the body in question has certain functions--not all--which are functions of a public nature. If it has any functions of a public nature, it qualifies as a public authority. However, it is certain acts by public authorities which this Bill makes unlawful. In Clause 6(5) the Bill provides:
- "In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private".
Therefore Railtrack, as a public utility, obviously qualifies as a public authority because some of its functions, for example its functions in relation to safety on the railway, qualify it as a public authority. However, acts carried out in its capacity as a private property developer would no doubt be held by the courts to be of a private nature and therefore not caught by the Bill.
The noble Lord, Lord Lester, is right: we took a policy decision to avoid a list. I am appreciative that he supports our not having gone down the route of an exhaustive list. The disadvantage of a list is precisely the one identified by the noble Lord; namely, that it would be easy to regard it as exhaustive or to suggest that any non-listed body could be a public authority only if it was sufficiently analogous in its essential characteristics to a body that had qualified in the list. There are obvious public authorities--I have mentioned some--which are covered in relation to the whole of their functions by Clause 6(1). Then there are some bodies some of whose functions are public and some private. If there are some public functions the body qualifies as a public authority but not in respect of acts which are of a private nature. Those statutory principles will have to be applied case by case by the courts when issues arise. We think that it is far better to have a principle rather than a list which would be regarded as exhaustive.
On Amendment No. 40, I see no objection to the proposition that if any of the bodies listed exercise public functions they are caught by the convention save in relation to acts by them which are of a private nature. For example, I should have thought that the Church would have welcomed being bound by Article 8 which provides that,
- "Everyone has the right to respect for his private and family life, his home and his correspondence".
I urge the noble Baroness, Lady Young, to read the convention. Article 9 provides that,
- "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance".
- "Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".
The first and true effect of the amendments moved by the noble Lord, Lord Henley, in the place of the noble Lord, Lord Kingsland, would be to remove paragraph (c) of subsection (3) of Clause 6. The result would be that it would fall to the courts to decide what was or was not a public authority for the purpose of the Bill in accordance with subsection (1) of the clause. However, for good measure the noble Lord threw in examples of bodies that he would be content to see treated as public authorities. As he acknowledged, he has drawn those examples on a selective basis from those mentioned in the White Paper. Next, however, the noble Lord offered the Committee some examples of organisations which he thinks should definitely be excluded from being regarded as public authorities. In fact once subsection (3) of the clause is deleted or replaced, the probability of the courts regarding organisations of this kind as public authorities becomes remote.
While the amendments in the name of Opposition spokesmen would restrict the application of the Bill, the amendments in the name of the noble and learned Lord, Lord Simon of Glaisdale, would extend it. He would include any person supplying goods or services to the public. The convention, I suppose, would catch window cleaners, jobbing joiners, the girl who keeps the window cleaner's accounts and the boy who delivers the flyers from the local restaurant. I think that that is far too broad.
The juxtaposition of the amendments whose effects point in opposite directions encourages me to believe that we have the balance right in Clause 6 as it stands. I suggest to the Committee that both sets of amendments should be resisted.
What we have sought to do in Clause 6 is to set out a principle: first, that the effects of Clauses 6 to 8 should apply in the first place to bodies which are quite plainly public authorities such as government departments; and, secondly, to other bodies whose functions include functions of a public nature, and therefore the focus should be on their functions and not on their nature as an authority. In the latter case the provisions of the Bill would not apply to the private acts of the bodies in question.
That is the principled approach that we have chosen. Another approach would have been to draw up lists of the bodies to which the Bill did or did not apply. But we rejected that approach as a matter of principle. In particular, there would be the difficulty of compiling such a list, the arguments about it, and the difficulty at the end of the day of preserving any coherent rationale
in such a list. The debate that we have had today strengthens me in the view that it was right as a matter of principle to go for a principle and not a list.Against that background, there is not a great deal more that I wish to say about the particular cases cited. What is most obvious is that the lists could scarcely end where the Opposition have suggested that they might. I appreciate what the noble Lord, Lord Henley, said: that the amendments are put down primarily to probe. We agree of course that local authorities, the police, and so on, will be subject to the Bill. Any expression such as "public authority" is bound to cover them. But it is equally obvious that the list produced in the amendment does not delineate all the obligations that we have under the European convention which we seek to make justiciable by means of the Bill in our own courts. As to the bodies which noble Lords opposite would wish specifically to exclude, I think that they would be the first to agree, at any rate in private, that it would be extremely difficult to justify excluding those bodies, however worthy they are, and not others. Some of them I do not doubt carry out some functions which are functions of a public nature. It is possible that others do not. But we see no reason why bodies which carry out functions of a public nature should not be amenable to the convention rights as interpreted and applied by our own courts as they are already indirectly in Strasbourg unless, as I said, the nature of the act complained of is of a private nature.
Whatever interpretation might be applied to the expressions "public authority" and "public functions", I doubt whether anyone would go as far as the noble and learned Lord, Lord Simon. His amendment would shift the boundary an enormous distance at a single stroke. It does not need a Mephistopheles to see that. I cannot see any rationale in a society such as ours for regarding the fact of supplying goods or services as qualifying people to be treated as on a par with public bodies, or other organisations of at least a semi-public nature having regard to certain of their functions which will be of a public nature. It would be the smallest step from there, and perhaps more honest, to give the convention full horizontal effect, as it is sometimes called--that is, to regard the convention as applying to private individuals as well as to public authorities. I sense that the noble and learned Lord might not be too averse to that. But we think that that would be a step too far in a Bill which, I repeat, is designed to allow the convention rights to be invoked in this country by people who would have already a case in Strasbourg. I therefore respectfully suggest to those who moved the amendments to consider withdrawing them.
6.15 p.m.
Lord Campbell of Alloway: Before the noble and learned Lord sits down, perhaps I may respectfully ask whether it is right that the answer to the right reverend Prelate would be yes, assuredly, from what the noble and learned Lord said: the decision, guidance, or whatever it may be from synod would attract the fast-track procedure, but only if it is a private act. In the context of the administration of synod, how can one
differentiate between a private and general act? On that I would need the assistance of the right reverend Prelate. It is pretty finely drawn stuff, is it not?
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