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The Lord Bishop of Lichfield: I greatly regret that I am not comforted by the remarks of the noble and learned Lord the Lord Chancellor. He seems to have rather deliberately left out the question of religious freedom. I am concerned that a very strict, rather totalitarian view of "public" is endangering the freedom of choice of very large numbers of people in this country who see, as part of their democratic freedom, the freedom to have their children educated in a particular type of school without so-called public rights being used against that very basic freedom.

At Second Reading I was glad to speak on behalf of the Churches very much in favour of the Human Rights Bill. But if a sense of rights is being introduced in this total kind of way, at the expense of the choice of individual families, then something very serious is being lost. Church schools in my diocese welcome in considerable numbers children of other faiths. That is seen as a freedom that we respect in their case. I hope that we shall resist any infringement, on this very delicate matter, of the religious nurture of the young in our country.

Lord Lester of Herne Hill: Before the right reverend Prelate sits down, I wonder whether he is aware that the European Convention on Human rights is a charter of religious tolerance and freedom, and has been so interpreted consistently by the European Court of Human Rights in upholding pluralism and religious freedom: for example, in refusing to extend the law of blasphemy in this country to protect other faiths in a way that would be an engine of intolerance, according to the European Human Rights Commission; and in refusing persistently to permit the taxation of churches in other countries, and in other ways showing a complete respect for, as I say, religious tolerance and freedom, including the freedom of the Church of England in this country.

The Lord Bishop of Lichfield: That point has not been explicitly spelt out, in the way that the noble Lord has done, by the Government. That is what I seek.

Baroness Williams of Crosby: Perhaps I may intervene before the right reverend Prelate sits down. He will see in Article 2 of the First Protocol--I speak as a former Education Secretary--a precise commitment to the right of parents to decide, within the limits of national resources, the kind of education they wish their children to have. Recalling my own period as Secretary of State--I believe that the same holds good today--one of the things underpinning the right of parents in Britain to choose a church school for their children's education if they so wish is precisely the European Convention on Human rights. The right reverend Prelate might well feel reassured rather than the opposite.

Lord Campbell of Alloway: I still seek some assistance on the distinction and how it is drawn--even

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an illustration--from the noble and learned Lord between a general act and a private act by the Synod. One will invoke the fast-track procedure; the other will not. I merely seek some help.

The Lord Chancellor: I am not sure whether the right reverend Prelate was in the Chamber when I read out Article 9 of the convention. I was at pains to emphasise that the convention guarantees religious freedom and entitles anyone, either alone or in community with others, in public or private, to manifest his religion or belief in worship, teaching, practice and observance. If any words of mine are necessary to add to the remarks of the noble Lord, Lord Lester of Herne Hill, it is well known that the European Court is highly respectful of Article 9. The Court does treat it as a charter for religious tolerance. I doubt whether the right reverend Prelate, were he to study the decisions of the Court under the article would find much, if anything, with which to quarrel.

I shall not be drawn into two particular responses to very particular questions. One of the dangers of Pepper v. Hart is that if one becomes drawn in that way, what one says can be too readily cited in the courts for a particular interpretation of the Bill. Pepper v. Hart does not come free of risk.

If a court were to uphold that a religious organisation, denomination or Church, in celebrating marriage, was exercising a public function, what on earth would be wrong with that? If a court were to hold that a hospice, because it provided a medical service, was exercising a public function, what on earth would be wrong with that? Is it not also perfectly true that schools, although underpinned by a religious foundation or a trust deed, may well be carrying out public functions? If we take, for example, a charity whose charitable aims include the advancement of a religion, the answer must depend upon the nature of the functions of the charity. For example, charities that operate, let us say, in the area of homelessness, no doubt do exercise public functions. The NSPCC, for example, exercises statutory functions which are of a public nature, although it is a charity. We believe that the principles of the Bill are right and that the courts will come to answers in which the public will have confidence.

Baroness Young: In reaction to my particular amendment, I thank the noble and learned Lord the Lord Chancellor for his very full and lengthy reply. I do not believe that there is any dispute at all about what he gave as his first definition of a public authority. We all understand that; there cannot be any argument about it. It is an authority set up by statute, such as a local authority.

His second definition of a public authority is the one which causes me, and I believe the right reverend Prelate the Bishop of Exeter and the other right reverend Prelate, some concern. It defines the body in question as having certain functions of a public nature.

Indeed, I was not really encouraged by the remarks of the noble Lord, Lord Lester. He said that the whole matter was defined on a case-by-case basis and that it was not a new problem. But in a sense the Bill before

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us does create a new situation, so the situation is not precisely as it was before. The noble Lord went on to say--I shall read his remarks very carefully in Hansard--that the courts have developed certain clear principles and, for example, the functions of the Chief Rabbi or the Synod of the Church of England would not normally fall within the scope of the Bill. That does not really help us, because we do not know when a function would normally fall within the scope of the Bill and when it would not.

The noble and learned Lord the Lord Chancellor said that he had considered the provision of a list but had turned down the idea because of the complexities. Obviously, bodies that were not included in the list would feel that they were outside it but might in fact be included in the terms of the provision. The noble and learned Lord, with respect, has not quite answered my question about the sort of problems that could arise. It is not a question of whether the Church can marry somebody and whether that is a public function; it is a question of whether the Church has the right to say to a homosexual couple who "wish to marry", "I am not going to do it". That is the sort of issue to which I refer. Adoption is another example. Could a religious-based adoption agency which refused to recommend a placement with a homosexual or lesbian couple find itself in court? It ought to know.

Questions arise in regard to charities--for example, the hospice dealing with the organisation for euthanasia. I do not raise these matters as mere debating points. They actually worry quite a lot of people. We have not received an answer as to what the situation would be. I shall read very carefully what was said before considering whether to return to the matter on Report. It would perhaps be helpful to have some definitions, for instance, of "a family". The noble and learned Lord shakes his head. I am not writing the Bill. There will be many situations on which the Bill is not clear: people are concerned. This is new legislation. I do not believe that I have had a full answer to my question. I shall not press my amendment today but I shall look very carefully at what was said and consider whether to return to the matter on Report.

6.30 p.m.

Lord Henley: Before I withdraw my amendment, and by implication the other amendments, perhaps I may thank the noble and learned Lord for being distinctly non-mephistophelean this afternoon. We have seen the sunny side, the angelic side, of his nature and he has given us a relatively full explanation of Clause 6, which is what we were seeking in putting down these amendments.

Some of my confusion is disappearing but at the same time my alarm is increasing with regard to the extent of the definition of "public authority", certainly as set out by the noble Lord, Lord Lester, for his party. We shall need to look much more closely, not only at the definition of "public authority" but also at the exact meaning of "functions of a public nature" in Clause 6(3)(c).

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I appreciate that the noble and learned Lord finds himself in a very pleasant position. On the one hand, he sees us trying to limit the scope of the clause; on the other hand, he sees the noble and learned Lord, Lord Simon, trying to increase its remit. I know from experience how very pleasant it is to put the argument, "On the one hand," "On the other hand," and then to say, "We have taken the middle road". It is not a very central part of the road that the noble and learned Lord occupies, as we see it. We see the definition as far too wide. As my noble friend Lady Young said, we must look carefully at the very full response the noble and learned Lord gave to the amendments, for which I thank him, and perhaps come back to the matter at a later stage.

I accept the noble and learned Lord's arguments in their entirety as regards the exhaustive-list approach. I do not believe that one could approach the matter in that way because lists never can be exhaustive, however hard one tries. Obviously, the noble and learned Lord took some time to take my amendments to pieces fairly carefully. There was no need to do that because they were merely probing amendments. We shall try to come forward with other amendments at a later stage of the Bill to limit to some extent the width of the clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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