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Earl Russell: My Lords, the problem we face here is not one about relations between the Church of Scotland and human rights; it is a problem about relations between the Church of Scotland and the state. In case noble Lords should wonder why someone has intervened who is neither a Scot nor a Christian, I do so strictly in my capacity as a historian. This area of church/state relations is one where misunderstanding between these two countries has been endless. Indeed, I once described England and Scotland as two nations divided by a common language. It was specifically on a matter of church/state relations that I was speaking when I did so.

Scotland and the Netherlands are in effect the only countries in Europe where the Reformation came and was established from below. It means that the whole structure of church authority was quite different from that with which we in England are familiar. I listened earlier to the right reverend Prelate the Bishop of Ripon. Obviously I agree with him that the spiritual authority of the Church of England is in no way derived from the state, but its powers of jurisdiction are, I believe, generally recognised as legally, in their coercive capacity, derived from the state.

There has been a long struggle there for autonomy and enjoying the defence of the idea of academic freedom, which is very largely derived from the efforts of the church. I observe those with sympathy. But it is a quite different story from that of the Church of Scotland, which never recognised that it was established by any authority derived from the state. Its ultimate authority rested in the body of its members. It is the continual inability of English people to understand that which has caused a great deal of conflict between the two countries.

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The Church of Scotland has always claimed that it was not subject to Parliament. I understand that modifications in modern times have been reached on that point. However, the question remains: is the Church of Scotland a public authority within the meaning of the Act? As the noble and learned Lord, Lord Mackay of Drumadoon, said, obviously in relation to its work in things like community care, which deserves a great deal of respect from us all, there would not be a problem. But where we get into spiritual matters we might save ourselves a great deal more trouble than we imagine if we could find a way of wording the Bill which secured the full agreement of the General Assembly.

5.15 p.m.

Baroness Carnegy of Lour: My Lords, the noble Earl has just told the House something most important. I hope that noble Lords listen to him most carefully. I strongly support the amendments. The noble Lord, Lord Howie of Troon, said that he did not know what the Church of Scotland was afraid of. In a letter to the noble Lord, Lord Steel--of which I have had sight and which formed the basis of the speech of my noble and learned friend Lord Mackay--the Church of Scotland has set out the exact nature of its fears, so they will be on the record. I hope that the Government will pay attention to them.

I have a few questions that I hope the noble and learned Lord the Lord Advocate will cover in his response. This seems to be the right time to ask such questions, as I understand the noble and learned Lord will be replying. First, what is the position of the other Churches in Scotland under the Bill? Is it the same as all other non-established Churches in the rest of the United Kingdom, or is it different? Secondly, will that relationship be changed when the Scots parliament is created? We understand that the legislation of the Scots parliament will be subject to different treatment under the Bill from that of the Westminster Parliament. Will that affect the other Churches? If it does not affect them at all and if their relationship is precisely the same as that of other non-established Churches in the UK, then we can discuss such Churches under the amendment of my noble friend Lady Young. I shall be content if that is the position.

I should be most grateful to receive a precise reply from the noble and learned Lord the Lord Advocate because there is anxiety in Scotland in the Roman Catholic Church which, as the noble and learned Lord knows, is as big as the Church of Scotland, and in the Free Church of Scotland. My own Church, the Scottish Episcopal Church, is at present sanguine. It has not yet begun to discuss the matter. I would like to know whether that Church will find itself in the same position as other non-established Churches in the UK. I would be most grateful if the noble and learned Lord could cover those points in his response.

Lord Milverton: My Lords, I support the amendment in principle as, indeed, I shall support the noble Baroness, Lady Young, in her later amendments. I do so very firmly because, as what I may call an ordinary rank and file clergyman, I believe that we can see this

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in perspective and the dangers involved. If we are going to be able to uphold, practise and proclaim as far and as fully as we can our belief--and the same applies to other Churches--are we going to feel that because we are doing so we are preventing some people from having human rights? I do not believe that that is the case. If they cannot agree with our principles and beliefs, then, in a sense, one has to say, "Sorry, go somewhere where you will be able to find something of your outlook."

I believe that there is a danger involved in using the argument that the Churches will find themselves being taken up for denying human rights and liberties. I deny that they have or that they will deny human rights and liberties to any person in conducting baptism, marriages, funerals, and so on, because they are holding to the proclaimed beliefs of their Church. In baptism, for example, some of my fellow clergymen and even perhaps right reverend Prelates might think that, in some ways, I was too easy because I never said to any couple who came to me, "Now I must be convinced that you are Christian; I must be convinced by that because of your way of life and by the fact that you come regularly to church"--which really meant, most probably, every Sunday--"before I will think of baptising your child". I baptised anyone whether or not of the congregation, because I believed that something in them felt for God and the Church; and we are there to give, not to deny. The only time I have refused a request is with regard to marriage. I have married divorced people and I have let the bishop know. I have married divorcees. We should be able graciously to say to people, "We have this belief. We have this custom. Try to understand it", and if they cannot do so, one has to say, "Sorry" to their request. But on the whole those people will not make such a request. They may feel that they can go to another of the many traditions within the Church of England, or to some other church.

Speaking seriously, it is dangerous to dismiss these dangers as regards the Church of England, the Church of Scotland or any of the main Churches. I support the amendment in principle. I have great admiration for the Scottish Episcopal Church. My daughter married an Irish-Scot and lives in Helensburgh. She attends the Scottish Episcopalian Church in Helensburgh; and it is a jolly good church. Perhaps it could give a lead to some English parishes.

Lord Lester of Herne Hill: My Lords, we have allowed individuals to bring cases before the European Commission since January 1966. I am not aware of a single case involving this country in which any of the problems referred to by any noble Lord have been raised. I am not aware of any textbook in which anyone has suggested that any of the issues ever would be raised.

Although I accept the sincerity and force with which noble Lords speak, it seems to me undesirable if the main debates on the Bill should be dominated by a

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matter which, before the Bill was brought in, no one ever suggested raised any problems under the convention.

Lord Clyde: My Lords, perhaps I may add my voice as another member of the Episcopal Church, which seems to be well represented here. Underlying this issue may be uncertainty as to precisely what is meant in the Bill by the word "public". It appears in the phrase "public authority" which is not definitively defined. However, in Clause 6(3) one has some flavour of it. The greater problem is the reference to "functions ... of a public nature".

One associates this clause with the processes of judicial review. One is well aware of the distinctions drawn between public and private activities as a means of trying to define the scope of the English supervisory jurisdiction. But if those terms are taken to have substantial meaning they may not serve adequately to provide a sufficiently exact definition. In Scotland the courts have turned their face against the use of such language and have rejected the public/private distinction as a test for the jurisdiction of the supervisory powers of the court. It may be that the word "public" in this context will be open to definition and interpretation.

I have understood--I hope that I am right; but those who know far more about the history and substance of the European Convention on Human Rights will correct me--that in essence the rights laid down are rights for the benefit of the private individual against the state and not against anyone else. If that is right, it may be that it is essentially the state quality of public authority to which attention should be paid in defining what will be Section 6. If that is right, there may be an answer to the problem. Just as the courts in the past have respected the internal operations of ecclesiastical bodies, so also the scope of this article should be limited so as to exclude such operations.

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