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Lord Hughes: My Lords, I, too, am a member of the Church of Scotland. In that capacity I find myself in almost total agreement with the case so ably stated by the noble and learned Lord, Lord Mackay of Drumadoon. The only exception I take is that he stated that this is not a political matter. He is a little wrong in that. It is not a party political matter; but it is a political matter. As the noble Earl, Lord Russell, said, this is a matter of the relations between the Church and the state. The relations have existed happily under successive governments for the past 76 years. That is rather remarkable in religious history in Scotland. If we go back to the last century, the experience was not of seeking to reach agreement but of finding out on how many occasions one could be different from other people. We are remarkably free from that aspect and we should not be taking any risk in the Bill.
My noble friend Lord Howie said that the Church should be compassionate. Of course it should. But I cannot believe that in this Bill the Church of Scotland will be infringing the human rights of its own members.
Lord Renton: My Lords, when I heard my noble and learned friend Lord Mackay of Drumadoon move his
amendment, I naturally wondered what there was in the Bill which interfered in any way with an ecclesiastical court of any Church; and I could find nothing. However, when he mentioned the broad definition that can be given to public authority, I thought that he had a point. However, the point can be better dealt with by amending Clause 6, which deals with public authority, by making it clear that public authority in the context of the Bill does not include any kind of ecclesiastical court. I believe that that would be a far better way of solving the problem.
Lord Mackay of Clashfern: My Lords, I am not a member of the Church of Scotland. However, I believe that this is an important point not only for the Church of Scotland but in general. The issue raised is perhaps best focused by asking the question whether, in the Government's view, when referring to a public authority, the Bill includes an ecclesiastical court or authority of a Church deciding what is a spiritual question in the words of the Act of 1921. For example, is a court of the Church of Scotland, in deciding a spiritual question, a public authority within the meaning of Clause 6(3) of the Bill?
Lord Hope of Craighead: My Lords, the suggestion has been made, in particular by the noble Lord, Lord Lester, that no case has been brought which suggests that a problem might arise which would be affected by the matter we are discussing. To set the record straight, perhaps I should mention that a case came before the Court of Session in Scotland in 1995 in which the Court of Session had to ask itself whether it had jurisdiction to examine the way in which a Church court, a presbytery of the Church of Scotland, had conducted a particular affair. The Court of Session, I think that it is right to say, saw this as a dispute as to its jurisdiction to review the activities of what it considered to be another court.
It has been said that there is an issue here as between church and state. But it should also be regarded as a question which would affect the relationship between the church as a court and the Court of Session as a civil court. I should be grateful if the noble and learned Lord the Lord Advocate, in replying, would direct some comments to that matter.
5.30 p.m.
Lord Lester of Herne Hill: My Lords, before the noble and learned Lord sits down, I wonder whether he is aware that, in England, similar issues have arisen in English judicial review courts, notably recently in relation to the Beth Din and the Chief Rabbi in dealing with matters of Jewish law and discipline. The English judicial review courts have consistently held that they have no jurisdiction to use the powers under Order 53 to review decisions taken in that way, for reasons that are rather similar to those outlined by the noble and learned Lord in relation the Court of Session.
Lord Hope of Craighead: My Lords, the case in Scotland that I have in mind was not one of judicial review. It was brought for a declaration in relation to
the activities of the church court. It more precisely addressed the real issue which may underlie the whole problem; namely, the distinction between matters spiritual and matters which are properly open to review in regard to human rights.
Lord Elton: My Lords, as a bewildered layman, I believe the matter is becoming rather clear. It seems quite right that the temporal authority should have precedence in temporal matters and that the spiritual authority must have precedence in spiritual matters. It appears from reading the Bill that the legislation has blurred the line between what is temporal and what is spiritual. The appointment of persons and their qualification to appointment may be very largely a spiritual matter but under the Bill will be treated as a temporal matter. Therefore the spiritual authority may be overridden by the temporal authority by the action of this legislation. It is from that eventuality that my noble friends and others seek to protect the Church of Scotland and, later on, other Churches.
The Lord Advocate (Lord Hardie): My Lords, I declare an interest in this matter in two regards. In view of the question put to me by the noble Baroness, Lady Carnegy of Lour, I should declare that I am, as she suggested, a Roman Catholic; and in relation to this particular debate I should also declare that I am married to a member of the Church of Scotland. My wife is an Elder, as the noble and learned Lord, Lord Mackay of Drumadoon, will be aware, since they are both Elders in the same church. Noble Lords will therefore see that this is not an easy matter from any point of view.
I shall deal first with the point made by the noble Baroness, Lady Carnegy of Lour, about other Churches in Scotland and the effect of the Scottish parliament. Under the Scotland Bill anything done by the Scottish parliament, or by a Minister of that parliament, which is contrary to the European convention will be void. In relation to the second question, namely the position of the other Churches in Scotland, all Churches in Scotland will be treated on the same basis.
I turn to the point raised the noble and learned Lord, Lord Mackay of Drumadoon; namely, whether the Bill interferes with the Church of Scotland in its dealing with matters spiritual. I confirm that that is not the case. The Bill regulates only human rights. Unless the church courts and the Church itself, in the exercise of their public functions, wish to depart from the concept of human rights in the way in which they conduct their business, there will be no conflict between church and state. I am confident that the Church will do its best to observe the principles of human rights referred to and incorporated by the Bill into domestic law.
As noble Lords will be aware, frequently, although with the best of intentions, people fail to achieve their objectives. In the event that there is a failure to observe human rights there may well be a conflict between the Church and this provision. If there is such a conflict, it is our position that the courts will prevail. The civil courts will deal only with convention rights and not with the spiritual government of the Church.
The purpose of these amendments is to exempt the Church of Scotland Act 1921 from the provisions of the Human Rights Bill and to re-state the recognition under the 1921 Act of the separate and independent government and jurisdiction of the Church in matters spiritual.
In Committee, several noble Lords raised points about the possible impact of the Bill, not only on the Church of Scotland but on other Churches. Some noble Lords, notably the noble Lord, Lord Campbell of Alloway, referred to later amendments to be considered. Subsequent amendments deal with the Church of England. They will be dealt with fully by my noble and learned friend the Lord Chancellor. At this stage we are concerned with amendments relating to the Church of Scotland and the 1921 Act.
So far as the Church of Scotland is concerned, I accept that the amendments are not influenced by party-political considerations. I hope that noble Lords will accept that the position adopted by the Government is equally not influenced by such considerations, or indeed by considerations of any particular religious persuasion. In the case of the Church of Scotland we have to look carefully at the implications of this legislation for the Church of Scotland Act 1921, which the Church of Scotland very properly considers a very important legislative statement of its independence in matters spiritual.
I wish to make it clear that the Government have no intention of interfering with the Church's religious freedom. That is a repetition of a statement that was made by the Government in confirmation of statements made by previous governments in relation to the position of the Church of Scotland. However, I wish to emphasise that the Bill does not interfere with the religious freedom of the Church of Scotland, nor is it intended to do so. I cannot emphasise that point strongly enough. The Church of Scotland Act 1921, to which the Church of Scotland rightly attaches much importance, establishes clearly the independence of the Church in spiritual matters. Such issues are properly matters for the Church and the Church alone.
However, it may be that in some circumstances the authorities of the Church of Scotland could be public authorities for the purposes of the Bill. The noble and learned Lord, Lord Mackay of Drumadoon, properly recognised that certainly in performing certain functions they would come within that category. He referred to care in the community.
The question of whether a church body is a public authority in any particular circumstance will be a matter for the ordinary courts, as it is at the moment. I refer to the case of Logan in 1995 mentioned by my noble and learned friend Lord Hope of Craighead. That was a case where the Court of Session considered whether it had jurisdiction. After the Bill becomes law--if that is your Lordships' wish--the position will be that the Court of Session will consider whether the particular circumstances of an act by the Church indicate that, in performing that act, the Church can be described as a public authority.
If it is a public authority, there seems to be no reason to exempt the institutions of the Church of Scotland from the public authority provisions of the Bill when it is acting in that capacity. The policy of the Government is that if a Church body is a public authority the Bill should apply to it. In this situation it seems to me that the Church would not wish to maintain that breaches of human rights committed by its institutions are purely matters of spiritual concern which should be excluded from the jurisdiction of the ordinary courts. In saying that, I wish to express confidence that the Church of Scotland, as other Churches, will do its utmost to comply with the spirit and intention of the legislation.
It is also clear to me that the civil courts will not want to involve themselves in spiritual matters, as was evidenced by the case of Logan to which the noble and learned Lord, Lord Hope of Craighead, referred. The civil courts will wish to confine themselves in any individual case to the minimum examination necessary to arrive at a decision on whether there has been any infringement of the legislation: in other words, was the Church acting as a public authority and, if so, is it in breach of the legislative provisions?
The civil courts would not want to intrude further into the business of the Church than is required to ensure proper observance of convention rights. Nor will the Bill entitle them to do so. The courts would, I am certain, continue to respect the spiritual independence to which the Church of Scotland properly attaches great importance.
While, as I have acknowledged, there are difficult issues of jurisdiction here, I do not think it would be right to exempt the Church of Scotland Act 1921 from the provisions in the Bill in the way proposed. The policy of the Government, as expressed in the Bill, is to enable the ordinary courts to inquire into proceedings of Church bodies only so far as may be necessary to resolve human rights questions. I hope that, in the light of that explanation, the noble Lords will feel able to withdraw the amendment.
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