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Lord Renton: My Lords, before the noble and learned Lord sits down, would he be so good as to look at page 4 of the Bill? Near the top of that page he will see subsection (3) of Clause 6, which says:
- "In this section, 'public authority' includes--
- (a) a court or tribunal, and
- (b) any person certain of whose functions are functions of a public nature".
For the removal of doubt, and to give clear guidance to the courts in deciding the matters which the noble Lord has mentioned, would it not be a good thing to add in that subsection words such as:
- "but 'public authority' does not include any kind of Church court or religious court of any kind"?
Lord Hardie: My Lords, I am grateful to the noble Lord, Lord Renton, for that intervention, but, with respect, I do not think that that would meet the point. If a Church court were performing a function which could be described as a function of a public authority and is dealing with something other than a purely spiritual
matter peculiar to the Church, it would not be appropriate to exempt such a body from the provisions of the legislation.5.45 p.m.
Lord Campbell of Alloway: My Lords, the noble and learned Lord says that the courts will not inquire into spiritual matters. How will one stop a court from doing so if a complaint is made before it? Is the suggestion that the Church of Scotland, the Church of England, or whichever Church, should move to strike out the pleadings? How is one to define the line between spiritual and other matters? I simply ask as a practical, knock-about lawyer. I can see tremendous difficulties in what is being proposed.
Lord Hardie: My Lords, that is precisely the kind of question that the civil courts deal with at present. They would consider the particular circumstances of the situation and decide whether the body was acting as a public authority. If it were acting in a purely spiritual capacity, the courts would decline jurisdiction.
Lord Peston: My Lords, before my noble and learned friend sits down, is this not a matter of much greater generality than the Church of Scotland? It revolves around two matters. One is the ability to define what is spiritual. I speak as a committed atheist, but I would have thought that the fundamental beliefs of the Church are to do with the Church and not with the secular authority. Membership of the Church involves "believing" all kinds of things. I cannot see that the courts ought remotely to consider becoming involved in that.
The counterpart of that is the ability to define human rights. I speak as a strong supporter of the Convention on Human Rights. In my lifetime human rights have grown at an incredible rate. Years ago many things would not have been regarded as human rights which are now. Is not the problem for the Government in incorporating this into legislation that they are taking what might be called a static view of human rights--that is, that no human rights will emerge or be demanded? As an atheist, I can say that, if I were a member of the Church, I should be extremely perturbed by this and by the answers that my noble and learned friend has given so far. He assumes, optimistically, that the civil courts will come up with the right answer all the time. If I were a religious or spiritual person, I should feel very threatened.
Lord Hardie: My Lords, my noble friend is correct that it would not be appropriate for the courts to deal with the theological or fundamental beliefs of members of a Church; nor would they be entitled to do so in terms of this legislation. I simply remind my noble friend of Article 9 of the convention, which confers upon individuals significant rights of freedom of thought, conscience and religion. Those rights are enshrined in the convention itself and in the provisions which are being incorporated.
Lord Mackay of Clashfern: My Lords, just before the Lord Advocate sits down finally, my question is,
would the definition which the Government have put into this Bill, taking the court of Scotland as an example, make a Church court which was deciding a spiritual matter, a matter of faith, a public authority within the meaning of that definition? If not, why not?
Lord Hardie: My Lords, the short answer to my noble and learned friend is, no, it would not include that situation, the reason being that the Scottish courts, as my noble and learned friend will be aware, because of the relationship between Church and state, have been slow to interfere, and indeed have refused to interfere in matters of this nature. Therefore, if the Church court were deciding a matter spiritual, the courts would not be entitled to review that.
Lord Hughes: My Lords, I would like to know the answer to this question. I would know had I read the Bill as thoroughly as I ought to have done. Does the 1921 Act remain on the statute book in its present form, or is it altered in any way by this Bill?
Lord Hardie: My Lords, it is not altered in any way by this Bill. It remains on the statute book.
Lord Donaldson of Lymington: My Lords, perhaps the Minister could help me. I am troubled by various statements that have been made that, in dealing with matters spiritual, the court is not a public authority. As I read Clause 6(3)(a), the question does not arise. The real question is whether the body is a court at all. If it is a court, then it is by definition a public authority. I agree that the civil courts may then say, "It is not appropriate for us to grant a remedy" but, as far as its not being a public authority is concerned, the Act simply says that it is.
Lord Hardie: My Lords, of course, the argument I would anticipate being advanced to establish that it was not a court would be that in dealing with human rights, one has to be dealing with a court which is properly constituted or a tribunal established by law. The Church courts are not courts within that meaning, within that sense.
Viscount Bledisloe: My Lords, in the light of the answer of the noble and learned Lord, perhaps he could answer the point made earlier by the noble Lord, Lord Renton: would he be prepared to undertake at a later stage to put into the statute an amendment which expressly excluded courts exercising spiritual jurisdiction, to define that they were not public authorities within the meaning of the Act?
Lord Howie of Troon: My Lords, we are at the Report stage. This has gone on far too long and it is high time that we had a reply from Lord Mackay of Drumadoon.
Lord Mackay of Drumadoon: My Lords, I regard it as a great compliment that there is any wish to hear from me again, and I am sorry to disappoint your Lordships by saying that I only wish to make very few remarks.
It is obvious from the contributions which have been made by noble Lords who have both supported and spoken against this amendment that the issues which it raises are very important issues indeed. I stand rightly corrected by the noble Lord, Lord Hughes, in having referred to this as not being a political issue; I should have said that it is not a party political issue. It is for that reason that I do not intend to seek the opinion of the House on this amendment. However, I have to say quite frankly that I sense the mood of the House is such that, were I to do so, there would be a serious risk of the House being persuaded that there is merit in my amendment. For that reason, I am most grateful to the noble and learned Lord Advocate for giving a very full reply to the issues which I and others raised, and I very firmly hope that he and his colleagues will think very seriously indeed as to whether some recasting of the provisions of Clause 3 or Clause 6 of this Bill might meet the genuine and very moderately stated concerns that have been raised.
We will all read again not only the questions he was asked but the answers he has given. For my part, I am more than willing to meet with him and his colleagues to see whether some solution can be found. As far as the Church of Scotland is concerned, there appears to be an inherent conflict between the terms of the 1921 Act and this Bill, and it is, in my respectful submission, incumbent upon the Government to come forward with some solution to that conflict. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Simon of Glaisdale moved Amendment No. 9:
The noble and learned Lord said: My Lords, in moving Amendment No. 9 I shall speak also to Amendments Nos. 10 and 11. Amendment No. 11 is the effective amendment. It preserves in English law a perfectly well established doctrine consonant with an aspect of the sovereignty of Parliament, namely, the rule that if a later Bill is inconsistent with the provisions of an earlier Bill, those provisions of the earlier Bill are impliedly, even if not expressly, repealed. It is known as the doctrine of implied repeal. Although it is very rarely necessary in these days to rely on that doctrine, it is still extant.
It is not necessary these days in general to rely on it because most later Acts which amend earlier Acts have a repeal schedule and, indeed, a schedule of minor and consequential amendments. Nevertheless, the rule remains in English law and it is extremely valuable in relation to the law. It is essential that it should be preserved.
At Committee I put down a number of amendments seeking to extend the Bill, notably by extending the definition of a public authority. My noble and learned friend the Lord Chancellor demurred to being pushed further in that way. At this stage I have only tabled amendments which are well within the parameter of this measure.
The problem which faced the Government in "patriating" the Convention on Human Rights was this: certain provisions of English statute law would be found to offend or to be incompatible with the provisions of the convention. One way to deal with that would have been to allow English courts to strike down the offending measure, as happens in the United States which has a written constitution and where the federal courts strike down and declare null and void measures which are inconsistent with the constitution.
In relation to this measure, the Government decided that it would be inconsistent with the sovereignty of Parliament and, so far as I know, nobody quarrelled with that view. But that faced the Government with a difficult problem; that is, how to maintain the sovereignty of Parliament while allowing the convention to be incompatible with provisions of our previous statutory legislation.
One must draw a distinction--it is useful to do that at this stage--between antecedent statutes which are found to be incompatible and prospective ones; in other words, statutes enacted after the provisions of this Bill come into force. The Government tried, rightly and ingeniously, to minimise the circumstances whereby an Act of Parliament would be found to be inconsistent with the provisions of the convention. They did that by stipulating, as your Lordships know, a new rule relating to statutory construction. Instead of the courts seeking what is the natural meaning of a word or phrase they were to seek a possible meaning, which means a reasonably possible meaning, consistent with the convention. That has been generally accepted and the Government are to be congratulated on coming up with that solution. Admittedly, that leaves some measures which, however construed, will be found to be incompatible with the convention rights.
In relation to future measures, the Government proposed to deal with them in two ways. First, they would minimise the chance of future legislation being incompatible by requiring the Minister in charge of the Bill to make a declaration as to its compatibility. Even then it may be found that there was an incompatibility in future legislation and where that was ascertained the Government established what is being called a "fast-track" for remedial orders. That is, a statutory rule and order on an accelerated process which will correct the incompatibility of the earlier statute. That maintains the sovereignty of Parliament which they were anxious to maintain.
However, the system has two disadvantages. The first is that it involves delay in which somebody aggrieved by the statute may be delayed in any remedy. The second is that it involves a massive extension of Henry VIII provisions; secondary legislation amending primary legislation. Your Lordships have gulped and put up with that on the whole because it is difficult to see how else future legislation could be dealt with. But it is unnecessary in relation to past legislation. So long as the doctrine of implied repeal is maintained--as I said, a manifestation of the sovereignty of Parliament: the doctrine that no Parliament can bind a later Parliament, so that subsequent Parliaments can repeal or amend
The amendment does not in any way affect the rule of interpretation. It does not affect the fast-track procedure, even involving Henry VIII provisions in relation to future legislation; but it uses the doctrine of implied repeal to get rid of antecedent legislation which is incompatible. That is entirely consonant with the supremacy of Parliament. I beg to move.
Page 2, line 29, at beginning insert ("subject to subsection (3)").
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