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Lord Campbell of Alloway: My Lords, I support the amendment. In so doing, I speak to my Amendment No. 24 which is within this group. I reserve the right to divide your Lordships' House, if so advised, on my Amendment No. 24.
Amendment No. 24, which I shall move in due course, is of general application to religious bodies of all creeds recognised as such in the United Kingdom and in Northern Ireland. It seeks to reflect the concerns of the right reverend Prelate the Bishop of Lichfield as expressed in Committee on 24th November 1997 at col. 799 of Hansard.
How much I agree with my noble friend Lady Young. Until we reached the Committee stage, none of us knew what it was all about. It was only in Committee that the penny began to drop. This amendment subsumes also the concerns of the right reverend Prelate the Bishop of Exeter (col. 794) as to the effect of the Bill on the decision-making processes of the General Synod of the Church of England, as implemented by Acts of Parliament. As a result of negotiations which have ensued since this amendment was tabled on 3rd December, that aspect has produced Amendment No. 46 which goes some way to meet those concerns, and I am very grateful for that.
However, it does not include church schools and it does not include any person acting under the authority of the General Synod; for example, the local vicar, to which the right reverend Prelate referred.
The object of this amendment is to exclude religious bodies of all creeds from the fast-track, the generally accepted means of incorporation where there is a declaration of incompatibility by our domestic courts and tribunals. This is a very important argument, as my noble friend stressed, and your Lordships' House, as constituted, affords a unique and singularly appropriate forum to consider the merits of that argument.
According to Rolv Ryssdal, a distinguished and long-serving member of the court at Strasbourg--I think it was about 11 years--this convention is not intended to destroy the richness of our cultural heritage and other variety of life found in Europe by imposing rigid uniform solutions, but to recognise the rights of free societies within limits to choose for themselves human rights policies which suit them best.
There are 40 signatory states. This amendment will inhibit the imposition of rigid uniform solutions in this context in the United Kingdom in a situation where I say quite unashamedly that uniformity may never be sought and never imposed. We have heard much about the relevant articles--Articles 8 to 10--relating to the right to respect for private and family life, freedom of thought, conscience and religion and freedom of expression. In that context your Lordships may well think that alleged breaches of the convention by the General Synod of the Church of England, Church schools, all religious bodies and persons exercising functions under the authority of such institutions should not be a matter for adjudication in our courts and tribunals: but by the Commission and the Court of Justice--multinational judicial bodies to which there is direct access under our treaty obligations, having first exhausted the rights under our domestic law. Your Lordships may also think that it is neither appropriate, acceptable nor indeed necessary that our domestic courts should make declarations in this context as to incompatibility under Clauses 2 to 5, which trigger ministerial remedial measures by affirmative resolution under Clauses 10 to 12--the "fast track".
There is no doubt that, but for the amendment to Clause 6(2), the fast track would apply for all these religious institutions of all creeds. I say that because they are "public authorities" within the meaning of Clause 6(3), as their functions are of a public nature
and the exercise of such functions as regards teaching, guidance, dogma and discipline are not of the nature of private acts within the meaning of Clause 6(5).I do not often refer to clauses and subsections, but I do so to make it totally clear that what is at stake is an erosion of a very important situation so far as concerns all religions. There is no denying it; there is no mistaking it; and there is no object in minimising it. For the avoidance of doubt as to what is a religious body, it is provided in the amendment that it is a body,
- "recognised as such by the Secretary of State".
In this all-creed context, is it really the business of government to seek to devise and impose upon our country some rigid uniform solution, some ethical moral code based upon ad hoc case-by-case decisions in our courts and tribunals as to incompatibility with the convention? Is that really the proper business of our courts? As to this, there is considerable doubt about how our courts could approach it.
Let us look for a moment at Clause 4 which is in permissive form; it is not mandatory. There is no indication as to how the court will exercise its discretion--whether to refer to the Commission or to grant a declaration. In that context, let us test it on a fairly hard test bed. As regards privacy under Article 8, of which family law is another branch, it is understood to be the view of the noble and learned Lord the Lord Chancellor that the courts would leave it to the Commission. However the view taken by the noble Lord, Lord Williams of Mostyn, in answer to me across the House on more than one occasion (I think only two) was that the courts would, by a series of case by case declarations, trigger remedial action and build up a law of privacy.
What will happen to the family situation under Article 8? Is there to be any difference? Who is right? Is it the noble and learned Lord the Lord Chancellor or the noble Lord, Lord Williams of Mostyn? Who knows? Where are we? I should like to know the answer.
What is family life under Article 8? In this "all-creed" context, are our courts to seek to build up--I return again to Rolv Ryssdal, president--rigid, uniform solutions? It is unthinkable. In that context, is it not the business of the multinational body, the commission, and the Court of Human Rights, which have the composite judicial wisdom appropriate to deal with these matters?
As has been said, we are--and, let us face it, we are proud of it--a predominantly Christian society, tolerant of all manner of creeds: dissenters, agnostics and atheists. Each religion has its own dogma, teaching, rituals, ceremony and discipline according to its own concept of the grace of God. Each religion has its own concept of respect for family life. As the noble Lord, Lord Williams of Mostyn, said, and truly said, on 9th December, families in our society vary infinitely. The Government are not in the business of preaching or prescribing.
I conclude with the winding up of the noble and learned Lord the Lord Chancellor at Committee stage. He failed to recognise the concerns of the right reverend Prelate the Bishop of Lichfield which prompted this
amendment, or those of the right reverend Prelate the Bishop of Exeter which have since been met. When clarification was sought, at col. 800, of the Official Report of 24th November, the noble and learned Lord the Lord Chancellor declined to respond lest what he said should be cited in the courts as an aid to the interpretation of the Bill--seeking sanctuary by grasping the knocker on the door of Pepper v. Hart. There has been no meeting, no distribution of paper, to canvass support for the amendment which is sought only on the merits of the argument on the Floor of your Lordships' House. With an expression of gratitude to my noble friend the Duke of Norfolk, and the right reverend Prelate the Bishop of Lichfield, who put down their names, I shall beg to move the amendment in due course.
Lord Goodhart: My Lords, as I said earlier, this is an issue of conscience. We have not yet had an opportunity to hear a view contrary to that of many speakers who have spoken so eloquently in support of this group of amendments. I am afraid that I have to advance a somewhat different view. This is an issue of conscience, and I do not claim to speak for everyone on these Benches. But in my belief and that of a number of my noble friends, this group of amendments is misguided, unnecessary and possibly damaging.
I recognise that there is a special problem in relation to the Church of England because of its constitutional position as the established Church. It has power to pass legally binding measures and an established and recognised system of church courts. There is, therefore, as I fully accept, a need to ensure that in introducing a human rights Bill we do not upset the constitutional balance between the Church of England and Parliament. However, at the same time I do not think it right for the Church of England to claim the benefits and privileges of established status while rejecting a provision which, when the Human Rights Bill is enacted, will be part of the general law of the land. To a much more limited extent, the same issue attaches to the Church of Scotland.
Other Christian religious denominations, and indeed non-Christian religions, are plainly not in themselves public authorities. In so far as Amendment No. 72 simply restates that fact, it is unnecessary. Religion cannot be exempted generally from the European Convention on Human Rights. Some religions or sects--not any of the mainstream bodies within the principal religions, but some fringe sects within them--may have practices which involve unacceptable violations of human rights. Female genital mutilation is clearly an example. There are also cults, some of them claiming to be Christian, which encourage mass suicide. Those cannot be tolerated by the state; they must be prohibited by the Government. The fact that behaviour of that kind is instigated by religious belief is not, and should not be, a defence. When the noble Lord, Lord Campbell of Alloway, tried to get round that problem in his Amendment No. 24 by restricting the exemption to religious bodies recognised as such by the Secretary of State, it seemed to me that he substituted King Stork for King Log. What could be a greater interference with religious freedom than having religious bodies selected for recognition by the Secretary of State?
But the interference of the European Convention on Human Rights does not go beyond banning these unacceptable practices. Let me remind the House of Article 9(2) of the European Convention, which states:
- "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".
I ask those who have spoken whether they really wish the Churches to have a freedom to do things that are contrary to public safety, contrary to public order, health or morals, or contrary to the protection of the rights and freedoms of others.
I accept that Amendment No. 72 does not state that all religious practices are exempt from the European Convention on Human Rights. But in so far as it exempts religious bodies from that convention when discharging public functions, it is gravely wrong. Some non-established denominations and non-Christian religions do indeed have public functions. The provision of education, particularly but perhaps not exclusively education which is provided out of public funds, is unquestionably a public function. However, in providing education of this kind, it is clear that religious schools will have a wide freedom to provide religious education. I should point out that one of the landmark decisions of the European Court of Human Rights was a decision which held that parents in Belgium had the right to send their children to religious schools if they wished to do so. The European convention helps, not hinders, religious education.
In performing that function, schools must comply with the European Convention on Human Rights. Indeed, it would be appalling if they were not required to do so. The noble and learned Lord, Lord Mackay of Drumadoon, agreed that the Church of Scotland would accept that point. However, Amendments Nos. 24 and 27 propose to exempt Church schools from the European convention. I believe that that is wholly objectionable. There is no interference under the European convention with the right of religious teaching, but why should religious schools be exempt from the prohibition under the convention of inhuman or degrading treatment? Why should religious schools be exempt from the obligation to respect a child's family life?
Many of the examples that have been put forward are, I believe, examples of fantasy or of something wholly outside the convention. Let us take the example of the refusal to consider the appointment of somebody who is not a communicant member of the Church of England to the headship of a Church school. Rightly or wrongly, that does not involve a breach of the European convention. The non-discrimination clause, Article 14, concerns only discrimination in the enjoyment of the rights and freedoms set forth in the convention. The convention does not include employment rights and there is therefore no question of someone who is refused a headship of a Church school because they are not a communicant member of the Church having any right of recourse to the courts. The right not to consecrate women as bishops is also something that involves no infringement of the European convention.
I believe that the Churches should welcome the application of the European convention to all schools, including their own. The Church of Scotland is apparently prepared to do so.
Let us take another brief look at the Church of England courts and take as an example an application to remove the incumbent of a benefice from office on the grounds of personal misconduct. Surely the incumbent is entitled to the protection of Article 6 of the European convention, which would give him the right to a fair hearing by an independent and impartial tribunal. Why should an ecclesiastical court be exempt from that obligation?
Finally, in Amendment No. 26 a similar point applies in relation to charities. Charities sometimes, though not by any means always, perform public functions--providing services, for example, to the public in co-operation with the Government, and often with the benefit of government funding. If they do so, I believe that they should be subject to the European Convention on Human Rights.
9.45 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Lord for giving way. Given the noble Lord's interpretation of what the Bill means to Churches, can I give him two examples and ask for a response? First, how free would a Church school be to recruit to its staff only those who practise that particular religion--a Jewish school to recruit Jewish people, a Catholic school to recruit Catholics and an Anglican school to recruit Anglicans? Secondly, how free would a Church school be to reject or decline to recruit someone to the staff at any level who was living in a same-sex relationship, contrary to the practice and beliefs of that particular religion?
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