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Lord Elton: My Lords, I am most grateful to the noble and learned Lord for giving way. There is a point which has not been clear throughout the debate. Will the noble and learned Lord tell us whether the convention is susceptible to amendment; and whether an amendment may incorporate employment rights? If so, would they then be incorporated into English law?

The Lord Chancellor: My Lords, the convention of course could be altered by an amendment. But that would require agreement on the part of the United Kingdom before the United Kingdom could be bound by any amendment. The noble Baroness, Lady Carnegy of Lour, asked about Roman Catholic state schools in

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Scotland, or Moslem schools. The answer is that neither the convention nor its incorporation stands in the way of those schools appointing people who are appropriate in their judgment in a religious sense to be heads of those institutions.

The critical point--noble Lords should not suggest it is otherwise--is that the rights listed in Schedule 1 did not include a right to be appointed to any particular post. Nor would Article 14 which relates to discrimination apply because Article 14 applies only to discrimination in the application of a convention right.

Baroness Blatch: My Lords, I am grateful to the noble and learned Lord for giving way. Will he clarify this point for me? Is the noble and learned Lord saying that in the event of an amendment being proposed any one country has an absolute right of veto? I would respect it if the noble and learned Lord did not always look to the noble Lord, Lord Lester, for an answer to every question that has been posed.

10.45 p.m.

The Lord Chancellor: My Lords, I apologise if I caught the eye of the noble Lord, Lord Lester, while I was listening to the point the noble Baroness made, which was repetitious of a point made earlier, and which I have already answered. It requires the consent of the United Kingdom. The answer is that we would have to ratify any such amendment. It would not bind if we did not ratify. I have said it before; I say it again for the benefit of the noble Baroness.

I hope that in the light of that the House will agree that it would not be right to exempt religious schools and charities from being regarded as public authorities in the various ways that they are.

Amendments Nos. 24 and 72 go further still. Amendment No. 72 would absolutely remove any priest or minister, or any person exercising any functions on behalf of a church, from being regarded as a public authority. Amendment No. 24 would wholly exempt the General Synod and religious bodies recognised as such by the Secretary of State.

I understand the concerns that have prompted the noble Baroness and noble Lords to make these suggestions. Some points made at the meeting, to which I referred, between Church and government representatives, are relevant here. As the Bill stands, a Church which has some public and some private functions will be regarded as a public authority if the courts so decide, although not in respect of its acts which are of a private nature.

I wish to be as particular as possible. Perhaps the most obvious function which churches carry out which is of a public character is the solemnisation of marriages. There is, as we now know, some concern on the part of the Churches that they might find themselves obliged to marry people whom it would be against their doctrines to marry. I do not avoid the difficult questions; I face up to them. In the extreme case, it is feared that the jurisprudence might develop to the point where it was regarded as a breach of the convention rights to

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decline to marry people of the same sex. Short of that, there is a fear that the Churches might be called upon, contrary to conscience, to remarry divorced persons.

Let me make the position plain. It is certainly not the intention of the Government in bringing forward this Bill or in resisting these amendments that the legislation should be used to compel any Church or person acting on behalf of a Church to administer a marriage contrary to their religious doctrines or convictions. Again, I do not believe that the Bill will have that effect. Let us take the "marriage" of homosexual couples first. Article 12 of the convention provides that,

    "Men and women of marriagable age have the right to marry and to found a family, according to the national laws governing the exercise of this right".

It is plain that the meaning of Article 12 is a right enjoyed by men and women--that is, a marriage of a man to a woman--and does not extend to a "marriage" between two men or a "marriage" between two women. Such jurisprudence as there is from Strasbourg supports that view.

I now turn to marriages where one or both of the parties are divorced. The argument would be that the right of a divorced man or woman under Article 12 to marry was infringed by not being able to marry in the church of his or her choice. However, there is a short answer to what is simply a scare. Article 12 does not go beyond a right to marry. It does not amount to a right to marry in a place or according to a ceremony of one's choice, religious or otherwise.

Finally, the new schedule proposed by the noble Baroness would exempt from being regarded as a public authority any person exercising functions in connection with the ecclesiastical courts of the Church of England. I again question why it should be necessary or appropriate to do this. The courts of the Church of England are courts of the land.

The noble and learned Lord, Lord Lloyd, asked me certain detailed questions about a very particular Church of England court, the Court of Ecclesiastical Causes Reserved, and the Privy Council. If the noble Lord will forgive me, I will write to him in detail upon the point. But that court is plainly in my view a court and under Clause 6(1) it is unlawful for a public authority to act in a way incompatible with any of the convention rights. The courts are covered by the convention, and Church of England courts are covered by the convention.

It is in the highest degree unlikely, for the reasons given by the noble Lord, Lord Lester, that any court of the Church of England could ever conceivably run foul of the convention. I could elaborate upon the matter but that might be thought to be expressing a greater respect for the views of the noble Lord than would be acceptable to part of the Opposition Benches this evening.

Before I conclude, I should mention that there is a further concern, particular to the Church of England, with which I have not dealt. It relates to the power which in its present form the Bill would give to amend a Measure of the General Synod by means of a remedial order. On that matter, too, we have listened carefully to the Church's concern, and we do think that an

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amendment to the Bill is appropriate. My noble friend Lord Williams of Mostyn will deal more fully with the matter when we reach Clause 10. The Government believe that the amendment he will move will give satisfaction to the Church.

I have dealt at greater length than is perhaps appropriate at this hour with the concern expressed by the Churches, both directly to the Government and through Members of this House. We are not brushing aside these concerns. After the fullest consideration I am, however, convinced, and the Government are convinced, that the concerns sincerely and fully expressed are not well-founded. I therefore invite the noble Baroness to withdraw her amendment.

Baroness Young: My Lords, I should like to start by thanking all noble Lords who have supported me in the debate this evening, in particular my noble friend the Duke of Norfolk, the noble Earl, Long Longford, the right reverend Prelate the Bishop of Ripon, and many others, including the noble Lord, Lord Alton, and the noble Earl, Lord Perth, from the Cross-Benches, and all those who have stayed until this late hour. I believe it indicates the importance that we all attach to these amendments. They are very serious and go to the heart of the Bill. I am therefore very grateful for the support that I have received all the way through.

Perhaps I might turn to those noble Lords who have not supported me, in particular the noble Lords, Lord Goodhart and Lord Lester. It is always dangerous for a lay person to have an argument with lawyers, but I am bound to say to both of them that, if they were putting a case, they were using the oldest trick in the book: you find a perfectly ridiculous case and then knock it down. The noble Lord, Lord Lester, quoted the case of a Church of England school refusing to admit black children. He might have thought of something better than that! Having built it up, he knocks it down to make us look silly. I do not think that that is very clever; I think we might be taken somewhat more seriously.

Lord Goodhart: My Lords, does the noble Baroness agree that that accusation against my noble friend and myself is a case of the pot calling the kettle black? The examples given by the noble Baroness about circumstances in which the courts might interfere with the working of the Churches were at least as far-fetched.

Baroness Young: No, my Lords, I do not accept that at all. The noble Lord, Lord Goodhart, quoted a lot of cases to indicate the difficulty of defining a religious organisation. He talked about what all noble Lords would agree might be regarded as crank organisations which supported mass murder, female mutilation, and so on. Those are acts which would come up against the criminal law. Nobody is suggesting for one moment that they would be supported by the Churches or anybody else.

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