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Lord Coleraine: My Lords, I too would like to thank the noble Lord for accepting the arguments which I put forward in Committee about this small matter. I am very happy that his amendment should pre-empt mine.
Lord Lester of Herne Hill: My Lords, I, too, support this amendment and those associated with it, to which I shall speak briefly. I wish to draw attention to one matter. I realise that it is right in principle that remedial action should be confined to proceedings against the United Kingdom, made after the coming into force of the relevant section. However, there is the problem of what happens in relation to proceedings before that occurs.
That is best illustrated by the position in the case of Goodwin v. the United Kingdom. In that case there was a finding by the European Court of a breach as a result of an interpretation given by the Appellate Committee of this House. Then the problem was translating that into our own legal system without legislation, given the doctrine of binding precedent.
The problem has been exemplified more recently by a decision of the Court of Appeal in a case called Camelot. There is now an awkwardness in that there is no equivalent of the remedial procedure by subordinate legislation to give effect to a judgment of the European Court of Human Rights where it is necessary to over-rule domestic law. This problem is going to continue as regards pre-Human Rights Act cases.
I realise that it would be wrong to seek to widen this power, but I draw the attention of the House to the problem. I am not quite sure how we resolve it if, for example, a journalist in the same position as Mr. Goodwin found that the judgment is given binding effect against him in breach of his rights under Article 10 of the European Convention on Human Rights. I draw attention to that not in order to speak against the amendment or to suggest that it should be widened. It is quite a serious practical problem that will continue to exist and will not be solved by this Bill.
Lord Williams of Mostyn: My Lords, that may be so, but the structure that we have carefully crafted is to tie in, with the assistance, which I re-acknowledge, of the propositions put forward by the noble Lords, Lord Kingsland and Lord Coleraine. We have constructed the system of remedial action specifically in the context of this Bill. We believe that we have achieved the right solution. There may be anomalies which will have to be addressed in a different way, but not--and I respectfully agree with the noble Lord, Lord Lester of Herne Hill--through remedial action. I am grateful that he has raised this question.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 42:
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 44:
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 45:
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 46:
The noble Lord said: My Lords, this amendment responds to concern expressed in Committee by the right reverend Prelate the Bishop of Exeter. Subsequently it was the subject of quite extensive discussions between representatives of the Synod of the Church of England and officials at the Home Office. I am most grateful for
As it was indicated in Committee, Clause 10 would enable a Minister of the Crown to make a remedial order amending a measure of the General Synod or of its predecessor, the Church Assembly, following a declaration of incompatibility. The Minister of the Crown could do that without any reference to the General Synod.
The Church of England, perfectly properly, pointed out that that would sit uneasily with our present arrangements whereby a Church measure can only be approved or disapproved by Parliament in its entirety--in other words, with no opportunity for amendment. To provide for amendment of a Church measure by a Minister, even in response to the serious situation of a declaration of incompatibility, would obviously have significant implications for the Church. Neither do we feel that it would be appropriate for a Minister of the Crown to be in that situation. It would not tie appropriately with our present relations between Church and state.
Therefore, we thought about it carefully, particularly benefiting by the conversations to which I have referred. We came to the conclusion that if an amendment to Church measures were required to remove a convention incompatibility, it is better done by the Church itself rather than by the exercise of the order-making power by a Minister of the Crown. I express the Government's confident hope that if there were a court declaration of convention incompatibility, then the General Synod would speedily consider whether the measure should be amended. We do not believe that the Church of England would be found inactive if its legislation were found to be in breach of human rights. We are content to leave it at that. I beg to move the amendment on that basis.
The Lord Bishop of Ripon: My Lords, from these Benches I would like to express my thanks to the noble Lord, Lord Williams of Mostyn, for tabling this amendment. For over 70 years the Church Assembly--and more recently, the General Synod--have had delegated powers from Parliament to pass measures, subject to final parliamentary approval, relating to matters concerning the Church of England. These measures are part of the primary legislation to the law of the land. As the noble Lord, Lord Williams, has said, by removing measures from Clause 10, the understanding between Church and state is preserved.
The position of the Church of England as an Established Church puts it into a unique relationship with Parliament. As the noble Lord has said, Clause 10, as it stood before this amendment, would have given Ministers the power to amend Church of England legislation without consulting the Church.
The amendment removes those measures from Clause 10. It does not affect the status of such measures as primary legislation and the courts therefore cannot strike them down. However, as the noble Lord said, the courts have the power to declare an incompatibility between the convention and measures, and the power under this amendment to remedy that incompatibility lies not with the Government but with the Church of England.
The Church of England--I am confident that I speak for other Churches also--does not wish to escape its proper obligations under the convention. We have been seeking an assurance that the Bill cannot be used to require the Church to act in ways contrary to its religious principles and beliefs.
This generous and welcome amendment gives a substantial assurance to the Church of England in this regard. I should like to express once again my thanks not only to the noble Lord, Lord Williams of Mostyn, but also to his officials for their careful consideration of this issue and my pleasure at the outcome.
In response to the noble Lord's final hope, I wish on behalf of the Church of England to give an assurance that if ever the courts made a declaration that a Church measure was incompatible with convention rights, the Church would of course give consideration of the utmost seriousness to the introduction of an amending measure into the General Synod for the purpose of rectifying the situation.
Lord Hughes of Woodside: My Lords, I do not want to become involved in a contentious debate about Church versus state. That issue was probably debated at length earlier. However, I am unconvinced that there is any need to exclude the Church from any of the Bill's provisions.
I should like clarification on one or two points. As I understand the amendment from the way in which it was moved, and from the response from the right reverend Prelate, it basically restores the position to what it was before this Human Rights Bill was introduced. There is no real attempt to put the Church of England in an especially privileged position other than the especially privileged position that it was in before.
The whole purpose and thrust of the Bill is to repatriate the human rights Convention. No human rights have been taken away from anyone. We all understand the certain derogations in the Bill, but they in no way affect Article 9 of the Convention, which deals with religious freedoms.
Perhaps I may ask a question. Is it possible for someone who feels aggrieved by the procedures of the Church still to go to Strasbourg if he or she wishes? In other words, I seek confirmation that there is no cut-off point and that nothing in the amendment prevents that happening. If that is so, there would be no problem, but if it were the case that the purpose of the amendment inadvertently-- if perhaps not advertently--was to reduce the possibilities of anyone going to Strasbourg to exercise their rights, in my view that would represent unfair discrimination in favour of the Church. I hope that an explanation of that point can be given.
If there are difficulties such as I have suggested, I hope that the Government will look again at this amendment to ensure that nothing is done which takes away the rights of any individual who may have a grievance against the Church.
Page 6, line 10, after ("Rights") insert ("made after the coming into force of this section in proceedings against the United Kingdom").
Page 6, line 11, leave out ("one or more of the obligations") and insert ("an obligation").
Page 6, line 28, leave out ("one or more of the Convention rights") and insert ("a Convention right").
Page 6, line 34, at end insert ("and
(b) "legislation" does not include a Measure of the Church Assembly or of the General Synod of the Church of England").8 p.m.
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