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Lord Rawlinson of Ewell: My Lords, I have not previously spoken in the debate on human rights. Seven years ago I was one of the first counsel ever to appear at the Court of Human Rights at the European Commission, long before some other noble Lords who have spoken in the debates. I agree with my noble friend Lady Young that at that time cases were about immigration and torture. The cases did not relate to matters which now arise and which the court has somehow created into human rights.

At that time, I was not particularly impressed either by the jurisdiction of the court or, with notable exceptions, some of the members of the Commission who were then administering that court. I recommended that senior English judges should be appointed and I am pleased to know that that will be the case. However, I believe that during the late 1970s, 1980s and 1990s, the situation has changed. Therefore, although I am an agnostic in relation to the Bill and the value of the human rights jurisprudence, I am sceptical about whether it will alter what were and are the liberties and freedoms of British subjects. Nevertheless, I accept that it is better to incorporate the convention into United Kingdom law. It is in those circumstances that I welcome the Bill.

However, as the noble and learned Lord the Lord Chancellor admitted, the Government never considered the implications in so far as they concern the Churches and their role not only as a public authority--in the Church of England that may be limited to marriage--but in education, schools and charities. I read with surprise that during the Report stage the noble Lord, Lord Goodhart, asked whether the Churches want freedom to do things contrary to public safety, contrary to public order, contrary to public health and morals or the protection of rights and freedom of others. That is absolute nonsense. Of course that is not so. It is a distortion of what was being sought in the amendment then under discussion and it would be a distortion if it were applied to this amendment.

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The amendment seeks to ensure that the Churches, in the exercise of their duties, have some safeguards and are at less risk of litigation under the Act. It may be that there has been no such previous case, but with many years experience of the law I can say, "Never say there will never be such a case". We have a litigious community which we have inherited from the United States. Everybody is eager to sue; everyone is eager to get someone into the courts. One can see Article 14 applying to an appointment which is denied to someone because of his religion; denied because a particular school or charity belongs to a Church and requires communicant members of the Church as the head of the charity or school.

What we see is not an outrageous demand. The noble Lord, Lord Alton, said on Report that it is a matter of perception. Whether or not the noble and learned Lord the Lord Chancellor accepts it, the perception is that the state is imposing some kind of control over Church affairs and that the Government are not looking at the reasonable apprehension of the Churches.

I speak as a Roman Catholic. I hope that the House, while it yet remains an authentic House of Parliament, will exercise today its constitutional power. I speak as a retired lawyer when I say that I hope it will ignore the lectures of other lawyers. I hope that the House will accept the amendment so that another place can look again at what the Churches--Christian, Jewish, Moslem--believe seriously affects the practice of their faith.

6 p.m.

Lord Goodhart: My Lords, the noble Baroness, Lady Young, said that this debate was about conscience. The European Convention on Human Rights and this Bill are about the protection of rights of conscience. As I said earlier, Article 9 is an extremely powerful protection of the rights of conscience and we have no such protection in our law as it exists.

Therefore, at first sight I find it surprising that the representatives and supporters of the Churches are coming to this House to ask for some sort of special treatment in the case of a Bill which gives them so much already.

I appreciate the concerns of the right reverend Prelate the Bishop of Ripon but I believe that they are not justified by any remotely possible threat posed by this Bill to the rights of conscience. I do not believe that the amendments proposed in this group are necessary or desirable.

The reasons that that is so have been explained in relation to the first group of amendments by my noble friend Lord Lester of Herne Hill and myself and, in his very comprehensive speech, by the noble and learned Lord the Lord Chancellor.

On Amendment No. 15, subsection (7B) deals with the right to hire and fire senior staff of Church schools. Those rights are governed already by the race relations, sex discrimination and employment rights legislation. As far as I am aware, with the possible exception of a very limited exemption from the sex discrimination legislation, the Churches have not sought exemption

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from any of those provisions. Why then should they feel so concerned about seeking exemption from a Human Rights Bill which will have nothing like the effect on employment practices as the three Bills which I have already mentioned?

Earl Russell: My Lords, the noble Earl, Lord Perth, invoked the memory of Sir Thomas More. He had every right to do so if it is relevant to this debate. But Sir Thomas More was a man with a very great and complex mind and his authority may be invoked on more than one side of this debate.

In his final resistance to King Henry, More stood up for the principle that, as he put it, the municipal law of England could not alter the universal law of Christendom. That is unfamiliar language now but it carries weight, and in the context of a Bill to incorporate a European Convention into English law it is strictly relevant because we cannot alter anything which is in this convention. It is not just the municipal law of this country; it is the universal law of Christendom. It can be altered only by agreement between the signatories. The only choice we face in the whole of this Bill is whether we shall have the rights under the convention, to which we are already committed, in British courts or at Strasbourg. It is that question only that we are addressing. The memory of Sir Thomas More may help us to remember that.

I congratulate the noble Baroness, Lady Young, on her courage, in which she is never deficient, in grappling with the task of attempting to define a religion. But that task is rather more difficult than one might gather from this amendment. First, I feel a considerable misgiving at the attempt to use the authority of Parliament, which is, I may say, not a spiritual authority, to try to make a distinction between first-class and second-class religions. One can imagine what the parliaments of King Charles II would have done to the Society of Friends had they had that principle available to them. It is not a pretty thought.

The wording also seems to cause some problems. The amendment states:

    "in accordance with the historic teaching and practices of a christian or other principal religious tradition represented in Great Britain".
Therefore, the courts will be asked to determine whether a religion is principal. I imagine that Hinduism and Islam will be recognised as principal religions. I do not know whether that will be the case in relation to Sikhs, Zoroastrians or Baha'is. Were I to be a judge, it is not a question that I should be particularly happy to have come before me because it is not a question in which the authority of the law is particularly well placed.

I can imagine also considerable jealousies between the religions held to be in the first division and those classified by the courts as being in the second division. It would need a system of promotion and relegation.

The noble Baroness, Lady Young, relied throughout on the argument, "Who would ever have thought that various particular things could come to be construed as rights". I remind the noble Baroness of the words of Edmund Burke who said:

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    "Whatever now is established, once was innovation".
People in this country have been burnt at the stake for holding the religion which the noble Baroness herself now holds. We should do injustice to the memory of Cranmer, Ridley and Latimer were we to deny it. Therefore, in some ways, one may benefit from the fact that concepts of rights change.

But they change only in line with public opinion so they come to be taken as rights only at the time that it becomes acceptable to a very large part of the public that they should be so. I agree with the noble Baroness that one cannot foresee what judgments future courts will make. But courts are like railways: they run on lines. They can take any fork but they cannot go where there are not any lines.

Throughout our discussions there has been a great deal of concern about employment law. The noble and learned Lord the Lord Chancellor on Report called attention to the fact that there are no employment rights in the convention. I have checked that, I think, six times since the noble and learned Lord said that. I cannot see the least reason for doubting what he says.

That could be changed not by a court decision, which would be ultra vires, but only by a new agreement between all the members of the Council of Europe, further accepted, ratified and incorporated in British law by this House. Were any such development in prospect, it could not take effect in British courts were we to say no to it.

Concern has been expressed about marriage, which is a vital matter. The convention does indeed lay down a right to marry. But, as far as I can see, there are no words anywhere in the convention which lay down a right to marry according to the requirements of any particular religious faith. The requirements of a religious faith are administered according to the principles of that religion. The only requirement of the convention is a right to make a marriage recognised by law. A marriage does not have to be conducted in church to be recognised by law. We should also remember that the convention is in force and incorporated in countries which take their religion very seriously. I am not aware that any of the evil effects which have been perceived have arisen anywhere else within the Council of Europe.

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