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Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord for giving way. If in anything I have said either today or on previous occasions I have begun to suggest that the Government have not, since the concern was raised, treated the matter rightly, I should like to disavow the noble and learned Lord of such a view. What I have suggested-- I do not think the noble and learned Lord the Lord Chancellor has denied this--is that in bringing forward the Bill to the House there was no prior consultation with the Churches, it was not flagged up in the White Paper and it was not mentioned at Second Reading. So I do offer the mildest of criticisms in that matter. But I fully accept that when the matter was raised it was addressed--in a letter I received from the noble Lord, Lord Williams of Mostyn, in private discussion with the noble and learned Lord the Lord Advocate and at the meeting. I should like to think that in mentioning that meeting earlier I paid compliment to the Government for agreeing to meet the Moderator at short notice.

7.15 p.m.

Lord Hardie: My Lords, I am grateful to the noble and learned Lord for his intervention. I accept that the impression I got must have been mistaken. On the question of consultation, the White Paper did not specifically mention the Churches. I accept that. But the Churches had the opportunity to comment on the White Paper, as did everyone else, prior to the Bill being introduced. Despite these lengthy consultations with various departments within government, we, too, like the Church, are unable to find an example of a case which would be caught. The least unlikely case might be one in which Article 6.1 of the convention became relevant. Because if--it is a big "if"--a minister's relationship with the Church gives him a civil right, he would have a convention right to have any dispute concerning that civil right dealt with consistently with Article 6.

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Article 6.1 is reproduced on page 15 of the Bill. I do not think it necessary to repeat it. However, it is possible that proceedings before a kirk session considering disciplinary action against a minister may require, for the purposes of Article 6, to be,

    "a fair and public hearing by an independent and impartial tribunal established by law".
Questions might then arise--I emphasise that I am referring to a hypothetical situation--as to whether a kirk session was independent and impartial and, in particular, whether it was established by law. I would have some doubts as to whether a kirk session could be so described. As I have said, it seems to be reasonably clear that there was a period in the history of the Church when much of its administration and government was regulated by Acts of the Scottish Parliament. At that period it would have been easy to say that kirk sessions and indeed the assembly itself were "established by law".

However that may have been, it appears to me that the effect of the 1921 Act was to cut the connection between the general law of the land and the administration and government of the Church. That being so, it must be at least doubtful whether the kirk session and the general assembly could any longer be said to be "established by law". It is also possible that questions might be raised as to whether Church courts present a sufficient appearance of independence and impartiality.

It is not perhaps necessary for me to express any definitive view on any of these questions. I would only remark that in the 30 years since individual petition to Strasbourg became competent, no such point has been taken before the European Court of Human Rights by any Scottish minister.

However, I must continue to make these improbable assumptions for the purposes of the argument. Let me continue. If a Church body to which the Bill applies commits a wrong in convention terms, it would fall to the civil courts to right it. The convention rights are in this context part of the law of the land. The civil courts would investigate the convention issue--in the disciplinary example I have given, the criticism of the procedural unfairness levelled against the Church--in exactly the same way in which they would address any other question arising under the law of the land; for example, a complaint that someone acting on behalf of the Church had committed a delict, or tort in English terms. That would be consistent with long-standing Strasbourg jurisprudence on these questions. The civil courts' task does not, and cannot, involve trespassing on the doctrinal or spiritual interests of the Church, any more than the European Court of Human Rights would do were a complaint to be made direct to Strasbourg before the Bill comes into force.

To sum up on this part of my remarks, neither the Church nor the Government have been able to identify a real practical problem which this Bill will cause to the courts of the Church. The least unlikely problem is one related to whether the Church courts are independent and impartial tribunals established by law, within the meaning of the convention. If that problem exists, it exists now. The Bill will not solve it. The only

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difference the Bill will make is that questions relating to that problem will be dealt with in Edinburgh rather than in Strasbourg. In relation to an earlier group of amendments, I would simply refer to the intervention of the noble Earl, Lord Russell, who expressed this point more eloquently than I can. But the point is exactly the same.

I turn now to what I referred to as the theoretical threat to its independence which the Church perceives. The Church has repeatedly asserted that it would not wish to act inconsistently with the convention. The Government of course accept and welcome that as a general statement of the Church's position. But by seeking to be exempted from the provisions of the Bill the Church is asserting that, in the event of its courts acting in a manner incompatible with a convention right--perhaps because their internal organisation and procedures are inconsistent with Article 6--that matter should not be reviewable by the ordinary courts in Scotland but should only be reviewable by appeal within the system of Church courts. I would only observe that, in the case of a breach of Article 6, further consideration by other Church courts is unlikely to cure the defect.

But, as was made clear at the meeting with the Secretary of State for Scotland, the Church's position goes further than simply claiming to deal with human rights matters within its own courts. In the event of a finding by the European Court of Human Rights that the United Kingdom was in breach of its international obligations by reason of a Church court's having acted incompatibly with the convention, the Church of Scotland asserts that the United Kingdom Parliament would have no entitlement to require the Church of Scotland to change its procedures so as to make them compatible with the convention. According to the Church of Scotland, the most that Parliament or the Government could do would be to ask the Church to reconsider the matter. It would be for the Church to decide whether to change its procedures. The Church is claiming the right to continue to deny convention rights to those affected by the actings of its courts.

Perhaps I may say in passing that I inquired of the Moderator and the other representatives at the meeting as to how long this procedure would take. I understood from my researches that we would be talking about two years. In fact it would be three general assemblies before the Church could bring it into line. We are talking about three years. But even then, at the end of three years the Church might decide that it was not going to come into line with the requirement, in which case Parliament would require to consider what amendments were required to the 1921 Act.

I have already said that I have not been able to imagine a case in which such a situation would arise. But if it were to arise, the responsibility of this Government, and of any future government, would be to implement the international obligations of the United Kingdom. Those obligations, in the case of the human rights convention, consist in guaranteeing convention rights to everyone in the United Kingdom. No exception is made in the convention for persons who may be subject to the jurisdiction of the Church of Scotland.

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As I have said before, the Government do not seek to subject the institutions of the Church to detailed parliamentary control. We have no wish to provoke a disruption of the kind which soured Church-state relations in the last century. We seek only to incorporate into domestic law the rights which the United Kingdom has for some 45 years undertaken to guarantee to its citizens under the European Convention on Human Rights.

I shall add one final point before I finish. Your Lordships will note that this legislation is to apply to every public authority in the United Kingdom. The Bill represents a major constitutional change in the working of institutions throughout the country. The very courts of the land are to be subject to the Bill. The only exceptions are the two Houses of Parliament acting as such. I have tried to show that the concerns of the Church are not based on any realistic fear of interference by the civil courts with the Church courts. No one has been able to think of a real example. I have explained that, if the least unlikely example of conflict were to arise, the Bill would neither help nor hinder the arguments which the Church might present. It would enable the matter to be dealt with by a Scottish court rather than by a European court in Strasbourg. I would have thought that that would have been to the Church's advantage.

The Church's position ignores the practical implications of the United Kingdom's international obligations. It maintains that it is not for Parliament to legislate in such a way that the civil courts might be able, even in theory, to review the actions of Church courts. The logic behind these amendments is that even in the event of a finding by the European Court of Human Rights that the United Kingdom was, by reason of the actions of a Church court, in breach of its obligations under the convention, this Parliament could not put the matter right.

The Government's object in bringing this legislation forward is to enable the citizens of the country whose human rights within the meaning of the convention are being interfered with to raise that matter before the courts of this country rather than being required to take the matter to Strasbourg. Her Majesty's Government see no reason to make an exception to that general rule in respect of persons whose convention rights may have been adversely affected by institutions of the Church. Therefore, in the light of that full explanation, I hope that the noble and learned Lord will withdraw his amendment.

The right reverend Prelate the Bishop of Ripon made reference to the Government's position in relation to the Church of Scotland. He said that he did not understand the argument. I say to the right reverend Prelate that, unlike the Church of England, the Church of Scotland is not an established Church. The measures of the Synod of the Church of England require to be approved or not, as the case may be, by Parliament. As I understand it, that was the effect of the Government's amendment to accommodate that particular situation. That is not the position in the Scottish Church. Its legislation is not in the same category. I hope that that will explain the Government's concession to the Church of England and that it will not be misconstrued as being partisan in favouring the Church of England.

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At the meeting, I pursued with the Church representatives whether there was any intermediate solution they could put forward. They wanted to be excluded and that was their position. I said that I was anxious to hear from them of any intermediate solution that might meet their requirements short of excluding the Church from these provisions. I was advised that they were unable to respond because they did not have the authority of the Church to make any offers. We went to the table genuinely anxious to accommodate the Church, if at all possible. In the circumstances it has not proved possible to do so.

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