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Lord Mackay of Drumadoon: My Lords, I am grateful, as I am sure will be the members who attended the meeting on behalf of the Church, for the very full explanation of the Government's position, which the noble and learned Lord the Lord Advocate has now given us.
He raised a number of issues. The first is whether it is right, having regard to the history of the matter, to view it as a matter for concern. The second issue is the practical implications. I cannot stress enough the importance to the Church of Scotland of the history of that Church and the importance and significance of the constitutional settlement which was entered into in 1921. It was a settlement between two parties, the Church on the one hand and Parliament on the other.
I believe that the noble and learned Lord the Lord Advocate has been present at the opening of a general assembly of the Church of Scotland. The fathers and brethren--that is, the ministers and elders, as they are referred to--stand to hear a letter from Her Majesty which is read to them by the Principal Clerk. In that letter, year in and year out, Her Majesty--no doubt acting on the advice of her Ministers--annually renews her pledge to preserve and uphold the rights and privileges of the Church of Scotland of which she is a member but in which she holds no special position as she does in the Church of England.
I have attended many assemblies over the years. I watched my father, who was a seventh-generation minister, take part in its debates. When I was in office, I myself attended two opening ceremonies. On each occasion those words of Her Majesty were greeted with acclamation. It means a great deal to the Church. In that sense it is a very practical issue.
The Church is not seeking to exempt itself from the Bill. On previous occasions when I have raised this matter I have been at pains to point out that the Church is quite happy that the provisions of the Bill should apply when it is dealing with what I might refer to as matters secular, such as the running of old folks' homes, clinics for drug addicts and the rest. Either paying for it itself or using funds gratefully received from local authorities or central government, it does work on behalf of the whole community.
There is no suggestion at all that the Church seeks to be exempted from the provisions of the Bill. Its concern is limited to its impact on the provisions of the 1921 Act. The noble and learned Lord the Lord Advocate has
helpfully set out his view as to how the Church would fall to be treated in terms of Clause 6 of the Bill. His advice, as I understand it, and I am sure that I understand it very fully, is that the Church court would not be considered to be either a court or tribunal under the clause. On a previous occasion I referred to a letter which I received from the noble Lord, Lord Williams of Mostyn, copies of which, I suspect, were sent to others. In the second part of it he says:
- "As to the first point, the courts of the Church of Scotland would appear to be courts for the purposes of the Human Rights Bill, and accordingly to be public authorities. I think it is right that this should be so. In most respects, there is no reason to distinguish between these courts and the civil courts. Their procedures for hearing cases, for example, should comply as necessary with Article 6 in the same way that other courts' procedures should".
Lord Hardie: My Lords, I was aware of the views expressed by my noble friend Lord Williams in the letter referred to. I was also aware that my views differed. The reason lies in the word "reconsidered". Throughout the passage of the Bill the Government have reflected deeply on the implications of it for the Church. As I said, there have been meetings between the Government and others. The position reached, contained in the view I have expressed, is the correct one.
Lord Mackay of Drumadoon: My Lords, as a Law Officer one should never inquire into the advice given to government colleagues. However, I am happy to hear that the noble and learned Lord the Lord Advocate has persuaded his colleagues. I hope that he will accept from me that, hearing these views for the first time, he has certainly not persuaded me. I was unaware that this point was raised with the representatives from the Church last Monday. If it was, it was certainly not drawn to my attention. On receiving the letter from the noble Lord, Lord Williams, I believed that the Government and I were at one in being of the view that the Church fell to be treated as courts under Clause 6. As I say, I am not persuaded to change my mind on that very crucial issue, having listened very carefully to what the noble and learned Lord the Lord Advocate so helpfully set out at length.
The noble and learned Lord the Lord Advocate also said that he could not imagine a case where any practical problem would arise. I am sure that the noble and learned Lord is aware of the case of Logan v. Presbytery of Dumbarton, which came before a judge in the Court of Session, Lord Osborne, in April 1991. That case was brought by a minister of a parish church who sought judicial review of certain decisions of the presbytery which were of a disciplinary nature. Among the arguments that he wished to raise (had the court been prepared to entertain the proceedings) was, first, that the presbytery had failed to accept--indeed, had rejected-- a plea of res adjudicata advanced on the minister's behalf--in other words, that the issue had already been decided. His second ground--this is of crucial importance to the point made by the noble and learned Lord--involved
claiming that the conduct of the presbytery's proceedings when dealing with the libel against him had resulted in a decision which was contrary to natural justice in a number of respects. So, as recently as three years ago a minister went to the Court of Session arguing that his rights had been breached, contrary to natural justice.I fully accept that one cannot entirely equiparate the rules of natural justice with the convention rights as they are set out in the Bill, but they are not entirely dissimilar subjects. It is possible to imagine a case where a minister, whom a presbytery seeks to remove from office for a variety of reasons, may seek to challenge the proceedings on the basis that they had not been conducted fairly. Indeed, in his response to my noble friend Lady Young this afternoon the noble and learned Lord the Lord Chancellor was prepared to admit such a possibility, however unlikely and inadvertent.
Finally, the Lord Advocate criticises the Church for asserting that Parliament has no right to require it to abide by convention rights when dealing with matters spiritual. That is correct, but that is no more than the Church of Scotland relying on the provisions of the constitutional settlement recorded in the 1921 Act. The Church is not ignoring anything. It is not ignoring the United Kingdom's obligations under the convention or under any other treaty. It is taking account of those matters and saying that it is for it, the Church, and for it alone to decide because that was the constitutional settlement it entered into back in 1921. I stress again that that settlement has been accepted, recognised and respected by successive governments--until the present one. This is a matter about which the Church feels very strongly and, for reasons which I am sure your Lordships will understand given my ecclesiastical background and my membership of the Church, I too feel strongly about it and I seek to test the opinion of the House.
7.33 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to? Their Lordships divided: Contents, 57; Not-Contents, 109.
Ailesbury, M.
Anelay of St. Johns, B.
Annaly, L.
Beloff, L.
Biddulph, L.
Blatch, B.
Bridgeman, V.
Burnham, L.
Butterworth, L.
Byford, B.
Carnegy of Lour, B.
Coleraine, L.
Coleridge, L.
Cox, B.
Cumberlege, B.
Denham, L.
Dixon-Smith, L.
Elles, B.
Elton, L.
Falkland, V.
Hamilton of Dalzell, L.
Henley, L. [Teller.]
Holderness, L.
HolmPatrick, L.
Hooper, B.
Howe, E.
Inchcape, E.
James of Holland Park, B.
Kinnoull, E.
Leigh, L.
Liverpool, E.
London, Bp.
Long, V.
Lucas of Chilworth, L.
Luke, L. [Teller.]
Lyell, L.
McColl of Dulwich, L.
Mackay of Drumadoon, L.
Malmesbury, E.
Marlesford, L.
Milverton, L.
Mountevans, L.
O'Cathain, B.
Park of Monmouth, B.
Pilkington of Oxenford, L.
Rawlings, B.
Renton, L.
Ripon, Bp.
Rochester, L.
Rowallan, L.
Selborne, E.
Skidelsky, L.
Strange, B.
Thatcher, B.
Vivian, L.
Wakeham, L.
Young, B.
Acton, L.
Addington, L.
Amos, B.
Archer of Sandwell, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Berkeley, L.
Blackstone, B.
Borrie, L.
Brooke of Alverthorpe, L.
Calverley, L.
Carlisle, E.
Carter, L. [Teller.]
Chandos, V.
Colville of Culross, V.
Currie of Marylebone, L.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Donoughue, L.
Dormand of Easington, L.
Eatwell, L.
Ezra, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, L.
Gladwin of Clee, L.
Goodhart, L.
Gordon of Strathblane, L.
Grenfell, L.
Hamwee, B.
Hanworth, V.
Hardie, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Janner of Braunstone, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Judd, L.
Kennedy of The Shaws, B.
Lester of Herne Hill, L.
Levy, L.
Ludford, B.
McIntosh of Haringey, L. [Teller.]
McNair, L.
McNally, L.
Mallalieu, B.
Merlyn-Rees, L.
Meston, L.
Milner of Leeds, L.
Mishcon, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Newby, L.
Nicholson of Winterbourne, B.
Nicol, B.
Ogmore, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L. [Lord Privy Seal.]
Rodgers of Quarry Bank, L.
Rogers of Riverside, L.
Russell-Johnston, L.
Sandberg, L.
Serota, B.
Simon, V.
Slynn of Hadley, L.
Smith of Clifton, L.
Stoddart of Swindon, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Turner of Camden, B.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Wedderburn of Charlton, L.
Whitty, L.
Wigoder, L.
Williams of Mostyn, L.
Young of Old Scone, B.
Resolved in the negative, and amendment disagreed to accordingly.
7.41 p.m.
The Lord Chancellor: My Lords, in Division No. 2 the figure announced for those voting Not-Content was 131. The correct figure is 130.
Clause 4 [Declaration of incompatibility]:
[Amendments Nos. 8 to 10 not moved.]
Clause 6 [Acts of public authorities]:
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