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Lord Renton moved Amendment No. 11:
The noble Lord said: My Lords, I beg to move Amendment No. 11, which was grouped with Amendment No. 1. I said at the time that I reserved my right to return to it when it came to its turn on the Marshalled List. I am a keen supporter of this Bill, as I made clear at Second Reading. However, I believe that in view of the strength of feeling in your Lordships' House on religious matters, especially the work of the religious courts, and the great number of noble Lords who supported the amendment moved by my noble friend Lady Young, we should think carefully about the religious courts and bodies.
As the Lord Chancellor said when he referred to the amendments in the first group, this amendment has very wide effect. I concede that. But the definition of public authorities in Clause 6 is wide, especially if one refers to subsection (3)(b) where one finds that,
I do not wish to take up more time on this matter. I hope that the noble and learned Lord, who has a wonderful grasp of the matters contained in this Bill, will simply say that perhaps in all the circumstances the matter should be given further thought.
Viscount Colville of Culross: My Lords, I believe that this group of amendments included Amendment No. 12. I listened carefully to the words of my noble and learned friend Lord Lloyd of Berwick about certain very specialised ecclesiastical courts. He asked the noble and learned Lord to consider what appropriate court or tribunal he might determine to be suitable to oversee those particular courts. He made an offer, which was not accepted, in relation to courts martial earlier this evening. Will the noble and learned
The Lord Chancellor: My Lords, I shall deal with the amendment of the noble Lord, Lord Renton, quite quickly. It is in very wide terms and takes us straight back to a full-blooded exemption for the Churches. It goes far beyond the more limited amendments in the name of the noble Baroness, Lady Young, which a short time ago found favour with your Lordships' House. I pass over rather quickly the question of what effect is achieved by the insertion of the word "corporate" before "religious bodies". Religious bodies are not normally categorised according to whether they are incorporated. I doubt whether the effect would be quite what the noble Lord intends. At all events, this does not appear to be an appropriate criterion by which to determine whether a religious body is a public authority for the purposes of the Bill.
The other question of principle, which we have already debated, is whether it is right to exempt the Churches from the duty not to act incompatibly with convention rights and the liability that rests upon them, to the extent that they are properly to be regarded as public authorities, to answer for their actions. Your Lordships' House determined that matter at Report stage. I believe that the House should give the same answer today. We believe it right as a matter of principle that the Bill should bear equally on all bodies which on a reasonable view of the part that they play in public life can properly be regarded as public authorities.
All I can say by way of comfort to the noble Lord is that we firmly believe that the Bill will not in any way encourage the ordinary courts to interfere in purely religious matters. But it is the view of the Government that if a religious body should find itself, however inadvertently, acting in a manner incompatible with basic human rights and fundamental freedoms, it should be amenable to correction in the same way as any other body that plays a similar role. I invite the noble Lord to withdraw his amendment.
Lord Renton: My Lords, I thank the noble and learned Lord for his reply, although I do not feel that it goes far enough or is open-minded enough. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon moved Amendment No. 12:
The noble and learned Lord said: My Lords, this amendment was spoken to with Amendment No. 3. I beg to move.
On Question, amendment agreed to.
Lord Lester of Herne Hill moved Amendment No. 13:
The noble Lord said: My Lords, I shall try to be brief for several reasons: first, because I believe that this is the first amendment which is of real practical importance. We have listened for several hours to amendments on doctrine, theology and general theoretical questions. This amendment deals with a practical problem. It relates to one of the only flaws in what the noble and learned Lord the Lord Chancellor is entitled to describe as a jewel of a Bill.
The flaw arises, as I explained in some detail in Committee, because the Government have imported into the test of legal standing to bring proceedings under the Bill a European test of victim rather than the conventional domestic law test.
The present sensible and satisfactory position under English law is to be changed. The law of standing is concerned with who can invoke the judicial process. Issues of standing can arise in private law or public law. When I moved an amendment in Committee, I endeavoured to exclude the European test of standing for private law as well as for public law. This amendment does something more modest. It seeks to exclude it only in public law proceedings for judicial review.
When one is dealing with private law claims--that is to say, tort actions for damages or damages and injunctions in relation to a public nuisance or a breach of statutory duty--someone claiming has to show that he or she was personally affected. That is similar to the European victim test. So I am not troubled about using the European victim test in a private law context, because in a private law context there is a focus on the individual. That is the central quality of what we call private law. It is concerned, above all, with the rights of private individuals and corporations. As regards judicial review, the position is entirely different.
Mr. Justice Sedley observed in a recent judgment that public law is not at base about rights, even though abuses of power may and often do invade private rights. He pointed out:
The basic English rule of standing is that the applicant for judicial review must have a sufficient interest in the matter to which the application relates. That includes cases of representative or associational standing, where an association seeks standing, either to represent a group of interested parties or to represent the public interest. So our courts have accepted that bodies such as the Child Poverty Action Group, Greenpeace, the EOC, the Immigration Law Practitioners' Association or the Joint Council for the Welfare of Immigrants all have standing to bring judicial review proceedings, regardless of whether the people whose interests they seek to represent are their members or are identified and joined as individual victims.
As it stands, Clause 7 alters that sensible English legal test of standing for cases of judicial review involving alleged breaches of convention rights by requiring the applicants to be victims within the meaning of Article 25 of the European convention. That is a test devised for the entirely different purpose of deciding who is entitled to have recourse to the European Commission and the European Court of Human Rights.
The purpose of the amendment is to align the Bill with the present domestic law for standing for seeking judicial review. It would leave the victim test intact for non-judicial review proceedings in private law cases.
This is a matter of great practicality. I know that there are several Law Lords who would have been here tonight if the issue had not been raised so late in the debate. The noble and learned Lord, Lord Hoffmann, wished to be here. He was sorry that he had to leave. I am grateful to the several Law Lords, serving and retired, who have been able to stay until this late hour. I am aware that the Master of the Rolls, the noble and learned Lord, Lord Woolf, has written to the Government expressing his opposition to this narrow and unworkable test of standing.
I shall explain why it is unworkable. I asked a Question about this and received a Written Answer which confirms the following bizarre situation: Clause 7, as it stands, will result in five different tests of legal standing in judicial review proceedings. There will be the case where there are common law principles alone in play; there will be cases where common law principles embody convention rights; there will be cases where European Community law embodies convention rights; there will be cases of judicial review on convention rights alone; and there will be cases of a combination of any of those grounds. That will lead to unnecessary, time-wasting, costly legal disputes, when our present test of standing for judicial review is satisfactory and workable.
The only justification given on the Government's behalf was in the Written Answer given by the noble Lord, Lord Williams of Mostyn, on 9th December 1997, when he kindly explained that the reason for the Government's approach:
Page 4, line 6, at end insert ("and does not include any kind of religious court or any corporate religious body").
"'public authority' includes ... any person certain of whose functions are functions of a public nature".
That is a wide definition. Admittedly, it does not include the Houses of Parliament or a person exercising functions in connection with proceedings in Parliament. However, before this Bill reaches another place I ask the noble and learned Lord to consider the desirability from the public point of view, in view of the support of your Lordships' House, of avoiding conflict between our secular courts and religious courts and bodies. Admittedly, my amendment is brief but it covers ground that has been referred to in a large number of much more detailed amendments this evening. But it may make for better legislation if we deal with it in the way set out in Amendment No. 11.
Page 4, line 8, at end insert--
("( ) In subsection (3) "court or tribunal" does not include any court or tribunal when it is exercising a jurisdiction, recognised but not created by Parliament, in matters spiritual.
( ) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the act is done by or on behalf of a religious body exercising a jurisdiction, recognised but not created by Parliament, in matters spiritual.").
Page 4, line 24, leave out subsection (3) and insert--
("(3) Nothing in subsection (1) shall prevent an applicant from bringing an application for judicial review provided that the court considers that he has a sufficient interest in the matter to which the application relates.").
"it is about wrongs--that is to say, misuses of public power",
5 Feb 1998 : Column 806
and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or outcome may, without in any sense being a mere meddler or a busybody, wish and be well-placed to call the attention of the court to an apparent misuse of public power. Mr. Justice Sedley also pointed out that our courts will not permit busybodies or mere troublemakers to apply for judicial review.
"have less to do with practical advantage ... than with a desire to reflect in our domestic arrangements the circumstances in which cases do now go to Strasbourg".--[Official Report, 9/12/97; col. WA 15.]
Surely practical advantage should be the touchstone, rather than a desire to use an alien European test devised for an entirely different purpose. I beg to move.
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