Orders of the Day — Human Rights Bill [Lords]

House of Commons, 20 May 1998.

THE CONVENTION AND THE FIRST PROTOCOL

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss amendment No. 99, in schedule 1, page 18, line 23, at end insert—'Article 13—

EFFECTIVE REMEDIES

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

The amendments are exploratory. They would insert into the Bill article 13 of the convention. The reason why we wish to explore the omission of that article from the Bill and the difference that might be made if it were inserted relates to our primary aims for this legislation, which I hope the Home Secretary will say the Government share. However, even if they do share them, we doubt whether they have achieved them yet. We have already expressed our doubts about the wisdom of incorporation of the convention, but, if there is to be incorporation, I hope that these three points are uncontroversial. First, one of the benefits of incorporation is that British judges would have an opportunity to have input into the fashioning of convention law. Some time ago, I wrote that I believed that, whatever my other reservations, that was an advantage of incorporation. Secondly, the fashioning of convention law and its expression in our domestic law should be the combined efforts of the judiciary and Parliament. It is for the judiciary to state where and how our existing laws, procedures or remedies are inadequate in law or incompatible with the convention, but it is then for Parliament to decide, in cases where legislation is involved—either primary or secondary—how the matter should be properly corrected. That is why we broadly support the Government's approach to judicial remedies and the power to take remedial action that is contained in clauses 8 and 10. Thirdly, we do not want the judiciary creating a separate body of law for the United Kingdom which may go further than would the commission or court at Strasbourg. Although we sometimes grumble at the Strasbourg institutions, and there are judgments that we respectfully criticise and seek to alter, we should recognise that they are usually careful and cautious in their approach to interpreting the convention. In recent years in particular, they have given a great deal of weight to margin of appreciation, which they and our own judiciary should be careful to do, and we respect the way in which they do so. To help achieve those three objectives, we shall concentrate later in the debate on, for example, our dislike of the fast-track procedure and on the fact that the Bill lacks any device—I use that word carefully—that would enable the Government or a public authority, if aggrieved by a ruling of our domestic courts, to cause the issue to be taken on to Strasbourg. Such a device would effectively give a right of appeal not only to the citizen, who already has such a right, but to government and public authorities, which currently lack that right. We hope to hear in due course that the Government agree with us on those aims and that approach, and that they will allow us to assist them in amending the Bill in that way. To revert more narrowly to the amendments, I ask the Government to clarify what they see as the difference, if any, between article 13 being expressly contained in the Bill and it being left out, as it now is. I invite Ministers to listen and watch carefully, because I suspect that we are about to start dancing on the head of a pin. When the question was asked by Lord Lester in another place, on 18 November, the Lord Chancellor, commencing his dance—if I may put it that way—first replied: the courts may have regard to Article 13. Some 10 lines further on in the Official Report, in answer to my noble Friend Lord Campbell of Alloway, the Lord Chancellor said: to incorporate expressly Article 13 may lead to the courts fashioning remedies about which we know nothing".—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 477.]

Edward Garnier (Conservative, Harborough)

My right hon. and learned Friend has been discussing the opinions of their lordships. Has he learnt anything from reading the Official Report of the other place that tells us the substance of the reasoning, if there is any reasoning, behind the Government's approach as set out by the Lord Chancellor?

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

My hon. and learned Friend anticipates accurately the points that I am about to expand. The simple answer to his question is no, but let me seek, for the benefit of the Home Secretary and the Minister, to explain why, in the hope that at least here, in the light of a summer's day, we may have some elucidation from the Government. As I said, when the question was raised in the Lords, the Lord Chancellor gave two seemingly inconsistent answers within about 15 lines of debate. He went on to rebuke, if that is not too harsh a word, Lord Ackner, a former Law Lord, for "nourishing suspicions"—a delightful expression—on the issue. However, he then purported to comfort my noble Friend Lord Kingsland, the shadow Lord Chancellor, by stating: I believe that the English law is rich in remedies and I cannot conceive of a case in which English law under Clause 8(1) would be unable to provide an effective remedy."—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 479.] The House will instantly recall that Lord Lester said that he won Pepper v. Hart, but I was on the other side. Pepper v. Hart was not exactly a case that one won or lost, but one in which the House of Lords—which was straining at the leash to do so—decided that it would be illuminating to their Lordships, in their judicial capacity, and to the courts generally if they were able to examine the words of a Minister in cases of ambiguity in a Bill, to determine whether they could ascertain how to resolve that ambiguity. It has always seemed to me ironic that their Lordships chose a case in which the junior Minister in a Labour Government—who was a highly respected Member, and subsequently a Chairman of the Treasury Select Committee—had, around midnight, been answering some 90 questions in two hours in the course of a debate on the Finance Bill, in which he had arrayed against him 14 future Cabinet Ministers and two future Chancellors. None the less, Pepper v. Hart was thought likely to be a case in which examination of the Minister's words would be helpful. 4.45 pm The point about Pepper v. Hart is that in it, it was ruled that one may examine a Minister's comments. Lord Lester—always astute on such points—has decided for himself that, having heard the current Lord Chancellor expatiating on the meaning of clause 8(1), he could take it that judges, having read the debate in the other place, would arrive at the simple conclusion that it was Parliament's intention that the courts could have regard to Article 13 of the Convention. For completeness, one notes—as the Lord Chancellor pointed out—that, under clause 8(4), In determining— (a) whether to award damages, or the amount of an award", the Bill already provides that the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. The Home Secretary will have instantly realised that, as the Bill seems to say that courts can take those points into account in awarding damages, applying another legal principle—expressio unius est exclusio alterius—presumably they are not entitled to take them into account in other circumstances. However, the Lord Chancellor did not go into that particular detail. Nevertheless, as I said, it seems to suggest that, in other respects, one does not take article 13 into account. The Home Secretary might again be able to enlighten us on whether there is any difference between the meaning of the words "taking into account" and "having regard". I think that, by now, I have made good my point that the head of the pin on which we are dancing is not all that large. I conclude with two simple questions. Does it make any difference whether article 13 is expressly contained in the Bill? If so, what difference does it make, and why?

Jack Straw (Labour, Blackburn)

I congratulate the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) on a very elegant, well-informed and entertaining speech. However, in the course of this short debate, I hope to show that—on the omission of article 13—far from dancing on the head of a pin, Labour Members have been waltzing with ease around a very large dance floor. Although the right hon. and learned Gentleman made some hay with some selected quotations from my right hon. Friend the Lord Chancellor in the other place, it is fair to tell him that, in the course of that debate, Lord Lester of Herne Hill withdrew his amendment, seeming to be satisfied—he did not press his amendment to a vote—by explanations offered by the Lord Chancellor.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

The Home Secretary is right to say that Lord Lester appeared to be satisfied, but that was precisely because of his interpretation of the Bill, which, as I have just explained, was that, notwithstanding that article 13 was omitted, by applying Pepper v. Hart, the courts could none the less have regard to it.

Jack Straw (Labour, Blackburn)

I hope to explain, fully consistently with what my learned Friend the Lord Chancellor said, why we thought that, on balance, it would be better to omit article 13 than to include it. In response to the first three general points made by the right hon. and learned Gentleman, of course we support him. The case for incorporation, among others, is that British judges can be involved in the development of jurisprudence. I happen to think that that will be extremely helpful, both because they obviously have a better understanding of circumstances in this country than judges from other jurisdictions, and because we have a body of people in the higher judiciary with a degree of skill and professionalism that is in some ways unrivalled throughout the world. It is important that that skill should be utilised in the interpretation of a profoundly important convention and a profoundly important Bill. Secondly, the right hon. and learned Gentleman felt that it was right that we should incorporate the convention in a way that fashioned the law through the combined efforts of the judiciary and Parliament. In opposition, when we first looked into the matter, we certainly tried to achieve that. On the third point, we did not want to incorporate the convention in a way that challenged the supremacy of Parliament and its sovereignty. I have noticed some correspondence and articles in the newspapers suggesting that we should have gone down that route, and that, if we did not, it would be a milk-and-water version of incorporation. When reference is made to Bills of Rights not only in the United States but in jurisdictions such as Canada, what is forgotten is that those jurisdictions have written constitutions and that there is what amounts to a superior law, which is brought into effect by the procedures for change in the constitution itself. We do not have that facility, and I do not suggest that we should. As an alternative, we have the sovereignty of Parliament, and therefore it is of profound importance that the ultimate judge of what should or should not be a right and a responsibility in the United Kingdom must be this Parliament and no other body. In the discussions that took place among ministerial colleagues, we thought about this matter long and hard. If the right hon. and learned Gentleman does not mind me saying so, I was pleased and to some extent amused that, despite his hesitancy about the overall principle of incorporation, he is now proposing a purer form of it than some would say we have put in the Bill. We decided it was inappropriate to include article 13, for the following reasons. First and foremost, it is the Bill that gives effect to article 13, so there was an issue of duplication. The Bill sets out clearly how the convention rights will be given further effect in our domestic law, and what remedies are to be available when a court or tribunal finds that a person has been the victim of an unlawful act. We will be discussing those clauses in more detail later, but I will briefly summarise the relevant provisions. Clause 3 requires legislation to be read and given effect, as far as possible, in accordance with convention rights. Clause 6 makes it unlawful for a public authority to act in a way that is incompatible with a convention right. Clause 7 enables the victim of an unlawful act to rely on his or her convention rights in any legal proceedings, or to bring proceedings on convention grounds. Clause 8 provides that a court or tribunal, when it finds that a public authority has acted unlawfully, may grant the victim such relief or remedy, or make such order, within its jurisdiction as it considers just and appropriate. Those are powerful provisions, as is acknowledged. In our judgment, they afford ample protection for individuals' rights under the convention. In particular, clause 8(1) gives the courts considerable scope for doing justice when unlawful acts have been committed. Indeed, no one has been able to suggest any respect in which the Bill is deficient in providing effective remedies to those who have been victims of an unlawful act. The amendment—this was to some extent implicit in the right hon. and learned Gentleman's closing remarks—would add nothing to the Bill, which brings me to our second reason for opposing it. If we were to include article 13 in the Bill in addition to the remedies provided in clauses 3, 6, 7 and 8, the question would inevitably arise what the courts would make of the amendment, which, on the face of it, contains nothing new. I suggest that the amendment would either cause confusion or prompt the courts to act in ways not intended by the Bill—for example, by creating remedies beyond those available in clause 8. Whatever the outcome, the result would be undesirable.

Edward Garnier (Conservative, Harborough)

Will the right hon. Gentleman give one or two examples of the remedies he envisages that would go beyond those set out in clause 8?

Jack Straw (Labour, Blackburn)

In considering article 13, the courts could decide to grant damages in more circumstances than we had envisaged. We had to consider that matter carefully, because of the effect on the public purse. We are dealing with breaches of rights by public bodies, some of which are financed by Government—whose purse is, apparently, endless and seamless—whereas others do not have access to the full resources of Her Majesty's Government and the Bank of England printing works in my home town of Loughton in Essex. We had to think carefully about the scope of the remedies that we should provide. Our overall judgment is that the amendment, which would incorporate article 13, would not add anything much, but might create uncertainties. We see no particular reason to accept it.

Edward Garnier (Conservative, Harborough)

Does not that argument fly in the face of the terms of article 13, which concerns everyone's right under the convention to an effective remedy? The right hon. Gentleman's point about the public purse and defendants or respondents to complaints who do not have such a deep pocket suggests that some people will be denied an effective remedy. If article 13 is not incorporated, an effective remedy will be denied those who are not, for example, taking action against a Government or public body with a huge purse.

Jack Straw (Labour, Blackburn)

We do not believe that those people will be denied an effective remedy. Indeed, as I said, very few people have suggested that the remedies we are providing will be ineffective—however, they must be balanced and proportionate. Ultimately, as the right hon. and learned Member for North-East Bedfordshire rightly said, courts will have to take account of jurisprudence laid down by the court in Strasbourg. I accept that we are arguing a fine point, but I suspect that, if the right hon. and learned Member for North-East Bedfordshire had been pursuing the Bill in government, as easily he could have been, he would have come to the same judgment as we did—that there is little point including in a Bill additional wording whose probable effect would be not to make any difference, but whose possible effect would be to add uncertainty. That is our judgment on a fine point, and I accept that the right hon. and learned Member for North-East Bedfordshire may consider it a moot point. No doubt I have spoken less eloquently than the Lord Chancellor and others in the Lords.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I am most grateful to the Home Secretary, who is speaking most clearly. I entirely agree that, with regard to damages, the Bill is perfectly straightforward, and that clause 8(4) expressly states that principles applied by the European Court of Human Rights should be taken into account. What is to be made of the Lord Chancellor's statement in which he said: My response to the second part of the question posed by the noble Lord, Lord Lester, is that the courts may have regard to Article 13."—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 477.]? Lord Lester has taken that as Pepper v. Harting—if I may create a new verb—the result that he wants, allowing the courts to do what they could not otherwise do. 5 pm The Home Secretary, not the Lord Chancellor, is in charge of the Bill. Will he clarify whether the courts are to be able to use the Lord Chancellor's words to have regard to article 13, or whether they should simply read the Bill, which makes no such reference? Of course, I mean no disrespect to the Lord Chancellor.

Jack Straw (Labour, Blackburn)

Me neither. I shall certainly talk to the Lord Chancellor, but I think that he had in mind no more but no less than the fact that the courts would apply clause 2(1), which says: A court or tribunal determining a question which has arisen under this Act in connection with a Convention right must take into account"— not "have regard to"— any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights … whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Of course, there is convention jurisprudence on article 13, as on other articles. Lord Lester made that point in respect of the Chahal case, which turned on article 13, and said that it would be taken into account and that regard would be had to it. That point is as much in our favour—suggesting that the specific inclusion of article 13 is unnecessary—as it is in the favour of the right hon. and learned Member for North-East Bedfordshire.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I do not want to be tedious, but the Home Secretary will recognise that clause 2(1) concerns any … judgment, decision, declaration or advisory opinion", while my question concerns whether the courts should have regard to article 13. I think that he is saying that he does not agree that the courts should have regard to article 13, as Lord Lester would have wished.

Jack Straw (Labour, Blackburn)

Let me try again to answer the point. The convention has been international law for 50 years, and any tribunal will consider the bare text of any original convention by considering the way in which its application has developed—there is, indeed, a requirement to do so—so, in practice, the courts must take account of the large body of convention jurisprudence when considering remedies. Obviously, in doing so, they are bound to take judicial notice of article 13, without specifically being bound by it. That is my judgment about the way in which the law will work. I wish future Judicial Committees of the House of Lords luck in working through these debates. One sometimes wonders about the wisdom of the Pepper v. Hart judgment in terms of the work that it has given the higher judiciary. It is a fine point, but since we saw that there was no purpose, and indeed that there were some dangers, in including article 13, we thought that it was best omitted.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

Surely, if the Government had wished no consideration to be given to the jurisprudence that has developed on article 13, it would have been necessary to include a specific derogation from the provisions of clause 2(1). Without that derogation, it seems inevitable that how the courts have developed article 13 rights will be a matter that the court not only may consider, but ought to consider.

Jack Straw (Labour, Blackburn)

With respect, that is the point that I sought to make. The distance between us is small.

Edward Garnier (Conservative, Harborough)

If the Home Secretary agrees with the point just made by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), why not include article 13 so that there is no doubt? Then the House of Lords Judicial Committee would not have a Pepper v. Hart problem.

Jack Straw (Labour, Blackburn)

We think that it would create doubt. We believe that we are adequately covering the issue of remedies in clauses 3, 6, 7 and 8. We are specifically providing remedies that are understandable in English and Scots law. In determining whether a particular remedy is to be granted in respect of any action, the courts must interpret convention rights as laid down in clause 2. If I may labour the point, we do not believe that incorporating article 13 adds anything positive to the Bill that is not already there; that covers the point about the courts having to take judicial notice of article 13 as a basic text without being bound by it. We believe that it could create unnecessary doubt, and that is why it is not sensible to accept the amendment, which I respectfully invite the right hon. and learned Member for North-East Bedfordshire to withdraw.

Denzil Davies (Labour, Llanelli)

I see the logic in the arguments of both my right hon. Friend the Home Secretary and the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell). Let me refer first to my right hon. Friend's logic by saying that the convention is about rights, but has one article that says that courts should give effective remedies. Courts usually give whatever remedies they can. As far as I know, the county court cannot provide prerogative orders—at least, it did not used to be able to; perhaps it can now and I do not know it. There are certain cases in which injunctions can be granted under statute in the county court, but prerogative orders such as certiorari or mandamus are not normally issued by county courts. Presumably, if an issue of convention rights appeared in a county court action, an English county court would not be able to grant certiorari or mandamus, although that would be an effective remedy under article 13. I understand why my right hon. Friend says that each court will grant the remedy that that court has the right to grant, but if there is a judicial review, it is unusual for the divisional court or, in civil cases, the High Court, to award damages. It can happen, but—I have not looked at the white book over the past 24 hours—it is very rare. Yet much of the work for lawyers that the incorporation of the convention will create—if it does—will be in judicial review. The High Court might declare in a judicial review case that an act contrary to the treaty was unlawful. That might not be an effective remedy. Damages might be more effective. Today, it is generally not possible to obtain damages. It may be that the declaration of unlawfulness is sufficient. I am as baffled as—I do not say this in a derogatory sense—the right hon. and learned Member for North-East Bedfordshire was. I have read the House of Lords debates. I, too, am baffled as to why article 13 has been left out, if it does not make any difference. My right hon. Friend the Home Secretary muttered something about the public purse and lots of money. He said that it might cost a lot. I understand that argument, but I cannot follow its logic because, according to the notes on clauses, people cannot receive more than £15,000 from the courts in Strasbourg, if anything at all. So damages are pretty restricted. I am not sure why my right hon. Friend is worried on that front, unless damages over and above the normal remedies that would be given by a court, such as prerogative orders in the case of judicial review, could be sought as an effective remedy. In cases of trespass of land, one can obtain a judgment and penny damages. That might not be an effective remedy in some cases. Does the provision mean that I cannot normally obtain more than a penny, but that if article 13 is incorporated, I can obtain at least up to £15,000, if that is thought to be an effective remedy? I am not sure whether the word "effective" means anything at all. I have not studied the jurisprudence of the convention or the cases. Perhaps it does. We are told that we are not incorporating the convention into English law, but we are. If we are incorporating the convention into English law, I can well understand that if an action goes through the normal English, Welsh or Scottish courts, it is tidier to say that the court can grant only the remedy that that court can give in the generality of cases. It makes the position rather complicated perhaps, and fussy—I do not know—to enable, say, a county court to give a remedy in a case under the convention when the court cannot give the remedy normally. Perhaps all this is a consequence of the Government's fiction. It is a fiction. We shall return to this subject later, but it is a fiction. The Government say that they are not affecting the sovereignty of Parliament; that they are not incorporating the convention; that they are not doing anything at all. It is a clever fiction. Lawyers understand fictions. We approve of fictions. We think that fictions are great things because lawyers have made a lot of money over the centuries from fictions. This is a fiction and a clever one. I can see the logic of what my right hon. Friend the Home Secretary is saying within the terms of the fiction—that parliamentary sovereignty is not affected, we are not really incorporating it and that it will all be done under English law. If we look at the interpretation provisions, we have to interpret according to the statute unless it is clearly contrary to the terms of the convention. It is very well done, and we all understand that. All that I am asking my right hon. Friend in this rambling, short intervention is what he means when he says that he is worried about the public purse. Is he worried that all those lawyers—all those fat cats who sit every day in the judicial review courts and make a lot of money—will obtain damages against local authorities, damages for misfeasance, damages against the Home Office and other Government Departments, over and above any mere declaration that might satisfy pride but does not help the pocket of the litigant? I do not know whether my right hon. Friend intends to speak again. If he tells me that I am talking nonsense, I shall not be happy, but I shall accept it, so perhaps he could deal with the point that I have made.

Dominic Grieve (Conservative, Beaconsfield)

I listened carefully and with great interest to the comments of the right hon. Member for Llanelli (Mr. Davies). Although I approach the matter from a slightly different angle, I agree with him. I find a lack of logic behind the decision to exclude article 13 from the Bill. I listened carefully to what the Home Secretary had to say, and I understand the thrust of it. If it is the case, which it must be, that the courts will have to have regard to article 13, to exclude it from the text of the Bill but to infer that the courts will still have to have regard to it, must be a fertile field for argument and money for lawyers when human rights cases come to court. I do not see how the article will cause exceptional problems if it is included in the Bill. It will be clear that where no domestic remedy may exist in damages, one will have to be created. That is something that the common law has been rather adept at doing for a long time. 5.15 pm I am bound to say that when I was first contemplating how best to incorporate the European convention, it struck me that one way was simply to say that it was part of our common law, full stop, and leave it to the judiciary to formulate the remedies. That is what is being done—the Home Secretary may agree—with article 13. It is being left up in the air for the judiciary to make a formulation in so far as one may be required. It is in fact going to be part of our common law, but in a furtive way, as the right hon. Member for Llanelli said. I find a lack of logic. It is perhaps an exercise in semantics, because the article will be included anyway when the time comes. However, when something is left out, we can rely on the fact that lawyers in court will latch on to it and formulate an argument that damages cannot be awarded. I can foresee a circumstance wherein the domestic remedy cannot be found in damages. Some court or other will say that it cannot award them. Then there will be the problem of going to appeal and possibly ending up in Strasbourg, when it is abundantly clear in the convention that an effective remedy of damages must be found. I question why article 13 is not included. I accept that at the end of the day it will be included by one means or another, but as we are trying to draft sensible legislation, I must raise a question mark. I invite the Home Secretary not to give us an answer today but to go away and think about whether it would not be better to include the article in the Bill. Later we shall be discussing other areas in which we have tinkered around with the wording of the convention, some of which cause me far more disquiet, but I find it difficult to understand the logic behind excluding article 13.

Jack Straw (Labour, Blackburn)

x: Let me answer—I hope to their satisfaction, but perhaps not—the points that right hon. and hon. Members have raised. My right hon. Friend the Member for Llanelli (Mr. Davies) asked what the problem is and raised the issue of uncertainty. It was that uncertainty that concerned us when we sat down and came to a finely balanced judgment as to whether article 13 should or should not be omitted. I should say that I am recommending that the Committee should not accept the amendment. I shall reflect on the arguments that have been advanced, because the point is needle fine—everybody is agreed on the objective; the question is merely one of how to achieve that objective. We have come to one judgment, but I would not for a moment suggest that that is because we on the Treasury Bench are possessed of better judgment on such matters than other right hon. and hon. Members, who have far greater experience of the law than I have. My right hon. Friend the Member for Llanelli asked whether damages would ever be available. In paragraph 2.6 of the White Paper, we said: In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages. The White Paper went on to make the point that the hon. and learned Member for Harborough (Mr. Garnier) made, which is that in considering an award of damages on conventional grounds, the courts are to take account of the principles applied, not so much by the convention, but by the European Court of Human Rights. In that way, people will be able to receive compensation from a domestic court equivalent to that which they would have received in Strasbourg. My right hon. Friend will know from the explanatory and financial memorandum to the Bill, on page iii, that the awards at Strasbourg tend to range from £5,000 to £15,000 and are not made simply because the Court finds a violation of the Convention.

Denzil Davies (Labour, Llanelli)

I understand that, but it was my right hon. Friend who, quite properly, muttered about the public purse. What has the public purse got to do with the incorporation of article 13 if all those damages can be issued anyway? My impression is that he was saying that the Government were worried that, if they put article 13 in the Bill, it would cost far more money. My question is, how?

Jack Straw (Labour, Blackburn)

We might have been overworrying, but we did worry about the matter. My right hon. Friend was a Treasury Minister, so he will know that there is always concern about the financial effects of Bills, and quite right too. It is far more difficult to predict the financial effect of this Bill than of almost any other Bill coming before the House, because we are charting new waters and do not know exactly how it will develop. Our concern was to ensure that the courts applied themselves to the jurisprudence of the convention and that they did not, for example, develop awards of damages that exceeded the convention. It was for that reason that we took the view that the best way of applying article 13 in the context of incorporating the convention was to spell out in specific clauses how those remedies should be made available. Therefore, we take from article 13 that Everyone whose rights and freedoms — are violated shall have an effective remedy and then set out in the Bill what those effective remedies should be and how they can be accessed. The hon. Member for Beaconsfield (Mr. Grieve) is to some extent right to say that the argument is about semantics and that it is probable that, at the end of the day, we shall have been arguing about a distinction without a difference. On balance, we came to the view that it was better and created more certainty to omit the precise text of article 13 from the Bill, but to apply it in the ways set out, not only in the clauses that provide for remedies, but through the force of clause 2. As I said, it is a finely balanced judgment.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I am most grateful to the Home Secretary for giving way, because it gives me the opportunity to put to him the key point that is in my mind when deciding whether to withdraw the amendment. I seek clarity in legislation. The Home Secretary invites me to withdraw the amendment that would insert article 13 into the Bill and I am minded to withdraw it, but I do not think that Parliament or the country should be left with article 13 having been kept out of the Bill—quite expressly, because the Committee has discussed it and I have withdrawn the amendment—but, at some later date, it being said to be effectively within the Bill because of things that Ministers said in the course of the debate. If the right hon. Gentleman can give me the assurance that we are legislating by black-letter law on the face on the Bill and not by what one can cull from the pages of Hansard, I shall feel much happier about withdrawing the amendment.

Jack Straw (Labour, Blackburn)

As far as I am concerned, we are indeed legislating by black-letter law on the face of the Bill. We could have a separate debate about the wisdom of the decision in Pepper v. Hart: I know why the Judicial Committee made that decision and, to some extent, there is common sense in seeking to tease out the meaning of words where they are ambiguous, but I have always taken the view that what Parliament passes is not what Ministers say, but what is on the face of a Bill. That is of profound importance to the manner in which we make legislation. I invite the right hon. and learned Gentleman to withdraw his amendment, but I shall certainly reflect on what he and others have said. At the very least, I shall write to all the right hon. and hon. Members who have spoken, following my reflections.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I am most grateful to the Home Secretary. On the basis of what he has said, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.

Kevin McNamara (Labour, Kingston upon Hull North)

I beg to move amendment No. 111, in page 1, line 9, at end insert 'and— (c) Articles One and Two of Protocol Number 6,'.

ARTICLE 1

ARTICLE 2

Kevin McNamara (Labour, Kingston upon Hull North)

The amendment would insert in the Bill the sixth protocol of the European convention on human rights and, in particular, its first two articles. Article 1 of the sixth protocol states: The death penalty shall be abolished. No one shall be condemned to such penalty or executed. Article 2 of the sixth protocol states: A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law. The Committee knows that, as a House, we abolished the death penalty for a trial period in 1965. That was made permanent in 1969 for this island and in 1973 for Northern Ireland. There remained on the statute book two crimes which carried the death penalty: treason and piracy. However, as a result of an amendment, tabled in another place by Lord Archer of Sandwell, to clause 33 of the Crime and Disorder Bill, those crimes were removed from the statute book. That clause has passed through the Committee of the House of Commons and, although challenged, remains. By free vote of the House, we have taken a matter which everyone has regarded as a matter of conscience—the death penalty—out of our normal civil law. 5.30 pm There are two international conventions dealing with capital punishment. The first of those is the one to which I have referred—the sixth protocol of the convention on human rights of the Council of Europe. The other is the second optional protocol to the international covenant on civil and political rights, which also provides for abolition of the death penalty, while allowing states wishing to do so to retain the death penalty in wartime—although I have been told, in reply to a parliamentary question, that the Ministry of Defence is now considering the whole matter of military penalties. The sixth protocol has been ratified by 28 European states and signed by four others. It has been signed by all the members of the European Union except the United Kingdom, and has been ratified by 12 member states. The second optional protocol of the ICCPR has been ratified by 32 states and signed by four others. I find the present position of Her Majesty's Government difficult to understand. I should have thought that, now that those matters have been removed from the statute book, Her Majesty's Government would have rushed to sign the sixth protocol—or at least, as it is a matter of conscience, encouraged hon. Members to act in that regard. When Estonia, the most recent country in the Council of Europe to ratify the sixth protocol, did so in March 1998, the United Kingdom presidency issued a declaration welcoming the recent decision. It said: The EU welcomes the recent decision of the Estonian Parliament to ratify protocol number six of the European Convention for the Protection of Human Rights, thereby abolishing the death penalty. This is a significant step forward on the eve of the opening of Estonia's accession negotiations to join the EU. It reinforces Estonians' commitment to the promotion of human rights". Last month, the United Kingdom co-sponsored, with 63 other states, the resolution at the United Nations Commission on Human Rights. It called on all states parties to the ICCPR that have not already done so to consider acceding to, or ratifying, the second optional protocol, and called on all states that still maintained the death penalty to establish a moratorium on executions with a view to completely abolishing the death penalty. That was an advance, because in 1997 the UK Government had abstained on a similar resolution. The problem is, how can the Government welcome other countries ratifying the sixth protocol but not ratify it themselves, and how can the Government urge other countries to ratify the second optional protocol to the ICCPR but not ratify it themselves? Following last year's general election, our new Government reviewed the United Kingdom's position on the death penalty, in preparation for the summit of the Council of Europe at Strasbourg in October 1997. As a result of that review, the Government supported the final declaration, which called for universal abolition of the death penalty. In a written answer to me on 19 January, the Prime Minister said: The Government have supported international calls for the abolition of the death penalty because Parliament has consistently voted against re-introduction of capital punishment for murder."—[Official Report, 19 January 1998; Vol. 304, c. 401.] In a letter to David Bull, director of Amnesty International UK, dated 28 November, my right hon. Friend the Foreign Secretary said: Our new stance will make a real difference in allowing us to make demarches on the death penalty to other countries, either alone or with our EU partners". However, he went on: The Government continues to believe that the issue of whether the death penalty should be reintroduced for murder is a matter for Parliament on a free vote and has no plans to change that approach. We have no plans, therefore, to accede to the 6th Protocol to the ECHR, or the 2nd Optional Protocol to the ICCPR. On that basis, given this opportunity, we would expect to have a free vote. Perhaps when the Under-Secretary, my hon. Friend the Member for North Warwickshire (Mr. O'Brien), replies to the debate—or now—he will tell the Committee that the Government do not intend to put in any Whips against this amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am much obliged to the hon. Gentleman for giving way, because I have been trying to follow his argument. At the outset he said, properly, that the issue of capital punishment is one for conscience and a free vote, and at any time it chooses the House can debate that issue as it relates to individual instances—whether it be treason or piracy or whether the death penalty should apply in wartime—but would not the effect of what he proposes be to fetter the ability of Parliament to express its conscience? If we accept the protocol as the hon. Gentleman seeks to admit it, it would no longer be open to Parliament to debate that issue without, effectively, throwing out the whole European convention, lock, stock and barrel, or at least changing it. Acceptance of the protocol would introduce an extra hurdle, which fetters Parliament's ability to express its conscience on a matter which, I am sure that he will agree, is of widespread public importance, and often discussed.

Kevin McNamara (Labour, Kingston upon Hull North)

I shall come to that point later.

Chris Mullin (Labour, Sunderland South)

I have asked the Whips, and I understand that this is a free vote.

Kevin McNamara (Labour, Kingston upon Hull North)

Has my hon. Friend been told that there will be no Government Whips on the Doors or taking the count?

Chris Mullin (Labour, Sunderland South)

I have been told that this is a free vote.

Kevin McNamara (Labour, Kingston upon Hull North)

I am grateful for that. The impression that one always had about a free vote was that the Government did not put in Whips. Perhaps the Minister will rise and tell us that the Government will not put in Whips.

Mike O'Brien (Labour, North Warwickshire)

In due course.

Kevin McNamara (Labour, Kingston upon Hull North)

In due course he will rise and tell me that they are not putting in Whips. I am afraid that I did not catch my hon. Friend's last comment from a sedentary position; would he care to repeat it? No; he would not like to do so. Responding to a similar amendment moved by Lord Archer of Sandwell in another place, the Minister, Lord Williams of Mostyn, said: The Government's view has been that the issue of the death penalty … is a matter of judgment and conscience to be decided by Members of Parliament as they see fit. I believe that all political parties have taken a view on that particular aspect which is different from other human civil rights. Therefore, if we ratified Protocol 6, we could not reintroduce the death penalty for murder, short of renouncing the convention."—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 504–05.] That is splendid. I suppose that every conscience will flick over just like that, to change its position. That is particularly interesting on the basis of the point made by the hon. Member for Beaconsfield (Mr. Grieve) about the constitutional principle. Paragraph 4.13 of the excellent White Paper, "Rights Brought Home: The Human Rights Bill", states: The view taken so far is that the issue is not one of basic constitutional principle but is a matter of judgement and conscience to be decided by Members of Parliament as they see fit. Suddenly, out of the air, a strange constitutional principle that one Parliament cannot bind another is produced. That is what we all accept, except that we also say that we are not bound by what went before and can change it if we will. The hon. Gentleman said that that goes in favour of future Parliaments, but that is not the case. A future Parliament can, if it wishes, change precisely what we are seeking to do today, and that will have ramifications. It can be debated in the House. That can be applied to any international agreement that we have made. It applies directly to the EU and other matters that we have conceded. We could vote tomorrow—I am sure my right hon. Friend the Member for Llanelli (Mr. Davies) would want us to do so—to take back many of the powers that we have given the Commission, such as the powers that we have surrendered with regard to majority voting. We could pass that legislation tomorrow. We can, if we wish, bring back the European Communities Act 1972. It would have profound and difficult ramifications and the hon. Gentleman is entering deep waters, but his argument does not stand up.

Dominic Grieve (Conservative, Beaconsfield)

Surely that is precisely the point. As is generally well known, I favour incorporation of the convention. However, the hon. Gentleman may agree that he is making life complicated for himself quite unnecessarily. He may agree that the subject commands much emotion and diverse views, but he is seeking by the amendment to entrench the matter in a way that will fetter Parliament when there is no necessity to do so.

Kevin McNamara (Labour, Kingston upon Hull North)

With the greatest respect, we are not fettering Parliament. We are saying that this is a decision of this Parliament. We are not saying that a future Parliament cannot change it. It will do that in the knowledge of the necessary consequences of what it does.

John Bercow (Conservative, Buckingham)

I have been following closely the logic of the hon. Gentleman's argument, bizarre though it seems to me. If the hon. Gentleman is confident that a future Parliament would not seek to reinstate the death penalty, of what precisely in the present arrangement is he afraid? If, on the other hand, he fears that a future Parliament might seek to re-establish the death penalty, is not his effort today designed to prevent a future House of Commons from doing just that? Therefore, is not my hon. Friend the Member for Beaconsfield (Mr. Grieve) right when he says that the hon. Gentleman is seeking to fetter and circumscribe the sovereign omnicompetence of the House of Commons?

Kevin McNamara (Labour, Kingston upon Hull North)

In the House, sovereignty has long since slipped away on many issues. One must recognise that. Whether one is happy about it or not, it has happened on a range of issues. I shall not bore the Committee with examples. I do not object to what has happened in that regard—it is not a problem for me—but why can all the other members of the EU happily sign protocol 6 without finding the argument advanced by the hon. Member for Beaconsfield and others particularly onerous? To me as an abolitionist, and I should have though to other abolitionists, what the hon. Gentleman says is a powerful argument for incorporating the protocol. Bearing in mind those crimes that were subject to capital punishment before 1965, and all those miscarriages of justice of which we have had a calendar in the past two decades, it would be just as well if we were fettered in that way.

John Bercow (Conservative, Buckingham)

Will the hon. Gentleman give way?

Kevin McNamara (Labour, Kingston upon Hull North)

No, I shall not do so for a moment, because we have exhausted that part of the argument. I come finally to a matter that caused the amendment to be signed not only by me but by those of my hon. Friends who are part of the British delegation to the Council of Europe, as well as by other of my hon. Friends. Just before Christmas, a country that is a member of the Council of Europe was responsible for a series of secret executions. The families of those executed were not informed of either the date or the place of the executions until considerably later. In January, the Council of Europe was concerned with ratifying the credentials of the members of that country's Parliament who had signed and accepted the Council of Europe's charter and convention. The British delegation was strong in its demand to know how people who had flouted undertakings that they had given to the Council of Europe could remain within a parliamentary assembly. We were well supported by representatives from all parties in this House and from other Parliaments on the issue. That country was forced to change its attitude, to stop its executions and to give undertakings from which its people would benefit. However, in making the argument that we had not murdered or executed anyone for nearly 50 years—perhaps a little less than that—we were continually told that we had not even signed protocol 6. At that time, the death penalty for treason and piracy remained on the statute book. We shall not always be in that position. The Government's position is inconsistent and contradictory. We welcome other countries' ratification of death penalty protocols and we urge them to do so, we call for the universal abolition of the death penalty, but we refuse to accede to the death penalty protocol itself. We do that so that Parliament can reintroduce the death penalty. That is the nature of the argument. Therefore, in the interests of our international standing and consistency, I urge the Committee to take on board what the Home Secretary said in the White Paper—that this is a matter of conscience to be decided by Members of Parliament as they see fit. I reiterate the point that I made earlier: that the view taken so far is that this issue is not a matter of basic constitutional principle.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I have much sympathy with the arguments that have just been deployed by the hon. Member for Hull, North (Mr. McNamara). I take issue with the view that the death penalty is not a constitutional issue. If the Government deploy that argument against the amendment tonight, their argument will be flawed. In the Bill of Rights of the United States, there are provisions that have been variously interpreted by the Supreme Court of the United States as both allowing and not allowing capital punishment, but that they are constitutional issues is not in doubt. It is inconsistent with that argument that in the Bill we are incorporating article 3 of the European convention, which proscribes cruel and unusual punishment. Many people would take the view that capital punishment was clearly proscribed by that article. Capital punishment as conducted in several countries would unquestionably be ruled out by article 3. Protocol 6 is a belt and braces measure, which we should adopt and support as a nation to put beyond doubt our abhorrence of capital punishment. It is particularly appropriate to do so at a time when the United Kingdom is seeking to exert its moral authority to bring about political reform, and using other countries' attitude to capital punishment as a litmus test of whether reform is sufficiently under way to merit new relationships with them. I have great sympathy with the objectives of those who support the amendment, but I have some doubt about whether it is appropriate as a means of ratifying the protocol. I would have preferred the Executive to announce their intention to ratify the protocol and, as a consequence of that decision, to include it in the Bill. I agree with the hon. Member for Hull, North. To say that it is simply a matter of judgment and conscience to be decided by Members of Parliament as they see fit is to misunderstand the concerns of constitutional law and is inconsistent with our acceptance of article 3 of the European convention.

Dominic Grieve (Conservative, Beaconsfield)

I listened with great care to the hon. Member for Hull, North (Mr. McNamara), and I appreciate the sincerity of his desire not only for capital punishment to be abolished for all offences—in practice, it is not in operation in the United Kingdom—but for us to sign up to the international obligation under protocol 6, which hitherto no Government have done. No Government have done so because the matter remains one of intense public debate in this country. It is a matter of conscience for Members of Parliament. As we all know from going out into our constituencies, it is also a matter on which the public may have substantially different views from the majority in the House. That has been consistently shown by every opinion poll taken on the subject over many years. My complaint about the manner in which the amendment is being introduced goes not to the right of the House to legislate on the issue, but to the fact that I—although not necessarily all members of my party—have been a proponent of incorporation, based on our obligations under the European convention as it now stands, to which we have signed up. If the consequence of the amendment is that the scope of the convention is altered without the opportunity for adequate public debate, I fear that we shall forfeit the regard of the public in respect of this proposal. Because I am in favour of the proposal and have made no secret of it, that particularly disappoints me. There is ample scope for those who share the hon. Gentleman's view to raise an Adjournment debate and to lobby Ministers to sign up to protocol 6. That should be the subject of legitimate public debate, because it has a knock-on effect on the ability of the House to review the position, as it has traditionally done, once every Parliament. I fear that, if we start to go down that road when there is no necessity to do so, the public will ask what Parliament has done.

Kevin McNamara (Labour, Kingston upon Hull North)

On the matter of lobbying, on Second Reading of the Crime and Disorder Bill, I intervened and asked my hon. Friend the Minister of State about that. He replied: As my hon. Friend is well aware, that is covered by the Human Rights Bill rather than this Bill."—[Official Report, 8 April 1998; Vol. 310, c. 451.] As urged by my hon. Friend, I have raised the matter now.

Dominic Grieve (Conservative, Beaconsfield)

I find the logic of that statement rather difficult to follow. Of course it is possible for us to extend the abolition of the death penalty for murder to every category that remains on the statute book, and once every Parliament we can review the matter and have a vote, and there will be public debate in the country at large on the matter. We can ratify the protocol, and there will be public debate on that. I return to the point that to do that through an amendment, which is unexpected as it did not arise from public debate, would be remarkable and undesirable. Far from encouraging acceptance of the principle of incorporation, it will tend towards the opposite effect. I am not surprised, therefore, that Ministers may have had some anxiety and doubts on the subject. The question of the death penalty, the morality of it and the issue of conscience are all legitimate matters for debate. Although we have never ratified protocol 6, we have never breached it because there has been no need to do so. In peacetime, that would be extremely unusual. If we accept the amendment, we are usurping the right of the citizens of this country to pronounce on the issue, and we are doing so for no good reason. It will vitiate the effect of the Bill, which is in other ways so desirable. I understand why the amendment was tabled, but I ask the hon. Member for Hull, North to reconsider, and I ask all hon. Members to consider carefully whether, even if they support the intention behind the amendment, this is the proper way to achieve it.

Fiona Mactaggart (Labour, Slough)

I find the two arguments against the amendment extremely disappointing. The second, articulated by the hon. Member for Beaconsfield (Mr. Grieve), is that the amendment is unfair because we did not know that it was coming up. I remind the hon. Gentleman that I raised the matter on Second Reading. I argued that we should sign the protocol as part of the incorporation of the European convention. My hon. Friend the Member for Hull, North (Mr. McNamara) intervened to ask me whether I was suggesting that we should sign the protocol, and I confirmed that. If those who think that we should not do so are now claiming that this is an ambush, they have not been doing their job properly.

Dominic Grieve (Conservative, Beaconsfield)

I am not suggesting that it is an ambush on me, or on others of us who may object to incorporation. This has consistently been a subject of legitimate public debate for many years. The proposal will make continuing public debate and the possible review of previous decisions made by Parliament extremely difficult without serious knock-on effects. We shall not be lightly forgiven by the public if we go down that road.

Fiona Mactaggart (Labour, Slough)

The hon. Gentleman has joined the two arguments. The second argument relates to the ambush and the first asks what is the important part of the British constitution. Is it the right of the House to determine this issue once every Parliament or is it re-fashioning the constitution—on the basis of which the Labour party was elected—to reconstitute the constitutional settlement in the United Kingdom? Many people believed that we would not do that, but we have demonstrated our determination to re-fashion the constitution of the United Kingdom vigorously during this Parliament.

Eleanor Laing (Conservative, Epping Forest)

Does the hon. Lady seriously suggest that it is not the prerogative of the United Kingdom Parliament to decide the criminal law and criminal penalties for this country?

Fiona Mactaggart (Labour, Slough)

I am suggesting that we should re-fashion the constitution to base it on the concept of human rights. If we do that by incorporating the European convention on human rights into United Kingdom law, we shall be saying that the people's fundamental human rights are more important than the right of Parliament to debate those issues.

John Bercow (Conservative, Buckingham)

I must say, in all candour, that if the hon. Lady thinks that the constituents of Slough sent her to Parliament because they were hoping for a re-fashioning of the constitutional settlement, she is deluding herself. Is she so persuaded not only of the rectitude of her case, but of the public support for it, that, in her address during the election campaign, she told her potential constituents that she would vote permanently to deny the House of Commons the entitlement to re-establish the death penalty if it wished to do so?

Fiona Mactaggart (Labour, Slough)

Like that of the hon. Gentleman, my election address was relatively brief. I did not inform the good voters of Slough of everything that the Government would do. However, in my speeches and in my conversations with the voters of Slough, I made absolutely clear my commitment to the incorporation of the European convention on human rights and to a human rights-based constitution. The hon. Gentleman may ask any voter in my constituency about the degree to which I did that. I am not ambushing my constituents: I made it clear that I believed that centring the constitution on the human rights of the people was an important change in the governance of the United Kingdom. In international human rights law, the most fundamental human right is the right to life. The first right referred to in article 2 of the convention is the right to life, which can be derogated in certain circumstances—through the death penalty, for example. The third article in the convention refers to the right to freedom from inhuman and degrading treatment. If we believe in protecting the rights of the citizen and in using international human rights instruments to do that, we have a responsibility to protect the citizen from judicial murder. We have an opportunity today to sign a protocol that entrenches the abolition of the death penalty in peacetime, and I believe that the time has come to do that. I thank my hon. Friend the Member for Hull, North for giving us the opportunity to become a public part of the international community of states that have rejected the death penalty because they respect the human rights of their citizens.

Edward Garnier (Conservative, Harborough)

I shall not detain the Committee for long. "Shocked" is perhaps too grand a word to use to describe my reaction to the speech by the hon. Member for Slough (Fiona Mactaggart). It is interesting to note that the hon. Lady referred to "re-fashioning" the constitution and to "entrenching" the abolition of the death penalty in peacetime. I candidly admit that I voted not to reintroduce the death penalty every time I had a chance to do so in the last Parliament. When I was selected in 1989–90 to contest the seat of Harborough on behalf of the Conservatives in the 1992 election, I told my constituency association that I opposed the death penalty for murder. Nothing that I have heard or learnt in the intervening period—until today—has persuaded me that it should be reintroduced into our civil criminal courts for murder convictions. As I said on Second Reading not so long ago, while I oppose the death penalty in run-of-the-mill murder cases, I am not convinced that we should abandon the state's right to impose the death penalty in time of war. Some people may claim that my approach is contradictory, but I believe that special circumstances apply during a state of emergency and during times of war.

Fiona Mactaggart (Labour, Slough)

Under the sixth protocol, there is a requirement to abolish the death penalty only during time of peace and not during time of war.

Edward Garnier (Conservative, Harborough)

The hon. Lady is perfectly right. However, article 2—which she will find on page 15 of the Bill—states: Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. The convention makes the death penalty available for murder convictions or other offences during time of peace. Therefore, there are inconsistencies in the convention with which the hon. Lady must come to terms, as will I. It is not necessarily the fault of the hon. Member for Hull, North (Mr. McNamara) that his amendment is inconsistent. The reason for that can be found in articles 1 and 2 of the sixth protocol. As the hon. Lady pointed out correctly, article 1 states: The death penalty shall be abolished. No one shall be condemned to such penalty or executed. That seems fairly definite—we could not claim that it is ambiguous. However, article 2 of the sixth protocol says: A State may make provision in its law for the death penalty in respect of acts committed in time of war". We must read that article in conjunction with the article to which I referred previously to appreciate my point about internal inconsistencies within the convention.

Barry Gardiner (Labour, Brent North)

I hesitate to intervene, as I entered the Chamber only recently. However, I understand that article 2 refers to extra-judicial killings and thus should not be interpreted in the way in which the hon. and learned Gentleman has done.

Edward Garnier (Conservative, Harborough)

I am not so sure that I understand the concept of the lawful extra-judicial killing, but perhaps the hon. Gentleman may explain it to me later if he catches your eye, Mr. Lord. If he thinks that extra-judicial killing means killing in the heat of war, he is very much mistaken, because that is not what the articles are about. The hon. Member for Hull, North is premature in moving this amendment. For reasons of his own—he is a well-known advocate of the cause that he advanced today—he is getting ahead of another piece of legislation, the Crime and Disorder Bill. That legislation will give every hon. Member a chance to exercise his or her conscience and vote one way or the other on the question of abolishing the death penalty. I believe that the provisions in that Bill go far beyond what the hon. Gentleman seeks to introduce into law today through his amendment. I shall be in a degree of difficulty over the Crime and Disorder Bill, which seeks to abolish the death penalty for military crimes or crimes against the state during the course of war, which I would disapprove of, while I wholly approve of the non-return of the death penalty for murder.

Kevin McNamara (Labour, Kingston upon Hull North)

Article 13 does not affect legislation for the armed forces. It affects only specific legislation that is contained within the article.

Edward Garnier (Conservative, Harborough)

I am sorry, but I did not hear the first part of the hon. Gentleman's intervention. The simple point is that there will be an opportunity for Members to exercise their conscience on the question of the death penalty shortly. The hon. Gentleman said as much in a response to an intervention from, I think, my hon. Friend the Member for Buckingham (Mr. Bercow). The hon. Gentleman is attempting to stymie or snooker the Committee into reaching a conclusion today on a decision that it will have the opportunity fully to debate in due course. This evening, we do not have very much longer to discuss the mammoth subject before us. I applaud the hon. Member for Hull, North for raising the subject, but I think that he has chosen the wrong day and the wrong time.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am listening to my hon. and learned Friend's argument with care. Let us say that the House of Commons decides on a subsequent occasion to approve the motion that the death penalty in its entirety should be abolished. Is my hon. and learned Friend saying that at that point, and because of that vote, it would be right to ratify the sixth protocol, or is he saying that this matter should always be left at large so that the House of Commons could at some stage reintroduce the death penalty if it so chose?

Edward Garnier (Conservative, Harborough)

Probably the best way at this stage in which to answer my right hon. and learned Friend's question is to invite him to read clause 1(4), which allows the Secretary of State to amend the list of protocols contained in the Bill. I have no doubt that if the House of Commons decides in future to accept the Government's proposals as set out in the Crime and Disorder Bill, the Under-Secretary of State and the Home Secretary will want to examine clause 1(4) to see what they should do about it. I am not suggesting that we should get ahead of ourselves. When we have an opportunity to debate the military or wartime death penalty, we should allow that debate to proceed in an orderly way, rather than dealing with the issue in a short debate this afternoon. The hon. Members for Slough and for Hull, North candidly admitted that they wanted to prevent further discussion. They want to ensure that the matter is dealt with here and now, subject to the procedures of the House of Commons and of another place in reviewing what we have done. As I have said, I disagree with them. Their attempt, though no doubt well intended, is wrong and should not be acceded to. I am interested in the Government's proposals for whipping Members such as the hon. Members for Slough and for Hull, North. No doubt we shall hear about them in a moment. I am sure that the hon. Gentleman will do precisely as he wants. Why should he not? He was elected to this place to make up his own mind on the various matters that come before us. The hon. Lady is newer to this place, and she may be receiving advice shortly on her pager. I have no doubt that this is an amendment that should not be accepted by the Committee, irrespective of the sincerity of the hon. Member for Hull, North and that of his hon. Friends who have put their names to it.

Theresa May (Conservative, Maidenhead)

I was interested in this matter as I approached consideration of the Bill in Committee. I listened with interest to the hon. Member for Hull, North (Mr. McNamara), especially because his views on the issue were contrary to those of the Government, which had been expressed in another place and set out in the White Paper. I was disappointed in the hon. Gentleman's speech because, although he was speaking with considerable sincerity about a cause that he believed in with some passion, I found it difficult to follow the logic of his arguments. I sympathise with the hon. Gentleman to the extent that it appears that it was suggested that he should bring the matter forward in this debate by the Minister. However, I found that some of his answers to interventions from my right hon. and hon. Friends did not tie up with his earlier comments.

Kevin McNamara (Labour, Kingston upon Hull North)

May I assure the hon. Lady that, irrespective of whether my hon. Friend the Minister had made the suggestion—the way in which he spoke suggested that he was not exactly encouraging me to bring the matter forward—I tabled the amendments because they had been well aired in the other place as well as on Second Reading.

Theresa May (Conservative, Maidenhead)

I am grateful to the hon. Gentleman for that, clarification, although he indicated earlier that it had been suggested that the matter should be brought forward this evening.

John Bercow (Conservative, Buckingham)

My hon. Friend has hit the nail on the head with uncanny precision. Is not an example of the inconsistency of the contribution of the hon. Member for Hull, North (Mr. McNamara) his belief that he and his hon. Friends should have the right to exercise their consciences to vote for the amendment, and thereby permanently prevent the return of the death penalty, while simultaneously seeking to deny the right of a future House of Commons to exercise its conscience in a direction with which the hon. Gentleman happens to disagree?

Theresa May (Conservative, Maidenhead)

As ever, my hon. Friend has, with his usual perspicacity—[Interruption.] I think that hon. Members know the word that I was looking for, which is entirely appropriate when describing my hon. Friend. He hit the nail on the head in picking out a particularly illogical comment made by the hon. Member for Hull, North. In response to an earlier intervention by my hon. Friend the Member for Beaconsfield (Mr. Grieve), he said that he did not want to fetter Parliament and that this issue was not about fettering Parliament. As my hon. Friend pointed out, he went on to make it absolutely clear that he intended to fetter Parliament, and he was supported by the hon. Member for Slough (Fiona Mactaggart), who made it clear that she wanted to entrench this provision and thereby fetter Parliaments of the future.

David Lock (Labour, Wyre Forest)

I apologise for interrupting the flow of praise to the hon. Member for Buckingham (Mr. Bercow). It is nice to hear him praised occasionally; I am sure that he appreciated it. If the hon. Lady wants seriously to argue that future Parliaments will have no opportunity to intervene, I shall be interested to hear how she answers the detailed and wholly accurate point made by my hon. Friend the Member for Clwyd, West (Mr. Thomas), who explained precisely why that was not the case. I look forward to hearing her explain why he is wrong.

Theresa May (Conservative, Maidenhead)

I was making a point about the illogical comments of the hon. Member for Hull, North. He and Ministers said that they intended and hoped to fetter future Parliaments on the issue of the death penalty. I refer the hon. Member for Wyre Forest (Mr. Lock) to the fact that the Minister in the House of Lords, Lord Williams of Mostyn, said that it was not simply a theoretical question of whether future Parliaments would be able to consider this issue and take a decision, but that, if we ratified Protocol 6, we could not reintroduce the death penalty for murder, short of renouncing the convention".—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 504–5.] That is my concern. I am also concerned that this afternoon's debate is not about the death penalty. Although it is entirely right and proper that the Committee should have such a debate—as it happens, my views on the death penalty are similar to those expressed by my hon. and learned Friend the Member for Harborough (Mr. Garnier)—I believe that the House of Commons has the right to decide, when hon. Members wish, whether the death penalty should be reintroduced or whether it is appropriate to have it within our legislation for circumstances that still exist. We shall have a proper debate on the death penalty when we discuss the Crime and Disorder Bill. However, that is not what this afternoon's debate is supposed to be about. I am worried about what will happen. A future debate in terms of this amendment would not simply be about whether the death penalty was right; it would be about the wider issue of the convention. Any decision taken would not simply be a decision on the death penalty. I agree with the Government in their "Rights Brought Home" paper that this is a matter of judgment and conscience, to be decided by individual Members of Parliament as they see fit, and that it should not be regarded as part of the broader issue of whether the convention as a whole is correct. That is precisely why it is important to retain the right to bring the issue of the death penalty before the House of Commons. Future Parliaments must not be fettered in that respect, which is why I shall not support the amendment.

Maria Fyfe (Labour, Glasgow Maryhill)

I add my congratulations to my hon. Friend the Member for Hull, North (Mr. McNamara) on introducing the amendment. I had not intended to speak until I heard a Conservative Member argue that there was no point in supporting the amendment on the ground that it was of no practical relevance because no executions had taken place in this country for some decades. Let me respond by saying that we should not be so insular. The issue has practical relevance in other countries. Many of us are regularly contacted by Amnesty International asking us to take up the case of someone in danger of being executed, and it would certainly help us to have more moral authority in such questions if we were to sign the protocol. It would show that we rejected any possibility of going back to exercising the death penalty in peacetime. I have not read the debate in the other place, and the acoustics in the Chamber made it hard to hear tonight exactly what the Opposition's reasoning was. What I seemed to pick up was that they thought that the proposal was all right in principle, but not yet. If that is the case, I should like to hear more from the Government about their reasoning because I think that the amendment should be supported, if possible tonight.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The arguments are more finely balanced than some of my right hon. Friends have suggested. However, my conclusion is that we should not sign up to the protocol, and I am therefore against the amendment. The narrow question is whether it is right permanently to exclude this House's ability effectively to reinstate the death penalty. I can think of no foreseeable circumstances in which I would support the restoration of the death penalty and I have voted against it on many an occasion. That, however, is not conclusive of the issue, because we must ask ourselves whether we should exclude from the powers of the House the ability to take such a decision. As my hon. Friend the Member for Maidenhead (Mrs. May) said, the noble Lord Williams of Mostyn in the other place said—I believe correctly—that, if we signed up to protocol 6, the House could not reinstate the death penalty without derogating from the convention. Therefore, if we accept the amendment, the House will no longer have the ability to reinstate the death penalty. Although I shall always oppose such a measure, it would not be right to exclude it from the range of powers available to the House.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I am surprised to hear the right hon. and learned Gentleman throw his weight behind the view that the signing of the protocol would permanently exclude the possibility of the House returning to the issue. He was a member of a Government who derogated from provisions of the convention to deal with the position, as they saw it, in Northern Ireland. By his argument, that matter might have been considered to be beyond the consideration of this House—it was not.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have considered, and I accept, the advice given in the other place by the noble Lord Williams of Mostyn on this matter, which received a great deal of support in that place. Even if he were not right, if we sign up to the protocol we shall exclude the House from the ability to reintroduce the death penalty. Therefore, either because of a finding of law or because of the reality, the House could not do that. Although I can think of no circumstances in which I would wish the House to do that, it is wrong in principle to preclude it from doing so.

Norman Godman (Labour, Greenock and Inverclyde)

May I offer my compliments to my hon. Friend the Member for Hull, North (Mr. McNamara) for introducing the amendment? I also offer my compliments to the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) for his intervention a minute ago, when he reminded the Committee of what this Government have done in the past—

Kevin McNamara (Labour, Kingston upon Hull North)

That Government.

Norman Godman (Labour, Greenock and Inverclyde)

Yes. That lot when they were in office—those whom I now facetiously call the English rural party. The right hon. Gentleman was right to point out what they did on the question of Northern Ireland. I say to hon. Members and to my hon. Friend the Member for Slough (Fiona Mactaggart) that, throughout my time as a Member of Parliament, my constituents have known where I stand: four square against the death penalty. I have conveyed that perspective to them at public meetings and through the columns of that august journal, the Greenock Telegraph. When the hon. and learned Member for Harborough (Mr. Garnier) talked about military executions, a shiver ran down my back, because I oppose military executions and the imposition of the death sentence on soldiers and others by courts martial. I gained experience of courts martial, albeit it many years ago in my mis-spent youth, because I was in the Royal Military Police. Although the cases that I was involved in were not serious, I have said in the House over and over again, especially during the passage of the Armed Services Bill, which is a quinquennial event, that I have no trust in our system of courts martial. 6.30 pm When the hon. and learned Gentleman talked about military executions, I decided to speak, if only for a few minutes. I am totally opposed to the death penalty. The hon. Member for Maidenhead (Mrs. May) will accuse me of illogicality for supporting my hon. Friend the Member for Hull, North, but when he puts his amendment to the vote, I shall be in the Lobby with him because of what is, I hope, my principled opposition to the death penalty. As my hon. Friend the Member for Glasgow, Maryhill (Mrs. Fyfe) will know, an old friend of mine in Aberdeen, Councillor Robert Middleton, witnessed one of the last executions in Scotland. That experience was recounted to me one evening in his house, and it strengthened my determination to fight the death penalty when I was elected to the House. Although I have complimented the right hon. Member for Caithness, Sutherland and Easter Ross, I was not taken by his observation vis-à-vis the constitution and this issue. In my view, it has to be determined by Members of Parliament after rigorous examination of their consciences. That is what I have done. My constituents know where I stand, and I shall vote with my hon. Friend the Member for Hull, North. I shall give way to the hon. and learned Member for Harborough, who will have to be brief.

Edward Garnier (Conservative, Harborough)

I shall endeavour to be brief, because this is an intervention. I yield to no man in my admiration for the huge service that the hon. Gentleman gave to his country as a member of the RMP. I heard all about it in a bus, when we were in Bosnia monitoring the elections. He told me, day in, day out, about his experiences in the RMP, which was very kind. I think that the hon. Gentleman has misunderstood me. He referred to the expression "military executions"; if he considered it within the context of my few remarks, but in the entirety of them, he would understand that I was talking about offences against the state committed in time of war. If I used an unfortunate shorthand, I apologise for giving the wrong impression. I was talking about the right of the state to do what I would disapprove of in other circumstances—that is, in ordinary cases of murder: to resort to the death penalty, in time of war.

Norman Godman (Labour, Greenock and Inverclyde)

rose—

Kevin McNamara (Labour, Kingston upon Hull North)

Will my hon. Friend give way?

Norman Godman (Labour, Greenock and Inverclyde)

May I first answer the intervention of the hon. and learned Member for Harborough? My hon. Friend is too eager. I recall swapping accounts of military exploits with the hon. and learned Gentleman when we were in the hot spot of Brcko. We were, if I remember correctly, protected by seven members of the Special Air Service. The hon. and learned Gentleman—he was too modest to admit it in his intervention—reminded me several times that, while I was a non-commissioned officer, being Labour, he enjoyed the Queen's commission, as have a lot of Conservative Members. Most of them are ex-Guards officers. In relation to Northern Ireland and the remarkable excellence of the infantry regiments that we send on United Nations peacekeeping missions, I am pleased—thrilled, in fact—that they are Members of Parliament and no longer serving with the armed forces.

Kevin McNamara (Labour, Kingston upon Hull North)

I am sorry to interrupt my hon. Friend, but the hon. and learned Member for Harborough obviously has not read the amendment, which mentions "Articles One and Two". Article 2 specifically provides a derogation for a state to have the death penalty in time of war. Therefore, the hon. and learned Gentleman's argument falls.

Norman Godman (Labour, Greenock and Inverclyde)

I am grateful to my hon. Friend for that intervention, but, even in times of war, I would question the sentence of death by courts martial as they are currently constituted, especially where officers were dealing with the lives of NCOs and other lower ranks. I shall support my hon. Friend when he puts his amendment to the vote, and it is right and proper that hon. Members support it. We are putting remarkable, radical and wide-ranging constitutional change through the House. The amendment is part of that, and I hope that Labour Members will support our hon. Friend.

Eleanor Laing (Conservative, Epping Forest)

The hon. Member for Greenock and Inverclyde (Dr. Godman) spoke passionately about his principles and beliefs, which are against the death penalty. I do not disagree with him about them, but he has missed the point of the amendment. If it is passed, his principles and beliefs, like those of every hon. Member, will be irrelevant, because there will not be another discussion of the merits or otherwise of the death penalty in the House, which is the correct forum for such a debate. I agree with the hon. Member for Slough (Fiona Mactaggart) and others who spoke passionately about the fundamental human right—the right to life. The hon. Lady and the hon. Member for Hull, North (Mr. McNamara) were correct in that, but the problem is their suggestion that the Parliament of the United Kingdom is not sufficiently responsible to protect that fundamental human right. That ridiculous suggestion is the basis of the hon. Lady's argument.

Eleanor Laing (Conservative, Epping Forest)

For the sake of time, I cannot; I am sorry. It was suggested by the hon. Member for Clwyd, West (Mr. Thomas) that accepting the amendment would enhance our international prestige. The opposite will happen. The international prestige of this country would be diminished, as would the prestige of Parliament, by the suggestion that the House is not competent and has to be told by other institutions how to legislate on such a fundamental matter as the administration of justice and the death penalty. I vehemently oppose the death penalty and vehemently defend the right to life, but I also defend the right of Parliament to make the criminal law of this country and the right of hon. Members properly to debate the death penalty, at any time that we want to do so.

Mike O'Brien (Labour, North Warwickshire)

Let me make it clear that, as far as the Government are concerned, this is a free vote. I shall express the personal view of myself and of the Home Secretary, but no Government Whip has been asked by us to act as a Teller. This is a matter of conscience for hon. Members. The Government's position was set out clearly in the White Paper: The view taken so far is that the issue is not one of basic constitutional principle but is a matter of judgement and conscience to be decided by Members of Parliament as they see fit. For these reasons, we do not propose to ratify Protocol 6 at present. The amendments would add the two substantive articles of protocol 6, involving the abolition of the death penalty, except for acts committed in time of war or imminent threat of war, to the convention rights. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said that the argument was finely balanced, and I agree. The issue is not just whether we agree with the death penalty. The tendency is often to discuss these issues emotively because, obviously, hon. Members feel strongly about them, but there is a need to examine the proposal with great consideration. Before introducing the Bill, Ministers conducted a review of the United Kingdom's position on the three protocols to the convention that contain substantive rights that we had not ratified. Those are protocols 4, 6 and 7. We explained in the White Paper "Rights Brought Home: The Human Rights Bill" that we intended to sign and to ratify protocol 7 once an opportunity arose to remove some inconsistencies between our domestic law and the protocol's provisions. However, we judged that we should not ratify protocols 4 or 6 at this time or to include them in the Bill. In the past three decades, the House has repeatedly opposed the death penalty. Indeed, in the previous substantial debate in the previous Parliament, I spoke strongly against it. Neither the Home Secretary nor I believe that the House will restore it, but we also take the view that this is not the time to block the rights of Members of Parliament in all conscience to debate and to vote on restoring it. My personal view and that of the Home Secretary is that Parliament should be free to decide on death penalty matters on a free vote, and that protocol 6 would make a free vote difficult. Ratification of the protocol, from which no derogation or reservation is permitted, would interfere with the ability of a United Kingdom Parliament to consider the issue in future, short of effectively denouncing the convention. Our constituents widely engage in the debate about the death penalty. Should Parliament prevent itself from debating issues that the public debate? That would be the effect if we embraced protocol 6. We would restrict and put a block on our ability to debate the issue. Assuming that the convention would remain law, if we embraced protocol 6, we would remove the decision on the death penalty from Members of Parliament for all time, and place it in the realm of international law. The death penalty is a sensitive and difficult issue. This is not the time, nor is this the Bill, to implement the amendment. The issue is not about supporting or opposing the death penalty, but about the procedure for doing so: is a new procedural hurdle to be placed in the way of those hon. Members who wish to bring this matter before the House?

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

In the light of the Minister's helpful indication that the Government do not propose to put on a Whip tonight, can he say how the Government would view the passing of the amendment? Would they take it as an instruction of the House and proceed, notwithstanding the view that he has expressed on behalf of himself and the Home Secretary, to ratify the protocol?

Mike O'Brien (Labour, North Warwickshire)

The answer to that is yes. May I make it clear, if the right hon. Gentleman is in any doubt, that, on this issue, we are not putting in Whips, but that, on other issues tonight, we may decide to do so. These are important issues, so let me take this argument a little further; it is important that hon. Members understand them. I accept that it would be possible for the death penalty to be reintroduced by a future vote of Parliament, but only by way of an amendment to what would then be the Human Rights Act, if Parliament wills it. However, it would be contrary to the principles of the Bill and of the convention. The Bill's purpose is to give further effect in domestic law to those rights that the United Kingdom has an obligation under the convention to secure to individuals in its jurisdiction. The inclusion of articles 1 and 2 of protocol 6 within the Bill's definition of the convention rights would grant rights in this country that we are not, at present, internationally bound to secure. It appears to be an academic point, and I do not want to go into angels dancing on pinheads, but it is an important part of the Government's view that the Bill is about giving access to rights, rather than creating new areas of law.

Dominic Grieve (Conservative, Beaconsfield)

I have listened carefully to what the hon. Gentleman has said, and I agree with every word. Is it not true that the Government would sign up to such a protocol only after widespread public consultation and that one feature of the way in which we are approaching the matter tonight is that such public consultation, which is an essential part of the process of government, as the Prime Minister has often said, has been bypassed?

Mike O'Brien (Labour, North Warwickshire)

I hear what the hon. Gentleman says and I can see why he might take that view, but the issue is raised in the White Paper and, in a sense, there was consultation on its provisions. This has been on the House's agenda, and hon. Members have been free to discuss it. It is an important issue.

Mike O'Brien (Labour, North Warwickshire)

Parliament could certainly debate that issue, but let us be clear: if we agree to the amendment, we will have a hurdle, a block on making a decision to restore the death penalty. Hon. Members will have to decide whether they wish at this stage to put that hurdle or block in the way of the House. As the Committee will be aware, amendments to the Crime and Disorder Bill were agreed in Committee last week and in another place in March. They abolish the death penalty for all but certain military offences. I hope that we will succeed in removing from the statute book the last vestiges of the death penalty for civilian offences of treason and piracy as a result of that Bill, so the Government's view on the issue is clear, but Ministers with responsibility for defence are considering issues relating to the Army and the Navy. This is not—I express a personal view on behalf of the Home Secretary and myself—the time to prejudge their deliberations. If that Bill were enacted with those amendments in place, it would not affect our position on whether articles 1 and 2 of protocol 6 should be added to the convention rights that are set out in the Human Rights Bill. Some concerns have been expressed that, if we do not ratify protocol 6, the UK will be unable to campaign effectively against the use of the death penalty in other countries. We do not see that as a serious difficulty. We are able to support international calls for the abolition of the death penalty because Parliament has repeatedly voted against capital punishment. In the current Parliament, any motion to reintroduce capital punishment is likely to be defeated by a large majority. On 11 October 1997, at the summit of the Council of Europe, the Prime Minister signed the Council of Europe declaration calling for the universal abolition of the death penalty. That demonstrates that we are able to take a positive stand on this issue and encourage others to do so, but it does not require the inclusion of article 6. The issue before us in the amendment is precise; it is not whether we oppose the death penalty—I oppose the death penalty—but whether, on an issue on which all parties give a free vote, the Committee should restrict the ability of the current minority of Members of Parliament who support the death penalty to put that matter of conscience before the House on a vote that could change the law. Parliament will not be best served at this time if it accepts the amendment. I repeat—this is a free vote, as all hon. Members are aware. The Home Secretary and I have expressed our advice, but each Member can exercise his or her own conscience on this matter.

James Clappison (Conservative, Hertsmere)

This has been an interesting debate, and we have heard excellent speeches by my hon. and learned Friend the Member for Harborough (Mr. Garnier), my hon. Friends the Members for Beaconsfield (Mr. Grieve) and for Maidenhead (Mrs. May), and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). I also pay tribute to the way in which the hon. Member for Hull, North (Mr. McNamara) moved the amendment. He did so with sincerity and some skill. I respect his passionately held views against the death penalty, and I appreciate that he wishes to take every opportunity to press that case. The hon. Gentleman was right to start by giving a recent history of the death penalty. He was correct to say that it was abolished as a sentence for murder on a free vote of the House in 1965. As he said, the matter was considered more recently when treason and piracy—the remaining offences, apart from armed forces offences, for which the death penalty remains a sentence—were discussed in the Standing Committee on the Crime and Disorder Bill. There was a free vote in the Committee on those matters. If the issues of treason and piracy are raised again when the Bill returns to the Floor of the House, we apprehend that there will again be a free vote. It is right and appropriate that these matters should be decided, now and in the future, by the individual judgments and conscience of Members of the House on a free vote. The Minister was not giving away inside information that would bankrupt anyone in the bookmaking profession when he said that it was unlikely in the present Parliament that there would be a majority in favour of the return of the death penalty. That is true, given the present composition of the House. We agree that a free vote should not be constrained by a decision to ratify articles 1 and 2 of the sixth protocol to the European convention. We appreciate that the article of the protocol that would not permit a derogation has not been included in the amendment; that point was made by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) and by the hon. Member for Hull, North, but that does not make their arguments entirely convincing. The amendment would, as my hon. Friend the Member for Beaconsfield said, fetter the vote of the House in future. Hon. Members should be able to decide the matter on a free vote without having to consider the implications concerning the European convention. As the Committee will know, we have a long tradition, whichever party is in government, of honouring our obligations under the European convention on human rights, and it would be a shame to create the possibility that we would come into conflict with the convention, even though it would appear unlikely that, as presently constituted, the House would vote in favour of the return of the death penalty. The Minister is right to say that this is a question of procedure and not, in this instance, of conscience. We should maintain the position that these matters should be decided on a free vote of the House.

Terry Davis (Labour, Birmingham, Hodge Hill)

I welcome the announcement by my hon. Friend the Minister that there will be a free vote on the issue and that the Government will accept the decision of that vote and, if the amendment is made, ratify protocol 6 of the European convention on human rights. I express my appreciation to my hon. Friend. However, I do not accept his advice to reject the amendment. I shall support my hon. Friend the Member for Hull, North (Mr. McNamara) and ask all hon. Members to join us in the Lobby to vote for the amendment, and I shall explain why. My hon. Friend the Minister made it clear that he was expressing a personal position. I not only express my personal position—for which, like many of my hon. Friends, I have had to suffer consequences at the ballot box—but, as the leader of our delegation to the Council of Europe Assembly, elected by my colleagues in the delegation, I urge the Committee to support the amendment. In doing so, I speak for most of the delegation, certainly for all its members on this side of the Committee and also for some on the Opposition Benches. For once, I agree with the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) when he says that the amendment should not be necessary. I expected the Government to ratify protocol 6 of the convention on the basis of clause 33 of the Crime and Disorder Bill, which removes from the statute book the last two offences for which the death penalty is still prescribed. On Second Reading, we were told by the Minister of State, Home Office, my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael), that if we wanted the Government to ratify protocol 6, we must attempt to achieve that in the Human Rights Bill. That is why my hon. Friend the Member for Hull, North has taken the initiative, with the support of many members of the delegation, in tabling the amendment. The Government cannot have it both ways. They cannot tell us that they do not have the authority to ratify protocol 6, and that it could not be done, as we thought it could, in the context of the Crime and Disorder Bill, but that it could be done in this Bill, and then ask us not to vote for the amendment. That is inconsistent. I am not surprised that the Under-Secretary, my hon. Friend the Member for North Warwickshire (Mr. O'Brien), has been asked to reply to the debate, because my hon. Friend the Minister of State gave us contradictory advice. He said, in the presence of the Home Secretary, that we should attempt to ratify the protocol in this Bill. I must tell the Deputy Chief Whip, my hon. Friend the Member for Leeds, East (Mr. Mudie), that this is an important issue, which will be noted in the rest of Europe. The amendment is not for all time. We are not, as Conservative Members said, trying to fetter the House of Commons in the future. Their argument would apply to the whole convention that is being introduced into our law by the Bill. On that basis, they could argue that the House would not be able to vote for torture—we shall not do so. We shall not vote for slavery or servitude or forced or compulsory labour. We shall not vote against the right to a fair trial. We shall not vote against prohibition against discrimination. The amendment would place the death penalty in the same category.

Dominic Grieve (Conservative, Beaconsfield)

I have two points. I accept what the hon. Gentleman says as he runs through the various articles of the convention. However, when the protocol was introduced in 1983—I think I am right in saying, but I am willing to stand corrected, that my father was then the chairman of the human rights committee of the Council of Europe—it was clearly stated that it was an evolutionary measure which could be introduced when the time was right. The hon. Gentleman said that the matter cost him votes, and I am sure that he will agree that this is a matter of intense public debate, on which our views and those of the public do not tally. Is that not a good reason why we should be wary of entrenching this position, whereas all the other articles that he listed are widely accepted, with no dissent?

Terry Davis (Labour, Birmingham, Hodge Hill)

That intervention has only delayed the completion of my speech, because I was about to deal with that point. If we pass the amendment, it will not stop our successors voting for a restoration of the death penalty if that is what they want, but it would mean that if they did so, they would be tearing up the European convention on human rights. That is true. Lord Williams of Mostyn made that point in the other place on behalf of the Government. With great respect, I tell the Under-Secretary that, from my experience—regardless of whether we sign protocol 6; even if we do not sign it—if at some time in the future the House votes for restoration of the death penalty, the United Kingdom will be expected to withdraw from the Council of Europe—[HON. MEMBERS: "No."] Oh, yes. My colleagues from the delegation will agree that, internationally, feeling on the issue is so strong that we would risk being suspended from membership of the Council of Europe—[Interruption.] Yes, that is my view. I am entitled to my view, which is based on some experience of the Council of Europe, and I was one of those who criticised Ukraine for not fulfilling its obligations. 7 pm As my hon. Friend the Member for Hull, North (Mr. McNamara) said, even now, our Government are applauding Estonia's decision to ratify protocol 6. However, only last week, another Baltic country voted to retain the death penalty. In its Parliament, one of the strongest arguments was essentially, "Why should we abolish the death penalty when the United Kingdom has not yet signed protocol 6?" Its proponents of the death penalty shelter behind that fact—wrongly, but they do. That is an example of the international effect of our not signing the protocol. We are constantly being told that we are telling our colleagues in other parts of Europe to do as we say, not do as we do. Human rights are at the centre of our foreign policy. Protocol 6 has tremendous symbolic importance. If we vote against the amendment, it will be impossible for many people in Europe to understand the House. It will also be very difficult for many people in this country to understand us.

Kevin McNamara (Labour, Kingston upon Hull North)

I shall not detain the Committee for very long, but will merely do two things. First, I apologise to the Under-Secretary of State for the Home Department, my hon. Friend the Member for North Warwickshire (Mr. O'Brien). I had some very evil thoughts about him, which, in time, I shall duly confess. I am very pleased, indeed, that the Government are not putting in Whips. I hope that all my hon. Friends have heard that—they can vote on the matter with a clear conscience. Secondly, I should like to make some important points—reiterating ones made by two of my hon. Friends, first by my hon. Friend the Member for Clwyd, West (Mr. Thomas). The first one is that, if we want to, under the terms of the Bill, we can raise the issue again. The possibility is there. The second point is that our country's reputation on the matter is at stake. I did not mention Ukraine as being the country that was under the cosh on the issue; my hon. Friend the Member for Birmingham, Hodge Hill (Mr. Davis) did. However—as my colleagues in the delegation will agree—the fact that we have not signed was a very powerful argument against those of us who raised the issue. The third point is that, if we do not ratify protocol 6, people will continue to hide behind our actions.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

Official Opposition spokesmen have asked the Committee to understand the basis of the Government's view. As it has been accepted—even by a number of Opposition Members—that we are considering a matter of individual conscience, is it not extraordinary that the official Opposition are not treating the matter as one of conscience? Are the official Opposition not distorting the opinion of the Committee, on a matter that even they have said should be decided as a matter of conscience?

Dominic Grieve (Conservative, Beaconsfield)

(seated and covered): On a point of order, Mr. Martin. Despite the fact that this was described as a free vote, the Government Whips outside the Chamber are directing Labour Members into one Lobby—the contrary Lobby to that which the Home Secretary has entered— and telling them that this is a free vote on hanging, which it is not.

Michael Martin (Deputy Speaker, Glasgow Springburn)

Order. [Interruption.] It would be nice if I could reply to that point of order, which is not a matter for the Chair.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On a point of order, Mr. Martin. In view of the affirmative vote that has just taken place, would it not be right for the Government to make a statement as soon as possible as to the intention of Ministers with regard to the sixth protocol and whether they intend to come back to the House with an Order in Council to give effect to what has just happened?

Jack Straw (Labour, Blackburn)

Further to that point of order, Mr. Martin. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) anticipates what I was about to say when I move the next amendment. We shall do so. I beg to move amendment No. 137A, in page 1, line 12, leave out from beginning to 'any'.

Jack Straw (Labour, Blackburn)

First, I assure the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) that, as the Under-Secretary of State, my hon. Friend the Member for North Warwickshire (Mr. O'Brien), said, we accept the will of the House on protocol 6. We shall consider the manner in which it should properly be implemented, and report to the House. All the amendments are concerned with the impact of the Bill on the Churches and other bodies with a religious character. Many of them relate to those amendments made to the Bill in another place on Third Reading, which inserted a number of protections for such bodies. Those provisions are in part of clause 1(2), in clause 2(4) to (7), in clause 6(5) and (6) and in clause 7(8) to (10). The issues were extensively debated in another place, and a number of hon. Members on both sides of the House of Commons commented on them on Second Reading in February. I said then that I would listen carefully to representatives of the Churches before I reached a conclusion on whether to advise the Committee to go along with the amendments made in another place. Since then, my noble Friend Lord Williams of Mostyn and I have had a number of meetings with representatives of the Churches and with a number of hon. Members—we have listened carefully to their concerns. Before I speak on the amendments, it may be helpful if I say how the Government think that the Bill will operate in relation to the Churches. Much of what the Churches do is, in the legal context and in the context of the European convention on human rights, essentially private in nature, and would not be affected by the Bill even as originally drafted. For example, the regulation of divine worship, the administration of the sacrament, admission to Church membership or to the priesthood and decisions of parochial church councils about the running of the parish church are, in our judgment, all private matters. In such matters, Churches will not be public authorities; the requirement to comply with convention rights will not bite on them. We do not believe that, for example, the Church of England, the Church of Scotland or the Roman Catholic Church, as bodies, would be public authorities under the Bill. I was asked to clarify that by many people, not least the Cardinal Archbishop. On the occasions when Churches stand in place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools. In both areas, the Churches are engaged, through the actions of the minister or of the governing body of a school, in an activity which is also carried out by the state, and which, if the Churches were not engaged in it, would be carried out directly by the state. We think it right in principle—there was no real argument about it on Second Reading—that people should be able to raise convention points in respect of the actions of the Churches in those areas on the same basis as they will be able to in respect of the actions of other public authorities, however rarely such occasions may arise. If that were not the case, the situation could arise, for example, in which teachers in most schools were required to comply with convention rights, but teachers in Church schools, which are wholly or mainly funded by the local education authorities, were not. Abuses of convention rights in one school would be amenable to correction in the domestic courts, whereas abuses in another school could be dealt with only at Strasbourg.

Andrew Rowe (Conservative, Faversham and Mid Kent)

The Church has the power to marry in a way that the state recognises, but the choice to get married in a church is entirely voluntary. Does that not alter the case?

Jack Straw (Labour, Blackburn)

The hon. Gentleman makes an interesting point. There was a time when one could get married only in church but, these days, marriage is a matter of civil law—it is the exercise of a public right. The Churches are standing in the stead of the state in arranging the ceremony of marriage, which is recognised not only in canon law, but in civil law. In that instance, the Church is performing a function not only for itself, but for civil society.

Martin Smyth (UUP, Belfast South)

In the context of education in Northern Ireland, Church schools—which are primarily under the management of Roman Catholic authorities—are not subject to equal rights and fair employment legislation in the appointment of teachers. Is the Home Secretary saying that, under the Bill, those Church schools will be subject to the convention? Moreover, although I understand that, in society, marriage may now be a civil matter, is the Home Secretary saying that an officiating minister of whatever denomination will have no right of conscience if he believes that a person has come to him for what are, in the Church's view, improper reasons?

Jack Straw (Labour, Blackburn)

On the second point, I say entirely the reverse. Of course a minister has a right of conscience—his duty to marry people is, first and foremost, a matter relating to the Church to which he belongs. If he conducts a marriage ceremony, that has an effect not only in canonical law, but in civil law. At that point, as I explained, the minister is exercising powers in the stead of the state. If the hon. Gentleman will bear with me, I shall explain how we propose in the School Standards and Framework Bill, rather than in this Bill, fully to satisfy the anxieties that have been expressed in the House of Commons and in another place about the right of Church schools of whatever denomination to ensure that those they appoint are those who accept the faith. Concern was expressed that the Bill would require ministers of religion to do things that were contrary to their doctrine or belief, such as to conduct marriages between same-sex couples or divorced persons. We have never believed that the consequences of applying the Bill to Church representatives in those matters in their capacity as public authorities would be as adverse as has been predicted. Even without the amendments made in another place and the further proposals that are before the Committee today, the Bill provides two kinds of protection against such an occurrence—I make this point to emphasise that we were not careless of the issue before it was raised in the other place. The first protection is that, under clause 2, the domestic courts will be required to have regard to the jurisprudence of convention institutions. Strasbourg case law is clearly to the effect that, under article 12 of the convention, the right to marry does not extend to persons of the same biological sex. Moreover, article 12 does not include the right to marry according to a particular ceremony of one's choice. The availability of a civil marriage is sufficient to meet the requirements of the article. The second protection is that the courts will be required to give priority to domestic primary legislation over the convention rights in the event of a conflict that cannot be reconciled by judicial interpretation. Domestic primary legislation specifically provides that same-sex marriages are void, and although Church of England priests have a statutory duty to conduct marriages—the Church of England is, by law, the established Church—they are specifically granted a discretion to refuse to marry divorced persons.

Ann Widdecombe (Conservative, Maidstone and The Weald)

The Home Secretary has described a situation in which primary law would have precedence over the convention. If primary law says that same-sex marriages are void, as it does at the moment, that takes priority. However, if primary law were to be changed and same-sex marriages were to become valid, where would that leave Churches in the interpretation of the convention?

Jack Straw (Labour, Blackburn)

We are talking about the application of the convention. In the domestic jurisdiction of Parliament, it would be open to the House of Commons, if it wanted, to say that same-sex marriages could apply. The right hon. Lady is asking me to speculate whether that would be outwith the convention.

Ann Widdecombe (Conservative, Maidstone and The Weald)

My question is straightforward: if our civil law were to say at any stage that same-sex marriages were valid, and the teaching of the Church remained that they were not, where would that leave the Church?

Jack Straw (Labour, Blackburn)

I think that I understand the right hon. Lady's point. It would be open to Parliament to say that civil marriages could apply to same-sex couples, but that would palpably not apply to Churches. There is a parallel with divorced couples. Since we allow divorce, we have to allow divorced people to remarry—well, we do not have to, but we do, and some of us have taken advantage of the facility and have been married more than once; in my experience, it saves living over the brush, as they say in Blackburn—but that applies to civil registrars and does not in any way affect the right of the Church of England to refuse to marry divorced people. The right of any Church, which we intend to strengthen, to refuse to marry divorced people remains protected by the convention.

Brian Mawhinney (Conservative, North West Cambridgeshire)

The fundamental problem is the Government's unwillingness to define what constitutes a public authority. I do not want to be aggressive or offensive, but in a sense it does not matter what the Home Secretary says he believes or does not believe, because he has already said that the courts will decide. Given what he is asking the Committee to believe regarding his intention, the simplest way of dealing with the matter would be to write into the Bill the prohibitions to which he referred, to take away any ambiguity and provide clarity. Will he explain to the Committee why he refuses to do that?

Jack Straw (Labour, Blackburn)

If the right hon. Gentleman will bear with me, I am seeking to explain why I do not find the amendments made in another place acceptable. I have sent him a detailed letter and had conversations with him, explaining that I am setting out an alternative that strengthens the law and goes a long way towards meeting the Churches' concerns, as the Cardinal Archbishop and the Archbishop of Canterbury have made clear, and as Baroness Young, who tabled those amendments, was generous enough to say in an article in The Daily Telegraph. The right hon. Gentleman utters a truism when he says that it is for the courts to decide the interpretation of the Bill. That is true in any case: we pass the words, but it is for the courts to interpret them. The words may be perfectly clear, but sometimes the courts interpret them differently: that is a matter of fact.

Jack Straw (Labour, Blackburn)

Indeed: the doctrine of that judgment is one of the aids that are available to the courts and allows them to look behind the words and consider Parliament's intention in so far as it has been expressed with clarity by the Minister concerned. We debated the definition of public authorities at great length, and it is our judgment that clause 6 provides a clear and robust definition. There will be occasions—it is the nature of British society—on which various institutions that are private in terms of their legal personality carry out public functions. That includes the Churches in the narrow circumstances that I have described. I would suggest that it also includes the Jockey Club. Other countries have public bodies to regulate racing; in this country, we do it in a different way. That is how we have always done it, and I know of no proposals to change the system. The Jockey Club is a curious body; it is entirely private, but exercises public functions in some respects, and to those extents, but to no other, it would be regarded as falling within clause 6.

Ann Widdecombe (Conservative, Maidstone and The Weald)

The Home Secretary said that, under Pepper v. Hart, a Minister's explanations, if spoken with sufficient clarity, could be taken into account in interpreting the law. Will he now speak with exceeding clarity and assure the House categorically that it is the Government's intention—not what they believe, but their intention—that nothing in the convention, or in any incorporation of it into any part of our law whatever, will attenuate the Churches' right to doctrinal purity in matters of discharging public and private functions, and in employment?

Jack Straw (Labour, Blackburn)

I hope that the right hon. Lady will bear with me as I explain—

Ann Widdecombe (Conservative, Maidstone and The Weald)

Ha!

Jack Straw (Labour, Blackburn)

I was about to give the right hon. Lady an absolutely affirmative answer, and it would have been easy to do so, but she spoiled her question by talking about private and public functions, and any functions. [HON. MEMBERS: "Employment."] I am dealing with employment. Where the Churches are employing teachers, they are exercising a public function under statute passed by the House. That goes back to the Board of Education in the 1830s, when Parliament started to use the Churches as agents of state education.

Ann Widdecombe (Conservative, Maidstone and The Weald)

rose—

Jack Straw (Labour, Blackburn)

I have given way to the right hon. Lady three times. If she will bear with me, I hope to explain the position—in the main, if not wholly, to her satisfaction. We recognise that Church concerns remain, notwithstanding the care we took in framing the Bill to satisfy ourselves that it did not affect the private functions of the Churches. There are concerns about religious doctrines and practices having to give way to convention rights and about staffing issues in Church schools. The provisions that were inserted in the Bill on Third Reading in another place represent an attempt to reassure the Churches about its impact. I understand their intention, but they give rise to considerable difficulties. They raise the prospect of some actions being protected by the provisions that certainly ought to be amenable to correction on human rights grounds. As a result—this is the conundrum that those amendments pose—the acts in question might themselves be found in Strasbourg to have violated the convention, but would be incapable of correction by means of a better and domestic remedy. The amendments made in another place carry a risk of violating the convention in their own right. It really would be an oddity if the Bill incorporating the convention on human rights was itself outwith that convention. That is particularly relevant to the amended clause 2, which accords one convention right, article 9, automatic priority over all others, whatever the circumstances. There are other difficulties: both the amended clause 2 and clause 7 would discriminate between principal religious traditions and others, which would be unfair to minority religions, and would drag the courts into considering doctrinal issues. The amended clause 6, which is aimed at the Church of Scotland, would also be likely to produce legal uncertainty in relation to the courts of the Church of England. The amended clause 7 deals with matters more properly addressed in the School Standards and Framework Bill. We have concluded that the provisions cannot properly remain in the Bill, and that is why Government amendments Nos. 137A, 138, 137, 41 and 44 were tabled to remove them. Although we cannot accept the amendments made in the House of Lords, we think that we can meet Church concerns by other routes, without violating the convention or compromising the integrity of the Bill. One point among many that impressed me in my discussions with Church representatives was that almost everyone who visited me and Lord Williams of Mostyn said that they accepted the principle of the convention. Many said that they wished the Bill to be incorporated. That is the formal position of the Church of England and the Roman Catholic Church. It is also the stated position of the Church of Scotland; my right hon. Friend the Secretary of State for Scotland will go into more detail. Among other matters, the Churches were seriously concerned that, whatever protection there was in the merits of the Bill, the incorporation of the convention might encourage vexatious litigation against them. I accept that. It may encourage vexatious litigation against the Government. We will have to meet that in the initial stages, and we intend to do so. The Government at least have paid lawyers. It is part of our job in introducing such a Bill; we can hardly complain. It is plain that congregations do not put their money on the plate on a Sunday principally to ensure that lawyers are paid to fund unnecessary actions against them. For that reason and others, I thought that we should go as far as we possibly could to make it clear in the Bill that the Churches were to have protection consistent with the convention.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

If the right hon. Gentleman finds this question difficult to answer now, I will understand if he wants to answer it later. He has made it plain that nothing in the Bill compels the Church to marry, for example, divorced couples; or, if our primary legislation permitted it, persons of the same sex. As he fairly said, in those circumstances a civil marriage is available, which is sufficient for the convention. Assuming that the right hon. Gentleman means exactly what he says—I am sure he does—I am not clear why he wants to remove clause 7(8), which provides protection for the Church in the context of marriage, and which would be removed by Government amendment No. 44. It is a big amendment that takes quite a lot else out as well, but I think that clause 7(8) does no more than enshrine the protection that he says the Churches have, under his understanding of the law.

Jack Straw (Labour, Blackburn)

Having had notice of that question, I shall seek later to provide the right hon. and learned Gentleman with details of why we found clause 7(8) unacceptable. We considered this carefully. I do not expect all hon. Members to accept everything we have done, but we believe that new clause 9 deals with the anxieties raised by the Churches, without getting us into the impossible situation of risking having parts of what will become the Act that are outwith the convention.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

In proposing the deletion of parts of clause 6, the right hon. Gentleman explained that what relates to the courts of the Church of Scotland could cause uncertainty with regard to the courts of the Church of England. It seems odd to clear that uncertainty up by possibly creating one for the courts of the Church of Scotland. Is he satisfied that the exclusive jurisdiction of the Church of Scotland in matters spiritual under the Church of Scotland Act 1921 remains unaffected by the sum total of deletions and additions?

Jack Straw (Labour, Blackburn)

Having been pupilled to a lawyer expert in English ecclesiastical law, I know that a little knowledge is a dangerous thing. I do not profess any expertise in the law relating to the Church of Scotland, but my right hon. Friend the Secretary of State for Scotland is here. He is a Scots lawyer, and I defer to him on this, as I do on almost everything. If the hon. and learned Gentleman will wait, he will have all explained by my right hon. Friend. The purpose of new clause 9, which stands in my name and—just mine, as it turns out. [Laughter.] One develops an autopilot from 17 years on the Opposition Front Bench. The new clauses that I moved, with little hope of getting them through, always stood in my name and those of several colleagues. I see that, because I am "Mr. Secretary Straw", I am the only person who adorns the new clause. New clause 9 would come into play in any case in which a court's determination of any question arising out of the Bill might affect the exercise by a religious organisation of the convention right of freedom of thought, conscience and religion. In such a case, it provides for the court to have particular regard—not just to have regard, going back to the earlier debate, but to have particular regard—to the importance of that right. Its purpose is not to exempt Churches and other religious organisations from the scope of the Bill—they have not sought that—any more than from that of the convention. It is to reassure them against the Bill being used to intrude upon genuinely religious beliefs or practices based on their beliefs. I emphasise the word "practices", as well as "beliefs". There is ample reassurance available on this point from convention jurisprudence. Apart from stating the importance of the courts having due regard to article 9, new clause 9 is designed to bring out the point that article 9 rights attach not only to individuals but to the Churches. The idea that convention rights typically attach only to individuals and not the Churches caused considerable anxiety. I understood that, and that is why the new clause has been phrased so that the Churches have its protection as well as individuals. There is convention jurisprudence to the effect that a Church body or other association with religious objectives is capable of possessing and exercising the rights in article 9 as a representative of its members. The new clause will emphasise that point to our courts. The intention is to focus the courts' attention in any proceedings on the view generally held by the Church in question, and on its interest in protecting the integrity of the common faith of its members against attack, whether by outsiders or by individual dissidents. That is a significant protection. The Committee will note that the new clause refers to the exercise of the right to freedom of thought, conscience and religion by a "religious organisation", but leaves that expression undefined. Some hon. Members may wonder why we describe Churches in that way. The answer is partly that no definition is readily available, at home or in Strasbourg. We considered the issue with great care, and took the advice of parliamentary counsel. I have already referred to the difficulty arising from this point in the amendments made in another place in discriminating between some religions and others. We are seeking to reflect precisely the Strasbourg case law. The convention institutions have not offered a definition, but we are confident that the term "religious organisation" is recognisable in terms of the convention.

Theresa May (Conservative, Maidenhead)

I share the concerns expressed by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and others about the Bill's impact on Churches. Will the Home Secretary reflect on the definition of religious organisations, and consider whether, by drawing that definition so widely, he risks including within it organisations and sects that would claim to have a religious aspect but whose activities most hon. Members would not regard as worthy of their support? I ask him to think carefully on that.

Jack Straw (Labour, Blackburn)

We have thought about that. The hon. Lady raises an important point about drafting. If I may, I will answer her when I or my right hon. Friend the Secretary of State for Scotland winds up. The key concept that we are talking about is organisations with religious objectives. It may be helpful if I comment at this point on new clause 12. That is very similar to, and is clearly built upon, Government new clause 9, but it inserts a reference to charities with religious foundations as well as what we have called "religious organisations". The intention is no doubt to achieve the same effect in relation to religious charities as in relation to Churches themselves. Although we recognise the intention of new clause 12, I propose that it is both unnecessary and unwise. One of the advantages of Government new clause 9 is that it is flexible enough to cover cases involving religious charities where Church issues form a backdrop to the case. I say this because it applies to a court's determination of any question arising under the Human Rights Bill that might affect the exercise by a religious organisation of the rights guaranteed by article 9. It is therefore not tied to circumstances in which a religious organisation is directly involved, as a body, in the court proceedings. If a case is brought against a charity, and the charity can show that what it is doing is to maintain and practise the religious beliefs which it shares with its parent Church, we consider that new clause 9 would come into play so as to ensure that due consideration was given to those beliefs. The difficulty with a specific reference to religious charities, as new clause 12 would provide, is, first, that the article 9 rights attach more naturally to Churches themselves, at least in the first instance, than to other bodies. The benefit to charities and so on is indirect. Secondly, however—this is one of the ways in which innocently phrased amendments can sometimes have the reverse effect of that intended—by drawing attention to religious charities in this way, new clause 12 might have the undesirable effect of excluding from the scope of new clause 9 other organisations supported by a Church, such as governing bodies of Church schools, or adoption agencies.

Laurence Robertson (Conservative, Tewkesbury)

Will the Home Secretary give way?

Jack Straw (Labour, Blackburn)

In a moment, if the hon. Gentleman will allow me. The Government new clause will not provide absolute protection for Churches or other religious organisations as against any claim that might possibly be made against them.

James Clappison (Conservative, Hertsmere)

That is true.

Jack Straw (Labour, Blackburn)

Of course. We could not possibly do that without violating the convention or undermining the objects of the Bill. There has never been any dubiety about that, but the new clause will send a clear signal to the courts that they must pay due regard to the rights guaranteed by article 9, including, where relevant, the right of a Church to act in accordance with religious belief.

Edward Leigh (Conservative, Gainsborough)

Will the Home Secretary give way?

Jack Straw (Labour, Blackburn)

No. I promised to give way to the hon. Member for Tewkesbury (Mr. Robertson).

Laurence Robertson (Conservative, Tewkesbury)

I am trying to follow the Home Secretary's line of thought, but I am finding it a touch inconsistent. A few moments ago, he said that it was important to define which religious bodies would benefit. A religious charity, being governed so strictly by the charities legislation, would have a close definition. Will the right hon. Gentleman accept from someone who worked for a religious charity before entering the House that a great deal of good work is carried out by such charities that may not be strictly religious, but which makes it vital that those charities are able to employ people of religious thought?

Jack Straw (Labour, Blackburn)

Nothing in the Bill applies to any organisation unless the organisation is a public body—charities are not of themselves public bodies—so what the hon. Gentleman describes would be outwith the Bill in any event. Provided the employment practices of a charity came within the general law—nothing to do with the convention—the Bill would have no effect. The hon. Gentleman will also be aware that a charity may have a religious objective, but also may have other objectives that are not religious. We believe that we deal with the anxiety that has been raised in the manner that I have described.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

rose—

Edward Leigh (Conservative, Gainsborough)

rose—

Jack Straw (Labour, Blackburn)

I will give way to the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), and then to the hon. Member for Gainsborough (Mr. Leigh); then I shall make some progress.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

For the avoidance of doubt, I want to ask the Home Secretary about the wording of new clause 9, which I welcome, but which clearly refers in its own language to the provisions of article 9. I assume that he does not seek to give a priori priority to article 9 over other provisions of the convention that are equally applicable, and would also have to be considered by the court if issues touched by the new clause were raised.

Jack Straw (Labour, Blackburn)

The difficulty with the amendments that are now contained in the Bill is that they give absolute precedence to article 9 over all other convention rights. It is our judgment, and I do not think that there is a great deal of argument about it, that that would put the Bill outwith the convention. New clause 9 seeks to do exactly what it says. The language is straightforward. It gives particular regard to the importance of convention 9 rights, but it applies, as I have explained, to the exercise of those rights by a religious organisation or its members collectively. That is an important protection in addition to the Churches as bodies.

Edward Leigh (Conservative, Gainsborough)

The Home Secretary has referred in some detail to new clause 12, which I tabled. He claimed that, although the hon. Member who tabled new clause 12 might have done so innocently, it would have the opposite effect to what he intended. I assure him that I did table it innocently, and that I did not intend it to have the opposite effect to what I intended. He claimed that it would have the opposite effect because, if charities were singled out, people might well have an excuse to attack other organisations. If that is true, why is he singling out schools in his own amendment? My legal advice is that the exceptions to human rights legislation are interpreted very narrowly by the courts. Only organisations of which the primary purpose is the advancement of religion will be classed as religious organisations, so charities might well be pursued under the convention.

Jack Straw (Labour, Blackburn)

The reason why we have "singled out" schools is that local authority schools or those funded by local authorities are public bodies. I come back to the wisdom of the definition of a public authority contained in clause 6, which is designed to ensure that the convention applies only to public authorities or bodies performing the functions of a public authority, and in that capacity alone. Charities per se are not public bodies.

Julian Brazier (Conservative, Canterbury)

On that very point, what about adoption agencies, to which the right hon. Gentleman referred earlier, and children's homes?

Jack Straw (Labour, Blackburn)

That is exactly the point that I was making. An adoption agency may not be a charity. Some are, and some are not. But an adoption agency may be supported by a Church. Of course I accept that the hon. Member for Gainsborough (Mr. Leigh) did not set out to draft an amendment that was perverse. However, having spent 18 years on the Opposition Benches, I can say that, however much wisdom one has in drafting amendments, occasionally one cannot compete with the wisdom of parliamentary counsel. I do not claim that wisdom, but at least I have the benefit of his advice. An adoption agency may not be a charity. The ironic and perverse effect of new clause 12 might be inadvertently to exclude an adoption agency supported by a Church if it was not a charity. We believe that our new clause would include the protection that we are providing. May I make progress, and deal with Church schools? I have given way considerably, as hon. Members will recognise. We have considered carefully how we can respond to concerns about staffing issues in Church schools in the context of the School Standards and Framework Bill. We have tabled an amendment to that Bill to provide, in relation to voluntary aided schools, that regard may be had, in connection with the termination of the employment of any teacher at the school, to any conduct on his part which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination in question. We are also preparing an amendment to provide, in relation to foundation or voluntary controlled schools with a religious character, that, in appointing a head teacher at such a school, regard may be had to his ability and fitness to preserve and develop the religious character of the school. Those amendments are designed to produce the same effect as amendments to the School Standards and Framework Bill already tabled by the Bishop of Ripon. We have accordingly made every effort to try to meet Church concerns within the framework of the United Kingdom's convention obligations. Hon. Members on both sides of the Committee will understand that, because of the diverse nature of representations made by the Churches, and because of their own diverse nature, we were not in a position where we were negotiating with the Churches—frankly, that would have been impossible—but we did try to take on board their concerns. I should like to thank the Churches and Baroness Young for what they have said about the amendments. In The Daily Telegraph of 19 May, Baroness Young is reported as saying that these changes will give assurance to people of all denominations that, should there be litigation under this Bill, the courts must pay particular regard to the special position of churches and religious schools. She is entirely right to say that. 8 pm The Cardinal Archbishop of the Roman Catholic Church, Basil Hume, wrote to me to say, first, that he wanted to make it clear that he was in favour of the Bill, which seeks to incorporate the convention into United Kingdom law. He then spelled out the anxieties that had arisen, and said that he was grateful to me and to my officials for the way in which we had listened and responded to those concerns. He went on: I am delighted that the Government has agreed to move an amendment to the School Standards and Framework Bill. This wholly meets the Catholic Church's concerns about its right to employ in voluntary aided church schools teachers who believe in and act out the Christian, and in our case Catholic, faith in their lives. I also welcome the fact that the Government has moved an amendment to the Human Rights Bill in order to meet the more general anxiety we have expressed. I recognise the difficulty of framing an amendment in a way which is consistent with the Convention. I have sought the best legal advice and my initial assessment is that the amendment in the form tabled by the Government may be the best that can reasonably be achieved to reinforce the protection given by the Convention to the churches and other faiths under Article 9. For the sake of completeness, I should tell the hon. Member for Gainsborough that the Cardinal Archbishop also writes: I have some hesitations, however, especially over the phrase 'religious organisation' as it is undefined and could be ambiguous. I hope that I have clarified that point. He continues: I very much hope that, in introducing the amendment in the House, you will make clear exactly what its intended effect is. It would also be helpful if you would publicly confirm that for the purposes of this Bill the Catholic Church is not a 'public authority' except when, as you put in your letter, the church is standing 'in place of the state'. I confirmed that earlier, and I confirm it again. I also received a letter from the Archbishop of Canterbury, head of the Anglican Church, who says: The proposed new clause does not provide the firm guarantee of the Churches' continued doctrinal independence which we have sought, and you will appreciate that not all Church members will therefore be satisfied with it. Nonetheless, I am grateful both for the new clause and for the proposed amendments to both the Human Rights Bill and the School Standards and Framework Bill which, together with the assurances given by the Lord Chancellor in the House of Lords and the other amendments already made in response to the concerns of the churches, I believe constitute a significant improvement. For the present may I repeat my gratitude for the efforts you have made in response to the concerns expressed to you by myself and other Church leaders. Having put those points on the record, let me deal briefly with the other amendments in the group. As we shall be inviting the Committee to remove the provisions inserted by another place, we naturally cannot accept amendments that would amend those provisions. Accordingly, we cannot accept amendment No. 8 to clause 2, or amendments Nos. 55, 57, 113, 114, 115 and 116 to clause 7. Nor can we accept amendments that would extend the principle on which the provisions inserted by another place were based. For that reason, we cannot accept amendment No. 40, which is concerned with appointments to governing bodies and admissions policies at Church schools. If there is any problem in those areas in connection with the convention rights—I am not aware of any reason why there should be—the right place to deal with it is in specific legislation on education rather than in the Human Rights Bill. We cannot accept amendment No. 56, which builds on clause 7(8), by providing that nothing in the Bill makes it unlawful for persons acting on behalf of a Christian or other principal religious tradition represented in the United Kingdom to refuse to carry out certain acts, such as administer the sacrament, if they are contrary to their religious doctrines or convictions. As I have explained, we do not believe that the Bill would require Churches to act against their conscience for one moment, and new clause 9 will reinforce that. The remaining amendments in the group take a different approach to the issue of the impact of the Bill on Churches and other religious organisations. For reasons that I have explained and I which hope the Committee will accept, we find those amendments unacceptable. Amendment No. 100 would operate on clause 6(3) so as to provide that a 'public authority' does not include the persons listed in what would be new schedule 1. Those are priests, ministers and other officials of a Church, religious denomination, mosque, synagogue or temple; persons exercising functions under the authority or on behalf of their membership; and persons exercising functions in connection with the ecclesiastical courts of the Church of England—with which, for a brief period in my career, I was all too familiar.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I do not want to take the Home Secretary out of his sequence, because I realise how tiresome that can be, but is he going to tell us why, in Government amendment No. 44, he is seeking to remove from the Bill the provisions set out in clause 7(8) and (9)? I understand that he accepts those provisions in principle, but he is none the less removing them from the Bill. Is that for drafting reasons, or because of some other consideration which I have not yet fathomed?

Jack Straw (Labour, Blackburn)

I am grateful to the right hon. and learned Gentleman for that intervention, and I shall deal with clause 7(8). I shall come back to him if he is not satisfied with my answer on that or on clause 7(9). The reason that we seek to remove clause 7(8) is that, in our judgment, the way in which it is drafted discriminates between principal religious traditions and others, which is unfair to minority religions. It would draw the courts into consideration of doctrinal matters, which is the last thing anyone wants. We also believe that it is in the wrong place: specific concerns about the conduct of marriages are properly addressed in marriage legislation, not in a Bill of general application such as the one before the Committee. When an equivalent point was raised about the position of Church schools, I advised the Bishop of Ripon that the best place to address that was in amendments to the School Standards and Framework Bill. We then facilitated the tabling of amendments, and we have ended up with better legislation than was originally intended. Amendment No. 90 removes references to Measures of the Church Assembly and Measures of the General Synod of the Church of England from the definition of primary legislation in clause 21. The effect would be to leave the courts with no indication of whether those were to be treated as primary or subordinate legislation for the purposes of the Bill. The courts need to know that, because it affects what they will be able to do if such Measures are considered to be incompatible with convention rights. The Measures are to be treated as primary legislation because, under the Church of England Assembly (Powers) Act 1919, with which right hon. and hon. Members will be instantly familiar, Measures have the force and effect of an Act of Parliament once they receive Royal Assent. The Church by law established, of which I am an active member, is in a different position from any other Church, and, as long as it is established, there are things that go with that territory which cannot be avoided. We amended the Bill in another place to ensure that such Measures, if declared incompatible by the courts, could not be amended by the Government under the remedial order procedure. The response we had from the Church of England at that time demonstrated its satisfaction on that point, and I am not aware of any remaining concern about the application of the Bill to Church Measures. I have spoken at some length, but the impact of the Bill on the Churches is an extremely important issue, and I wanted to explain fully the conclusions we had reached. I said on Second Reading that I recognised the concerns that had been expressed, and that I would listen to what was said. Not only have I listened, but I have sought to act, and to go as far as we believe we can within the convention to meet those concerns. I commend amendments Nos. 41, 44, 137, 137A and 138 and new clause 9 to the Committee. I hope that, in light of the explanations that I have offered, Hon. Members who tabled the other amendments in the group will seek leave to withdraw them.

Brian Mawhinney (Conservative, North West Cambridgeshire)

I start by declaring an interest. I am a Christian, and have been in continuous Church membership for about 40 years. Happily, that does not make me even remotely unique in the House or on either side of the House, but it does mean that I approach this subject with a bias. I approach it with a bias in determining that the Bill should not impinge or intrude on the beliefs and practices of Churches and religious organisations in a way that would be incompatible with their historic traditions and formularies. I am grateful to the Home Secretary for the courtesy that he has shown to myself and others. On Second Reading, we urged him to consult, and he did so. He and I have had many conversations, so I place on the record my appreciation of that fact, and my certainty that he was right to consult. His approach contrasts sharply with the line that the Lord Chancellor took in another place, where he told the Lords that it never occurred to anyone in the Government that the Churches would have any particular difficulty in playing their proper part in the enforcement of human rights in Britain. That was either an expression of considerable arrogance on his part, reflecting a lack of knowledge of Church practice and belief, or an indication of an unwillingness to contemplate that genuine concerns might be raised by the Bill, which the Government would need to address. By his words, he sucked the Home Secretary into that arrogant view, but I want to make it clear that that has not been my perception of the Home Secretary in his dealings on the matter. The imputation that the Churches were trying to wriggle out of their human rights responsibilities is indefensible. A press release issued by the communications unit of the General Synod of the Church of England on 9 March, which covers the meeting that took place between the Home Secretary and representatives of the Church of England, the free Churches and the Roman Catholic Church, says: All the churches made clear their warm welcome for the main thrust of the Bill, which enables the rights enshrined in the European Convention on Human Rights to be directly enforced in the UK courts. In the view of the churches, however, a problem may arise for them because the Government has chosen in clause 6 of the Bill to give a wide definition of 'public authority' which will include the churches. No other European country has done this and the churches are advised that this could be a source of real difficulty, in particular because it would allow the UK courts into uncharted areas where there are no precedents in Strasbourg. I shall return to that point. There is no suggestion, therefore, that the Churches do not wish to support the general thrust of the Bill, and it is unacceptable to try to suggest—as the Lord Chancellor did—that the fact that they have legitimate concerns, which have blossomed since he made those ill-advised comments, means that they oppose the Bill generally. I could take much of the Committee's time—I am sure that it would be put to good use, although I hope that I would not incur your ire if I did so, Mr. Martin—repeating many reflections of the unease and concern of the Church. The Catholic Times of 15 March and 12 April; The Church of England Newspaper of 9 April; a letter to The Times from leading members of the General Synod of the Church of England, supported by at least 50 other Synod members, of 5 February 1998; and very many other articles and letters reflect such concern. As we debate this issue tonight, we are discussing not something in the margin of the religious life and activity of this nation, but a subject of general concern. 8.15 pm I believe that the Bishop of Ripon—whom the Home Secretary mentioned—was the first to bring out the vexatious litigation point to which the Home Secretary referred. He said: We are aware that there are hostile, anti-religious groups which would be only too glad of an opportunity to test in the courts the actions of religious bodies and people acting in accordance with their beliefs and convictions. The Church of England, and I suppose other Churches, have already had considerable experience of litigation which they have resisted, but it is costly in terms of money and energy. It is likely that there will be groups which will be only too happy to take Churches to the British courts to prove a point. It will be costly for those who have to resist such actions."—[Official Report, House of Lords, 5 February 1998; Vol. 585, c. 774.] Therefore, tonight we are discussing not only belief and practice, but the more mundane but equally important issues of vexatious litigation, cost and a permanent sense of Churches and religious bodies under pressure to conform to standards, belief patterns and moral judgments which, historically and theologically, they do not accept or believe. When, on 15 May, the Home Secretary wrote me a letter, which he has already mentioned, he said—I am not trying to create a wrong impression by reading only a short extract; I am merely trying to save time— Most of the things that churches do are, in the legal context and in the context of the European Convention on Human Rights, essentially private in nature, and would not be affected by the Bill. Where the churches stand in place of the State, however, we think it is right in principle that people should be able to raise Convention points in respect of their actions on the same basis as they will be able to do in respect of the actions of other 'public authorities'—however rarely the occasion may arise. The Home Secretary defined Churches in that paragraph as standing in place of the State". He used that definition at the start of his speech. If that is the definition, his speech has—with one proviso, to which I shall come later—a logical coherence. The problem is that that is not how the Bill defines those issues. As the Lord Chancellor pointed out, the Bill defines public authorities in the context of their functions—not standing in place of the State", but in the context of the activities that they undertake and the power that they discharge. That appears to me an important point. I return to the intervention that I made on the Home Secretary. At the heart of our problem with the Bill—I shall expand on this shortly—is the Government's unwillingness to translate their own beliefs into unambiguous language, so that everyone understands exactly where they stand. The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) put his finger right on the spot. When asked about new clause 9, the Home Secretary was caught in a cleft stick or, to change the metaphor, between a rock and hard place. He had used new clause 9 to persuade the cardinal and the archbishop that that is the sort of thing that they want from the Government. The right hon. Gentleman pointed out that new clause 9 simply reflects article 9 and cannot be given the interpretation of particular regard that the cardinal and archbishop would wish to give them the certainty that they have been seeking for some months, because to do that would go against the grain of the Bill. The Home Secretary was at least honest and open in responding to that good intervention. We have an understanding that Churches and religious organisations, as well as matters of belief and practice, are involved in education. The Home Secretary made it clear that the education aspects will be dealt with in another piece of legislation, so it would be appropriate to leave them for another Committee to deal with rather than deal with them tonight. However, I mention them if only to recognise the importance that we attach to them. The Churches and religious organisations provide homes for people, caring services and charitable functions, and most people—but apparently not new Labour—would recognise that those are not necessarily, or by definition, state functions. Registering a marriage is a state function, but marrying people in the eyes of God is not. We are left wondering why the Home Secretary believes that a secular court should be charged with deciding what constitutes a public or private authority function, and whether in law, and in Strasbourg law, there is any difference between the two. I keep using the word "function" because it is the only defining modus operandi that the Lord Chancellor used, to which the Home Secretary has not added in his contribution this evening, and because, despite all our probings, the Government will not define a public authority. It is unusual for Governments to bring forward legislation, particularly legislation of major significance, and leave undefined one of its central issues. The Home Secretary accused me of issuing a truism. I plead guilty. The right hon. Gentleman is a lawyer and I am not. I am just a humble scientist. [HON. MEMBERS: "Ah."] That evokes the usual patronising response from lawyers. However, I understand that, while the courts interpret what we say, it is usually hugely to the courts' advantage if we say what we mean before we ask the courts to interpret it. The charge against the Government in this regard is that they will not say what they mean. They are, in effect, washing their hands of the issue, so that the courts can take any opprobrium that might flow from the legislation. I agree that plenty of opprobrium will flow from the amendment. The White Paper made constant references to the position of public authorities, citing central and local government and others exercising similar executive powers, among which were the police, immigration officers, prisons, courts, tribunals and privatised utilities that exercise public functions, and to the need for the exercise of those powers in a way that was compatible with the convention. Interestingly, in the White Paper, the examples of such public authorities did not include Churches, religious organisations or religious charities. The underlying legislative intention was, as stated, in no way related to such bodies. The Bill was not intended to encroach on the religious freedom that Churches have hitherto enjoyed, yet, because of the obscurity of the definition of a public authority in clause 6(3), which includes any person certain of whose functions are functions of a public nature", but not when a particular act of that person is, by its nature, private, it is now recognised that such bodies may be caught by the Bill for certain of their activities. The Lord Chancellor said that Churches, hospices, schools and charities that work with the homeless may all exercise public functions. The European convention was intended to protect the individual against the state. Clause 6 makes it possible for Churches and religious organisations to be deemed part of the state—a public authority—when they carry out public functions. But I am advised that what the Home Secretary told us was simply not the case; that there is no jurisprudence from the Strasbourg court on public authorities claiming an article 9 defence. Therefore, I should be grateful if the Secretary of State for Scotland addresses that specific point when he replies. The Secretary of State for Scotland clearly was not listening, so I shall repeat that. I have been advised that there is no jurisprudence from the Strasbourg court on public authorities claiming an article 9 defence.

Jack Straw (Labour, Blackburn)

We were listening. We were looking perplexed because we did not follow the point, but we were listening. It was because we were listening that we could not follow the point. What I was trying to work out with my right hon. Friend the Secretary of State for Scotland was how article 9 is directly relevant to the definition of a public authority. One must first decide whether the convention rights attach to a body by deciding whether it is a public authority. If it is a public authority as defined, all the convention rights as circumscribed by the Bill will apply. If it is not a public authority, they will not. I am sorry, but I am not following the right hon. Gentleman's point.

Brian Mawhinney (Conservative, North West Cambridgeshire)

The Home Secretary made it clear that Churches or religious organisations had no need to worry about being a public authority, because they could have protection in terms of Strasbourg jurisprudence and the primacy of UK law. I have been advised that that is not the case in terms of an article 9 defence for public authorities in the context of Strasbourg jurisprudence. Because there is a difference of opinion and advice between us, I was asking the Secretary of State for Scotland to address that point when he replies.

Edward Leigh (Conservative, Gainsborough)

It is important that we deal with the Home Secretary's intervention, because he may have misunderstood what his officials have told him. The Home Office has repeatedly made it clear in recent weeks that it is precisely the right to freedom in article 9 that would protect the Churches. The Home Secretary is now trying to wriggle away from that. I do not see what point he is trying to make.

Brian Mawhinney (Conservative, North West Cambridgeshire)

I am grateful to my hon. Friend, and I am encouraged that my argument was understood by him, if not by the Home Secretary. I look forward to hearing what the Secretary of State for Scotland says in his response.

Martin Smyth (UUP, Belfast South)

The right hon. Gentleman referred to Strasbourg jurisprudence and decisions. The court in Strasbourg heard a case taken by an atheist against the Salvation Army in Holland, on the ground that the Salvation Army had discriminated against him because he was not a Christian. Has the right hon. Gentleman any knowledge of the case, and does he know the outcome? The court's decision would provide guidance.

Brian Mawhinney (Conservative, North West Cambridgeshire)

My hon. Friend is right. After I deal with the philosophical problem, I shall discuss various practical examples. The system of belief and practice that underlies the issue is of fundamental importance—my hon. Friend, as a Presbyterian minister, would certainly accept that—but the practical application is also important. I shall shortly come to the point that he makes. When the Secretary of State for Scotland sums up, will he comment on the acceptance by the European Commission of Human Rights in the recent case of Thomas Tyler, when the commission considered that the applicant's functions as a priest of the Church of England are more in the nature of public service than they are of private professional practice."? That is a stunning statement by the European Commission. The Home Secretary spent a considerable part of his speech telling us that there was a clear distinction between the public and the private, with respect to the Church and the discharge of its functions. He said that virtually everything that the Church did was private and would therefore not be covered by the Bill, and that only a little bit of what the Church did was public, when it was standing in place of the state. Yet the European Commission said exactly the opposite in that recent case—I believe that it was in 1994—when it stated that the priest's functions are more in the nature of public service". We need to hear from the Secretary of State for Scotland how the Government reconcile the European Commission view with what the Home Secretary has just told the Committee.

Donald Dewar (Labour, Glasgow Anniesland)

rose—

Brian Mawhinney (Conservative, North West Cambridgeshire)

Let me make progress. We shall return to the matter. When, on Second Reading, we asked the Government to look again at the issue, they had four options for change. They could have excluded Churches and religious organisations entirely. That was the strongest option, and the Government rejected it. They could have given Churches an absolute defence. That was the next strongest option, but they rejected it. They could have introduced legislation that catered for specific cases, but they rejected that option. They could have issued broad principles to guide the Church when religious liberties are involved. That was the weakest of the four options, and, interestingly, the one that the Government chose. We want to know why. The junior Home Office Minister in another place declared that Baroness Young's amendment, which the Government now want to delete, could be incompatible with the convention. The Home Secretary made the same point this evening. How would it be incompatible in this country, yet it is not incompatible in Germany? The German constitution is hierarchically superior to the European convention on human rights and includes a general guarantee of freedom of religion. The main religious denominations in Germany have public law status, which allows them, among other things, to raise taxes. They also have entrenched religious freedoms. All that is possible in a country that subscribes to the convention, but the Home Secretary tells us that it is impossible in this country, which equally subscribes to the convention. I shall make one final attempt to persuade the Home Secretary to change his mind on the matter and to deal head on with the Opposition's concerns. Freedom of religion necessarily raises greater issues than other freedoms, because the granting of such freedom, if it is to mean anything at all, means allowing liberty to a group of people to arrange their structures and organise their activities in accordance with their deeply held beliefs. Such a group cannot operate in freedom if it is bound to include those who do not share its beliefs or conform to its standards of behaviour. Moreover, the nature of the beliefs held will usually affect every aspect of life, including the exercise of functions of a public nature. Major religious groupings, and in particular Christian Churches or organisations in the UK, have not been limited to private activities. Historically, they have met vital public needs as part of their mission, and they consider themselves bound to continue to do so. Many Christian organisations meet social needs today which, in the absence of those organisations, the Government would feel bound to meet by other means. Although many such activities have historically benefited non-adherents to the Christian faith as much as adherents, freedom of religion necessarily involves distinguishing between those who are adherents and those who are not, for the purpose of engaging those who work for the body in question, and in some circumstances to identify the beneficiaries, as some bodies may wish to benefit the adherents exclusively, or at least in priority to non-adherents—for example, religious schools. There is an inevitable conflict between the freedom of the individual, set out in articles 8 to 12, and as elaborated by article 14 and its prohibition of any discrimination in the enjoyment of such individual rights on the ground of religion, and the freedom of others in a group to manifest their religion or beliefs in practice and observance, in accordance with article 9. That conflict must be resolved in favour of the group, if there is to be freedom of religion. A group of believers must be free to include only those who share the same beliefs and standards of behaviour, and therefore of necessity to exclude those who do not, whether or not that is labelled discriminatory. Historically, the secular courts have not interfered with such matters, because they involve issues on which those courts are not competent to adjudicate. Ecclesiastical courts exercise jurisdiction for the established Churches, while other historic Christian denominations or non-Christian religions have been permitted to regulate themselves according to their own patterns of belief and behaviour. That position should be maintained, in the absence of a breach of the criminal law. Secular courts, especially in an increasingly secular society, should not attempt to judge spiritual issues, nor seek to impose a value system that compels those who, for example, hold a Christian world view to treat others who do not as if they did, and in particular to accept them into their organisation, whether as leaders or employees in any capacity or for any purpose. The courts should not treat the beliefs and standards of a person as irrelevant when dealing with an organisation whose particular beliefs and standards are essential to its existence, whether or not that organisation is fulfilling a role that the Government might otherwise perform. That seems to me to be an eminently deep and important illustration of the problem that lies at the heart of the Bill. I ask the Home Secretary once more to consider the implications of my remarks before he presses the amendment, which, in the present circumstances, the Committee will approve—for that is the nature of this place—and opens a Pandora's box in the process. I am grateful to the barristers Messrs Cooke and Wales—who have written about this subject not only to me but to other hon. Members—for their insights and their erudition, upon which I have drawn heavily. I come now to the more practical aspects of the legislation. People are concerned about the implications of the Bill. They are worried about the issue of gay marriages. They are concerned that Churches or religious organisations may be sued if, for example, the Anglicans refuse to have a woman as a bishop, the Muslims refuse to have a woman as an imam, the synagogue refuses to have a woman as an orthodox rabbi, or the Catholic Church refuses to have a woman as an ordained priest. They are not simple issues. I shall give some examples of possible litigation under the Bill. Let us take the example of a Church school where the headmaster is required to be a practising member of the denomination. The headmaster leaves his wife for another woman who is a teacher at the school. He admits that, and is asked to leave. He then sues for unfair dismissal citing discrimination, article 14, on the ground of his private life, article 8, as part of his claim. He also claims religious discrimination, article 9, as he believes that it is not against his religion to behave in that way.

Dominic Grieve (Conservative, Beaconsfield)

I am following my right hon. Friend's argument closely, but I confess that I find the breach of article 9 difficult to understand. While I recognise that there is a potential conflict with articles 14 and 8, I cannot follow his argument regarding article 9. How can he argue that the headmaster's own religious beliefs were discriminated against in that example?

Brian Mawhinney (Conservative, North West Cambridgeshire)

As I made clear in my example, the man might believe that his behaviour was not incompatible with his religion, even though the school judged that it was. Let me give another example. An atheist applies for a teaching job in a theological institute. His application is refused, so he sues the institute authorities on the ground of religious discrimination. I can inform the hon. Member for Belfast, South (Rev. Martin Smyth) that that illustration is based on the facts of a case involving the Salvation Army Institute that is currently before the Dutch courts. I do not know the outcome of the case, but the hon. Gentleman referred to it earlier by way of intervention.

Peter Brooke (Conservative, Cities of London and Westminster)

My intelligence is that the case has been settled in favour of the Salvation Army, but at very considerable expense.

Brian Mawhinney (Conservative, North West Cambridgeshire)

I am grateful to my right hon. Friend. Let me give another example. What about the sale of pornography on Church-owned premises? Suppose the Church Commissioners own a shopping centre and they incorporate into their leases terms forbidding the sale of pornography on the premises. A newspaper vendor breaches those terms, and the commissioners seek a court order forcing the vendor to vacate the premises. In his defence, the vendor cites his right to freedom of conscience and belief, article 9, and to freedom of expression, article 10, and the right not to be discriminated against for his opinions, article 14. Let us take the example of a Muslim community centre that receives its funding from the local authority. The building is used for Muslim community events, religious services and religious instruction. A humanist group seeks to hire a room to conduct a public meeting but is refused. The group sues claiming discrimination, article 14, on freedom of conscience grounds, article 9, and its right to freedom of expression, article 10, and freedom of assembly, article 11. Let us take another example of a Christian hospice that is committed to caring for the terminally ill and is completely opposed to euthanasia. It receives grant aid from the local authority. A pro-euthanasia group seeks to advertise its work and make a presentation to the hospice. The hospice refuses and the pro-euthanasia group sues, claiming breach of the right to freedom of conscience and belief, article 9. Then there is adoption. Let us say that a religious-based adoption agency refuses to recommend a placement with a homosexual person. The agency is sued on the grounds that it is breaching articles 8 and 14. Many such examples could be cited, all of them flowing from the Bill, which the Home Secretary assures us will not have the consequences for belief and practice that manifestly it will. 8.45 pm The Government have introduced new clause 9. As I said, it simply reflects article 9. In effect, it says to the courts, "When you are considering these issues of the European convention, you have to consider article 9. You have to give particular regard to it." However, as the right hon. Member for Caithness, Sutherland and Easter Ross said, it is not necessary to give it the overwhelming priority that the Home Secretary is seeking to achieve by way of persuasion, but which is not in the Bill. Our amendments Nos. 8, 100, 40, 90, 46, and 55 to 57 are all designed to strengthen the protective shield to Churches and religious organisations and their religiously related activities. Those amendments were put into the Bill in another place, and the Government wish them all to be removed. We do not support Government amendment No. 137A for the reasons that I have given, but the Government do. I do not accuse the Government of mendacity or deliberately seeking to mislead. I merely accuse them of producing legislation that they then seek to persuade people to believe in on the ground that it meets their legitimate concerns when legally it does no such thing. On 13 May, a number of leaders of Christian Churches and organisations, including the National Club, the chief executive of Tearfund, Shaftesbury Housing Group, the Evangelical Alliance, the Shaftesbury Society, the Church Pastoral-Aid Society, the Institute of Contemporary Christianity and a number of well-known churches in London wrote a letter to the Prime Minister. They sent him a copy of the document from which I have extensively quoted. They wrote: We write to express our continuing concern about the probable impact of the Human Rights Bill upon the communities that we represent. We enclose a paper prepared for us by Leading Counsel which explains clearly how the Bill could well curb religious freedom and lead to costly litigation for churches and charities. It continues: The enclosed letter from the Home Office is typical of the arguments which have been used by many M.Ps to try to reassure us. But the letter fails to address the central issue, namely that if the Bill extends the scope of the Convention's application to churches and charities as public authorities, it may create situations where actions of those organisations in accordance with their historic Christian beliefs conflict with the Convention rights of other individuals. This conflict of rights would have to be settled by the courts at great expense. It would be quite wrong for the churches to have to bear this cost, let alone the risk of a secular Court deciding that Christian organisations are prohibited from acting in accordance with historic Christian doctrines and morals in the context of what may be held to be 'functions of a public nature' which they may perform. Christian churches and charities apply in their functions the Christian values which are essential to their very existence. It should be a matter of concern to the public and the Government to ensure that their actions, taken on the basis of historic Christian beliefs, are not held up to lengthy and costly scrutiny in the secular courts—to the detriment of the public good for which those organisations strive. It is not our purpose to question the Government's intentions (indeed, we support the aim of the Bill) but rather to highlight the effect of the Bill on the churches and charities we represent.

Donald Dewar (Labour, Glasgow Anniesland)

It might clarify what I shall say at the end of the debate if the right hon. Gentleman could explain to me the extension to which he is referring. The convention on human rights has been relevant to the Churches in this country since it was ratified here in 1953. The only change is the forum in which a case can be taken—that is, it can be taken directly in the domestic courts rather than in Strasbourg. The whole gravamen of the right hon. Gentleman's case appears to be that there has been some sort of new threat or extension. I genuinely do not know what difference there has been, other than the point about the forum. It seems to me that the threat—if there is one—has existed since 1953 and that it will not essentially change as a result of this legislation. Can he explain why I am wrong?

Brian Mawhinney (Conservative, North West Cambridgeshire)

That is clearly the Government's view—[Laughter.] It is clearly neither our view nor that of the Churches and religious organisations, because this legislation will open up opportunities for litigation and movement into areas of belief and practice. If the Secretary of State for Scotland thinks that there is no problem with belief and practice, why does he not amend new clause 9, for example, to refer to freedom of thought, conscience, and religious practice and belief, as well as religion? The right hon. Gentleman has an easy remedy: if he thinks that we are wrong and that what he says is right, he can copper-bottom what he says by amending the provision, to remove the opportunity for Opposition Members or anyone else to make mischief, as he would see it, around the legislation. The fact that he will not do that—the Home Secretary has already told me that he will not—is precisely the cause of the concern that is being expressed.

Edward Leigh (Conservative, Gainsborough)

A direct answer can be given to the Secretary of State for Scotland. He claims that the convention has been around for many years, but the Bill does not simply incorporate the convention into UK law; it creates a new Bill of Rights, and judges will be able to go further than Strasbourg judges. Strasbourg judges are, by their very nature, conservative in social matters, and they normally use the "margin of appreciation" to exclude such cases. UK judges could go much further than Strasbourg judges have gone in the past 30 years. That is the Churches' concern and the answer to the Secretary of State.

Brian Mawhinney (Conservative, North West Cambridgeshire)

My hon. Friend is absolutely right. That is encapsulated in the point that I have already made two or three times, so I shall not elaborate again. The Secretary of State for Scotland could assist the Committee by defining public authority and tabling amendments that remove any anxiety that might exist. The letter to which I referred has not been answered by the Prime Minister, the Home Secretary or the Lord Chancellor, to whom it was copied, but it contemporarily reflects the continuing legal, moral, Christian and spiritual concerns about this legislation in general, and the amendment in particular. For that reason, when we reach the end of the debate, we shall wish to divide on the Government amendment.

Kevin McNamara (Labour, Kingston upon Hull North)

I listened with interest to the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney). I confess that, if I felt that there was any risk of the terrible events that he suggested occurring as a result of this legislation, I would be running around my hon. Friends whipping them into the Lobby in support of his amendment. However, I do not agree that there is such a risk. To those who doubt that statement, may I say that I have a history—not only tonight but on other occasions—of whipping hon. Friends into Lobbies to vote against my party, so it is not an idle assertion. I take no pride in having had to do that, but it shows that Back Benchers are sometimes right and sometimes wrong about Governments. I am concerned that the right hon. Gentleman's language might whip up fears among many people—fears about matters that are not in the Bill. When we forced him to give way to my right hon. Friend the Secretary of State for Scotland, he did not explain why, suddenly, those fears have appeared when we have been bound to the convention, and cases have been going to Strasbourg for all that time. Such matters have hardly been raised in that particular way. New clause 9, which has been tabled by my right hon. Friend the Home Secretary, deals with those fears. It states: If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively)"— which presumably is the public profession of their worship and ritual— of the Convention right of freedom of thought, conscience and religion, it must have particular regard to the importance of that right. There will not be regard, but "particular regard". That provision is in the new clause and my right hon. Friend has stated his interpretation of a public organisation. We should consider what is a public organisation and what is a sacrament. The right hon. Member for North-West Cambridgeshire and other Conservative Members have got on to murky ground. Is the sacrament of matrimony two people agreeing to live together for life? Common theology is that that constitutes it. Two people making such a decision would live in a perfect state of grace—not necessarily over the brush—and in a proper way, from a Christian view of the nature of marriage. The Church wants to protect the parties, so it says, "That is right, but the Church will be the witness of that function." The state says, "We have a duty in civil society to regulate people's relationships so that we have a degree of order. Therefore, if the Church exercises a public function—if it carries out something necessary for civil society—we shall lay down rules about a man and a woman, about forms and about witnesses." That is a civil society matter. The Church protects its position by holding a ceremony—generally, but not necessarily, in front of an ordained priest. For a Christian, however, the sacrament is when the two parties decide that they want to live together as man and wife. For the life of me, I cannot think that anyone would litigate on any of those three causes, except to say that the form of the marriage was not valid in the eyes of the state, which would have a duty to intervene. The question whether a marriage was proper in the eyes of the Church would be for the Church to decide; it would not alter the position with regard to the state. All sorts of problems are being built up, but they do not exist in practice. Churches carry out public functions, and the state has the right to examine the way in which they are carried out. Churches receive money for hospices, orphanages, reform hostels and schools. The state has a perfect right to ask whether taxpayers' money is being spent properly. No one belonging to any Church organisation has any right to run away and start saying, "You can't interfere with my religious practice by telling me how I have to spend money that you, on behalf of the taxpayer, have contributed to my public function at that particular time." I do not think that any hon. Member would argue against the state's right in those circumstances. If that is true, why are we worried about the Secretary of State's new clause? There is no need whatever to do so. 9 pm What has fascinated me about this debate is the way in which problems have been raised in relation to education, which the Government had said they would deal with. Because they defeated the case of the right hon. Member for North-West Cambridgeshire, he said that he would refer to education matters on another occasion or in another way—except, of course, that, when the right hon. Member for Maidstone and The Weald (Miss Widdecombe) was making her case, and the right hon. Member for South-West Surrey (Mrs. Bottomley), the former Secretary of State for National Heritage and Secretary of State for Health was jumping up and saying, "Are you going to have atheists appointed as head masters of Catholic junior primary schools?" or whatever it was, a special amendment was tabled in the House of Lords, which said that there should be control over the appointment of head teachers, deputy heads and senior appointments. I read that, and I thought, "This is rubbish." Those people should be worried not about what the head teacher or deputy head are telling the kids, but about what a class teacher or specialist are telling a group of children, of whatever age, in class. In fact, the amendment that was passed in the upper House weakened the whole position that the Churches have had since 1902. It was a rubbish amendment, and that is why I felt it necessary to table my amendment—just in case the Secretary of State had a brainstorm and felt, for one reason or another, that he might accept it. I wanted to make the point that it affected every teaching appointment. What did the Secretary of State do? He met the cardinal archbishop and his representatives, and the Archbishop of Canterbury and his representatives. He came to the new clause 9 and then dealt with the amendment that had been tabled by Baroness Blackstone in another place, which meets all the points that have been raised by the right hon. Member for North-West Cambridgeshire. He gave the example of someone who has an adulterous affair or has a divorce and gets remarried. Let us take a position, for example, in a Catholic school. Baroness Blackstone's amendment to clause 59 of the School Standards and Framework Bill states: If the school is a voluntary aided school— (a) preference may be given, in connection with the appointment, remuneration or promotion of teachers at the school, to persons— (i) whose religious opinions are in accordance with the tenets of the religion or religious denomination specified in relation to the school under section 66(4), or (ii) who attend religious worship in accordance with those tenets, or (iii) who give, or are willing to give, religious education at the school in accordance with those tenets". That is the first appointment. That is great, but, in the example that we have been given, the head teacher has transgressed, so the clause goes on: (b) regard may be had, in connection with the termination of the employment of any teacher at the school, to any conduct on his part which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination so specified. That is the strongest declaration ever in the history of the state for the preservation of the position of religious schools. It could not be stronger or better. Many of the remarks of the right hon. Member for North-West Cambridgeshire can be dealt with in a similar way.

Julian Brazier (Conservative, Canterbury)

I have been listening carefully to the hon. Gentleman. I believe that he is right about the amendment on schools. Many Conservative Members are trying to point out that such safeguards should be extended to other religious organisations, particularly those that have even greater control over children, such as adoption agencies and orphanages, which the hon. Gentleman has mentioned.

Kevin McNamara (Labour, Kingston upon Hull North)

Let us go back to new clause 9, which says that particular regard must be given to the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion". We could produce a shopping list of who should be covered by that, but we would be bound to miss some. One of the amendments mentions charities, but many adoption agencies are not charities. Much of the work that will be protected by the new clause is not formally registered, because many such organisations are informal associations. Bodies such as the St. Vincent de Paul society and the Church of England men's fellowship would be protected by the new clause. Those are important issues, going to the root of what many of us believe about our society and how we run our lives. I ask hon. Members not to be carried away by right-wing religious fundamentalists who do not want to see what is going on.

Julian Brazier (Conservative, Canterbury)

That is unworthy.

Kevin McNamara (Labour, Kingston upon Hull North)

I have seen such people in operation. Some material that has come to me was misleading about the nature of the what the Government have said, and did not demonstrate a proper examination of new clause 9 and the amendments tabled in the other place, perhaps because of a lack of time. Some of the accusations that have been made are not justifiable, given the facts and the history of the exercise of the convention.

Dominic Grieve (Conservative, Beaconsfield)

I have listened carefully to the hon. Gentleman on this difficult issue. He suggests that new clause 9 should be sufficient to define how the courts should approach a potential conflict in the convention. Is he satisfied that the wording of the new clause is sufficient? It emphasises only the first part of the sentence in article 9, rather than going through, not to the end—because some of it would not translate properly—but to the section towards the end that deals with the manifestation of religion and belief in worship, teaching, practice and observance.

Kevin McNamara (Labour, Kingston upon Hull North)

The amendment tabled by Baroness Blackstone deals with teaching. New clause 9 covers observance and practice. Therefore, I come back to where I plan to finish—to assure my hon. Friend the Minister that I shall not be pressing my amendments, on the basic principle that I have already today had one good bite at the cherry, and I should not push my luck too far. I also tell my right hon. Friend the Home Secretary that I was very interested to hear that he will be explaining to the Committee what the Government will do on amendment No. 111, which was passed. I look forward to hearing the statement on an early occasion, and can think of no better way of marking the convention's 50th anniversary than for us to sign that protocol.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

This has been an extremely interesting debate. I start from a position that is almost 180 deg removed from that expressed by the hon. Member for Hull, North (Mr. McNamara), as I did not come to consideration of the Bill with any anxiety that Churches would be threatened by it. Far from holding such a view, I believe that the Churches' position will be greatly strengthened by passage of the Bill. For the first time in our domestic law, specific protection will be given to them by a statute passed by the British Parliament, explicitly and in terms invoking the protections of religious freedom. The entire jurisprudence of the European Commission, of the European Court of Human Rights and of countries that had comparable domestic legislation, such as the Netherlands and the Federal Republic of Germany, has shown how those protections had been interpreted over 50 years, in a manner that leaned heavily towards protecting the institutional interests of Churches wherever those interests were called into question. There is a long list of examples of attempts to claim that a fundamental right and freedom has been violated by a Church organisation. In Germany, for example, a doctor in a Roman Catholic Church hospital was dismissed because he believed in euthanasia, but his case failed in the courts. Similarly, doctors in hospitals run by the Roman Catholic Church have been dismissed because they favoured abortion in some circumstances. Many such examples have put beyond doubt in my mind how those matters were viewed by the courts in countries that for many years had been subscribing to the European convention on human rights and giving effect to its provisions in their domestic law. I confess to having been quite astonished by some of the initial expressions of concern about the Bill by members of different Churches. Although it should be said that a variety of views have been expressed even within the Church of England on the weight to be given to those concerns, the concerns have nevertheless carried sufficient weight to inspire their Lordships substantially to amend the Bill—in ways that I thought were profoundly damaging to its coherence and integrity. Were the Bill to be passed in that form, the amendments would create great uncertainty in interpreting the Bill, not least in its definition of religion—which may itself be regarded as discriminatory by those who sought the Bill's subsequent protection, and who are perhaps not members of what would be categorised as one of the principal religions. I believe that the Home Secretary has taken very seriously those concerns, consulted very widely and given us a very fair account of the outcome of the consultations. As he rightly said, he was not engaged in a negotiation, but he showed himself to be sensitive to the concerns of the Churches and has bent over backwards to accommodate those anxieties by producing new clause 9. 9.15 pm We can certainly live with the new clause, and my right hon. Friends and I will support it, although in all honesty we doubt its absolute necessity. It is a belt and braces operation. If it makes the minds of those who think that they will be adversely affected any easier, I am perfectly happy that it should be accepted, although it will have a rather limited effect. The position of the Church of Scotland is in some respects different and unique, for it is invoking a constitutional principle concerning the effect as it perceives it of the Church of Scotland Act 1921. I do not propose to develop the arguments. I hope that my hon. and learned Friend the Member for Orkney and Shetland (Mr. Wallace) will be successful in catching your eye, Sir Alan, to do so. I have been in dialogue with the Church and understand its concern, although I do not entirely share it. The Bill in its present form does not touch upon the exercise of the spiritual jurisdiction of the Church of Scotland, which I believe is what the 1921 Act is concerned with. I welcome the fact that the Government have adopted and made their own a number of the amendments that I originally tabled. Article 9 of the convention guarantees the freedom of thought, conscience and religion and, most importantly, includes the right to manifest one's religion—a right that can be exercised in community with others, in public and within the circle of those who share the same faith. It includes the right to try to convince others, for example, through teaching. That point was made clear in the Kokkinakis v. Greece judgment in 1993. The protection given by article 9 extends to acts that are linked with an individual's religious beliefs or attitudes, and protects aspects of the practice of the religion or belief—for example, acts of worship or devotion. Article 14 of the convention provides that all convention rights and freedoms are to be enjoyed without discrimination on the grounds, inter alia, of religion. So even the convention contains a belt and braces provision. The adjustments to clause 2 in the other place were unnecessary. If enacted, they would risk confusion over whether religion was to be elevated above all other fundamental rights, which would depart from the scheme of the convention and be out of line with international standards. Government amendment No. 41 would ensure that such courts and tribunals must have regard to fundamental rights. There is no need for the amendment, which was moved successfully in another place by Lord Mackay of Drumadoon, because a Church, rather than merely individuals, is also capable of exercising the rights contained in article 9. According to the decisions of the court in Strasbourg, the rights of a Church are inseparable from the rights of its members. Even as a respondent party to a challenge under the Bill, religious bodies would, in all likelihood, be entitled to rely on article 9. That goes some way to meeting the concerns of the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) about the Church as a public authority. The Church of Scotland has claimed that the unamended Bill would disturb the constitutional settlement of 1921, but I do not believe that the spiritual courts of the Church of Scotland are public authorities. I am persuaded by the words of the Lord Advocate that, for the purpose of the Bill, they are not courts—their decisions could not be challenged using the convention rights. The constitutional position of the Church of Scotland, as I understand it, will be unaffected by the Bill, as the Bill has no authority in the spiritual matters on which the Church of Scotland's courts adjudicate. If he is successful in catching your eye, Sir Alan, my hon. and learned Friend the Member for Orkney and Shetland will want to look more closely and carefully at those issues, which are giving rise to continuing concern in Scotland. A number of hon. Members, particularly Opposition Members, have spoken about marriage. Article 12 of the convention confers a right to marry, but it does not confer a right to marry in the Church of one's choice—or, for that matter, the temple, synagogue or mosque of one's choice. The conduct of a marriage ceremony by a priest or other religious person is, I believe, protected by article 9. The fact that the link between the religious beliefs of a Church and its members is intimate and recognisable was upheld in the court in the case of Chappel v. United Kingdom. If, for example, a Church refused to marry a couple because one member of that couple was not a Christian, it would not have violated the couple's right to marry, as they would be entitled to a civil marriage. That applies to the traditional right to marriage between persons of the opposite biological sex, but it does not apply to same-sex couples. Even if Parliament were to recognise unions of people of the same sex, the Churches would not have to recognise such unions, as that would infringe the collective rights of the Church under article 9. It follows—if my reading of the cases is right—that nothing in the convention can be used to compel a person to conduct a marriage ceremony contrary to his religious beliefs, so I believe that the amendment tabled in another place by Lady Young was unnecessary—I am glad that that is now her view also. Clause 7(9) and (10) deals with employment rights. No one can use the convention to claim a right to work for a particular religious or other body. In so far as those bodies are carrying out public functions—and are therefore public authorities—they would be in same position as the civil service, and no one has a right to a job with the civil service under the convention. The relevant case is Glasenapp and Kosiek v. Germany, which was decided in 1986. Consequently, no one could claim the right to work for a charity or a particular religious body, such as a Church or Church association. The Lord Chancellor stressed in debates in the other place that there is no right of employment under the convention, so a Church or a charity could not infringe the convention by refusing to employ someone. In cases where a requirement of the job in some way limits the ability or right of the individual to exercise his religion or belief, his right to freedom of belief under article 9 is protected by his ability to leave his job—a number of cases have been decided in that way. The Government amendments to the School Standards and Framework Bill in another place have satisfied even the most fearful among us on that point. The Government have bent over backwards to meet the concerns, and I think that they have done so successfully in respect of the Church of England, the Roman Catholic Church, the Free Church and the Methodists, although a debate remains in relation to Scotland. We shall listen with great interest to what the Secretary of State for Scotland has to say on the matter, and decide whether it is necessary to return to that issue on Report.

Edward Leigh (Conservative, Gainsborough)

My new clause 12 and amendment No. 117 are designed to address the problems created for religious bodies by the legislation. The religious bodies with which I have had discussions are not seeking any new rights: they want merely to preserve their traditional religious freedoms. They do not want interference from secular courts and they are fearful that, unless the Bill is amended as I propose, those freedoms will be eroded. The Government will claim that that is a mistaken perception, but it is strongly held, and I know that the Government and the Home Secretary take such worries extremely seriously. One's personal views on whether it is wise to incorporate the convention are irrelevant to this debate. Serious problems are caused by the ways in which the convention is incorporated into United Kingdom law by the Bill. Following huge pressure from the Churches and a huge amount of interest in the religious press, the Home Secretary tabled new clause 9. My legal advice is that, despite his best efforts—and I know that he is sincere in his desire to protect the Churches—the new clause does not go far enough, and that is why I tabled amendment No. 117 and new clause 12. I hope to tease out of the Government a response to these points. Amendment No. 117 would require a court, in any conflict of rights, to give primacy to the article 9 right to religious freedom. New clause 12 is designed to correct new clause 9's failure adequately to protect religious charities. This relatively new area of concern has not hitherto received adequate attention, and must now be addressed. I believe that the Home Secretary has acted wisely and correctly to protect the employment policies of Church schools, and I give him credit for that, but the Government need to listen to the genuine concerns about religious charities and, even if they reject amendment No. 117 and new clause 12, they should at least give cogent reasons and promise to bring in similar provisions in a future employment or charities Bill. What are the problems created by the Bill? Let us consider the important matter of what the convention was intended to do. It was intended to bind Governments. It was designed to address the human rights records of Governments during the second world war, because Governments have the power to coerce. The convention's framers, after the second world war, did not in their wildest dreams imagine that it would or could ever be used against Churches. In the difficult days after the second world war, the framers of the convention would never have wanted it to be used to sue a local parish church, a Church school or a religious charity. That is the danger that we face. Religious bodies are in a uniquely vulnerable position because they get involved in services to the community. In that sense, they are public bodies. They get involved in such services because of their faith, and they are compelled to carry them out in accordance with their faith; they have no latitude. In incorporating the convention, I believe that the Government have gone wider and deeper than they ever needed to go: wider, because their definition of public authority in clause 6 includes bodies whose actions have never come to the European Court of Human Rights in Strasbourg; and deeper, because the UK courts would be involved in religious and social policy issues when they should not be involved in such issues. In fairness to Strasbourg—I wish to be fair to it; that is my reputation in the House—it has wisely tended to leave these matters alone. That is the answer to the intervention of the Secretary of State for Scotland on my right hon. Friend the shadow Home Secretary. Strasbourg has wisely left them alone because of the margin of appreciation. It rightly believes that such matters are best left to individual states. 9.30 pm Most importantly, the Bill bites deeper than the convention, because it does not only incorporate the convention. The Secretary of State for Scotland did not reply to me; he thought that he was making a clever point against my right hon. Friend the shadow Home Secretary. The Secretary of State was making the point that the convention has been around for 20 or 30 years, but that there have been no cases on these matters. That argument would be true if the Bill only incorporated the convention, but the gravamen of our case is that this is a new Bill of Rights, based on the convention. United Kingdom judges can, and I believe will, go much further than the convention. Unlike with the judges in Strasbourg, no principle of the margin of appreciation operates in UK courts. The judges in Strasbourg are fairly conservative in matters of social policy and religious freedom, but their judgments will not be binding on UK courts under clause 2. UK judges will have only to take account of the conservative Strasbourg judges. That is the answer to the intervention by the Secretary of State and an important point that should be answered in the Minister's reply.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate my hon. Friend's points, which are valid and form one of the problems facing the Committee in considering the matter, but does not the Home Secretary's new clause 9 introduce the precise parameters of the margin of appreciation that our national courts will be called on to consider?

Edward Leigh (Conservative, Gainsborough)

No. I am grateful to my hon. Friend for introducing that point in his wise and learned way. Judges will only have to "have regard" to these matters. Having regarded religious freedoms, they can for good reason overturn them. That is the simple answer. I shall return to that in more detail because it is the kernel of the debate.

Edward Leigh (Conservative, Gainsborough)

If the hon. Gentleman is dissatisfied with my new clause 12, he can always suggest a better one. New schedule 1, tabled by my right hon. Friend the shadow Home Secretary is very satisfactory. The point that we are making is that merely giving the powers to give due consideration to religious freedoms is not enough because, having considered them, judges can then overturn them. I have not had the benefit of the advice of parliamentary draftsmen. I shall not be so arrogant as to pretend that my new clause has all the merits, but I hope that it focuses the attention of the Committee on the issue and the problem that the Home Secretary's amendment has not dealt with. That is all that an Opposition Member can do. It is vital. The House of Lords, with all the learned opinion available to it, considered the issues carefully when Baroness Young tabled her amendment. The issues were extensively debated by Law Lords and others, and those who have practical experience in the Churches. Those amendments, agreed to by a cross-party coalition in the other place, are now being overturned by the Government.

Julian Brazier (Conservative, Canterbury)

It is surely irrelevant to raise, for example, the issue of torture in the context of the Churches. The answer is given by the early part of my hon. Friend's speech, in which he said that we had a clear, concrete and well-drafted solution to the problem of the schools, and that we were looking for something similar for the religious charities.

Edward Leigh (Conservative, Gainsborough)

My hon. Friend makes the point. If the Government are dissatisfied, as they are perfectly entitled to be, with our amendments and new clause, a simple solution is open to them. The amendment that I have tabled uses exactly the same words as the Government have used in their amendment, but simply extends them from schools to charities. I was aware that interventions such as that made by the hon. Member for Clwyd, West (Mr. Thomas) would be made—that it would be said that we were not capable of drafting proper amendments, and all the rest of it. I therefore used the Government's very words. Of course, the amendment that I have tabled to extend to charities the rights given by the Government to schools will be dismissed in the wash of events at 10.30 pm or whenever we vote. I doubt that an adequate explanation will be given of why my amendment is defective. I do not think that it is defective; it is certainly not defective in its wording. When the House of Lords accepted Lady Young's amendments, it gave an absolute defence, or a fairly strong defence, to those sued for acting according to their core beliefs. They were sensible amendments. I see no reason why the Government could not allow those amendments to stand, but they have decided not to. What are the defects of the Home Secretary's amendment? Since November last year, the Churches have been arguing that their schools will be subject to litigation; religious charities have made the same point. The Lord Chancellor initially, with his customary tact and political feel, was arrogantly dismissive of the concerns of the Churches. Of course, the far more astute Home Secretary has realised, perhaps rather late in the day, that it is not wise for any Government to take on the cardinal archbishop and the Archbishop of Canterbury when they decide to act in collusion. I give credit to him for that. He has tabled new clause 9, which contains the phrase "particular regard". May I share with the Committee existing case law, which holds that the obligation to "have regard" is a weak one? It does not mean that the court has to comply with or give precedence to the matter to which they have regard. To have "particular regard" is no doubt stronger, but it still means that that regard can be overturned by the judge. No doubt it would help the court to have its attention drawn to the importance of the right to freedom of religion. I do not deny that the Home Secretary's amendment would ensure that judges had to pay attention to the right to religious freedom, but it would be an easy matter for a judge—[Interruption.]. I hope that that clap of thunder does not mean that my words are displeasing the Almighty. It would be easy for a judge—I assure the Committee that judges do it all the time—to assert in his summing up of the case that he had had "particular regard" to that right and so obeyed the provisions of the Home Secretary's new clause 9, but that he had, for good reasons known only to him and on which we could not speculate, decided to override that right. In doing so, he would have done all that the new clause requires, therefore it provides no defence at all. Given all that, it is obvious that some primacy—I say this to the hon. Member for Clwyd, West—must be given to religious liberties, and that is the purpose of my amendment. It would not only call the attention of the court to the importance of the freedom of religion, but require it to give that freedom primacy as far as it is possible to do so. Only an amendment such as that would begin to protect religious freedom, which is a freedom that Parliament does and should care more deeply about than any other. It has been suggested that I am scaremongering and that none of what I describe will happen, but I do not share that belief. There are determined anti-religious groups and individuals with an axe to grind who are well funded, and no one should underestimate just how well funded they are. I understand that, in initially ignoring these concerns, the Lord Chancellor had sterling support from such bodies as the National Secular Society, the British Humanist Association and the leader writers of the Gay Times. If anybody thinks that I am scaremongering, look at what has happened in the United States, where the American Civil Liberties Union first succeeded in banning prayer from schools in 1963. More worryingly, when Congress changed its mind and voted to give schools in America the power to have prayers, the ACLU used legislation similar to this Bill to take Congress to the Supreme Court, which overturned the decision of Congress and banned—almost made a criminal offence of—praying in American state schools.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The hon. Gentleman cites an example of the enforcement of a constitution that requires the separation of Church and state. Can he show me anything in the European convention that requires the separation of Church and state? If he can, it would cause considerable difficulty in Germany, Sweden and several other countries.

Edward Leigh (Conservative, Gainsborough)

I shall come to Germany, Austria and other countries in a moment. I may be open to correction by the right hon. Gentleman, who is far more learned and knowledgeable in matters European than I am, but the fact is that such a case has been brought in Holland, which is a member of the European Union and is subject to the European Court. The case has been quoted by my right hon. Friend the Member for North-West Cambridgeshire (Sir B. Mawhinney) and by the hon. Member for Belfast, South (Rev. Martin Smyth). I accept the point made by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and concede that our case is not on all fours with that of America, but that example shows how determined and well funded anti-religious groups are, and how they are capable of achieving their aims. I am a barrister, and I understand how determined litigants can be, and how ingenious lawyers can be in finding new ways in which to use the law. If the Committee does not believe me, let me point out that the Churches, or large groups within the Churches, believe that, despite the Home Secretary's new clause, judges some time in the future will use the legislation to attack Churches. They believe that there will be a ratchet effect and that plaintiffs will be persistent. That will not happen tomorrow, but the Bill will last 30, 40 or 50 years, and the Churches fear that there will be a gradual ratchet effect in case law. Hon. Members may dismiss those fears as unfounded, but they would be unwise to do so.

Barry Gardiner (Labour, Brent North)

I have listened carefully to the hon. Gentleman's argument that, in his view, the use of new clause 9 to force the courts to have "particular regard" to the importance of that right is not a sufficient safeguard against possible future excesses. If that is the case, will he explain why he has used the same formulation of words in his new clause 12?

Edward Leigh (Conservative, Gainsborough)

The hon. Gentleman seems not to understand that I have tabled two amendments: amendment No. 117, which is designed to give primacy to religious freedom, and new clause 12—which replicates the wording used by the Government—which is designed to extend to religious charities the protection given to schools. I shall now discuss article 9 of the European convention on human rights. According to the Home Secretary, it is supposed to provide great comfort to the Churches; I believe that he misunderstood the issue. I hesitate to say that, as he has been given so much advice, but he seemed to do so, judging by an intervention that he made on my right hon. Friend the Member for North-West Cambridgeshire. In recent weeks, the Home Office has used the argument, with those who advised me and have advised Baroness Young in the other place, that the case law from Strasbourg offers much comfort to religious bodies. Only 45 cases have cited article 9, and only five have made it to the full court. If only five made it to the full court, that is not a huge amount of jurisprudence to place one's faith in. Few of those cases involved a collective use of the right by a body, and none involved a public authority claiming it as a defence. I see the Secretary of State for Scotland consulting Home Office officials so he may be able to give us an answer on this point, in which case I should be interested to hear it. If the Home Office is now basing its defence on article 9, why has no case in Strasbourg involved a public body? It is the Government, not us, who have framed clause 6 so widely. I say to the Secretary of State for Scotland, who made the intervention earlier, that, if a religious body falls into the clause 6 definition of a public authority, there is no precedent whatever in Strasbourg for allowing it to use an article 9 defence. The final nail in the argument that article 9 is enough is that the jurisprudence of Strasbourg is not even binding on United Kingdom courts, because clause 2 requires a court only to take it into account. Therefore, the Secretary of State, in attempting to allay the fears of the Committee, has stoked up those fears—with me, at least—

Donald Dewar (Labour, Glasgow Anniesland)

That is an important qualification.

Edward Leigh (Conservative, Gainsborough)

And my hon. Friends. The Secretary of State can now intervene, if he wishes. If I have been talking rubbish, if the legal opinion given to me is wrong and if the point made by the Secretary of State for Scotland was as devastating as he obviously intended it to be, will he intervene on my speech and say that I am wrong?

Donald Dewar (Labour, Glasgow Anniesland)

I hesitate, simply because we are taking so long and so many hon. Members wish to speak. The point that I was making, to which I hold firmly, is that no one has explained to me why an immense new point of principle has arisen simply from a change of forum. I acknowledge that the hon. Gentleman tried to do so by saying that judges in the United Kingdom were dangerous radicals, whereas they were nice, embraceable old fuddy-duddy conservatives in Strasbourg, but that is not entirely convincing. If there has been a threat, that threat to the Churches' independence has been there since 1953, and it does not appear to have manifested itself. I again challenge him to explain the difference in principle, which has resulted from the Bill, that justifies the sudden change of pace and the sudden upsurge of fear.

Edward Leigh (Conservative, Gainsborough)

The answer is that no margin of appreciation will operate on UK judges in the same way that it operates on Strasbourg judges, who have deliberately avoided becoming involved in this area of controversy because they feel that they should leave it to the national courts. We are now using the convention. We are giving British judges the right to invoke other articles in the convention, to which my right hon. Friend the Member for North-West Cambridgeshire referred, and that is what the Churches fear. Therefore, there is a step change from the situation that we had before, about which the Committee should be concerned. The other place specifically protected the principal religious traditions.

Dominic Grieve (Conservative, Beaconsfield)

If there is no case law in England having direct bearing on the problems on which my hon. Friend touches, is that not in itself, if it comes to interpretation by an English court of the human rights legislation, one issue to which it will have regard in determining whether to interfere? Therefore, the margin of appreciation will still be there for the English court to apply.

Edward Leigh (Conservative, Gainsborough)

No, it will not be, because the margin of appreciation can, by its definition, be used only by an international court, not by a national court. A national court will not say to itself, "We believe that international courts are better placed to deal with these issues, so we shall not deal with them," because it is a national court. However, we are in danger of becoming involved in semantics. I hope that I have made my point. If my hon. Friend does not accept it, he can argue against it. The fact is that he is wrong in claiming that the margin of appreciation is, has, or will be used by the UK courts. It will not be. The other place specifically protected the principal religious traditions using a phrase already evident and used in our education law. The Home Secretary dismissed it. He said that the principal religions could not be mentioned because that, he almost hinted, would be something new. It is not. We already talk about the principal religions in our existing education law. The other place gave the courts clear guidance as to which religions should be protected. The proliferation of new religions could result in a sun-worshipping sect being held to be on the same level as the Church of England. Even the most charitable view of sun-worshipping sects would not grant them such a status, but one human rights lawyer has already referred to the potential for the levelling down—his words, not mine—of religious rights. The Government have argued that it is necessary to delete the amendments agreed to in the other place because they would cause the Bill to breach the convention by giving primacy to the rights of certain religions. That was a particular point made by the Home Secretary. It is true—the Home Secretary was right to allude to it to this extent—that the convention prohibits that, but if he is right, why does Austria still have a system of recognising religious communities? Only five religious communities are so recognised, including the Roman Catholic Church, the Lutheran Church and the Helvetic Confession—whatever that is. Those Churches receive state funding. A minority Church in Austria may feel left out, but there is no breach of article 9. As my right hon. Friend the shadow Home Secretary mentioned, Germany also gives privileged status to certain religions in its constitution. That point made by the Home Secretary and relied on by him in his speech simply does not hold up. Lord Rawlinson of Ewell and another barrister, Paul Diamond, who run a legal opinion for the Christian Institute, have argued: In our opinion it is incorrect to argue that granting a privilege to certain established religious groups is contrary to the Convention. The applicability of the inserted Defences to the principal faiths is an act that is 'objectively justifiable'. In plain man's language, that means that giving special protection to the main religions is perfectly sensible under the convention. Other countries know that it is sensible to give priority protection to those religions that are well established and well respected in their own country, so why cannot we? I come now to the point concerning charities. It has been said by several hon. Members that the Home Secretary's amendment will not adequately protect religious charities. The Home Secretary may say that religious charities will benefit from new clause 9, but that is not the case. I am advised, as I said in an intervention—which the Home Secretary did not answer, but the Secretary of State for Scotland may do so later—that only organisations whose primary purpose is the advancement of religion will be classed as "religious organisations" for the purpose of the clause. Organisations that exist to provide charitable services, but which have a religious foundation will probably fall outside the clause. If the Home Secretary thinks that the intention behind the amendments is wise, but that their effect is perverse, which is what he seemed to suggest, it is open to him to amend future legislation. The omission of religious charities is a serious omission and could cause many problems in future.

Julian Brazier (Conservative, Canterbury)

Even if, as my hon. Friend says, some religious charities may be excluded, adoption agencies, orphanages, children's homes and so on will be included in the definition of public organisations, because they carry out public functions. If Church schools require special treatment, how much more essential is it that those bodies, which have even more power over children in their most formative years, should enjoy the same special protection?

Edward Leigh (Conservative, Gainsborough)

That is an important point. It is difficult to imagine how such bodies would not be charities. The model of incorporation that the Government have chosen is far reaching. In addition to designating a range of bodies to be public authorities, the Bill states in clause 3 that all legislation must be interpreted in line with the convention. Not only will religious bodies that get caught in the definition of "public authority" be hit, but all religious bodies will find that people who want to sue them will start putting a human rights spin on existing legislation to try to get what they want. That will become most apparent in employment law. Unfair dismissal cases will begin to take on a new gloss as a result of people pleading human rights in conjunction with the existing law. Only last Friday, I visited St. Barnabas's hospice in my constituency. It is a religious foundation designed to care for people who are terminally ill. By its very nature as a religious foundation, it is opposed in principle to euthanasia. What would happen if a nurse employed by a hospice started to distribute pro-euthanasia leaflets? Would the hospice have the right to dismiss that nurse? The answer is that it would have the right to dismiss the nurse, but under the Bill, as amended by the Home Secretary, that nurse could sue the hospice. The Government and the Committee should be worried about that. I shall give another example from my constituency. Members of the Plymouth Brethren came to see me in my surgery this week. The Plymouth Brethren are a fine organisation. I believe that they have lobbied many Members of Parliament, as they are worried about the Bill. By their very nature, they regularly exclude members. In a recent case, they excluded a member who then threatened to take them to court. Under existing law, he could not do so. The Home Secretary will assure me that because, in that case, the Plymouth Brethren were not acting as employers or as a public body, there is no way in way in which the member who had been excluded and who wanted to pursue his Church in a court would be covered by the Bill. I am sure that the Scottish Secretary will want to reassure the Plymouth Brethren on that point. They have lobbied Members of Parliament throughout the country making that point. They are a serious body and need reassuring.

Tim Collins (Conservative, Westmorland and Lonsdale)

My hon. Friend is making a powerful case, which is shared and endorsed by people of many faiths in Cumbria and north Lancashire, as I know from personal experience. In the light of what he has said and his references to the cardinal archbishop and the Archbishop of Canterbury, will he comment on the remarks of the hon. Member for Hull, North (Mr. McNamara), who has just returned to his seat, that the issue has been got up by right-wing fundamentalists and does not matter much?

Edward Leigh (Conservative, Gainsborough)

I have great respect for the hon. Member for Hull, North (Mr. McNamara), but I do not think that his points are valid. I know that he spoke sincerely and that he would not accuse the mainstream Churches, such as the Church of England or the Catholic Church, who have serious concerns about the legislation, of being fundamentalist sects. His point regarding proposed new clause 9 simply does not add up for the reasons that I have given. Through no fault of his own, the hon. Gentleman has been absent from the Chamber, so I shall not dwell on that point. There is no doubt that Church schools will be protected, and we give credit to the Home Secretary for that. However, he has not made the case that religious charities will receive similar protection, and he must do so. The only way in which to avoid the problems of litigation that challenges the core beliefs of religious groups as "public authorities" is to exempt them from that definition. That is what new schedule 1 would do. It being Ten o'clock, THE CHAIRMAN left the Chair to report progress and ask leave to sit again. Committee report progress. Motion made, and Question put forthwith, pursuant to Standing Order No. 15 (Exempted business), That, at this day's sitting, the Human Rights Bill [Lords] may be proceeded with, though opposed, until any hour.—[Jane Kennedy.] Question agreed to. Again considered in Committee. Question again proposed, That the amendment be made.

Edward Leigh (Conservative, Gainsborough)

In conclusion, I believe that exemption as proposed by the shadow Home Secretary is the obvious course. However, it would not be enough because religious bodies—even if they were not public authorities—would suffer as a result of all laws being interpreted to comply with the convention under clause 3. The amendments agreed to in the other place that the Government are deleting would have provided a defence, and the Home Secretary's amendment will prove to be inadequate. I close by reminding the Government that the sorts of cases that religious people fear will arise, because this Bill makes that possible. When those cases come up and Churches and religious charities suffer intimidation, indignity and the expense of litigation and of losing, I believe that they will remind the Government of the opportunity that was offered to them that they did not act on. To coin a phase, the Government have been weighed in the balance and found wanting.

Peter Brooke (Conservative, Cities of London and Westminster)

The Committee is in the debt of my hon. Friend the Member for Gainsborough (Mr. Leigh) for a comprehensive speech on this subject, which is the product of much reading and much learning. I shall be brief. I speak in this debate as a member of the Church of England. My paternal great grandfather and one of his brothers were ordained into the Church of Ireland of which their father was likewise a minister. He wrote a history of the Church of Ireland. My great grandfather ended his life as a Unitarian minister. My maternal grandfather was a canon of the Church of Wales and his son, my uncle, was dean of an English abbey. One of his daughters served as a Protestant missionary, became a nun, advanced to being a mother superior and ended her life in a closed order. I come from eclectic ecclesiastical stock. I cite my Church of England pedigree because I was a Treasury Minister when my noble Friend Lord Lawson of Blaby introduced concessions for charities and measures against loopholes in his 1986 Budget. At that time, we held a seminar in Lancaster house, which the charities attended. My predecessor in this constituency, John Smith—now Sir John Smith, CH—asked the first question of the Chancellor. He said that there had been an argument in the Church of England for 400 years about what its purpose was, and the Chancellor had now decided, through a clause in the Finance Bill, that that issue would be settled by an assistant secretary at Inland Revenue. He said that he thought that that would bring much pleasurable discussion to a close. I therefore approach Government intrusion into Church matters with caution. I pay tribute to the Home Secretary, but I must approach his revisions, to which my hon. Friend the Member for Gainsborough referred, with caution, too. As a result of the Government's stance in another place, there have been aspects if not of a deathbed repentance at least of a very late conversion on the part of the Government. One wonders whether the conversion was sufficiently early that proper thought could be given to the issue. I do not believe that the late Lord Butler of Saffron Walden would have approached the Education Act 1944 with the same recklessness. I do have fears, as my hon. Friend the Member for Gainsborough alluded, about vexatious cases being brought against the Church of England. The hon. Member for Belfast, South (Rev. Martin Smyth) cited the extraordinary case of the Salvation Army in the Netherlands being sued by an atheistic Bible teacher. That is a case worthy of Mr. Justice Cocklecarrot in the pages of "Beachcomber". As I have said in an intervention, it was only settled in the Salvation Army's favour after a very expensive case. Resources were drained from the Salvation Army to fight it. In exactly the same way, the Church of England is, very nicely, concerned about the amount of money that it has to spend on inquiries concerning church buildings which the Church of England genuinely loves. These inquiries arise from objections raised by English Heritage. So, too, I have fears about the amount of money and resources that will be drained from the Church of England by vexatious cases of which I am sure those who occupy the Treasury Bench would not approve. All of that said, I am encouraged that the Government's heart is now beginning to be in the right place. I would give the Government a general but not universal benefit of the doubt, for they have responded to what has been said to them. It must be said that Labour Members have had universal faith in the Government. Labour Benches having been crowded during the capital punishment debate, they have been broadly empty during this debate. With the exception of the hon. Member for Hull, North (Mr. McNamara), Labour Members have been entirely silent during this debate. I left the Chamber to consult the article in The Daily Telegraph of 19 May, which the Home Secretary quoted. He referred to various words of my noble Friend Baroness Young. I am conscious that, as with selective book reviews on dust covers, Ministers can be capable of selective quotations. I am glad that I left the Chamber to consult the article. I discovered that the Church of England spokesman's response to the Home Secretary's new clause closed cautiously as follows: The Church will monitor closely how the Bill works out in practice and will not hesitate to go back to the Government if the legislation proves to work unsatisfactorily. I share that caution and I hope that the Government will give a guarantee that they would react swiftly if such fears proved correct. Assuming the Government win tonight, I remain curious about what further ground the Government would give if the other place resists the House of Commons rejecting their amendment. I hope that the Government would then act in a way which showed that they recognise the sincerity of those of us in this Chamber, who in the best theological tradition continue to have doubts.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I wish to address the issues raised by the Church of Scotland Act 1921. As my right hon. Friend the Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) said, the amendments that were inserted in another place were proposed by Lord MacKay of Drumadoon. I declare an interest as an elder of the Church of Scotland and a member of the Kirk Session of St. Magnus cathedral in Kirkwall, which is potentially a court. One of the issues in the debate might be whether it is a court which could be affected by the Bill. On two occasions in the past five years, I have been a commissioner to the General Assembly of the Church of Scotland. I do not wish to take the time of the Committee by going into the whole history of the Church of Scotland Act. Suffice it to say that it is an important Act in terms of the constitution of the Church. It was a settlement agreed between Parliament and the Church which guaranteed the Church separate and independent jurisdiction in matters spiritual and paved the way for the union of the Church of Scotland and the Free Church in 1929. Matters spiritual have been determined subsequently by the courts in, I think, 1936 as including the Government in disciplinary matters. In more recent times, as in the case of Logan against the Presbytery of Dumbarton, issues have arisen causing the Church to invoke the Church of Scotland Act to combat a case that was brought against the Church by a minister who had been subject to the disciplinary procedures of the Presbytery of Dumbarton. There has been much discussion between the Secretary of State and the former moderator, and between the Prime Minister and the former moderator when he visited London at St. Andrewstide last year. The Church appreciates the time and consideration that the Government have given these matters. However, the package that has been presented to the Committee tonight has been considered by the Church of Scotland, and it is still not satisfied. In a letter to the Secretary of State, the principal clerk of the Church of Scotland, Dr. McDonald, says: we appreciate any movement at all on the Government's part in this matter. However, we feel that this amendment will fall far short of anything that would meet our concerns. In the first place it would mean that the Church itself was relying on its rights under the convention, whereas the present position is that we rely on the 1921 Act. Moreover the amendment requires only that a court 'must have particular regard to the importance of that right'. It then remains open, presumably, to the Court once it has had that 'particular regard' to determine the issue. There is no automatic provision, as under the 1921 Act that a determination that a matter is a spiritual one means that the court has no further jurisdiction. Furthermore, the General Assembly of the Church of Scotland, meeting in Edinburgh this week, passed a deliverance on Saturday morning deeply regretting that Her Majesty's Government has, despite the representations of the Board, failed to agree to an amendment of the Human Rights Bill which would state explicitly that the position of the Church of Scotland in terms of the Church of Scotland Act, 1921, is not affected by the Bill. It goes on: Accordingly, urge Her Majesty's Government either to give an assurance that the Human Rights Bill is entirely consistent with the provision of the 1921 Act or to amend the Bill to ensure that it will be so consistent. Will the Secretary of State for Scotland deal with the matter along those lines when he replies to this debate? In a letter to the former moderator, the Secretary of State for Scotland made two points, the first of which was repeated earlier this evening by the Home Secretary. It was that one of the problems with the amendments made in another place to clause 6 is that, although it might bring some certainty to the Church of Scotland, it could bring uncertainty to the Church of England. As I said in an intervention to the Home Secretary, it is somewhat perverse to try to resolve uncertainty with the Church of England by re-creating uncertainty in the Church of Scotland. If a way could be found to create certainty for the Church of Scotland without creating unnecessary uncertainty for the Church of England, that would he a welcome development. In a further passage in his letter to the former moderator, the Secretary of State for Scotland said: The civil courts have demonstrated their reluctance to involve themselves in the spiritual matters concerning doctrine, worship, government and discipline within the church, as defined in the Declaratory Articles recognised by the Church of Scotland Act 1921. It is not so much reluctance, as whether the courts have jurisdiction. When the case of Logan, to which I referred, first came before the Court of Session for an interdict, the counsel who moved for the interdict did not draw to the attention of the presiding judge the provisions of the Church of Scotland Act 1921, and the interdict was granted. Within a matter of days, the case came back to court and the provisions of the 1921 Act were drawn to Lord Osborne's attention. He immediately withdrew the interdict and said that the provisions of the 1921 Act prevailed. There was no further consideration of the merits of the case before the court. My right hon. Friend the Member for Caithness, Sutherland and Easter Ross said that he found compelling the argument put by the Lord Advocate in another place, that, because the courts of the Church of Scotland do not amount to public authorities, they would not fall within the scope of the Bill. However, it is fair to point out that, although the Lord Advocate said that he found it extremely difficult to conjure up circumstances in which the courts of the Church of Scotland could be public authorities, he said on 5 February in the other place that it was possible, in some circumstances, that those courts of the Church could be public authorities. The Church of Scotland wants that possibility to be addressed. The Secretary of State for Scotland suggested that there had been no case in 30 years in which any such issue arose, and he may make the fair point that the Bill brings human rights legislation home and makes our domestic courts, rather than Strasbourg, the appropriate forum. That, too, has been the case with the Church of Scotland. The Bill's purpose is to achieve a more convenient forum in which litigants can take action. There may have been no such case because people thought that going to Strasbourg was outwith their financial reach. It cannot clearly be shown that that is a game, set and match argument, but the Secretary of State fairly asked what was the difference in principle. That case is more difficult to answer, but, if nothing in principle has changed and given that successive Governments have in no way departed from—indeed, have acknowledged and supported—the settlement between Church and state arrived at in 1921, there should be no difficulty in the Secretary of State giving the assurance that the exclusive jurisdiction of the Church of Scotland in matters spiritual, under the 1921 Act, will be unaffected by the Bill. If it has been unaffected in the past 30 years, the point that he made must also mean that it will be unaffected by the Bill. I would welcome such an assurance. The Church of Scotland is anxious not to be thought to be in any way ignoring human rights or the United Kingdom's obligations under the convention. Paradoxically, the Church of Scotland, perhaps before some other Churches, accepted that it would be subject to human rights legislation in its secular affairs. The Church of Scotland would be subject to the convention's provisions in relation to human rights issues arising from its provision of eventide homes and clinics for drug addicts. Furthermore, the committee on Church and nation has today been debating a resolution—I am not sure whether it has been passed—marking the 50th anniversary of the universal declaration of human rights and welcoming the incorporation of the European convention on human rights into United Kingdom law. The General Assembly also had before it a motion stating: Instruct the Board of Practice and Procedure, in consultation with the Committee on Church and Nation, to consider whether, and if so how, the Church's commitment to the European Convention on Human Rights might be appropriately contained in an Act of Assembly, especially but not exclusively in relation to disciplinary and judicial procedures, and to report to the next General Assembly. The Church of Scotland is saying that it has exclusive jurisdiction in matters spiritual and that it would not be for the House to direct it to amend its legislation if, for the sake of argument and in extreme circumstances, the European Court of Human Rights had found that there had been a breach in a procedure and practice of a court of the Church. The Church of Scotland claims exclusive jurisdiction, but it is willing to consider, where appropriate, how it might incorporate the provisions into its practices. I have set out the position. I shall listen with interest to the Secretary of State. We may return to the matter, but it would be interesting to consider the position if he gave the assurance that nothing in principle will change and, therefore, nothing in principle that affects the exclusive jurisdiction of the 1921 Act will change.

Dominic Grieve (Conservative, Beaconsfield)

I am delighted to be able to participate in this debate, I hope reasonably briefly. I should at the outset declare an interest. I am a practising member of the Church of England, a churchwarden and a member of the London Diocesan Synod, so I have an interest in ensuring that freedom of religion is maintained. It is of great importance to me. That said, I have listened carefully to the debate, particularly the comments of my hon. Friends, and my understanding—I am willing to be corrected—of the convention's workings does not lead me to share the somewhat apocalyptic vision of the Bill's consequences. That said, some of the matters that have been raised seem to be of considerable importance. Trying to pull the curtain back from some of the arguments that have been advanced, we have to face the fact—the point has been made—that the convention is quite old. Social conventions and mores have moved a long way since the convention was brought into being. Matters that at the time of the convention were adhered to and which most people would have considered commonplace—in particular, the way in which most Governments in western Europe conducted their government, which was on the basis of what were essentially Christian principles—have changed. As social mores have changed and been adjusted to, and changes in the law have resulted, so people who practise mainstream faiths have found themselves increasingly at variance with what is widely accepted in secular society as the norm. I dare say that the reason why there is so much anxiety about incorporation is because it has focused minds on the extent to which some of the convention's articles and their interpretation, especially those that I suppose might nowadays be described as politically correct—those defending the rights of people who wish to have life styles that might be described as at variance with the faiths that the various religious denominations practise—have a ratchet effect of dragging people increasingly into a secular society and making them conform to it. Those fears are misplaced; the convention's workings have not suggested hitherto that that is a realistic fear. There is a second reason why I do not think that that will happen. I do not share the view of my hon. Friend the Member for Gainsborough (Mr. Leigh) that the interpretation by the judiciary, whether it be north or south of the border, will be shackled by the absence of a margin of appreciation, and that it will not be able to interpret the way in which the convention is supposed to operate correctly. The convention is all about balances—for example, the balance between article 9 and article 13. Dozens of them can be looked at, but I do not see that that is a fundamental problem. The Home Secretary's amendment appears to go a long way towards meeting the anxieties. I see the force behind the amendments that were tabled in the other place, but one or two, especially those in relation to article 2, seem to go dangerously close to providing definitions about mainstream religion which cause me some anxiety and seem not to conform with what the convention is all about. Therefore, I accept that this is a difficult area, and I shall listen with great care to what the Secretary of State for Scotland says about the matter. There are two fundamental issues. First, as I said on Second Reading, I have never considered the Bill to be writ in stone. If it is found not to work correctly because it appears to have a discriminatory bias against organised religion, we shall have to produce amendments to make it work. I should like an assurance that that will be kept under constant review.

David Lock (Labour, Wyre Forest)

I appreciate the hon. Gentleman's concern about discriminatory effects, but does he accept that experience in other European countries is that a judiciary applying the margin of appreciation has not given rise to any real concerns about such effects?

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with the hon. Gentleman. I accept that we are moving into a new world, and I have listened carefully to the arguments and the apocalyptic visions of endless litigation and the erosion of the rights of religious organisations, which will be pilloried for their views. However, I did not find those arguments realistic, and I do not share the anxieties that have been expressed by some of my hon. Friends. However, the Government must consider some of the underlying anxieties.

John Hayes (Conservative, South Holland and The Deepings)

Will my hon. Friend give way?

Dominic Grieve (Conservative, Beaconsfield)

I shall give way—briefly, I trust, because I want to finish.

John Hayes (Conservative, South Holland and The Deepings)

I am not a churchwarden, just a humble churchgoer. Is my hon. Friend saying that we are to accept the changed norms that he says isolate Christians such as him and me rather than challenging them and fighting for what we believe in?

Dominic Grieve (Conservative, Beaconsfield)

The norms have been changed largely by Acts of Parliament that have nothing to do with the European convention on human rights. Legislation has been passed by Parliament under successive Governments of both major parties, changing the way in which society operates. That is a great challenge for those with religious beliefs, but it has little to do with the European convention and the way in which it is applied. In some ways, the incorporation of the European convention will provide greater protection than hitherto. My second concern is the definition of public authority. I should like to hear more about that, because it remains a source of anxiety to me. I am conscious that others may wish to speak, so I shall close my remarks on that note.

Julian Brazier (Conservative, Canterbury)

I am grateful to my hon. Friend for leaving me two or three minutes to make two brief points—one technical and the other substantive. My technical point is whether we are dealing with the European convention on human rights. In fact, we are dealing not with the convention but with the sharper instrument of a national statute. The fact that other countries that have embodied the convention into their law have chosen to take account of the concerns about the Churches that several Conservative Members have raised proves that our amendments are necessary. That is reinforced by the fact that the Government have wisely chosen to take those concerns on board for schools. My hon. Friend the Member for Gainsborough (Mr. Leigh) and other Conservative Members have asked the Government to broaden the thinking that led them to make sensible amendments to the School Standards and Framework Bill to cover other religious charities. Moving away from the technical argument, there is a substantial issue about the working of some charities. I should like to focus on children's charities, particularly adoption agencies and children's homes. Churches have traditionally run many such organisations. The Government have chosen to uphold the policy of Churches to appoint Christian teachers. Children's charities have more control over a child's life and future than even a school. An adoption agency will decide who a child's parents will be. A children's home has 24-hour control over a child. It is even more important that Churches should be allowed to continue to appoint Christians to posts in such organisations. I ask Ministers to ask themselves whether it is in anyone's interest to have a situation in which Churches could face litigation by people who, although they say that wish to work in those homes, have known and declared positions that are antithetical to the religious ethos of the organisations running the homes, which look after some of the most vulnerable children in the United Kingdom.

The rest of the debate is in Hansard.