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Mr. Grieve: 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.
Mr. McNamara: 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.
Mr. Maclennan:
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.
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.
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