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Mr. Leigh: 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.
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.
Mr. Grieve:
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?
Mr. Leigh:
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.
Mr. Gareth Thomas:
Amendment No. 117 requires the courts to give primacy to article 9 over the other articles. Is that its intention? If that is the case, does the hon. Gentleman accept that the vast majority of hon. Members would consider it extraordinarily bizarre to give primacy to article 9, on freedom of conscience, over such articles as article 2, on the right to life, and article 3, on the prohibition of torture? Surely the hon. Gentleman concedes that the Government's solution of giving due consideration to freedom of conscience and religion is by far the most sensible way forward.
Mr. Leigh:
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.
Mr. Brazier:
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,
Mr. Leigh:
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.
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