Mr. A. J. Beith (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.

Mr. Leigh: 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,

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Mr. Gardiner: 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?

9.45 pm

Mr. Leigh: 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--

Mr. Dewar: That is an important qualification.

Mr. Leigh: 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?

Mr. Dewar: 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

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Mr. Leigh: 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.

Mr. Grieve: 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.

Mr. Leigh: 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

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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'."

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.