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Mr. Wallace: 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:
In a further passage in his letter to the former moderator, the Secretary of State for Scotland said:
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:
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.
Mr. Grieve:
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.
"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."
20 May 1998 : Column 1057
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 be a welcome development.
"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.
"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.
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