I express my support for Amendment 27, in the names of the noble Earl, Lord Kinnoull, the noble Lords, Lord Moylan and Lord Trees, and the noble Baroness, Lady Deech. The noble Lord, Lord Moylan, and the noble Baroness have covered much of the ground that I wished to cover, and I agree with everything that they said.
Article 13 of Title II of the Lisbon treaty was not only binding on the UK before Brexit but—as the noble Lord, Lord Goldsmith, himself stated in a letter to Members on 13 May—the UK was one of the key EU members that lobbied for it, and it has not been suggested at any stage of the Bill that prior to Brexit the UK had any objection to the balancing factors in Article 13.
As I pointed out in Committee, the balancing factors mirror rights under the human rights convention. There is a powerful argument that the right to sporting and other recreational activity that are part of cultural traditions and regional heritage are protected by Article 8 of the convention as an aspect of the right to respect for private and family life. Like a number of other convention rights, it is a qualified right and is subject to interference if, among other things, it
“is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
None of those grounds has been identified by the Government as potentially applicable.
Most perplexing of all, however, is the Government’s failure to exclude religious rights from the purview of the sentience committee. This ground has been substantially covered by what my noble friend Lady Deech said. She referred to Article 9 of the convention, which expressly provides for freedom of thought, conscience or religion; that article expressly states that the right to manifest one’s religious belief is a right protected in practice and in religious observance.
The European Court of Human Rights, as the noble Baroness, Lady Deech, has said, has highlighted the importance of rights protected by Article 9 in a pluralist democratic society. Like Article 8, Article 9
of the convention confers a qualified right and is subject to many of the limitations that I have just listed with regard to Article 8. Again, none of those limitations has been suggested by the Government at any stage of the passage of this Bill.
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Why, then, is the provision in this amendment, which simply seeks to incorporate the balancing factors in Article 13 of the Lisbon treaty in the Bill, not accepted? As far as I can see and have heard, only two explanations have been given by the noble Lord, Lord Benyon. The first, which was stated most clearly, I think, in Committee, is that it is for the Government to decide on policy, and that in doing so they will take into account all relevant considerations.
The second explanation came today, when the Minister, when asked expressly why these balancing factors under Article 13 of the Lisbon treaty had been added to with bells, replied: “Well, we now have a sentience committee.” I say to the Minister that, with respect, that does not make much sense to me because all these balancing factors are matters of policy and are reserved to the Government. The three factors that are specified as balancing factors here are matters for the Government to decide, not the sentience committee, and it is therefore entirely appropriate for them to be in the Bill.
In fact, certainly in relation to religious slaughter of animals, the Government’s policy is to permit such slaughter. Jews and Muslims are exempt from the scope of domestic regulations concerning the stunning of animals, though I should add—so that there is no doubt about the matter—that the organisation with oversight of Jewish religious slaughter, Shechita UK, maintains that shechita conforms with the EU definition of stunning, as supported by scientific evidence.
Moreover, in answer to the noble Baroness, Lady Deech, in Committee, the Minister is recorded in Hansard as saying:
“this Bill is about the government policy-making process. It is not about some method of changing the slaughter of animals for religious belief. I want to make that absolutely clear.”—[Official Report, 20/7/21; col. GC 5.]
That is a statement about policy and the balancing factor of preserving religious rites.
I respectfully suggest that all this shows that there is no reason whatsoever why the Government should not exclude from the remit of the committee, as policy matters, customs relating to religious rites. Indeed, as proposed by Amendment 27, the same balancing factors that were accepted by the UK under the Lisbon treaty should be inserted in Clause 2.
That, however, is not the end of the matter. There is no statutory restriction to what the committee may consider, advise and make recommendations on. The committee could take it upon itself to consider matters that are subject to the balancing factors—and could reach a different view to that of the Government. If the Government decided not to implement the recommendations, on the basis that they were policy matters, not infringements of these balancing factors, it seems almost inevitable that somebody would institute a judicial review against the Government for failing to follow whatever the sentience committee had decided.
What would those proceedings be about? They would be about three matters. The first question is whether the committee had acted within its remit. Secondly, had the committee reached a decision consistent with scientific and other evidence? Thirdly, were the Government justified, taking into account all other considerations, in rejecting the recommendations and advice of the committee?
It is unrealistic to expect that leave would not be given to bring such proceedings, which would be expensive and time-consuming. All of this could be resolved in a way offered by the Lisbon treaty, by having these policy balancing factors in the Bill. This is also the answer to the noble Baroness, Lady Fookes. The advisory committee—the sentience committee—may decide to take on a matter that currently falls within the exemption—such as religious slaughter—and come to a decision that is different to that accepted by the Government. If the Government wished to deviate from—not accept—those recommendations, judicial review would follow as night follows day. We should support this amendment.