HL Deb 12 March 1891 vol 351 cc722-31

House in Committee (according to Order.)

Clause 1 agreed to.

Clause 2.

*LORD GRIMTHORPE

My Lords, I have an Amendment on this clause. I only suggest to the most rev. Prelate that a few words should be omitted which are evidently surplusage. They may have had some meaning as the Bill was originally drawn; that I do not remember, but as it stands the 2nd clause stands thus, omitting the early part of it. After referring to cases where clergymen have been convicted, it goes on to say— The following consequence shall follow that is to say, the ecclesiastical preferment held by such clergyman shall become vacant. It is perfectly obvious that to provide that "the following consequence shall follow" is absolute nonsense, and the Bill would, I think, be a great deal better without those words.

*THE ARCHBISHOP OF CANTERBURY

I would ask the noble Lord whether he does not think these words still serve a purpose with regard to the 2nd subsection? If the words are omitted, as the noble Lord proposes, the 2nd subsection would want considerable alteration.

*LORD GRIMTHORPE

I must say I doubt that, because the words "Provided that if," and so on, in the subsection are only interpolated to qualify the 1st section. Let us leave that out for a moment. It says that at the time of the conviction becoming conclusive for the purposes of the Act the ecclesiastical preferment held by the clergyman "shall become vacant." Then read on— The same consequence also shall follow after the like date if a bastardy order under the enactments for the time being relating to bastardy is made on a clergyman, and is either not appealed from, or on appeal is confirmed, or if a clergyman is found by the verdict of a jury or the decision of a Court sitting without a jury on an issue in a divorce or matrimonial cause to have committed adultery. I have read it in full purposely, so that your Lordships may know exactly what it says, as the most rev. Prelate has referred to it, and I must say I still cannot see that there is any object whatever in these words which I am moving to omit, or that the 2nd sub-section has anything to do with them.

LORD HERSCHELL

It is quite true that the proviso interpolated is a proviso on the first section. It is the last consequence mentioned that is referred to which would, therefore, refer to the first part of the clause, and not the last proviso but one. I think the words, do no harm, and that the clause is safer left as it is.

*LORD GRIMTHORPE

I will move the Amendment.

Amendment moved, to omit the words, "the following consequence shall follow, that is to say."—(Lord Grimthorpe.)

Amendment negatived.

Verbal Amendments made.

Clause, as amended, agreed to.

Clause 3.

*LORD GRIMTHORPE

On this clause I have an Amendment to propose. I stated the general nature of it on the Second Reading of the Bill. You will observe that in the group of cases which are included in Clause 3, and which admit of many varieties and degrees there is a provision that the conviction is to be conclusive; but, according to the clause, the last words of it provide that the clergyman shall be heard to prove mitigating circumstances. Now, the first question I ask is, how are those mitigating circumstances to be proved? Of course, if justice is to be done, there must be a full inquiry into the matter on both sides, and this is one of the cases in which the clergyman wouldcertainly be entitled to what may for shortness be-called a jury. The probability is that he will very often desire to have one. The result would be he would go on and prove his innocence if he can, and he may be able to prove absolute innocence. The first trial will not be conclusive as to punishment, and if he is to be allowed to go on proving all he can he may succeed in proving that he was absolutely innocent. Such cases are not at all unknown; but the Court would have to say, to him, "You are guilty, because you have been found guilty by another Court; but we do not think you are guilty, and we will treat you as having proved mitigating circumstances, and give you a very slight punishment, or none at all." That seems, an absurdity. What you want to provide is this: that the Ecclesiastical Court shall know all the circumstances; and it strikes me that the simplest way of doing it is to allow the Ecclesiastical Court to have all the evidence apon which the man was convicted laid before it. Then it would have all the materials that have been considered necessary to be brought forward in the first instance. Then comes the question whether he should be allowed an appeal, and upon that point I am bound to say I am rather against what I have put down as my own Amendment. I have thought it possible that some noble Lord might think that in certain cases the clergyman ought to be entitled to an appeal; but I believe, that if you adopt the other part of my Amendment, namely, that all the evidence is to be laid before the Court which has to pass the sentence or before the Bishop, you will ensure that the Ecclesiastical Court knows all the circumstances—that it has a complete know-ledge of everything, and that is what you want. I quite agree with what the noble and learned Lord opposite said on Second Reading that you must run the risk of a certain amount of injustice being done, but you need not do more than run that risk. The moment you say there is to be another trial, surely you ought to provide that the other trial shall be as complete as it can be without involving extra expense, and if you simply provide that the evidence which has been used in the Temporal Court shall be laid before the Ecclesiastical Court you will do all that is necessary for securing justice on both sides. Otherwise you will run the risk which I have pointed out before. I wish to point out that this only applies to cases where the guilt of the accused clergyman admits of a variety of degrees. Take, for instance, cases of assaults. There may be cases of assault involving indecency, such as I alluded to the other night, in the case of Mr. Hatch, who had not, it afterwards turned out, committed any offence at all, and, therefore, mere mitigation would have been nonsense. That seems to me to be a case which ought to be subject to revision in the subsequent trial, as before a jury, if the clergyman thinks fit to demand it.

Amendment moved, to omit the following words:— This section shall not preclude the clergyman from being heard to prove mitigating circumstances,

and to insert the following:— The evidence on which he was convicted shall he laid before the Court, and its judgment shall be subject to appeal under the same conditions as in other cases, and the evidence shall in like manner be laid before the Bishop if he has to pass sentence summarily."—(Lord Grimthorpe.)

*THE EARL OF SELBORNE

Ordinarily, as I understand it, the Judge takes a note of the evidence at trials of this description and it is the Judge's note ordinarily which is looked at afterwards in other Courts. Does my noble Friend mean that the Judge's note of the evidence should be laid before the Ecclesiastical Courts?

*LORD GRIMTHORPE

I think that probably this result would follow as in the case of what is called the preliminary inquiry in reference to drunken clergymen. There is a provision in the old Clergy Discipline Act that the evidence shall be laid before the Bishop, and the parties either agree to have a shorthand writer, or the notes are taken by the Court. I may say that I have taken them myself to save the expense of a shorthand writer. I think that is an answer to that question.

LORD HERSCHELL

I have no objection certainly to the purpose which the noble Lord has in view. I think it is very desirable that before passing sentence and awarding punishment the Ecclesiastical Court should know what the character of the offence was as disclosed by the evidence, because, of course, that would obviously influence or might influence considerably the punishment to be inflicted. Therefore I agree entirely with his object, and I think the words at the end of the clause to which he refers were added with that notion. Certainly I do not think the language happy, though I rather thought it was my noble and learned Friend's.

*LORD GRIMTHORPE

No.

LORD HERSCHELL

I rather thought that was so, because I had a manuscript sent from him in which it appeared. However, we quite agree that the words as they stand will not do, and I had thought of suggesting some such words as these—that the clergyman "may be allowed to show the circumstances under which the offence was committed in mitigation of punishment," but such a proviso is again open, no doubt, to the objection which my noble and learned Friend has raised that the matter might be more simply dealt with by providing that the Ecclesiastical Court shall have the evidence given in the temporal Court before it. I think if those words were adopted there would be nothing to prevent the accused person being heard in mitigation of punishment. I fancy that any Court in dealing with a case before it, would hear whatever could be said in mitigation of punishment without any express provision; but in providing for it the difficulty, of course, arises of determining what the machinery to be used is for bringing the evidence before the Court. I think we might consider in Standing Committee how best we could do it. I quite sympathise with my noble and learned Friend's object, and agree that it would be desirable to ensure that being done.

*LORD GRIMTHORPE

At present I will withdraw the Amendment, reserving to myself liberty to bring it before the Standing Committee.

Amendment (by leave of the House) withdrawn.

Clause agreed to.

Clause 4.

THE EARL OF SELBORNE

My Lords, in regard to Clause 4, I cannot help thinking that the language requires amendment. What it says is that if there is no appeal the decision pronounced shall be conclusive— Upon the expiration of the time limited for such appeal or the expiration of two months from the time of the conviction order or finding, whichever is earliest. Now, if that means it shall be absolutely conclusive when the time for appealing has expired, I can quite understand it; but surely, if more than two months are allowed, it ought to provide for that. Surely that must be the object, and I venture to suggest that it requires amendment, so as to make the term of two months applicable only when no time for appealing is really fixed. I propose, therefore, to omit the words "whichever is earliest," and to insert the words "when no such time is limited."

Amendment agreed to.

*THE EARL OF SELBORNE

Then in the next line, at the beginning of the next sub-section, the language is not clear, and I think the intention is insufficiently expressed. The words "in the event of an appeal" overlook a case provided for by the previous sub-section, because the appeal may afterwards be abandoned, and I, therefore, propose to put in after the word "appeal" the words on which judgment is pronounced by the Court of Appeal.

Amendment agreed to.

Verbal Amendments made.

Clause, as amended, agreed to.

Clauses 5, 6, and 7 agreed to.

Clause 8.

*THE EARL OF SELBORNE

I would suggest an Amendment, instead of the too indefinite words "for good reason" on page 5, line 14. The provision is this: that in certain cases which are necessary to be provided for, the Chancellor may— Appoint some clergyman or layman, as the case may require, who is willing to serve and who is not objected to by either party for good reason, to make up the necessary number of assessors. There must be somebody to determine the sufficiency of the objection; and I, therefore, suggest that those words "for good reason "should be left out, and that there should be inserted instead "for cause shown and deemed sufficient by the Chancellor." It is a matter which must be decided at the time, and it would in that case be for the Chancellor to decide whether there was sufficient reason for objecting or not.

Amendment agreed to.

THE ARCHBISHOP OF YORK

Before this clause is passed, I should desire to point out one matter which will probably have to be considered by the Standing Committee. Sub-section 4 provides that the assessors chosen shall attend when required, and that if anyone fails to do so "he shall be disqualified for acting or being elected again as assessor." Supposing a man is ill or that his absence is entirely owing to circumstances over which he has no control, it is not intended surely to disqualify him from acting in future. It would be wrong in such a case to say that his appointment as assessor shall be at an end, and it should surely be subject to this proviso: that "any one without assigning some sufficient reason for his absence "shall be disqualified, and that it should be for the Judge of the Court to decide as to the sufficiency of the cause.

LORD HERSCHELL

I quite agree with the most rev. Prelate that it should be so. The Chancellor is to declare the vacancy, and he should be satisfied with regard to any excuse offered that it is a valid excuse.

*LORD GRIMTHORPE

Would it not do to say "except for good cause allowed by the Chancellor?"

THE ARCHBISHOP OF YORK

Yes that would do; but I am afraid I am not in order in suggesting it now, and I will say no more about it at present.

Clause, as amended, agreed to.

Clauses 9 to 12 agreed to.

Clause 13.

*THE EARL OF SELBORNE

I am disposed to think that the words at the end of this clause will require modification, "that if an appeal is brought the operation of the sentence shall be suspended until the appeal is dismissed or abandoned." There may be upon the appeal a sentence which is, on the one hand, partly in favour of, or, on the other, wholly against the person accused. I would suggest the substitution of the word "determined" for "dismissed."

*THE ARCHBISHOP OF CANTERBURY

I have an earlier Amendment in line 12, which is this: It is in Sub-section 3, which provides that— If sentenced to suspension from the performance of the duties of his ecclesiastical preferment for any term, he shall not during that term reside in the house of residence of that preferment, nor if the sentence so requires reside within the distance specified in the sentence from the place of such preferment. The object of that sub-section is, of course, to provide against interference on the part of a suspended clergyman in the affairs of the parish. Of course, though he might be required not to reside it would be possible for him to return for a few hours and do a great deal of mischief. The real evil does not consist always in the actual residence of the suspended clergyman in the house, although that might be very annoying, but it mainly consists in the fact that he may persist in presiding in the vestry, interfering in the management of the schools, and taking other part in the general administration of the parish. It is, of course, the object of this part of the Bill to prevent that. I therefore propose to your Lordships to add, after the word "preferment," the following words:— And further, he shall not, dining the term, he entitled, without the leave of the Court, to exercise or perform any right or duty of or incidental or attached to his preferment.

Amendment agreed to.

Amendment moved, to omit the word "dismissed" and to insert the word "determined."—(The Earl of Selborne.)

Amendment agreed to.

Verbal Amendments made.

Clause, as amended, agreed to.

Clauses 14 to 16 agreed to.

Clause 17.

THE ARCHBISHOP OF YORK

In this clause, my Lords, I have to draw attention; the wording, which seems to me to be of very great importance. The clause makes provision for deposition by the Bishop of the diocese after the derivation of the delinquent clergyman. It seems to me rather a strong ring to say that the Bishop of the diocese could have the power of actually grading a clergyman, and what I was going to propose was that there should be an appeal granted him to the Archbishop. I propose, therefore, that these words should be added to the clause:— Provided always that such clergyman should have the right of appeal within one month to the Arch bishop of the province, whose decision shall be final. These cases are quite analogous to many others in which the Bishop acts as regards curate's licences, sequestration of benefices, and many other like cases, in all of which there is given an appeal to the Archbishop of the province. I cannot help thinking that the clergy would be more satisfied if there was in these very grave cases also an appeal to the Archbishop of the province; and unless the most rev. Prelate objects to the Amendment, I beg to move an Amendment that the words I have read be added to the sub-section.

*LORD GRIMTHORPE

Would it not be better to include the Bishop of the diocese and the Archbishop of the province together? This point has been called to the attention of the Bishops, and I was in hopes that by this time the right reverend Bench might, have thrown some light upon it. I really do not pretend myself to know whether it would absolutely require the concurrence of the Archbishop.

THE ARCHBISHOP OF YORK

I think what I propose will do what is wanted.

*LORD GRIMTHORPE

The Bishop and Archbishop being included in it together would probably avoid any possibility of conflict.

LORD HERSCHELL

Is the suggestion that they should jointly depose?

THE EARL OF KIMBERLEY

Suppose they are both named and they differ.

*LORD GRIMTHORPE

It would be subject to the decision of the Archbishop.

LORD HERSCHELL

I should have thought it would for the moment have been better to accept the most rev. Prelate's Amendment.

*LORD GRIMTHORPE

I only want the proper form to be ascertained. That might be done among the Bishops themselves. Perhaps by the time we get to the Standing Committee they will have been able to settle that.

THE ARCHBISHOP OF YORK

My Amendment is to insert after the word "diocese," in line 31, the following words:— Provided always that such clergyman may appeal from the said sentence within one month to the Archbishop of the province, whose decision shall be final.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 18 and 19 agreed to.

Clause 20.

Verbal Amendments made.

Clause, as amended, agreed to.

Clauses 21 to 28 agreed to.

Clause 29.

*THE ARCHBISHOP OF CANTERBURY

I am not quite certain, my Lords, that the effect of some Amendments which I proposed to move upon this clause would he clearly understood. I will, therefore, with your Lordships' permission, withdraw the Amendments on Clause 29 and bring them forward in Standing Committee.

Clause agreed to.

Clause 30 agreed to.

Clause 31.

*LORD GRIMTHORPE

Upon Clause 31 I have only this remark to make: It is possible there may be a case or two pending when this Act comes into operation. Now, one object of the Bill is to prevent the expense of a multitude of appeals on technicalities and things of that kind. I therefore suggest that it would be expedient to add some such words as these: "All further proceedings in any suit then pending shall be carried on according to the provisions of this Act." That proviso, I propose, should come at the end of the clause.

LORD HERSCHELL

I think that will require a little consideration, because I am not quite sure whether at after stages you could in an old suit work under this new procedure. I think I understand the object which my noble Friend has in view, but perhaps he will defer that proposal to be hereafter considered.

*LORD GRIMTHORPE

I will omit that Amendment for the present.

Bill re-committed to the Standing Committee: and to be printed as amended. (No. 59.)