§ Notwithstanding anything contained in the contract between the managers of a non-provided school and a teacher, a teacher in a non-provided school shall not be dismissed by the managers without the previous consent of the local education authority, unless the dismissal be on grounds connected with the giving of religious instruction in the school, and before any such consent is given the local education authority shall hear and consider any representation that may be made to them on the subject by the teacher.
§ Brought up, and read the first time.
§ Sir JOHN BUTCHER
I beg to move, "That the Clause be read a second time."
This Clause, which stands in my name, is to safeguard the position of teachers in non-provided schools, and to ensure that no teacher will be dismissed by the managers of the non-provided school without the consent of the local education authority. This matter is not a new one. It was debated at very considerable length in the House of Commons, when the Act of 1902 was passed, and I think I shall command the universal agreement of the House when I say that it was absolutely intended by the House of Commons, in 1902, that the teachers should have this protection; in other words, that they should not be dismissed by the managers without the consent of the local education authority. I know that my right hon. Friend will agree with me in that. In fact it is not arguable to the contrary. Therefore, I think I may refrain from arguing the question whether the principle of my Clause is right or not, for any man of ordinary fairness would desire to safeguard the position of the teachers, and would say that the teacher should not be left to be dismissed arbitrarily by a body of managers for some reason which was apparently good, though was probably bad, but that the teacher should be safeguarded by making it necessary that the consent of the local education authority must be given before the dismissal could take effect. Of course, the Clause does not deal with dismissals connected with the giving of religious instruction in the schools.
Why has this Clause become necessary? It has become necessary for this reason: The question has come before the Courts of law on more than one occasion. Everyone is familiar with what happened in Parliament in regard to this question, but the Courts of law decided that, according to the wording of the Act of 1754 1902, that a teacher was dismissable by the managers without the consent of the local education authority. I think this was a great surprise to anyone who had followed the controversy at all. Then came another decision of the Courts of law, which said that the previous decision was wrong, and that the teachers could not be dismissed by the managers without the consent of the local education authorities. Then came a third case. Perhaps this is not very creditable to the Law Courts, but these accidents happen, sometimes partly owing to the bad drafting of the House of Commons. In the third case, it was decided that the teacher could be dismissed by the managers without the consent of the local education authorities.
The case was carried to the Court of Appeal, many people thinking that they would get the matter redressed once for all. But the Court of Appeal did not decide the case on the main point at issue between the previous decisions of the Courts below, and so the matter stands. Two of the Law Courts deciding one way, and the third the other way, while the Court of Appeal did not deal with the main issue at all. I do not at all doubt that my right hon. Friend would accept the Clause without demur but for one fact. There is, I understand, an appeal to the House of Lords on this question from the Court of Appeal. Various things may occur in regard to that appeal to the House of Lords. It may be dropped, or the decision of the House of Lords may be in the same sense as the decision of the Court of Appeal; or it may be evaded, and then we will be left in the present state of muddle; or, again, the Lords might decide in a sense adverse, in which case legislation would obviously be necessary to set the matter right. I submit to my hon. Friends two alternatives. Let him accept this Clause as it stands, so as to give effect to the undoubted intention of the House of Commons. It would not be retrospective, and it would not affect the decision of the House of Lords, the case having come before the Courts of law before the Clause was passed. Nor would it interfere with anyone's rights; it would affect no one adversely, and it would establish now the principle which the House of Commons really intended to establish in 1902. If my right hon. Friend sees any difficulty in accepting the Clause, pending the decision of the House of Lords, then I 1755 would ask, in case the decision of the House of Lords was not favourable to the teacher, that he should immediately introduce legislation to give effect to the Clause that I propose. If he will give that assurance, then, for my own part, I think that might be sufficient. But if the right hon. Gentleman cannot give that assurance, I should feel myself bound, in the interests of the teacher, and in order to carry out what was unquestionably the desire of the House of Commons in 1902, to go to a Division. I trust, however, my right hon. Friend will give a satisfactory assurance, and will see that the rights of the teachers, as expressly intended by the House of Commons, are maintained.
§ Mr. KING
I wish only very briefly to say that I think that the proposal of the Mover of this new Clause is entirely right, and it affords me great pleasure, although I am very often opposed to him strongly in matters of this kind, and on many points connected with education, to give him my whole-hearted support. May I suggest only one thing—perhaps the Attorney-General will listen to the suggestion—that possibly this Clause could be accepted as safeguarding the interests of the teachers pending litigation, so as not to override any decisions which are now pending in the Law Courts. There have been cases, of course, where legislation has been passed in this House pending decisions in the Law Courts, and I think we have had recent examples of that kind in the House. Possibly, while safeguarding litigation already begun, the Clause might be accepted. Of course, it is quite obvious that sooner or later, if litigation takes away the rights of teachers, legislation will be required in some form or other.
§ Sir HENRY HIBBERT
I am not surprised that this Amendment has been moved. I think it is very necessary that it should be made sure that a teacher cannot be dismissed without the consent of the local education authority. I may state that in Lancashire, long ago, a small committee was established to deal with these matters. We found it was absolutely necessary to appoint such a body to deal as arbitrators between the managers of the schools and the teachers. I have only one other word to say, that in Lancashire there is great cordiality 1756 between the teachers and the local education authorities, as the result of the tribunal which has been set up.
§ Sir FREDERICK BANBURY
I am not convinced by the arguments of the hon. Member for North Somerset. I am not at all certain that the House of Commons in 1902 intended that the Clause of my hon. and learned Friend should be carried into effect. It is quite easy to get up now and say that the House of Commons intended certain things in 1902, but it is very difficult at this date to prove that was the case. Both my hon. and learned Friend and myself were in the House in 1902. I took considerable interest in the Education Bill of that year, and I think that if any such intention had been shown at that time, it would have been put into the Bill. It must be remembered that in 1902 there was considerable difference of opinion among various sections in the House as to the non-provided schools, and there was a very large body of opinion, of which, I think, my hon. and learned Friend (Sir J. Butcher) was one, who desired that all the rights of the non-provided schools should be maintained. I listened to what the hon. Member (Sir H. Hibbert) said about Lancashire, but it does seem to me that if you say that the managers of a non-provided school are not to have the power to dismiss a teacher, except on religious questions, without the consent of the local education authority, you may be making the relations between the teachers and the managers in the non-provided schools very unpleasant, and you are taking away altogether the power of the managers and saying, to all intents and purposes, that they are not to be the managers, but the local education authority are, because if the managers cannot dismiss their teachers, they will practically have no authority in their schools. I venture to hope, especially in view of the fact that litigation is proceeding at the present time, and that it was understood that this Bill should do nothing to injure the non-provided schools, that the Government will not accept the Clause.
§ Sir J. YOXALL
The safeguard given in the Bill of 1902 to teachers in the non-provided schools was very clear. Prior to that date they had in many cases been dismissed for non-educational reasons by managers, and the scandal had become so great that Sir John Gorst, when he represented 1757 the Board of Education in this House, brought in a Bill to give them a right of appeal against such dismissal, but when the Bill of 1902 set up the local education authorities the right of appeal was then given to those authorities. The managers were to appoint the head teacher of the denominational school, and were to see that he belonged to that particular denomination; and they were to see also that he carried out his work of religious instruction in the school in a way satisfactory to themselves, and if he failed, or in any way came short in connection with the religious instruction, they retained the right to dismiss him for that reason. But, for all other reasons than that, their right to dismiss him was subject to the assent of the local education authorities. As my hon. Friend the Member for Chorley has said, in Lancashire, and in nearly all the counties in this country, and in most of the county boroughs, there has been set up a committee to investigate the charges between teachers and managers of schools, and these committees sit and hear what is to be said by both sides, or by friends of both sides, and they decide the questions, and they work smoothly. If a teacher deserves to be dismissed, he is dismissed; or if he deserves not to be dismissed, he is retained in his post. But by some unfortunate accident of judge-made law that happy state of things has been interfered with, and the situation before the Committee is this, that, if possible, we should like very much that the President of the Board of Education should accept the new Clause which has been proposed. But if he says, as he may possibly say, that the question is pending in the House of Lords, and that he cannot undertake now to legislate for a situation which may not eventually arise at all, I can understand him. I think, however, he ought to give us some understanding that provided that the decision of the House of Lords upholds the decision of the Court of Appeal, he will then introduce the necessary Amendment to put this matter right.
§ Sir H. CRAIK
I hope my right hon. Friend will accept this new Clause. It is a matter which ought not to be decided merely on technicalities of the law, because it has a great effect on the whole structure of education. I believe that this Bill will not succeed unless you get 1758 some improvement in the position of the teachers. That would be a fundamental and necessary condition of any success in the working of the measure. We have tried to bring about an improvement in regard to payment, but the status and fixity of tenure of teachers has long been a question of the most difficult kind. The position of the teacher has been so precarious, so uncertain, so liable to the whim and caprice of a small body of managers, that the teacher, apart altogether from his pay, has been greatly injured owing to that fact. The principle upon which those of us who have been making every effort to establish and consolidate the position of the teachers have gone is to give an appeal from a small body of managers to some larger body. Such an appeal in the case of non-provided schools is given if there is an appeal to the local authority. That gives some sound fixity of position to the teacher. Of course, in the case of non-provided schools, you must reserve the right to dismiss on grounds connected with the religious teaching, and that we do not wish to change, but on other grounds it is a matter not merely of detail, but of fundamental and vital principle, that the appeal of the teacher to the local authority should be preserved. And if it has been taken away by varied legal decisions I think it is of the greatest importance, when the matter is now again before Parliament, that the principle should be reaffirmed, as my right hon. Friend will reaffirm it by accepting the Clause.
§ The ATTORNEY-GENERAL (Sir F. Smith)
As the matter raised by my hon. and learned Friend (Sir J. Butcher) is, at least in some of its aspects, a little technical, my right hon. Friend has asked me to reply on behalf of the Department. I hope that no one will think that anybody on this bench—certainly no one who has given attention to the education question as, in one capacity or another, I have done for many years in this House, taking part in education Debates for, I suppose, twelve years—is indifferent to the considerations insisted upon by my right hon. Friend who has just addressed the Committee. Everybody must agree that anything that can reasonably and properly be done to increase the prestige, the freedom, and the independence of the teacher ought to be done. But that conclusion by no means involves the 1759 further conclusion that the new Clause that has been moved is one that the Government ought to adopt, and I say quite plainly, at the outset, for reasons which I hope I shall be able to recommend to the Committee, that we are not able to adopt the Clause. The Amendment proposes to alter the existing law in three different respects, which is an ambitious performance for a new Clause at the end of a complicated Bill brought forward in war-time. In the first place, as the law stands at present, it has been decided that Section 7 of the Education Act, 1902, which regulates the relations between local education authorities and the managers, does not confer any special privilege upon the teacher or prevent the managers from dismissing a teacher in their employment just as they could dismiss any other person in their employment. Undoubtedly one result does follow from the dismissal of a teacher by the managers on grounds other than grounds connected with the giving of religious instruction, and that result is that the local education authority ceases to maintain the school, and the school consequently is no longer rate-aided.
The Amendment proposes that the dismissal of a teacher by the managers on grounds unconnected with the giving of religious instruction and without the consent of the local education authority shall be absolutely invalid. What follows from that? If a teacher is so dismissed he will apply to the Courts for a mandamus to restrain the managers from dismissal. That is the first respect in which my hon. and learned Friend's Amendment alters the law. In the second place, the Amendment requires that the dismissal shall be with the previous consent of the local education authority, which is not, of course, required by the law at the present time; and, in the third place, the Amendment requires that before the consent is given the local education authority shall hear and consider any representations which may be made to them on the subject by the teacher. One must go back in this connection to Section 7 of the Act of 1902, which says that the local education authority shall maintain public elementary schools not provided by them, so long as certain conditions and provisions are complied with. In the first place, the managers are required to carry out the 1760 directions of the local education authority in the dismissal of any teacher on educational grounds, and if the managers fail to carry out any such directions the local authority shall, in addition to their other powers, have power to carry out the directions themselves. It is necessary to refer to this Section, because the proposed new Clause requires the local education authority to hear and consider the representations of the teacher before they consent to his dismissal. What follows from that? The new Clause does not require them to hear and consider the representations before they themselves direct dismissal, and still less does it require them to hear and consider the representations before they dismiss a teacher in the council schools. It will, therefore, be seen that the effect of the Clause is almost incredibly anomalous. It puts a teacher in a non-provided school in a position of privilege as compared with the teacher in a provided school, and the question whether a teacher was entitled to be heard in a non-provided school would depend upon what really is only an accident, and his right to be heard would be less in those very cases in which there would be most ground for hearing him. That is to say, if the managers and the local education authorities were both agreed that he should be dismissed, he would be entitled to be heard; but if the managers were strongly of opinion that he ought not to be dismissed and the local authority dismissed him over the heads of the managers, he would not be entitled to be heard. Whatever is to be said in favour of the Amendment it cannot, I think, he said that it has attempted any very clear-sighted or fair consideration of the claims of teachers in these two different class of schools.
§ Sir F. SMITH
I am obliged to the hon. and learned Member for recognising the force of the observations I have made by offering to cut out a part of his Clause, but I think that what I am about to say may show him that his object, with which the Government is not in the very least out of sympathy, is one which really cannot conveniently or even fairly be met in the particular manner proposed by the hon. and learned Member. The consent of the local education authority is required to the dismissal of a teacher, unless the 1761 dismissal be on grounds connected with the giving of religious instruction. The result of the Amendment under this head also is very arbitrary. If a teacher is dismissed with the consent of the body responsible to the ratepayers, and with a full sense of responsibility, he is entitled to be heard; but if he is dismissed by a body which is not responsible to the ratepayers and on grounds connected with the giving of religious instruction, he is not entitled to be heard. Experience has shown that cases of alleged hardship connected with dismissal arise quite as frequently out of dismissal on grounds of religious instruction as out of dismissal on grounds relating to secular instruction. That is the answer which I venture to make to the general point made by my right hon. Friend; but with respect to the litigation upon which my hon. and learned Friend dwelt, and upon which he is naturally qualified to express an opinion, I suspect the case which really suggested itself to him in putting this new Clause down is that of Harries and Crawford.
§ Sir F. SMITH
Yes, but they are in a different position. Inasmuch as the case of Harries and Crawford has suggested this Clause, if I am to deal with the case at all, I must ask the Committee to be patient while I tell them very shortly bow that case arose and what is the present stage of the case. It is on the present position of that case that I base an appeal to the Committee not to support this Clause at this stage. In the case of Harries and Crawford the diocesan inspector came to an elementary school and put to the pupils certain questions on religious knowledge which, at the trial of the ease, it was admitted the children were unable to answer. The headmaster wrote a letter complaining of the character of the inspection, and it was regarded by the managers as an impertinent letter, and so characterised by them. The managers of a public elementary school are entitled to have that school maintained, under Section 7 of the Act of 1902, so long as they comply with certain conditions, and one of the conditions is that the teacher shall not be dismissed without the consent of the local education authority, except on grounds connected with the giving of religious instruction in the school. In this case the managers 1762 dismissed the teacher in consequence of the letter, and then a question arose, capable of infinitely long disputation, as to whether he was dismissed for impertinence or whether he was dismissed on grounds connected with the giving of religious instruction. Mr. Justice Peterson, who had the case before him in the Court of First Instance, said the master had no right to ask for an injunction against the managers to restrain them from dismissing him. My hon. and learned Friend seeks to correct that decision. The case came to the Court of Appeal, which decided that the master was dismissed on grounds connected with the giving of religious instruction, and consequently it was unnecessary to decide the further question whether, if the dismissal had been through impertinence, the consent of the education authority was necessary. This case has now been taken to the House of Lords. It is quite true that, as my hon. and learned Friend says, theoretically the appeal to the House of Lords may be abandoned. On the other hand, there is no reason whatever to assume that it will be abandoned. In fact, such information as I possess is strongly in the contrary sense. The matter is being carried to the House of Lords, and will be tried there. My hon. and learned Friend, who is himself a very distinguished member of the Bar, and understands these things very clearly, is really asking the Committee to do a thing which, within my knowledge, the House of Commons has not been asked to do. He is asking us, when a matter is actually on its way to the House of Lords, and upon which the House of Lords will in due course give a decision, with all the authority of the highest appellant tribunal in the land, to anticipate their decision, and in Parliament to decide the very point which is now on the way to the Lords, and which the House of Lords may decide in the very sense my hon. and learned Friend's Clause requires.
§ Sir F. SMITH
I am surprised to hear my hon. Friend say that. If he means that it is not proper for the House of Commons to wait and see whether the House of Lords does not decide in that sense, I am rather surprised. I advance a counter proposition. What has been said in this Debate to-day will certainly not be forgotten. Arguments have been addressed to the Government, including 1763 those of my hon. and learned Friend, whose views are entitled to very great respect. They have been given that respect, and we concede that there is much substance behind what has been said. But when we are asked to anticipate what the House of Lords may do, and not wait to see what they will do, I think such a proposal is extremely un-reasonable. It is not really respectful to the highest appellant tribunal, and it might not be necessary. I hope my hon. and learned Friend will allow it to remain in this way: So far as the Government are concerned, we share his desire that the security of tenure and independence and prestige of teachers in these schools, as in all schools, should be protected by the Government by every reasonable means in their power, and if my hon. and learned Friend asks me to be more precise, in case the decision of the House of Lords should be against him, I am prepared, with the authority of my right hon. Friend, to go this length, but no further, and to say that if the decision in the House of Lords should be adverse to the contentions which are put forward by my hon. and learned Friend, we should be prepared to recommend proposals, the result of which would be to limit the right of the managers to the suspension of the teacher until an opportunity had been afforded to the local education authority to examine the facts and pronounce upon the facts after such examination. I do not think my hon. and learned Friend, on consideration, would be prepared to deny to the managers, who know the facts, the power of suspension until such time as the local education authority was afforded an opportunity of examining the facts. This assurance will, I hope, be treated as evidence of the real desire of the Government to concede every point of substance which has been raised in this new Clause, and as what I have said will naturally be recorded, should my hon. and learned Friend's apprehensions as to the decision of the House of Lords be well founded, he will be in a position to ask that the assurance I have given shall be made good. It will be made good. While meeting every point of substance brought forward, the Government is not prepared to deny to the managers, who know all the facts, and are in immediate contact with the circumstances, the power of suspension 1764 pending the examination of the facts by the local education authority and their pronouncement upon them.
§ Sir J. BUTCHER
As I understand my right hon. and learned Friend, the assurance he gives the Committee is totally inadequate. The point which was raised, and was supported by every speaker except, I believe, the junior Member for the City of London, was this: Aye or no, should the teacher in the non-provided school be dismissed by the managers without the consent of the local education authority? Anything more simple I cannot imagine. Now my right hon. Friend, when asked if he would give an assurance that, if the House of Lords decision was adverse to the teacher, he would introduce a Bill to give effect to that simple proposition, declined, but he would give an assurance that the teacher should not be finally dismissed until the local education authority had time to examine the matter. Does that mean or does it not mean that the consent of the local education authority is required to the dismissal?
§ Sir F. SMITH
I am astonished at my hon. Friend's question. I said in the plainest possible manner that the managers should have the right of suspending the teacher until the local education authority examined the facts, and pronounced upon the facts after such examination.
§ Sir J. BUTCHER
I know my right hon. and learned Friend is astonished at my stupidity. I am astonished at his obscurity. Let us discuss this with calmness. What I want to know is, supposing the local education authority, after examining the facts, come to the conclusion that they will not give their consent to the dismissal of the teacher, then does the teacher remain?
§ Sir J. BUTCHER
If that is so, that gives effect to the simple proposition I put forward, namely, that the managers should not have the power of dismissal without the consent of the local education authority. If that is clear, that is quite sufficient for my purpose, and on that assurance I am quite prepared to withdraw my Clause.
§ Motion and Clause, by leave, withdrawn.1765
§ The CHAIRMAN
Next upon the Paper are two Clauses, standing in the name of the hon. Member for North Somerset—
§ The CHAIRMAN
It is out of order. With regard to the second—(Size of Classes)—the hon. Member proposes to introduce in the form of a new Clause a matter which is usually a matter for a code of regulations. I cannot quite say that is out of order, but it would be possible to go through the whole Code, from one end to the other, and have a multitude of new Clauses, if the practice were followed. I think the hon. Member will bear that in mind.