ECCLESIASTICAL JURISDICTION MEASURE, 1963

HC Deb 09 July 1963 vol 680 cc1157-201

9.0 p.m.

Mr. John Arbuthnot (Dover)

I beg to move,

That the Ecclesiastical Jurisdiction Measure 1963, passed by the National Assembly of the Church of England, be presented to Her Majesty for Her Royal Assent in the form in which the said Measure was laid before Parliament.

Mr. George Thomas (Cardiff, West)

On a point of order, Mr. Deputy-Speaker. I wonder whether you would be kind enough to accept a Motion"That this House do now adjourn", in view of the fact that the House has been given a firm guarantee by the Leader of the House that this business, which involves a long and controversial Measure containing 89 Clauses, should come forward at a reasonablehour? Will you accept such a Motion so that this business should not be taken at this late hour, which is unfair to the House?

Mr. Deputy-Speaker (Sir R. Grimston)

I cannot accept that Motion now.

Captain L. P. S. Orr (Down, South)

Further to that point of order, Mr. Deputy-Speaker. There are a great many hon. Members on this side of the House who would support what has been said by the hon. Member for Cardiff, West (Mr. G. Thomas). This is not a party matter and we were promised that we should discuss it at a reasonable hour. I wonder, therefore, whether I may ask the hon. Member for Dover (Mr. Arbuthnot) through you, Mr. Deputy-Speaker, in view of the feeling in the House, and the fact that this concerns a religious matter on which there should be reasonable harmony about the time when we discuss it, whether he thinks it would be better, and more in accord with the spirit of the thing we are discussing, that such a Motion should be accepted?

Mr. Deputy-Speaker

Mr. Arbuthnot.

Mr. Anthony Greenwood (Rossendale)

Further to that point of order, Mr. Deputy-Speaker. My hon. Friend the Member for Cardiff, West (Mr. G. Thomas) has drawn your attention to the fact that this is a long and difficult Measure containing 89 Clauses. It has also five Schedules and 47enactments. In my submission it is preposterous that the House should take this business with only an hour for debate. I wonder, with respect, whether we may ask the Leader of the House to express an opinion on what appears to be a breach of faith on the part of the Government.

Mr. Deputy-Speaker

I think that the hon. Member may be under some misapprehension. He has said that there is only an hour for debate. This is exempted business.

Sir Spencer Summers (Aylesbury)

Further to that point of order, Mr. Deputy-Speaker. May we have the benefit of your guidance? In view of what has been said, may some lead be given by my right hon. Friend the Leader of the House indicating that no attempt will be made to bring this discussion to an end? That would be quite a different matter from not embarking upon it at all. If such an assurance could be given, some hon. Members would feel happy to have a period of discussion knowing that at the end of it no conclusion would be reached.

Mr. Deputy-Speaker

Mr. Arbuthnot.

Mr. Arbuthnot

The Motion is in my name, and that of hon. Members on both sides of the House—

Mr. John Hynd (Sheffield, Attercliffe)

On a point of order, Mr. Deputy-Speaker. This is not a Government matter but a matter for the House of Commons. Surely we are entitled to appeal to the Leader of the House. It is not a party matter, or a Government matter.

The Chancellor of the Duchy of Lancaster (Mr. Iain Macleod)

If it is in order to do so, may I say that it is precisely because this is not Government business that it is not a matter for me? It is not for me to put this business down for a particular day. That is done by the hon. Member in charge of the Measure. As I have explained more than once, on Thursdays I try to ensure—on one occasion it proved impossible to do so—that this business would come before the House at a reasonable hour. There is no question of the Government having the Whips on or closuring the Measure, as was suggested. I am not here as Leader of the House but in my personal capacity, as I happen to be interested in this Measure. That is a pure coincidence. It is for the hon. Member in charge of this Measure to bring it forward if he is satisfied that it is appropriate to do so. My advice to the House would be—remembering, of course, that this is exempted business—that the undertaking has been fulfilled by the fact that this business came on at nine o'clock. But it is for the hon. Member in charge of the Bill to judge.

Mr. Arbuthnot

I think it might be helpful if I say that nobody realises more than I do the importance of this Measure, but I think that it would be as well that we should get on and consider it at the moment. I do not want to commit myself in advance, but let us see how we go.

Mr. Archie Manuel (Central Ayrshire)

No.

Mr. Arbuthnot

The hon. Member will not do himself or his opposition to the Measure any good by making noises like that.

Mr. J. T. Price (West Houghton)

The hon. Member for Dover (Mr. Arbuthnot) has just said that hon. Members on this side of the House who have voiced objection to the procedure now being adopted are opposed to the Measure. May I make it clear that the objections I have listened to, and in which I now join, do not necessarily arise from opposition to the Measure? They may be based on the assumption that the Measure is not being fairly discussed and time is not being given for it to be properly discussed, which is necessary for the healthy and proper conduct of the business of the House. I assure you, Mr. Deputy-Speaker, that I am not opposed to the Measure in principle. I do not rise for that purpose. I think that it is an abuse of the procedure of the House that such a complicated and extensive Measure should be placed before us at this time of night.

Mr. Deputy-Speaker

I have given my Ruling that I am not prepared at this moment to accept a dilatory Motion. I suggest to the House that we should start the debate and see how we get on.

Mr. Arbuthnot

I am not anxious in the least to hurry this Measure through without adequate discussion in the House. I am probably sufficiently well known in the House for hon. Members to realise that full well.

Perhaps it will be convenient if, in moving the Motion, I make a short general speech. Then, if after listening to the debate I might catch the eye of the Chair again, I will try to draw the threads together and deal with any detailed points which may have been raised but not answered during the course of the debate. I should perhaps say at this point that it is not as Second Church Estates Commissioner—

Mr. Tom Driberg (Barking)

The hon. Member for Dover (Mr. Arbuthnot) knows that I am supporting him in this Measure, but I personally feel strongly concerned about some of the complaints which have been made. My concern is a little strengthened by what he now says. Since you, Mr. Deputy-Speaker, have been good enough to allow the Leader of the House to make a brief statement, we are in a slight procedural difficulty. Would the hon. Member for Dover consider delaying the Measure—not withdrawing it altogether, of course—if the Leader of the House could give us an assurance that he will find a good half day for the Measure between now and the Summer Adjournment?

Mr. Arbuthnot

I fear that that is a hypothetical question. I think that we had better get on with the Measure and see how we go, I have given the assurance that I do not want to see the Measure rushed any more than hon. Members on either side of the House do.

Perhaps I should say at this juncture that it is not as Second Church Estates Commissioner that I move the Motion but as a Member of the House who is also a member of the Church Assembly.

I think that it is common ground between all of us here that the ecclesiastical courts need reform. This has been the view of successive Commissions. The Lloyd-Jacob Report, the Report of the Committee of which Mr. Speaker was a distinguished member, referred to the jungle of courts. If there is, as I believe there is, an unanswerable case for the reform of the existing machinery, then it must be a matter for the Church Assembly to tackle. That is its function, and it has been delegated to the Assembly by Parliament. We are now asked to approve the results of the Assembly's labours. Having delegated to the Church Assembly the duty of producing this Measure, it is not for us to subject it to the kind of examination to which we subject a Bill in Committee. We have to look at the Measure broadly and say whether we are in favour of the principles which are embodied in it.

The Measure has its origin in the Report of the Commission on the revision of canon law. The Commission was set up in 1939 and reported in 1947. When that Report was received, it was felt that the proposals on ecclesiastical courts were so complex that they should be dealt with separately from the whole question of the revision of the canon law. It follows that, although this Measure has its origin in the canon law revision pro- posals, it is in no way dependent upon those proposals, and the Church believes that this Measure is necessary whether or not the canon law is eventually amended.

This Measure stands on its own feet, quite independently of the question of canon law revision. It is based on the report of the Archbishops' Commission on Ecclesiastical Courts, usually known as the Lloyd-Jacob Commission, which reported in 1954. These proposals were debated in the Church Assembly in 1955 and again in 1956. The Measure was generally approved at the summer session of 1961. It went through two stages of revision in the spring and summer sessions of 1962 and was finally approved in the autumn session of 1962. The reason that I have gone into details of its passage through the Church Assembly is to suggest to the House that it is quite clear that the Church Assembly has not taken lightly the burden of careful scrutiny placed upon it by Parliament. Not only that, but there has been consultation at every stage with the Lord Chancellor's Department and the Measure has been considered by other Departments as well, including the Prime Minister's Office and the Home Office.

Since the matter was submitted to Parliament, the Measure has been considered by the Ecclesiastical Committee whose Report is before the House and whose recommendation is that the committee is of opinion that the Measure is expedient and that it should proceed". When the Measure was considered in another place, no votes were recorded against it. Generally speaking, it maintains the existing system under which cases of clergy discipline fall into two broad categories. In the first place, we have the conduct cases, that is to say, offences concerned with morality, unbecoming conduct or neglect of duty, and, in the second place, we have the reserved cases, that is to say, offences against the laws ecclesiastical involving matters of doctrine, ritual or ceremonial.

Conduct cases against priests and deacons are dealt with by the consistory or diocesan court, with an appeal to the Canterbury Court of Arches or the Chancery Court of York. In the case of bishops or archbishops, they are dealt with by commissions. Reserved cases—doctrine, ritual and ceremonial—are dealt with by a new court to be known as the Court of Ecclesiastical Causes Reserved with an appeal to the Commission of Review appointed by the Crown.

There are two matters which have caused some concern and which I think it is only right that I should mention in moving this Motion. The first is the abolition of the Judicial Committee of the Privy Council as the final court of appeal in conduct and reserved cases, and the second, which has caused some concern, has been the retention of the bishops' veto.

By abolishing the Privy Council as the final court of appeal in cases reserved, that is to say, cases involving doctrine, ritual or ceremonial, the Church of England is, in fact, moving nearer to the Nonconformist Churches, and in making that provision for that aspect of the matter the Measure would commend itself to them. It is not likely that any Nonconformist Churches would be prepared to accept a purely secular body such as the Privy Council as the final court of appeal in matters which are essentially spiritual. This provision in the Measure will, therefore, I suggest, ease the process of the coming together of the Churches which, in our recent debate on the state of the Church of England, was welcomed in all parts of the House.

Perhaps I ought to remind the House that the new court of appeal in reserved cases in place of the Judicial Committee of the Privy Council is a commission under the Great Seal consisting of five persons appointed by Her Majesty, three of whom shall be Lords of Appeal who are communicant members of the Church of England, and two of whom shall be bishops who sit as Lords of Parliament. I would call the attention of the House to the fact that there is no attempt whatsoever to remove these matters from the jurisdiction of Her Majesty's Courts. The commission will be one of great eminence, and it should be noted that the lay judges will be a majority of its members.

On the question of the retention of bishops'veto, I am going to say that this in no way alters the present position in reserved cases. It is a minor extension recommended by the Lloyd-Jacob Commission in conduct cases and covers them all, whereas before they were covered only on grounds of being frivolous, or on grounds of vagueness. I would say to the House most seriously that if we were to take the grave step of withholding consent to this Measure we should not get rid of the bishops' veto. The status quo which includes the bishops' veto in reserved cases would still remain. After, and when, the law of worship is brought up to date the importance of the bishops' veto will diminish, but till there is a reform of the law of public worship many things will go on being done which are illegal, some of which may be very minor, and in my view the bishops'veto is necessary to prevent trivial, or perhaps even malicious, prosecutions from occurring in the parishes. I believe that at present the veto helps the processes of order and reconciliation in the Church.

In the past doctrinal cases have been bedevilled by the fact that they took place in a criminal atmosphere. We are hoping that the new Court of Ecclesiastical Causes Reserved will lift the whole thing up into quite a different sense and feeling so that these matters of doctrine, ritual and ceremonial will be treated more as though in a court of arbitration than as of a man on trial for misdeeds. It is our hope and expectation that with this court of inquiry, if the bishop allows it to go forward, the bishop will be much less inclined to impose a veto except on something which is of very minor importance.

Behind this Measure lies a great deal of thought and hard work over the last 10 years or so, and also the investigations of eight Commissions going back to the first one in 1883. We believe that this Measure is going to make a substantial contribution to the better ordering of the life of the Church, and I commend it with confidence to this House for approval.

9.24 p.m.

Mr. George Thomas (Cardiff, West)

The hon. Gentleman the Member for Dover (Mr. Arbuthnot) is one of our most greatly respected Members, and I was sorry that I had to cross swords indirectly with him at the beginning. My grievance really was with the Leader of the House who I felt, and still feel, has broken faith after promising much longer—well, a reasonable time—to deal with this Measure.

The Measure which is before us is one indeed which represents years of hard work on the part of those responsible for the administration of the Church of England. Having studied the Measure, I realise the intricacy and complexity of our present ecclesiastical laws. I acknowledge that there is need for a tidying-up Measure but, after serving as a member of the Ecclesiastical Committee of Parliament for thirteen years, I say to the House—although I am a Nonconformist by instinct, heritage and everything else—that I have never in all those years placed the slightest obstacle in the way of the Established Church having the reforms it required or that it considered it required.

It is only because I believe that major constitutional issues are raised by the Measure that I have taken the decision to appeal to the House tonight not to sanction it at this stage. I have been nurtured in a home in which there was great affection and respect for the Church of John Wesley. The creeds of that Church are the creeds of the Church to which I belong. Last weekend I was at a Methodist conference at Preston where I heard on every hand terms of affection and respect for the Established Church of England.

I say these things so that the House should realise that it is in no mean spirit that I come here to oppose the Measure. I come from certain deep convictions to which, I believe, I must respond. In the Ecclesiastical Committee and in another place the Right Reverend the Lord Bishop of Chester described this Measure as one of the most important that has ever come from the Church Assembly to receive the consent of Parliament. This underlines my plea that to consider this matter at 9 o'clock at night is unreasonable.

It is one of the most controversial Measures to come forward in my time. I was not in the House in the days of the great controversy over the Prayer Book, and in my time there have not been any really great battles. We had a debate one night on an Ecclesiastical Committee recommendation, but there have not been any great battles about Church of England proposals.

Other rights in this House are not secondary to the Church Assembly, especially when constitutional issues are raised. I believe that we all have an obligation to see that the rights of Parliament do not go by default when a major reform is proposed. The Church of England enjoys by law, by the favours of Parliament, privileges over every other Church in the land; Churches established by grace, though not by law. The Church of England shares in the government of the land. She has her representatives in another place, and they properly take part in discussions on Measures with a political content as freely as those which deal with ecclesiastical matters.

His Grace the Archbishop of Canterbury, once he has bean consecrated, becomes, as a noble Lord reminded another place, after the princes of blood, the principal subject of Her Majesty in this land and a leading member of another place.

The Archbishop of Canterbury is the monarch's principal religious adviser, because the Church of England is established. It is in the seats of power because it is established, and only because it is established. The whole country knows that when King Edward VIII abdicated, the Archbishop of Canterbury of the time played a leading part behind the scenes in the decision that was taken. Within the past few years we have had the further example of Archbishop Fisher playing the leading part in a decision affecting the Royal Family. We are, therefore, dealing in this Measure with those who are near power in this country.

As head of the Established Church, the Archbishop of Canterbury claims the right to crown the monarch—the leader of no other Church is allowed to have that privilege—

Sir S. Summers

Hear, hear.

Mr. Thomas

I understand the hon. Gentleman. He looks a part of the Establishment—and certainly sounds like it.

The parish priest regards everyone in his parish as a member of his church. In a debate on 14th December, on the Motion of the hon. Member for Armagh (Mr. Maginnis), we were told by my hon. Friend the Member for Islington, East (Mr. Fletcher), who is a distinguished luminary of the Church of England—

Mr. Eric Fletcher (Islington, East)

indicated dissent.

Mr. Thomas

—that every parish priest has a duty to call on everyone in his parish. I remember protesting on that occasion and asking about the Roman Catholics, the Methodists, the Baptists, the Salvation Army people, and others who no longer regard themselves as the parishioners of the priests of the Church of England. I say that without in the slightest sense seeking to be offensive.

All national religious ceremonies are conducted in the Established Church—Westminster Abbey and St. Paul's are regarded as the citadels of our national religious ceremonies. Even in local religious ceremonies, the same priority is accorded to Anglican priests because the Church is established.

I have recounted these privileges of establishment because I believe that the House ought to remind itself from time to time that the Church of England receives much from being established. She receives a great deal that no other Church in the land is entitled to receive. But, by the very fact that she accepts establishment and the privileges that accrue from it, the Church of England accepts the price that establishment must exact. The Church of England is proving increasingly reluctant to pay the price of establishment, though she apparently wishes to continue with all the advantages of establishment. This is a matter to which we should give our attention, because in this Measure the Established Church seeks to have the penny and the bun.

The doctrine, the ritual and the ceremonial of the Established Church is not and ought not to be a matter for the sole discretion of the bishops of the Established Church. As long as it is an Established Church, claiming the privileges to which I have referred, it must be prepared to recognise that those who are not members of the Established Church have a right to see that the doctrines laid down by Parliament are accepted and honoured. I have been brought up to be very respectful to bishops. Too many bishops, as the House knows, themselves disregard decisions of this House to be in any position to discipline their clergy who do not accept the decisions of the House.

It is proposed in this Measure to take away the right of appeal to the Judicial Committee of the Privy Council, which, of course, is one of the few remaining bulwarks we have, ensuring that the law is preserved and recognised in the Established Church.

Sir S. Summers

Does the hon. Member really assert that the right of appeal, as it has been hitherto, to the Judicial Committee of the Privy Council does preserve anything?

Mr. Thomas

Obviously, the Church of England thinks it does. Why is it so anxious? If the hon. Member is patient, no doubt in the small hours of the morning he may be called to take part in the debate.

The Judicial Committee of the Privy Council does not make the laws for the Established Church. It neither initiates the laws nor does it pass them. All that the Judicial Committee does is to bring the best legal brains to the problem of controversial issues within the Church, and it pronounces impartially on the questions which are at issue.

The advantage of the Judicial Committee of the Privy Council surely is that it is out of the politics of the Church. It is not emotionally involved. Its members are not emotionally involved in the issues that are at stake. Who on the other side of the House knows of a court where there is a religious test for lawyers? Is it that we cannot trust the members of the Judicial Committee of the Privy Council?

The Right Reverend Bishop of Chester told me in the Ecclesiastical Committee and later told members of another place that the reason why the Church of England objects to appeals being made to the Judicial Committee of the Privy Council is that members of that Committee need not be members of the Anglican Church and might indeed be people without religious convictions at all. The next step from that is to tell hon. Members of this House that they have no right to pronounce on matters concerning the doctrine, the ritual and the ceremonial of the Church of England.

If we allow it to be settled as a principle that, because members of the Judicial Committee of the Privy Council are not necessarily members of the Established Church, they are unfit to pronounce upon these matters, what is to be the attitude of this House when the controversial canon laws come up for revision? It will not matter then whether hon. and right hon. Members of this House have any religious convictions at all, unless, of course, we have reached a stage when people believe in establishment without Parliament having any authority whatever. I believe, therefore, that this is a major constitutional issue.

I have no spleen towards the mother Church of John Wesley. I honour and respect the part which it has played in the life of our people. I respect the contribution that it makes today. But I say to the Church of England that it should have second thoughts about this Measure. It is not right to bring to Parliament a Measure of 89 Clauses and 50 Schedules, repealing nearly 50other Measures, and put tucked away in what is a major tidying up of the ecclesiastical law a constitutional step of great importance which removes the authority of the Judicial Committee solely because its members do not satisfy the creeds or beliefs of the Established Church. I would have thought that every lawyer in the House would sense danger in a step of this sort.

On the Judicial Committee, there is no personal bias as between its members and the people who raise protests. It was suggested in another place—I should not have ventured to suggest it otherwise—that the old school tie links many a bishop with his clergy. This is true. We can say it without being unkind. Hon. Members opposite know, as I know, the value of the old school tie. I am always pleased and honoured to deal with those who went to my old school. There are not many of them here.

Does anyone suggest that the Judicial Committee of the Privy Council is an irresponsible body? Has it made irresponsible decisions? I challenge anyone in the House to say that the Judicial Committee has treated in a frivolous or disrespectful manner the appeals which have come before it from the Established Church of England.

Mr. John E. Maginnis (Armagh)

Is the hon. Gentleman aware that no appeals have been made to the Judicial Committee now for over 50 years? Why dispense with it? It is not used.

Mr. Thomas

I am grateful to the hon. Gentleman. That is what I call a good Irish intervention.

We are told that the bishop has a right of veto. I turn now to this issue. He decides, and he will continue to decide, whether protests by people on grounds of doctrine, ritual or ceremony are to be allowed to pass him and go to another stage. He will be dealing with, and acting as a judge over, his colleagues in the Church. He will have to bring as impartial a mind to that task as the judge brings to his normal duties. I believe that there is danger in this question.

Today The Times, which is, in my view, a very readable newspaper—I do not wish to patronise it, but it is usually behind the establishment—[Hon. Members:"Oh."]—when the establishment is worth being behind. Over the years it has generally supported the party opposite. I know that just now The Times, like a lot of the supporters of the party opposite, is having second thoughts. I do not want to enter into that question. We can discuss that another time. But The Times has always been generous in its support for the Established Church. I think we can all agree on that. In its third leading article today it gives very faint support indeed for this Measure. In fact, it gives such support which amounts to a request for second thoughts on this Measure.

In view of what I have said, I believe that the Church of England had another honourable course which it could have taken rather than to bring this proposal about the Judicial Committee of the Privy Council to this House. Through the years I have not been one who has called for disestablishment. I have felt, right or wrongly, that to take away establishment from the Church might weaken the cause of religion in the country. In an age when materialism is swirling round us and old values are disappearing, I have wanted, and I still want, to do nothing which would undermine those who are endeavouring to establish religion in the heart of this country.

The only honourable course for an Established Church which does not want the control of people who do not belong to it is to face up to the question of disestablishment. The Church might soon be telling the Prime Minister, who is not a member of the Anglican Church but who has the right to appoint certain of its bishops, that it objects to his doing so.

My right hon. Friend the Leader of the Opposition is a very devoted member of the Congregational Church. As he told the nation on television recently, he is a Nonconformist. I have no doubt that, like all the Anglican Prime Ministers who have gone before him, he will bring the most earnest and careful consideration to the tasks which he will have to fulfil on behalf of the Established Church when he is Prime Minister. But if it objects to the Judicial Committee of the Privy Council, it might even take exception to him.

I would not hold up the Measure on this ground, but I am a little anxious that social opinions of local clergy, which hitherto have not been liable to condemnation by their bishop, are now to become liable and that the protection which clergy have had in their social opinions is being taken away in this Measure. It is a little unfortunate, but that is not why—

Mr. Robert Cooke (Bristol, West)

Will the hon. Member define what he means by social opinions?

Mr. Thomas

I thought that the hon. Member was anxious for me to come to a conclusion. If he is patient, I will see what I can do for him before I conclude.

Hitherto, when a bishop has exercised his veto in connection with his clergy, he has been obliged to give the reasons in public. Everyone has known why bishops have acted. In this Measure, however, the bishops are being given a power that they may exercise their veto and they do not have to account to anyone why they exercise it. There is a reduction in the constitutional rights of Her Majesty's subjects and it is one which cannot be ignored.

The Lloyd-Jacob Commission, to which the hon. Member for Dover referred, went out of its way to call for the end of the bishops' veto. It asked for a wider body to be set up to inquire into the matter. The hon. Member will, no doubt, remind us of this when he speaks a second time by leave of the House. In another place, the Archdeacon of Hastings was quoted by Lord Brentford, whose devotion to the Church of England is known throughout the land, as saying that bishops'powers are being extended from limited constitutional powers—I am not quoting exactly, as that would be out of order—to those of administrative autocrats.

In introducing this Measure, the hon. Member for Dover said that it would help Church unity and that it was coming nearer to the Nonconformists. There is no one in the House of Commons who wishes more than I do to break down the barriers between the denominations. I believe that young people are sickened by the differences between Christians who are walled in to their respective denominations. I do not, however, believe that this Measure helps as the hon. Gentleman thinks that it does. It is, in fact, the reverse. I believe that this Measure will help the Established Church to feel it safe to go on being established, as it is giving up nothing and claiming all.

For these reasons, I earnestly hope that the hon. Member will not put us into the position of voting against this Measure from the Church Assembly. I am resolved to do it if the Question comes tonight, but it would be fairer to the House, to the Church of England and to the country if this Measure were taken back for consideration of these detailed questions.

It is a pity that we are unable to amend this Measure. In their wisdom, our fathers granted autonomy to the Established Church to control a great deal of its own affairs. We do not initiate the legislation. We only have to approve or reject it. I cannot find it in my heart to approve the taking away of the right of appeal to the Judicial Committee of the Privy Council, especially since the grounds which are advanced are that those learned people may not be members of the Church of England. The House will be protecting its own right at another stage if it rejects this Measure tonight.

9.50 p.m.

Captain L. P. S. Orr (Down, South)

We have listened to a speech of tremendous power, eloquence and sincerity, and it is difficult to follow. I found myself almost in entire agreement with practically every word that the hon. Member for Cardiff, West (Mr. G. Thomas) uttered. I speak, however, from a somewhat different standpoint in that I speak as an Anglican who believes firmly and sincerely in the establishment of the Church of England.

I think it a pity—I agree entirely with the hon. Member for Cardiff, West—that this Measure is being taken at this time of night. I agree with him in objecting to that fact. My hon. Friend the Member for Dover (Mr. Arbuthnot) has been extremely courteus, both to myself personally and to others who have been opposed to the Measure, in endeavouring to arrange a time which would meet the convenience of all of us. We acknowledge his courtesy about that. He has been most helpful about it. I am sure that it was not his wish that the Measure should come on so late. But it is a pity that a method could not be found whereby the debate might have been postponed to a more reasonable time next week. However, we are, as it were, seeing how we get on, and I would hope that we should not be forced into taking a decision upon this Measure very late at night.

The hon. Member for Cardiff, West spoke of the difficulty under which we are in dealing with the matter. It is one of the unfortunate consequences—there are many unfortunate results—of the enabling Act that we can deal with this Measure only in toto—we have either to approve or reject it, and we do not have the power of amendment. It is a great pity that this is so. It was one of the causes of the great dispute and the great difficulty that arose between Parliament and the Church over the Prayer Book—the very fact that one had either to accept the new Prayer Book, the deposited Book, in full, or else reject it in full.

About 95 per cent. of the new Prayer Book was acceptable to the majority of the House of Commons, but, because of the obnoxious 5 per cent. or so of it, it had to be rejected, and we were left with the position which obtains now where that Prayer Book is in widespread use completely illegally—a state of lawlessness which the bishops are condoning.

The leading article in The Times, which has already been referred to, said at the end, after referring to the two main criticisms made of the Measure: These criticisms of the Measure, whatever validity they may possess, are essentially 'committee points', and the House of Commons is not concerned with the 'committee stage' of ecclesiastical Measures, which is the business of the Church Assembly. Parliament is called upon to approve or disapprove as a whole Measures which come to it from the Church Assembly, and only the weightiest objections of principle can justify rejection. That argument would be valid if this were the Second Reading of the Measure or something analogous to a Second Reading, and if this were a Measure which we could approve tonight in principle, send to the Church Assembly for its committee stage, and then deal with it, as it were, when it came back on Third Reading. But that is not the case. What we are asked to do tonight, in effect, is to give the Measure a Third Reading, so that what this House approves tonight would become the law of the land after Royal Assent and would become irrevocable.

Therefore, if we decide that there is force in the objections made, and that the objections are such that the matter ought to be looked at again, I think that we are entitled to say, as the hon. Member for Cardiff, West said, that it would be right for the Church Assembly to look at the Measure again. We realise that an enormous amount of work has gone into this. We realise that the ecclesiastical courts have got to be reformed. We are not against the main principle of the reformation of the ecclesiastical courts.

But there are two principal matters contained herein—and I speak as an Anglican—that many Anglicans object to and that many of our friends in the Free Churches believe are such as to militate against the sort of unity we want to see among our Churches. I believe that they are weighty matters of principle, that they are not committee points at all and that they raise very substantial constitutional questions, particularly the first one.

However, before I come to them, I want to deal with one question of a general nature. My hon. Friend the Member for Dover said that this Measure was something of which the Church approved. It has been said several times in the debate that this is something which comes from the Church. It certainly comes from the Church Assembly—

Sir Hendrie Oakshott (Bebington)

It is the Church.

Captain Orr

—but that is not necessarily the Church of England.

I would concede that the Church Assembly represents the bishops of the Church of England, and I would concede, almost but not quite, that it represents the clergy. There are many clergy who consider that the House of Clergy is not too representative a body, that it contains a very great number of ex officio members. None the less, if it helps, I will concede, perhaps, that it represents the clergy.

But by no stretch of the imagination does the House of Laity represent the laity of the Church of England. I hold, and have always held, that if one accepts the test of membership of the Church of England to be that of the Sacrament of Baptism, which I think is the only right test, then one is dealing with the question of about 27 million people and that those 27 million are not represented by the House of Laity. They are represented by this House.

If, on the other hand, one narrows the definition of the membership of the Church of England from those who have had the Sacrament of Baptism down to those who are on the electoral roll of the parishes, one is then dealing with fewer than 3 million people, and the whole argument for the establishment of the Church of England disappears overnight.

Sir H. Oakshott

Many of us respect the sincerity of my hon. Friend's views in general, but he is beginning to suggest that the Church Assembly is a packed body. He should be very careful before he makes such an accusation.

Captain Orr

I think that my hon. Friend is being unfair to my approach. I did not say that it is a packed body. I said that it is an unrepresentative body, which is a slightly different thing. I conceded that it is representative of the bishops and possibly of the clergy, but I said that by no stretch of the imagination could it be regarded as representative of the 27 million laity.

Mr. A. Bourne-Arton (Darlington)

My hon. Friend wants a body to be representative of those who have been baptised, but no longer belong. Surely the Church Assembly must represent those who now belong.

Captain Orr

I would not accept that a man once baptised and given the sacrament of Holy Baptism can at any time cease to belong to the Church of England. If we are to create some sort of grades of membership of the Church we are getting into very deep theological water indeed.

The point is that in considering whether or not this Measure comes from the Church of England, we ought to be clear that"Church Assembly" and"Church of England" are not necessarily synonymous terms.

Sir Godfrey Nicholson (Farnham)

It does not come from the Church of Rome.

Captain Orr

Let us deal with the two principal objections to the Measure. The first is the removal of the appellate jurisdiction of the Judicial Committee of the Privy Council. It is not a bad thing to look at the history of this appellate jurisdiction. It goes back a very long way. It was said in another place, I think by the Bishop of Chester, that it dated from about 1830, but the Judicial Committee of the Privy Council is the inheritor of the Royal Supremacy in matters ecclesiastical, and the Royal Supremacy in matters ecclesiastical goes back to the Saxon kings.

It is often thought that it began with Henry VIII, but it goes back to the Saxon Heptarchy, because, prior to the Conquest, there were no separate ecclesiastical and civil courts. All the courts were together and were under the final appeal to the Sovereign. It was William the Conqueror who divided the courts into civil and ecclesiastical as a matter of convenience, but he kept to the Sovereign in council the final court of appeal in each case.

All down our history there has been running that thread, so that nowadays in civil cases the House of Lords is, in effect, the appeal to the Crown in council, whereas the Judicial Committee of the Privy Council is the inheritor of the appeal to the Crown in matters ecclesiastical. The Judicial Committee's immediate predecessor was the Crown in council and before that the Court of Delegates.

What is the argument for removing this ancient appeal? The argument which I have heard is that because the decisions of the Privy Council at the end of the last century, many famous decisions in matters of doctrine and ritual did not command universal respect in the Church, the court should be changed. Let us consider exactly what we are dealing with. The Privy Council was not a court which made doctrine. As the hon. Member for Cardiff, West said, it was a court which declared the law. Perhaps we might discern the functions of the Judicial Committee from its own words: It is not for the Court to decide whether opinions are theologically sound or unsound, but whether such opinions are contrary, or repugnant to, the doctrines which the Church of England by its Articles, Formularies, and Rubrics, requires to be held by its Ministers. And later: The Court will apply to the construction of the Articles and Liturgy the same rules which have been long established, and are by law applicable to the construction of all written instruments, assisted only by the consideration of such rational or historical facts as may be necessary for the understanding of the subject matter to which the instruments relate, and the meaning of the words employed—its duty extends only to the consideration of that which is by law established to be the doctrine of the Church of England upon the true and legal construction of her Articles and Formularies. In other words, these are statements by the Judicial Committee itself at different times and in its different judgments of the Committee's functions. In other words, it is a court of record to determine what is or is not the law. We are now told that because the decisions of this court do not command respect, the court must be abolished. I would have thought that that was a very strange constitutional doctrine to admit. Because its decisions have not been respected we are told that we must do away with the court and—I think this is even more sinister—that on the courts which are to be put in its place the decisions of the Judicial Committee shall not be binding. We shall be doing away with a very ancient doctrine of the continuity of law. What becomes of the law of the Church of England in the meantime? What is lawful and what is not?

This is doing something that even the disestablished Church of Ireland never ventured to do. When the Church of Ireland was disestablished there was written into its constitution the provision: That every Act which would have been a breach or violation of the ecclesiastical law of the United Church of England and Ireland and offence published by such law in Ireland at the time of the passage of the Irish Church Act of 1869 shall be an offence against the ecclesiastical law of the Church of Ireland coincidentally bound by the ecclesiastical tribunals of the Church of Ireland. In other words, the Church of Ireland was saying that although it had achieved complete liberty and could do what it liked and was established in 1869, at least it recognised the need for continuity of law and that chaos should not ensue. Here we are removing the activity of the Privy Council and substituting a court and saying that that court shall not be bound by any decisions on law which have gone before.

That is a shocking argument. What is to happen to an honest, decent clergyman of the Church of England who, whatever controversies may have been breaking around him, has said,"I at any rate am faithfully carrying out the law of the Church of England as laid down and trying to preach what I am supposed to preach, trying to preach the Gospel within the law"? What is to happen to him now? What about all the previous decisions of the Privy Council? Is this to be left in a vacuum until such time as the Court of Ecclesiastical Causes Reserved determines what is or is not lawful in the Church of England?

Let us look at the two new courts, the Court of Ecclesiastical Causes Reserved, first. I should have thought that to a good Parliamentarian the very name would be obnoxious. All good Parliamentarians are familiar with the Bill of Rights. The Bill of Rights expressly states: That the Commission for erecting the lay Court of Commissioners for Ecclesiastical Causes and all other commissions of like nature are illegal and pernicious. I suggest that this court, if we give it the vote tonight, would certainly not be illegal but it would be in fact pernicious.

What I want to deal with is the Commission of Review, the other court which is to have before it causes dealing with doctrine, ritual and ceremony. It is a purely religious court of appeal. This was a point made very ably by the hon. Member for Cardiff, West. It is required that in this court there shall be two bishops and three Lords of Appeal who shall be communicant members of the Church of England. This is something which no other professional body has.

We are asked to give to the Church of England a final court of appeal, the membership of which shall be qualified. In the case, for example, of the General Medical Council, a doctor is tried by his fellow doctors. If he feels aggrieved at the judgment he may appeal, and, oddly enough, the appeal goes to the Judicial Committee of the Privy Council. He has a right of appeal to an impartial court which he knows as concerned solely with law. In future, that is not to be the case with the Church of England. We are to have a court, the membership of which is bound to be members of the Church of England—two bishops and three Lords of Appeal who shall be communicant members.

I am very surprised that this matter should come before us in this form. It goes even further and introduces a religious test inevitably for the office of Lord of Appeal. One could easily envisage a situation where among the Lords of Appeal there may be only three left who happen to be communicant members of the Church of England, or"fallen away" members as my hon. Friend would put it. One of them dies. What does the Crown do then when it comes to appointing a Lord of Appeal? The Crown is forced to say that to fill the court, and keep it in action, a Lord of Appeal must be appointed who shall be not only a member but a communicant member of the Church of England.

If ever there was an invitation to occasional conformity, that is one. I should have thought that wholly obnoxious and sufficient in itself to ask my hon. Friend to take this Measure back to the Church Assembly for the Assembly to look at it again.

Mr. Bourne-Arton

I am grateful to my hon. and gallant Friend for giving way, because he was good enough to give way before. I am not a lawyer, still less a Lord of Appeal. But let me give my hon. and gallant Friend an analogy. I am a magistrate, like many other hon. Members. If my hon. and gallant Friend were to come to The Wapentake of Hallikeld, in the North Riding of the County of York, and commit some motoring offence, were there any difficulty about it, I and my fellow magistrates would want to visit the scene of the accident. Is there, to use the words of my hon. and gallant Friend, any"weighty objection of principle" to doing that?

Captain Orr

I have great difficulty in understanding my hon. Friend. I am not a lawyer or a Lord of Appeal. But I must confess that I do not see the relevance of his interjection—

Mr. Bourne-Arton

I will explain, if my hon. and gallant Friend wishes me to.

Captain Orr

No. I will make a point of looking it up in Hansard tomorrow and will write to my hon. Friend.

If I may now—

Mr. Raymond Gower (Barry)

Will my hon. Friend give way?

Captain Orr

Again?

Mr. Gower

Has my hon. Friend considered the fact that it is conceivable that at a particular time all three judges of appeal may well be Roman Catholics or of the Jewish faith or Free Churchmen? It is conceivable that there would be no person qualified.

Captain Orr

I am much obliged to my hon. Friend. I thought I had made the point that it is possible that there would not be sufficient Lords of Appeal unless the Crown introduced a religious test. Either this court is nonsense, and could disappear altogether, or the Crown will have at some time, or may have in the future, to introduce a religious test. I should have thought that sufficient ground for rejecting the Measure without anything else

. The hon. Member for Cardiff, West drew attention to the question of what is known as the bishops'veto. This is not a Committee point, as The Times suggested. It is a matter of very great importance. It is regarded as one of very great importance by all the Evangelical Churches. It is so regarded not only by those who belong to Churches outside the Church of England, but also by those within the Church of England.

It passes my understanding why this veto, this power to prevent an action being brought against a clergyman, should be defended with so much vigour. The argument is advanced that it is necessary to retain this veto to prevent frivolous cases being brought. This argument has only to be examined for its weakness to be seen. First, under Clauses 18 to 20 any action against a priest or deacon is a cumbersome thing to bring. It requires at least six members of the parish who are on the electoral roll to bring the charge. In the case of a bishop or an archbishop, it requires a much greater number, including five parish clergy.

I would concede that that might not be sufficient safeguard, but surely it is possible to devise some different system. Indeed, there is a different system in the Measure. There is power for a court of inquiry to decide whether there is a prima facie case. In the case of the Church of Ireland, there is a very simple way. Instead of a veto being exercised by the bishop, there is a veto exercised by the archbishop. The veto does not rest with the bishop concerned in the diocese, who is much too close. It rests with the archbishop, after he has appointed a court to inquire whether there is a prima facie case.

It should not be beyond the wit of able men like the Bishop of Chester, my hon. Friend the Member for Dover, and ecclesiastical laywers to devise a simple method of preventing frivolous or vexatious litigation without enshrining in the hands of the bishop this power which could be entirely tyrannical. It is absolutely wrong. The vehemence with which it is held on to only increases the suspicions of those who feel that it will be improperly used. They fear that, if a clergyman introduces a doctrine or some form of ritual in a church which members of the parish or others conceive to be illegal, and these members of the parish seek to test whether it is legal, and if the bishop happens to agree with what is being done and supports it, the bishop can prevent any such case being tested.

Sir S. Summers

So he can now.

Captain Orr

Of course he can, but it is no valid argument to say that because it is the practice now we must enshrine it in this Measure and must not send the Measure back again to have this obnoxious power removed.

It will not only be enshrined. It will be strengthened. It is because the Measure produces a system of law within the Church which can justly be criticised at the beginning and at the end—at the very first stage where the bishop can exercise this tyrannical veto and at the final stage of appeal—that there are the gravest and most sincere objections to it. We believe that the House of Commons should reject it. That is why those who think in this way but do not wish to see the House of Commons divide on a matter concerning the Church, which we all love so much, join in appealing to those who have presented the Measure on behalf of the Church Assembly to take it back.

Please take it back and look again at these matters which we consider raise tremendous principles and which we passionately believe would be absolutely wrong to enshrine in the law and which we cannot in all conscience support. Let the Measure be brought back again when we will look at it again with very great sincerity, because we believe that it would be a great tragedy for the nation if this Measure were passed at a time when we are seeking by all the means in our power to bring the Christian people of this land together into some form of unity.

I believe with the hon. Member for Cardiff, West, that there are many in this Church and in others who have been on the point of accepting the ancient system of episcopacy and who would be deterred if they were to see the bishop elevated into being something like a petty tyrant. That is not my conception of episcopacy, and I am sure that it is not theirs. What we want to see is a greater, wider Church of England. We want to work for a Church of England where everyone who is a Christian within the land can feel that he has an opportunity to belong to it.

This Measure will inevitably work against it. It is a Measure produced by a party within the Church, and it will eventually divide both the Church—[Hon. Members:"No."]—and the Christian people of the nation at a time when we are seeking unity.

10.23 p.m.

Mr. Tom Driberg (Barking)

I agree with those who think that the timing of the debate is most unfortunate. I do not know the intention of the hon. Member in charge of the Bill. There is a large number of hon. Members who still want to speak, and I suppose that at some time suitable to him the hon. Member will move that the debate be adjourned. I think that this will be necessary. We do not want to go on debating until 2 or 3 in the morning. On the other hand, it is not really agreeable or convenient to have a debate of this nature in two bits, separated by several weeks or, at any rate, days. We are gathered here tonight in an atmosphere appropriate to this Measure. We are considering it as earnestly and sincerely as we can, and we should like, if possible, to complete the debate and, if necessary, vote on the Measure tonight.

My hon. Friend the Member for Cardiff, West (Mr. G. Thomas) said that it is unfair to this House and to the Church of England that this debate should be taking place so late at night. I would also point out that this is the time of night at which Hansard normally finishes reporting our debates for inclusion in the edition published the following morning, and it would certainly be a little unfair to the Church of England, at least, if Hansard were to go to press tonight containing a report of this debate which consisted only of the brief opening speech of the hon. Member in charge of the Bill and the two extremely able and eloquent speeches to which we have just listened. I think that would give those of the public at large who read Hansard a rather false impression of the balance of opinion within this House.

These two speeches we have just heard were, I thought, extremely interesting, not only for what was said in them, but because of the hon. Members who delivered them. One was by a Methodist who, as he told us, has always on the whole supported the Establishment. The other was by an Anglican who has the inestimable benefit, if I may so put it to him, of belonging to a disestablished Church.

Ironically enough, although I disagree with much of what my hon. Friend the Member for Cardiff, West said about the Measure, I have always taken the view—at any rate, I did for many years—that disestablishment would, on the whole, be a good thing for the Church. My hon. Friend spoke absolutely justly—widening the debate considerably, as I am glad he did—when he said that Establishment confers its obligations as well as its privileges, but he did not mention one great handicap of being or belonging to an Established Church in A.D. 1963. The younger people of whom he spoke in another part of his eloquent speech do very often tend to look askance at the Church of England precisely because it is the Established Church: it is part of what is loosely called"the Establishment," in a wider sense of the word. So, although I agree with my hon. Friend that Establishment certainly has its obligations as well as its privileges, it also, I put it to him, may have its handicaps, and those of us who belong to the Church of England sometimes look half-enviously in this respect at the Free Churches, or at other parts of the Anglican Communion, such as the Church in Ireland, in Wales, or in South Africa, where the Churches are not established.

One part of my hon. Friend's speech, one of its most eloquent parts, was slightly punctured by what he called a good Irish intervention. It was a good Irish intervention in what was as a whole a very good Welsh speech, and, like all good Welsh speeches, it was tremendously sincere, tremendously passionate, and touched and spiced with thathumour with which my hon. Friend always succeeds in charming the House—but also, if I may say so, by a certain amount of purely unconscious humbug. My hon. Friend does not mind my saying that. I know he takes our exchanges in good part.

Mr. G. Thomas

My hon. Friend put the sugar on first. [Interruption.]

Mr. Driberg

My hon. Friend quotes the old tag,"See how these Christians love one another." I have never known whether that tag was originally admiring or sardonic and cynical; I think the latter, probably. It unfortunately is true of a great part of the history of Christianity that Christians have been brutally and violently at war with one another, and have been intolerant of one another. I am extremely glad that, so far in this debate—as, on the whole, in the debate we had before Christmas—there has not been that note of mutual intolerance, except that I think the hon. and gallant Member for Down, South (Captain Orr), who also got very near it in the debate before Christmas, was a bit intolerant of bishops as bishops. He belongs to the Anglican Church. He is an episcopalian, but he seems to have a deep-rooted suspicion of the unfortunate bishops of these two provinces.

Captain Orr

That is not so. I have many good friends among the bishops. I have a tremendous respect for them. My father is a dean.

Mr. Driberg

I am reminded of the well-known remark always uttered by anti-Semites,"Some of my best friends are Jews." Perhaps the hon. and gallant Member for Down, South was so carried away, and rightly so, by his own eloquence that he has forgotten what he said. At one point he said, rather ominously, that the bishops' veto could be a tyrannical veto: then, a few sentences later, he was assuming that it would be. He was not merely saying at that point that it could be. He was talking about the bishops exercising"this tyrannical veto" as though every bishop were a tyrant. I am not myself all that struck with bishops.

Captain Orr

Perhaps I could remind the hon. Member of the words of Sidney Smith: The besetting sin of bishops is the desire for power.

Mr. Driberg

The besetting sin of a large number of people, not excluding some hon. Members of this House, is the desire for power. Indeed, we would not be here at all if we did not have a proper concern for power. All serious politics are concerned with power, its transfer and its use. However, I must not be drawn too far from the Ecclesiastical Jurisdiction Measure.

I was saying that, while I do not have all that much to say for bishops as a class, I just thought that the hon. and gallant Member for Down, South was a bit hard on them. For much of the past century they have tended to persecute people with whom, by and large, I would agree rather more than they have persecuted people with whom, on the whole, the hon. and gallant Member for Down, South would agree. I am glad to say that the days of persecution are past and the ecumenical age has arrived. We must now be extremely friendly to one another and not start hares, red herrings, or anything of that sort.

Most hon. Members will have received a number of letters and communications about the Measure. I thought that the most important of these was a letter signed by six eminent lawyers. In their letter these gentlemen say that the need for the Measure is"manifest and undoubted." They are aware that the state of the ecclesiastical courts is chaotic. But they go on to list the features in the Measure to which they object and to which, broadly speaking, my hon. Friend the Member for Cardiff, West also took exception. They say that"the Church, in its criminal jurisdiction, should follow the State system, which is generally considered to be highly satisfactory."

Most of us would accept that with some reserve, particularly if we have had occasion to take up with the Home Office the cases of constituents whom we believe to have been wrongly convicted or the subjects of miscarriages of justice. Everyone knows how extraordinarily difficult it is to get a case reopened once it has been decided by a court. Even such eminent unofficial legal bodies as the organisation"Justice" are by no means satisfied with the state of the law and procedures regarding appeals. There is a great deal to be remedied in this direction.

These six lawyers end by saying: We are troubled by the Measure in its present form. We believe it requires amendment to ensure a standard of justice at least equivalent to that of other Crown courts. This is where I suggest the great difficulty for all hon. Members arises. As has already been pointed out several times, we cannot amend this Measure. Parliament in 1919, in the enabling Act, set up the Church Assembly. It was meant to be, I think, a step in the direction of giving the Church some measure of self-government, and it was also a step in the direction of bringing the laity of the Church into active participation in that Church's government, because, despite what the hon. and gallant Member for Down, South said about the Church Assembly as not representing the laity at large, before it was set up the laity had even less representation—within the Church's Convocations, for instance. So that there is, through the Church Assembly, some measure of lay representation.

I do not want to repeat the argument we had in that debate before Christmas, but I would remind the hon. and gallant Member that I agreed that the Church Assembly was not fully representative even of the most active practising churchmen, let alone of those whom he mentioned—the wider body—whowere, perhaps, no longer actively associated with the Church. But, of course, there are all sorts of elected bodies, such as county councils, rural district councils, and so on, that are not fully representative in the sense that we will find on them a complete cross-section of the population—the young, the old, working-class, middle-class, and the rest—because of the practical difficulties that prevent many working people and young people from standing for election to such bodies. But we do not therefore reject them completely as not being representative bodies.

Similarly, I am sure that the Church Assembly is imperfect in similar ways and for similar reasons, because there are not many laymen who can afford the time to come to London for the meetings of the Assembly. None the less, to parody what the First Secretary once said in another context, it is the best representative Assembly we have got.

I think that hon. Members of this House—which, of course, retains the ultimate veto; that is provided for in the enabling Act—should think very carefully indeed before rejecting a Measure which has taken the Church's best minds and best lawyers—not only bishops, but all sorts of people—ten years, by and large, to work out. We ought to think very hard before rejecting it. Therefore, each of us—and this is the great benefit of this kind of debate, with a free vote—must make up his own mind, according to his conscience, on the balance of advantages and disadvantages in the particular Measure.

These six distinguished lawyers, who, without any offence to them, being lawyers, naturally load the argument somewhat on the legal side—on the legalistic side, even—take the view that, although the Measure is very much needed, the defects in it outweigh the advantages; and that it should, therefore, be sent back to the Assembly for amendment there. The only trouble is that if we do that we cannot be sure what the Assembly will do about it. We cannot be sure that it will amend the Measure precisely in the light of some of the speeches in this debate—obviously. It will take the Assembly probably a good year to do so. It will regard that as time that might be better spent, perhaps, but if we send back the Measure that is what the Assembly will have to do.

I would say one thing in particular to my hon. Friend, who discussed the whole question of establishment and disestablishment. The present Archbishop of Canterbury, soon after he took office, did, in a friendly way, give notice that if Parliament were again to administer a major snub to the Church—as we did in 1928: I do not go into the rights and wrongs of that: we were perfectly entitled to do so—the atmosphere of the present day is such that there would be a major head-on clash between Church and State, which I do not think my hon. Friend wants; and the initiative for some form of disestablishment and of freedom for the Church would come from the Church rather than from Parliament.

I do not know whether this Measure is of sufficiently grave importance for its rejection by Parliament to lead to that result, which I think that some, at any rate, of those who might vote against it tonight would probably not want. Others might want it. I personally think that if we are to face the problem of the disestablishment of the Church of England—which has not really been so live a political issue in recent years as it used to be some years ago—I would prefer that we faced that problem on its merits and debated it straightforwardly, for or against disestablishment as such, and not simply, by rejecting Measures like this, sent to us by the Church Assembly, raise the issue of disestablishment, as it were, by a side-wind.

Sir Harry Legge-Bourke (Isle of Ely)

I heard the sermon in which the Archbishop of Canterbury said what he did; in other words, that if Parliament were to challenge the Church it would again raise the whole question of disestablishment. I know that the hon. Member speaks as both a member of the Church of England and a Parliamentarian. Does he feel as a Parliamentarian that that is really tolerable to Members of this House?

Mr. Driberg

This is precisely where the dilemma of conscience, of which I was trying to speak, arises. I would not argue that Parliament has no moral right—it has the legal right—to reject a Church Assembly Measure. Indeed, on several occasions in this House, when taking part in debates on Assembly Measures, I have opposed them strongly—as, for instance, some of those clerical discipline Measures in the years after the war.

As a result of our debates on those occasions, the Church Assembly modified the disciplinary Measures so as to provide safeguards for the political and social opinions and activities of the clergy. In that case, undoubtedly, the opposition in this House was valuable both to the Church and to Parliament. But those, although important in their way, were Measures of relatively limited scope compared with this Measure which, as my hon. Friend rightly says, has tremendous constitutional implications and repeals a large number of other Measures, and is a bigger Measure in every way than the Measures on which we had debate at that time.

Every hon. Member has to weigh in his own mind whether the disadvantages of the Measure itself outweigh the advantages, and also has to weigh and consider very carefully what the probable or likely consequences of his action would be if he decides to vote against the Measure. That is as far as I can go. It is not a satisfactory answer to the hon. Member for the Isle of Ely (Sir H. Legge-Bourke). I am trying to put the matter as plainly and honestly as I can, and I cannot see that one can put it more clearly than that. It is an extremely difficult dilemma.

Incidentally, one of the six learned jurists who wrote to us had a dilemma to face, perhaps even more pressing and difficult than ours tonight. I took the trouble to write to each of the six, asking them for their comments on various points, and they were all good enough to reply, most courteously. One in particular, Mr. P. H. C. Walker, told me—in fact, I had heard so already— I also am in a certain difficulty since I was a member [of the Assembly] in charge of the Measure itself. I did, however, with the entire approval of the other members in charge, speak very strongly against two parts of the Measure relating to (a) the bishop's veto in ritual, ceremonial and doctrinal cases, and (b) the very wide powers of the Convocation Committee of Inquiry to throw out such cases on the ground that they were contrary to the interests of the Church of England. He adds: My view is that the Measure as a whole is a good one and is a much needed tidying up of the existing hotch-potch of legislation. I am, however, reluctantly forced to the conclusion that the two matters I have mentioned above are defects so fatal that, if I were in your position, I should reject the Measure as it stands. That is put very fairly, and it is friendly and honest advice. I find myself, however, forced to the opposite conclusion, although I am, and was, doubtful about some of the points in the Measure. My hon. Friend the Member for Cardiff, West has referred to the occasion when we discussed this matter in the Ecclesiastical Committee, which, I remind the House, is a statutory body consisting of Members on both sides of both Houses of Parliament and which did recommend the House to approve this Measure, I think, nemine contradicente. In fairness to my hon. Friend, I must add that he reserved his position, though I do not think that he actually voted against it.

Mr. G. Thomas

My hon. Friend will remember that I insisted with the Chairman of the Committee that I wished to express my opposition. I reserved my right to oppose the Measure in this House. I did not reserve my position. I insisted that it should be recognised.

Mr. Driberg

I do not know to what extent it is desirable that we should disclose in the House what has taken place in a Joint Committee of bothHouses, but, since this much has been said, perhaps I may say that, of course, my hon. Friend is perfectly right. Not only he but a number of us pressed the bishop and the chancellor who were present with questions. On the whole, I found their answers reasonably satisfactory. My hon. Friend reserved his position, but I do not think that he actually voted on that occasion against the Measure.

Mr. Thomas

I did.

Mr. Driberg

I accept that, of course. In that case, it was recommended to this House by—

Mr. Thomas

A majority.

Mr. Driberg

—twenty-five, or whatever the number was, to one.

I agree with my hon. Friend, by the way, in regretting the absence of the phrase"social opinions and activities", which we did get included along with political opinions and activities in the discipline Measures.

Mr. Robert Cooke (Bristol, West)

rose—

Mr. Driberg

I see the hon. Gentleman rising to ask what I mean by the phrase. I note the point which is made in the Comments and Explanations, that this phrase seemed dangerously vague and has been omitted". Perhaps it has never cropped up in any actual case; I do not know. When we first discussed it in the years after the war, in the debates on the discipline Measures, I think that I instanced as an example of social activity—perhaps my hon. Friend may not approve of this—the case of a country parson going to a public house occasionally and having a pint or two—not getting drunk—I mean a pint or two of lemonade or shandy, of course—

Mr. Thomas

I approve.

Mr. Driberg

—and that there might be some contumacious and narrow-minded elderly spinsters or"old wives" in the parish who would report him to the bishop for unbecoming conduct. That is what I mean, loosely, by one kind at least of social activities.

Then there are issues of policy or principle which, although they are political in one sense, such as the debate about capital punishment, might be regarded as social reforms just as much as political reforms. However, I do not want to go on too long.

I come to the two main objections to the Measure, the bishops' veto and the ending of the appeal to the Judicial Committee of the Privy Council. In my view, the Measure is positively good at both those points, because it shifts the emphasis from the criminal sphere to the pastoral sphere. The bishops'veto is not tyrannical. It is a protective, safeguarding veto, protecting the ordinary, humble parish clergyman against, perhaps, hysterical or cranky persons in his parish—and such cases are not unknown—or protecting him against totally frivolous prosecution. There are all sorts of ways in which the bishops'veto can be exercised in a beneficial way.

The Measure itself and the Report of the Ecclesiastical Committee both indicate strongly the pastoral nature of this Part of the Measure. The provision in Part VI that the bishop"affords an opportunity to the accused and to the complainant of being interviewed in private," is clearly a provision for a pastoral act. It is the act of a father in God, as the bishop should be, not a tyrant. As the father in God of his clergy and people, he is getting the complainant and the accused together, saying"Cannot you, as Christians, make it up?" I should have thought that this was a very good thing. After that, the bishop can either veto the proceedings or refer them for inquiry.

Then there is the Judicial Committee of the Privy Council. This was where I was most strongly in disagreement with what was said by the two hon. Members who preceded me. My hon. Friend the Member for Cardiff, West, seemed to be holding up the Judicial Committee as an absolute paragon of non-old-school-tie, progressive opinions—the"best brains of the law," and so on—and so, no doubt, it may be. I do not know. In Church matters, however, the Judicial Committee of the Privy Council has shown itself, when appeals have gone to it, not at all consistent, not at all infallible and at present, I would say, wholly irrelevant to the circumstances of the time.

The hon. and gallant Member for Down, South, spoke about"continuity of law" and he was shocked because the new Court was not to be bound by the decisions of the Judicial Committee of the Privy Council. Had he looked up some of the famous cases in the nineteenth century—which, no doubt, he has done, but it may be that I have looked up different ones—he would have found that the Judicial Committee of the Privy Council has quite frequently contradicted itself or its predecessors. There has been no continuity of law on Church matters in the past century. I assure the hon. and gallant Member of that.

The hon. and gallant Member quoted the famous statement from the Gorham judgment of 1852 that it is not the Judicial Committee's job to decide whether opinions are theologically sound or unsound, but whether such opinions are contrary or repugnant to the doctrines which the Church of England, by its Articles, Formularies, and Rubrics, requires to be held by its Ministers.

Sir Godfrey Nicholson (Farnham)

Was not that dismissed with costs?

Mr. Driberg

I think so.

It is worth noticing, especially in view of a recent incident in which the 39 Articles of the Church of England came into the news in a rather sensational way, that at that time one of the lords of appeal, Lord Stowell, said: If any Article is realty a subject of dubious interpretation, it would be highly improper that this court should fix on one meaning and prosecute all those who hold a contrary opinion regarding interpretation. That is very interesting, because I think that nowadays most people who have studied the 39 Articles would agree that they were deliberately ambiguous: they were part of the attempt to hold the Church of England together comprehensively, to hold Puritans and more Catholic-minded people together in one national church. There are, therefore, large numbers of ambiguities, at least, in the 39 Articles, to which that opinion of Lord Stowell is highly relevant.

I do not think, incidentally, that all the findings of the Judicial Committee on the 39 Articles would be particularly acceptable even now to the hon. and gallant Member opposite, particularly its findngs in the case of Shepherd v. Bennett in 1870; but I will not go into that in detail.

The point I am trying to make now is that there have been a number of occasions when the Judicial Committee has contradicted itself or its predecessors. For instance, in Ridsdale v. Clifton, the Committee, according to the Law Reports: entered upon an elaborate and independent examination of the law bearing upon the legality of acts already pronounced illegal, and it was expressly stated, as their lordships' conclusion, that although very great weight ought to be given to the decision in Herbert v. Purchas, yet they were free and did not dissent on one point. So much for the continuity of law in the Judicial Committee of the Privy Council. It just is not so, with all respect to my hon. Friend and the hon. Gentleman opposite.

There was also the famous trial of Bishop King of Lincoln on seven charges, which I will not detail now because I have spoken for long enough.

Mr. G. Thomas

Is my hon. Friend not aware that the objection of the Church of England is not to the incompetence or the lack of continuity of the Judicial Committee but to the fact that its members are not members of the Church of England? Will he deal with that point?

Mr. Driberg

I will come to that point. I will just finish the point about the trial of Bishop King, in which the Archbishop of Canterbury gave judgment on the seven charges. The Church Association, an Evangelical body, appealed to the Privy Council, and the hearing took place 3½ years after the original trial, during which time this bishop, who was by general agreement a most saintly man, had this hanging over him. The Privy Council upheld the Archbishop's judgment, which on the whole seems to me to be favourable to Bishop King, although some parts of the judgment were expressed with what one might call typically Anglican and English compromise or evasion. For instance, he said that it was quite all right for Bishop King to have lighted candles in his private chapel—so long as he did not light them during services. That kind of thing seems rather trivial and absurd now.

However, these are the kind of matters that were dealt with in the 19th century by the Judicial Committee of the Privy Council, and it was its findings which to a large extent, I think, brought that secular court into disrepute among churchpeople. After all, laymen do not like seeing their parish clergymen sent to prison for some ceremonial or doctrinal deviation. It does not happen any longer, I am glad to say, but even in the middle of the 19th century it seemed pretty distasteful to most people.

Now I must deal with the point raised by my hon. Friend the Member for Cardiff, West. He asked why the Church is so anxious to get rid of the Judicial Committee if the Committee does not cut much ice nowadays. I think that this is precisely the reason: it is because the Committee does not have any relevance at all to present-day conditions or needs in the Church.

I dislike religious tests, as a general principle, as much as any hon. Member. Certainly I am very glad that we no longer have religious tests for membership of this House, fellowships at universities, or anything like that. On the other hand, there are obviously some religious tests which are applied quite innocently in all sorts of organisations of various churches and denominations. If one wants to join the Church of England Men's Society, one has to be a practising member of the Church. There are various other bodies in which religious tests are applied. Since the Crown and Constitution have been invoked, Mr. Speaker, I must point out that your highly-respected opposite number in another place, the Lord Chancellor himself, is subject to a religious test. He is not allowed to be a Roman Catholic. This is one of the curious survivals of the time that preceded Catholic emancipation in this country.

However, I have said as much as I should. In fact, I have gone on much too long, with the aid of a number of interruptions, but I did feel that, as the last two speeches were so weighty and so strongly against the Measure, I must say what I could for it, because, although there are some points in it which I do not like, they do not, I believe, outweigh the case for accepting it.

11.2 p.m.

Sir Hendrie Oakshott (Bebington)

I find myself in a very large measure of agreement with the hon. Member for Barking (Mr. Driberg), particularly in regard to his treatment of the two main criticisms of this Measure. But I must say two things to my hon. and gallant Friend the Member for Down, South (Captain Orr). He gave us a very interesting historical survey of this great topic. He was quite right in saying that it was William the Conqueror who separated the secular from the clerical courts and so on, but I wish he could have carried his historical survey a little further because he would then have told us that there was a time up to which bishops were members of the Judicial Committee, and then the time came when they were removed from it and only sat as assessors. I wonder very much, if the old position had still obtained, whether some of this trouble might not have been avoided.

My hon. Friend then objected to the fact that the new court would not be bound by earlier decisions. Of course it will be until the law is changed by a further finding.

Captain Orr: That is not how I read the provision. I would have thought the law is now in confusion. I would like advice on that.

Sir H. Oakshott

My information is that the law will remain as it is until it is upset by a further decision.

I tremble at the thought of putting Ireland and Wales at loggerheads, but I must tell my hon. and gallant Friend that the Church of Ireland may not have wished to be bound by precedents from the courts in 1871, but the Church in Wales, as soon as it was disestablished, adopted provisions practically identical with those in this Measure. I do not think, therefore, that it can be as wrong as all that.

As the hon. Member for Barking has already told us, my hon. and gallant Friend overstepped the mark a little in some of the things he had to say about the bishops' veto when he talked about tyranny and all that. His rather approving quotation from Sidney Smith was some evidence of his inherent dislike of the bishops.

I found the speech of the hon. Member for Cardiff, West (Mr. G. Thomas) in some ways easier to follow and accept, although I disagreed with many of his conclusions, but some of the things he had to say about the Methodist Conference in particular, and the unity of Christian people, are as dear to my heart as they obviously are to his, especially when he spoke of the unity among the Churches which many of us are seeking. Although I disagreed with him, I have sympathy with him and I took some comfort from what he had to say.

My hon. Friend the Member for Dover (Mr. Arbuthnot) has explained the Measure in great detail, and I do not want to add to any of the detail, but I must say, as the hon. Member for Cardiff, West said, that this is a big Measure. The Lord Bishop of Chester described it in another place as one of the most important ever to come before Parliament from the Church Assembly, and so it is. It is a strange coincidence that the wheel seems to have come full circle. The Lord Bishop of Chester, who with great skill and sagacity piloted the Measure through the Church Assembly and through the House of Lords, is one of those who didmore work on it than almost anybody else, and a century ago, a predecessor of his, the then Bishop of Chester, Bishop Blomfield, at the time of the great reforms which coincided more or less with the Reform Bill, was described then as the architect of Church reform. We have come a long way since then.

As the hon. Member for Barking said, we cannot amend this Measure. We must pass it or reject it. I submit, therefore, that when we are considering the comparatively few points of controversy—I will say later why I do not think that they are matters of principle—we should have in mind all the time that if we throw out this Measure we throw out in toto something which is badly wanted by the Church. This is something about which we should hesitate very seriously. After all, the Measure was overwhelmingly approved by the Church Assembly. It was considered most carefully by the Joint Committee of both Houses of Parliament, of which, like the hon. Member for Barking and the hon. Member for Cardiff, West and the hon. Member for Islington, East (Mr. Fletcher), whom I see in his place, I am a member. We reported on it favourably, with the reservations of the hon. Member for Cardiff, West.

Parliament is, of course, absolutely free to do what it likes and to throw it out if it wishes, but I respectfully suggest that to do so would be very serious and would have serious consequences in a Measure like this which has been so carefully examined and so warmly approved.

May I say a few words about the two criticisms which have been mentioned? On the abolition on the function of the Judicial Committee as the final court of appeal in everything except faculty cases—it would still retain that function, of course—may I say this: even before the introduction of this Measure the Committee was only an alternative to the Provincial Court in conduct cases. As my hon. Friend the Member for Dover said, every commission which has examined this matter since 1883 has recommended that it should cease to be the final court of appeal in cases like this. The Measure follows the Lloyd-Jacob Report and sets up a strong Provincial Court as the final appeal in conduct cases.

Regarding the reserved cases, which, of course, are more controversial, there is criticism, as we have heard, of the Commission of Review and its composition. I repeat what my hon. Friend the Member for Dover said. There is no attempt here to take jurisdiction from the Queen's courts. The Commission would be under the Great Seal with members appointed by the Queen. In spite of what the hon. Member for Cardiff, West and my hon. and gallant Friend said, I cannot see that it is unreasonable to ask that those who sit on a court like this should, in the one case by their office in the Church and in the other by their training, be able to speak with authority on matters of this sort.

The Times leader has been referred to by several hon. Members. It was mentioned by my hon. and gallant Friend. I think it a very wise leader. It spoke of the feeling that a final appeal, even in cases where it was a matter of church doctrine and worship, should be judicial in its emphasis rather than doctrinal; but it went on to say: This requirement does not, however, appear to be incompatible with the arrangements contained in the Measure. The hon. Member for Cardiff, West had a little fun at our expense about the general outlook and habits of The Times, but I think he was wrong in saying that its support for this Measure was very lukewarm. I should have thought it was a most thoughtful leader and came to its conclusions in a most wise and sensible way.

On the question of the appellate jurisdiction of the Judicial Committee, I again quarrel a little with my hon. and gallant Friend. The Church itself in the form of the Church Assembly, both clergy and laity alike, have agreed and accepted that this new Commission as the right form of final appeal.

Sir H. Legge-Bourke

I think my hon. Friend may be able to clear up a point made by my hon. and gallant Friend the Member for Down, South (Captain Orr) about whether the Commission of Review is not bound by any decision of the Privy Council. He will find that in sub-paragraph 5 of paragraph 48.

Sir H. Oakshott

Yes, and in sub-paragraph 3 of paragraph 45.

I turn to the question of the bishops'veto. As has been said by other hon. Members, this is not new. It is a veto which has existed since the Clergy Discipline Act, 1840. If tonight the House decides to reject this Measure, that power will still exist as it is now. Secondly, the bishops did not ask that this veto should be retained. The initiative for its retention did not come from the bishops. Thirdly, I hold that this is a most necessary protection for the clergy themselves. After all, the Book of Common Prayer is part of the law: part of the law of the land. Any departure, however small, from the Book of Common Prayer is a breach of the law and a cleric breaching it in any way can be hauled before the Ecclesiastical Court. The only way in which the clergy can be protected from frivolous and vexatious litigation is by the retention of this veto.

I think the House will agree that probably, if for nothing else, for the protection of the clergy and the good name of the Church of England this is very necessary. In the passage of the Lloyd-Jacob Report dealing with this veto in reserve cases there appeared this sentence: In this event— that is, in the event of the revision of the law of worship not being carried out; and it has not been as yet— the only safeguard against the enforcement of a law which is repudiated daily in the practice of the Church will be the veto of the Bishop. Since the great watershed, if that is the right word, in the history of ecclesiastical jurisdiction reform about 130 years ago, there has grown up—I suppose in a process of this kind this result is inevitable—a structure based upon Measure after Measure until the situation has been reached which the Lloyd-Jacob Report described as a"jungle of courts". It is in an effort to produce a real semblance of order out of the jungle that this Measure is introduced. I repeat that it must be looked at as a whole. Again I humbly suggest to the House that we should appreciate how very badly needed it is.

I refer once more to the leading article in The Times. It said that these matters are essentially Committee points, though I am not sure that I would go quite as far as that. But it then said this, and it has been quoted already: Parliament is called upon to approve or disapprove as a whole Measures which come to it from the Church Assembly, and only the weightiest objections of principle can justify rejection. I do not believe that these criticisms fall within that category. This Measure is the product of ten years of work by devoted churchmen and if, because of the criticisms which I have mentioned and which have been mentioned by other hon. Members, the House were to reject the whole, I believe that it would be a very sad day for the Established Church.

11.16 p.m.

Mr. Arbuthnot

When we began the debate I said that we did not want to rush the Measure. I wonder whether my right hon. Friend the Leader of the House feels that he can find us some additional time on some other day. If he does feel so able, I would beg to move, That the debate be now adjourned.

The Chancellor of the Duchy of Lancaster (Mr. Iain Macleod)

I am not quite sure whether or not the Motion has been moved, but if it has not perhaps I could move it. I recommend—

Mr. Deputy-Speaker (Sir Robert Grimston)

It has been moved, and I have accepted it.

Mr. Macleod

I take it, then, that I am in order in speaking to it. I think that the House would be wise to accept the Motion. We have had five knowledgeable and first-class speeches, to which the whole House has enjoyed listening, but a number of other hon. Members wish to speak. If there must be a vote, which many people would regret, no doubt it would be right that it should be at a time more convenient for the House as a whole. Though I cannot give any precise undertaking to my hon. Friend, because it is a complicated matter rearranging future business at short notice. I will undertake to do everything I can to bring this debate on at a wholly convenient hour for the House for its conclusion. I hope that on this undertaking the House will agree to accept the Motion.

Question put and agreed to.

Debate to be resumed To-morrow.