THE BISHOP OF SALISBURYcalled the attention of the House to the hardship inflicted upon fee-paying schools under Memorandum I of 9th March, 1893, issued by the Education Department, which forbade them to make any charge for books and other school requisites, and pointed out the inconsistency between this Memorandum and the Form 167 of October, 1891, which explained the bearing of the Elementary Education Act of that year upon these schools; and further asked the Lord President—whether he would be good enough to take the opinion of the Law Officers of the Crown upon the legality of the said Memorandum, pointing out to thorn that both the Act of 1891 and Form 167 were subsequent to Articles 8 and 85 of the Code of 1890, by which the Vice President defended the Memorandum: whether he would refer back the question to the Public Accounts Committee of the House of Commons which reported on this matter in 1892 (Fourth Report, page v., ordered to be printed l5th June), and rested their recommendation on the Act of 1870 and not on the Code: whether he would secure that schools which had been unexpectedly mulcted by the Department under this Memorandum should have the money so lost repaid to them; whether in the event of the managers of these schools desiring to recover the money by process of law he would kindly inform them what form their action ought to take? He said, those who had had dealings with the Education Department had often had cause to admire the ability, fairness, and patience shown in controlling the immense machinery committed to its charge. Cases, however, occasionally occurred in which its action called for public criticism, and this was one of them. The Department seemed to have yielded here to two temp- 202 tations natural to Public Departments— one, to strain the power of the Central Government to the utmost extent as against local autonomy; and the other, to obtain popularity at other people's expense. His appeal to their Lordships related to an important class of schools. In the absence of available statistics he could not say it was a, very large class, but it might easily have become a large class if the Department had encouraged it. But it was important considering the kind of education given in the schools, the class of children to whom, and the payment for which, that education was given. The education was of an advanced grade— above that of the ordinary elementary schools, and was on the way to something like middle-class or secondary education. Had the Department encouraged these schools, instead of the middle-class or secondary education being as at present simply chaotic, a, good and broad basis would have been formed on which to erect a, system of secondary education. The schools were intended for the children of the lower middle-class—small officials, clerks, small shopkeepers, persons in the employ of large manufacturers, and so on, people deserving of all possible encouragement and sympathy, and forming one of the most virtuous classes in the community. The cost to parents of the education in these schools was about '50s. a year per child, though by the aid of the Government grants the sum spent, by the managers was from £4 to £5. They could not be carried on with proper appliances and teaching for less per head. The action taken by the Department had been to greatly discourage this class of schools. Whether that action was politic was one thing—its legality was another. The Elementary Education Act, 1891, was passed by Lord Salisbury for the purpose of assisting education, but the Department had read it apparently as intended to free education in the public elementary schools of England: and not only had it to a great extent made it impossible to charge fees for instruction, but it had also tried to prevent books and other school requisites being charged for. That Act distinctly implied that a distinction should be made between the two classes of fee-paying and non-fee-paying schools, in regard to charging for school books and requisites. And that was the view taken by the Education Department 203 when the Circular was sent out to explain the working of the now Education Code. Then came the Memorandum of the 9th March last year, forbidding managers to make any additional charge for hooks—
All charges for books must be included in the fees, and no additional charge of any kind is allowed.That was most unfair, the previous Circular having told school managers that a distinction was to he made between the two classes in sending in their claims, and such an act of unfairness on the part of the Department certainly required some explanation. What explanations had been given hitherto? Two had been offered: one by the Vice President in the House of Commons, that the Memorandum referred to Articles 80 and 85 of the Code providing that the managers were responsible for furnishing books and school apparatus; and the other by the Public Accounts Committee of the House of Commons referring to the proviso in the Act as to fees not exceeding 9d. For the satisfaction of many people who were very anxious on the subject, seeing that an apparent—he did not say intentional— unfairness had been committed, he asked the Lord President to take the opinion of the Law Officers upon the legality of the Memorandum. This was a most important matter to them— Quod ultimum populus jussis in lex esto —he forgot the exact words; but surely an Act of Parliament must override every other document of whatever kind, even supposing the Code (he did not think it did) made it imperative that books should be provided gratis. That was never intended, and it was very hard if any such proviso had been slipped into the Code without anybody knowing it. Much Judges' Chambers-made legislation frequently followed upon Acts of Parliament; but in this case not even the authority of sequence existed, for the Act followed the Code.
*LORD KNUTSFOEDasked whether the right rev. Prelate could quote what the Public Accounts Committee had said?
THE BISHOP OF SALISBURYhad looked up the Report, and was sure they rested their case on the Act of 1870— that the fees for instruction should not exceed 9d., such fees not including school books and apparatus.
THE LORD PRESIDENT OF THE COUNCIL AND SECRETARY OF STATE FOR INDIA (The Earl of KIMBERLEY)My Lords, I would point out to the right rev. Prelate that there has been no alteration in the actual practice of the Department since the Act of 1891. For many years past it has been a condition of the payment of the annual grant to these schools that no scholar should be refused admission without reasonable ground, and the Department had held, long before the Act of 1891, that the refusal of the parent to pay for books was not a reasonable ground on which the admission of a child to a school could be refused. So much for the former practice of the Department. In 1890, under the late Government, an Article was introduced into the Code on the subject of providing books, but that does not seem to me to be of the very essence of the matter. The question really before your Lordships is, What is the effect exactly of the Act of 1891? The right rev. Prelate has quoted correctly the sections of the Act which bear upon this question. They are simply that if the fees did not amount to more than 10s., then no further fee could bo charged. If, however, there was a fee beyond 10s., then in those schools where such a fee existed the fee might continue to be charged. The question that has arisen is whether the compulsory payment for books is to be regarded as a fee, and the Public Accounts Committee, with whom the Department entirely agree, have held that such a payment is a fee. That seems to me to be the clear ground which has been taken. There is no kind of hindrance to school managers selling books to such parents as might desire to purchase them, but they could not compel them to purchase them, and anything beyond what the Act of 1891 allows would be to interfere altogether with the principle of the Act, the very meaning and intention of which was to grant free education to children. This attempt to compel payment for books is really an attempt to take back the boon of free education, and unless that is clearly authorised by the Act the Memorandum imposes no hardship, but simply enforces the Act as it stands. The policy of the law is not in question, but I believe that the interpretation of the Act which has been given by the Department is quite correct. With regard to Form 167, which was issued under the late Government, I am not concerned to argue that it was very clearly worded. If I were asked for my 205 opinion, I should say it, was not; but a subsequent form was issued which amended it and made it quite clear, and the Memorandum subsequently issued does not alter in any respect what I am informed was laid down before. The question which the right, rev. Prelate asks me I can answer very simply indeed. He asks me, first, whether we shall take the opinion of the Law Officers of the Crown. As the Department is not aware that, any question of doubt, exists with regard to the legality of the Memorandum of March 9, 1893, they do not see any ground upon which they could take the opinion of the Law Officers of the Crown. As to the Public Accounts Committee, the Department do not think it is their business to refer back to that Committee the question which the latter has already decided and as to which the Department entirely agree with them. Nor can I admit, that schools have been mulcted at all, for they have been left in the position which the Act of 1891 prescribed, and the practice is in accordance with the views taken by the Department for a number of years previously. It is not my business to state what form of action the managers of these schools ought to take if they desire to recover the money. J should say that they have no power whatever to recover the money, because it, is not due to them.
THE BISHOP OF SALISBURYwas exceedingly sorry the Lord President had given this answer to the questions, because he was doing a considerable and grave wrong to a number of innocent persons.
THE BISHOP OF SALISBURYsaid, the Act of 1891 intended to draw a clear distinction between fees paid for instruction and for books. He would defy any lawyer to read the Act, and not see that. The Department had distinctly laid down that such charges might be made. What had happened? In his own justification he must give this illustration: The Inspector passed the accounts sent up to the Office containing the statement that a certain sum per week had been charged and received from parents. That sum was allowed without any question under Form 167. It was not until a year afterwards, when this docu- 206 ment was issued— which he ventured to assert, without fear of contradiction, changed the whole policy—that it was disallowed, and it seemed strange to say that, those persons had no right by law to recover that money.
THE BISHOP OF SALISBURYwould ask whether the noble Earl was not bound to tell the House in what form an action would lie against a Public Department of which he was the head? He ought, surely to be able to say how the honour of the Department was to be maintained in a Court, of Law, and ought not, to hide himself behind interpretations which he had simply given without defending.
THE EARL OF KIMBERLEYI really must say I think the language of the right rev. Prelate is very extraordinary. He talks about the honour of the Department. Does he think that in the Department we do not act as honourable men in the interpretations we give to the law, or that we have any other object, than to administer the law? The only object, of the Department is to administer the law, and such language in reference to it is extremely offensive and wholly unjustifiable. As to bringing an action, did anybody in the world ever hear of a Department being called upon to tell anyone how to bring an action against, them on a matter which the Department did not admit to be ground for an action? I cannot conceive anything more extraordinary than the suggestion that, they should do so. The only object the Department has is to administer the law fairly and equitably. I do not, say that mistakes may not sometimes be made. I do not claim that the Department is infallible, but I do claim that they have acted from conscientious motives, and not from such motives as the right rev. Prelate has imputed to them.
THE BISHOP OF SALISBURYsaid, he was extremely sorry if in anything he had said he had offended the noble Earl, but he still ventured to think that this was a matter which ought to be referred to the Law Officers of the Crown