Lords Sitting of 19 June 1894

ENDOWED SCHOOLS ACT, 1869, AND AMENDING ACTS, AND WELSH INTERMEDIATE EDUCATION ACT, 1889.

  MOTION FOR AN ADDRESS.
  *VISCOUNT CROSS, in moving for an Address to Her Majesty that Ruthin Grammar School should be excluded from the Scheme of the Charity Commission for the County of Denbigh under the Welsh Intermediate Education Act, said, the school was founded by a native of Ruthin who afterwards became Dean of Westminster, in 1795, Gabriel Goodman, and from a relation of his the Bishop of Gloucester and Bristol, and of the same name, further endowments were received. Subsequent endowments were also given to the school. It was necessary, in considering the nature of the school, to mention the buildings which were founded to carry it on, because the collegiate, the parochial church of St. Peter, Christ's Hospital, the cloisters, the residence of the warden of Ruthin, the Grammar School occupied by the headmaster and the school-house, formed a large group of buildings practically under the shadow of the church and part of the old cathedral precincts. There could not be the smallest doubt that from that time it was always carried on under the provisions of the Trust Deed as strictly as possible as a Church of England school. The foundation deed was as explicit as it could possibly be upon that point. Both the master and his pupils were to attend chapel regularly at certain times and seasons, and the students were all taught the Church Catechism, and the position of the school buildings showed that it was meant to be in the closest possible connection with the Church at Ruthin. So matters continued for a long time until 1863, when a Scheme was passed which did not touch the question of the school being a Church endowment in any shape. That part of the endowment was left entirely as it was, and so matters went on until 1869
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  The Welsh Intermediate Education Act expressly excluded from the operation of the Act all foundations which did not come within the Endowed Schools Act of 1869. Therefore, all that it was necessary to show was that, down to the year 1869, this was practically a Church school. It made not the smallest difference for the purpose of the Motion before the House what became of the school afterwards. If it came within the exceptions in the Act of 1869, it could not be dealt with as proposed by the Scheme. Down to 1869, and long afterwards—even to the present time—it had always been a Church school, and ought to be so maintained. The only doubt that had ever been thrown upon the matter was, under certain rules said to have been passed in conformity with the Scheme of 1863, and containing a Conscience Clause in reference to the teaching, by which it was alleged this had ceased to be a Church school. A clause in the Scheme of 1863 provided that the Governors, with the sanction and approval of the Charity Commissioners of England and Wales, should frame proper rules and regulations from time to time with reference to the nature of the instruction to be given at the school for the payment of capitation fees, the establishment of prizes, for dividing the school for the purpose of instruction into separate departments, and for the appointment of such masters or teachers as might be required at such salaries as might be thought proper, and generally for the conduct of the school. That clause clearly gave no power to the Governors or Charity Commissioners to make any rules which would change the character of the school itself, but merely to make the ordinary regulations for carrying it on, subjects to be taught, salaries to be paid, and so on. It contained nothing which authorised an alteration from a Church school to one of a totally different character, and nobody reading the clause could suppose for a moment that it gave, or was intended to give, such a power. Then it was urged that the rules supposed to have been passed under that clause provided that, in addition to the subjects mentioned, religious instruction should be given to the scholars in accordance with the doctrines of the Church of England; and then came the Conscience Clause, providing that—

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  "No scholar should be compelled to receive such instruction whose parents or next friends should declare in writing that they entertained conscientious objections thereto."
  If power bad been given to make rules altering the character of the school, of course, the case would be different; but he maintained that there was no such power, and, further, that those rules were never meant to apply. The clause provided that the Governors might make rules with the approbation of the Charity Commissioners. Having taken some trouble to find out exactly what the Governors did, he maintained strongly that they never had made such a Rule as was represented. Copies had been taken of all extracts from the Governor's books, and they were very short—
  "Resolved, that in order to carry into effect the 34fh clause of the Grammar Schools Scheme, the Charity Commissioners have directed that printed copies of the draft rules and regulations shall be circulated among the Governors, and that immediately upon the receipt a special meeting shall be called and rules made applicable to the case."
  A special meeting was held on the 14th of May, 1865, and all that took place there was that—
  "It was resolved that the clerk do print copies of the proposed rules and circulate them."
  Another special meeting was held in June of the same year, and then it was
  "Resolved that the proposed rules of the school be printed and circulated among the Governors."
  The same thing again. Then in July—
  "That the proposed rules be printed in their amended form and sent to each Governor."
  There the matter rested. Clearly, under those resolutions the Governors never did adopt the rules, though they had them under consideration. Although they came before their Lordships now with the signature of the Charity Commissioners no resolution adopting them had ever been passed by the Governors, and therefore they did not fulfil the condition of the 34th clause of the Scheme. To make quite sure of the matter he had caused a telegram to be sent to the Clerk of the Governors, and the right rev. Prelate the Bishop of St. Asaph had placed this answer in his hands—
  "The only resolution passed was that on the 14th July, 1865, that the proposed rules should be printed and sent in their amended form to the Governors. These were subsequently
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  approved by the Charity Commissioners on the 23rd of March, 1866, but there was no resolution by the Governors subsequently that they were affirmed."
  He therefore maintained, in the first place, that under the Scheme the Governors and Charity Commissioners had no power to make rules to alter the character of the school; and, in the next, that no such rule really ever was made, because it had never been passed by the Governors themselves. That being so, the school had gone on since 1869 without the smallest alteration having taken place. Further inquiries into the matter to see whether any doubt or difficulty really existed had shown that not only was-the supposed rule never passed, but nothing of the kind had ever been acted upon to the present time, a strong confirmation of its never having been formally adopted. In those circumstances, this school came under the exemption in the Act of 1869, and could not be-touched under the Welsh Intermediate-Education Act. A similar question came before their Lordships' House from the legal aspect in the Hemsworth case. But that case was not analogous to this; for in the Scheme involved there, and in the Act of Parliament which passed that Scheme, the character of the school was altered, and the Conscience Clause was introduced. Had a Conscience Clause been introduced into this Scheme of 1865 he would not have had a word to say; but its absence entirely distinguished this from the Hemsworth case, which was decided simply on the ground that that clause had been introduced into that Scheme and Act of Parliament. Accordingly, this case stood on a totally different footing, for no power was given in the Scheme to anyone to alter the character of the school, and, in fact, no such alteration had been made. Another Scheme was passed in 1881, which did not come into question now. To that Scheme the Governors themselves entirely objected. They had been advised that they ought to have appealed to the Privy Council against it. But that did not alter the position at all; because this was a Church of England school in 1869,and therefore could not be touched under the Welsh Intermediate Education Act. He would only further point out the great hardship involved in this case. Here was a school founded

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  by the then Dean of Westminster for the purpose of instructing in the doctrines of the Church of England all the scholars who came there, its buildings were under the very shadow of the Church, and so it had continued to the present time. But that was not all. On the faith that this was a Church of England school, large sums had been given for the purpose of improving it. Over £3,000 had been collected by the Churchmen in the district and elsewhere for the purpose of enlarging and improving the school buildings. It would be the greatest hardship if the House were to strain anything in this case in order to take away from the school its endowment for its original purpose. Any straining should be the other way, for it was quite clear what was intended; and that the Ruthin people had been in no fear of losing their endowments. No Conscience Clause had been acted upon down to the present time, and these endowments had remained stamped as belonging simply and solely to the Church of England. He submitted to their Lordships that it would be a terrible violation of right and justice if this proposal were carried out.
  Moved—
  "That an humble Address be presented to Her Majesty praying Her to withhold Her assent from all that part of the Scheme for the County of Denbigh which relates to the Ruthin Grammar School."—(The Viscount Cross.)
  THE LORD CHANCELLOR (Lord HERSCHELL): My Lords, it seems to me the noble Viscount has argued a question of law upon the basis of certain statements of fact, which he has made to us upon a copy of minutes which he has produced and upon a telegram, in a case with which, if he were right in his law, power in the Privy Council has been expressly provided by Parliament to deal. If the noble Lord is right in the facts which he alleges, this Scheme cannot stand; but surely for your Lordships to undertake to deal with a case which turns upon the construction of an Act of Parliament, and where the Legislature has expressly provided an appeal to the Privy Council upon a statement which it is very difficult to follow when put forward in this way, and resting merely upon the materials which the noble Viscount has produced, is a course which I submit most strongly this House should not adopt.
  THE MARQUESS OF SALISBURY: That is a very summary argument; but I do not understand what is the use of the power given to this House if we are not to be allowed to interfere in a case of this kind because it is possible the case made is too strong. The only ground which the noble and learned Lord advances for not using the power conferred by the Statute upon this House is that the same end may possibly be obtained by appealing to the Privy Council. I do not doubt that in the innocent mind of the noble Lord the process of appealing to the Privy Council is the easiest, cheapest, and most obvious course that could possibly be followed. He has probably never heard of the enormous cost which accompanies such a process, and that there is always some risk that on a doubtful question of law even such a body as the Privy Council may give a decision which has not been expected. But I do not think the noble and learned Lord carefully attended to the statement of my noble Friend. My noble Friend expressed his own opinion that as a matter of law this Scheme is bad, but he did not conceal that it involved somewhat doubtful points and technical difficulties. Apart from the mere question of law, the case is that the Welsh Intermediate Education Act provides that no school shall be diverted from the teachings of the doctrines of the Church of England which has been devoted to that teaching by its founders, and in which that teaching has been continued down to the year 1869. In the case of the present school, the teaching of the doctrines of the Church of England is provided for by the founder, and it has continued down to 1869; but a technical difficulty arises from the Act passed in 1863, an Act which never foresaw the provisions of the Act of 1869, and which is supposed to have given powers by which this community of Church teaching could have been interrupted. It is supposed to have given those powers; but we are not certain whether it did or not. No doubt that will be a matter for the determination of the Privy Council. It is a nice legal point. If it did give those powers it is supposed, again, that they were exercised. We deny it; and again arises a nice legal point. But we say that, broadly and substantially, and as a

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  matter of fact, the teaching of the Church of England was continued down to the year 1869; and if it was interrupted it was only in theory and technically, and it can only be by an extreme interpretation of the words of the Statute and the regulations passed in pursuance of it, but which never came into operation—by the hardest technicality and straining of the words of the Statute—that it can be shown that there has been any interruption in the continuity of the Church teaching, and any flaw, therefore, in the title of this Church school to be exempted from the operation of the Welsh Education Act of 1869. The case is exactly one in which the House ought to interfere—a case where strict interpretation of the law may do great injustice. Nobody can tell beforehand what the interpretation might be, and if we send it to the Privy Council injustice might be done. There is no doubt what are the substantial facts of the case, and there can be no doubt as to the title of the school to the benefit of the Act of 1869. What the intention of Parliament was when these two Acts were passed is clear, and there is no doubt what was the belief of the Churchmen in Wales and others who subscribed to the school as to the way in which it was to be carried on. They, therefore, invoke the power which Parliament has given to your Lordships to carry out the object which Parliament has in view.
  THE FIRST LORD OF THE TREASURY AND LORD PRESIDENT OF THE COUNCIL (The Earl of ROSE-BERY): My Lords, the noble Marquess has, I think, added weight to the argument of the noble and learned Lord on the Woolsack, which he described as a summary argument. To call an argument summary is not to prove that it is invalid, and, if I may say so, the argument of the noble Marquess, so far as it is an argument at all, entirely substantiates the view of the noble and learned Lord that this is a question not for your Lordships' House, but for the Committee of the Privy Council to decide. What, after all, is the whole gist of the noble Viscount's statement on this subject? He has to prove the alleged continuous teaching of the Church of England in this school, and there comes a technical break which the noble Marquess calls a "technical break and a nice legal
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  point." Well, if a technical break has occurred in the Church teaching in the school, and if a nice legal point arises, it is quite obvious that it is a proper matter for reference to the legal tribunal which Parliament has provided, and not one for the decision of a majority of your Lordships on what may seem to you reasonable, but which are not legal, grounds. I venture to say, in the interests of those who have Church teaching at heart, that your Lordships could not take a more disastrous course than to interfere in what is strictly a legal transaction, and come down with the full weight of your majority without having regard to the legal point at issue; and, simply because you think the facts have been established by the statement of the noble Viscount, to decide upon a legal point of peculiar intricacy. The question really is not whether the facts have been established by the noble Viscount, but whether the Commissioners in making this scheme have proceeded ultra vires. That is not a question for your Lordships' discretion, but is one for which the Committee of the Privy Council offers a tribunal competent and skilled in the discussion of the legal points at issue. I hope that by your vote this evening your Lordships will not remove that issue from the proper tribunal.
  THE LORD CHANCELLOR (Lord HERSCHELL): My Lords, I desire to add a few words on one point which seems to me to have a serious application here. I only wish to point out that the Statute under which these Schemes are framed provides that, except in cases of endowments coming within the terms of Clause 19, the Commissioners "shall" make provision. The terms of the Act are express, and the Commissioners would, therefore, be disobeying the Act if they failed to make the requisite provisions.
  THE MARQUESS OF SALISBURY: The disorderliness of the noble and learned Lord is contagious, and I must be allowed to say a word or two in reply. The noble Lord seems to imagine that this House has nothing to do but to carry out the will of the Commissioners. That is not the position assigned by the Statute in respect of these Schemes. Even if they are strictly legal, power was given to Parliament to supersede them, and it is no violent or exceptional

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  step that we are taking in exercising that power. The noble and learned Lord is forgetting that a power is given to either House of Parliament to supersede in the way now suggested the action of the Commissioners. The Welsh Intermediate Education Act is a measure of very wide scope, and would not have been allowed to pass unless an appeal had been reserved to Parliament in cases where the Commissioners used the powers conferred upon them in a harsh and unjust way. There remained always an appeal to either House of Parliament by which the wrong could be corrected. The Act was passed while I was on the other side of the House, and we should never have allowed it to pass through Parliament unless the power of appeal had been reserved. The House, therefore, has power in this matter—a power distinctly conferred upon your Lordships by Act of Parliament beyond and outside the technicalities of the law; and, under these circumstances, it is our business to see that substantial justice is done, and that the intentions of Parliament are carried into effect.
  THE EARL OF ROSEBERY: Your Lordships will allow me to partake of the prevailing contagion, and to point out that the noble Marquess is confusing two distinct issues. The contention which I maintain is that it cannot have been in the contemplation of the Act of Parliament to give to the majority in this House—a majority of well-known complexion—power to override the expressed intention of Parliament in connection with these points. I do not think that, in the interests of your Lordships' House, you should now override in the way suggested the powers conferred upon the Commissioners under the Act.
  THE DUKE OF RUTLANDsaid, the noble Earl's contention was that it was not the intention of Parliament to give a majority of that House a discretion in the matter. He would ask the noble Earl whether it was the intention of Parliament to give that power to the minority? If neither the majority nor the minority were to have the power, why was the power inserted in the Act of Parliament at all?
  THE EARL OF ROSEBERY: I do not rise again of my own volition, but simply to answer the practical jokes of
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  the noble Duke. Of course, I do not mean to say that the minority should overrule the majority in this House, but I tried to distinguish between law and fact. What I said was that a question of fact might properly be dealt with by the House, but a question of law should be left to the Privy Council, which is the proper legal tribunal.
  THE BISHOP OF ST. ASAPHsaid, the Prime Minister had stated that the object of the Welsh Intermediate Education Act was to carry out the wishes of the Welsh people. He believed that Nonconformists and Churchmen alike were against interfering with these schools, which were doing admirable work. The Act provided that, if all the authorities were agreed to include a given school, it was to be included. But one of those authorities was the House of Lords, and the Governors of the schools had a right to come to their Lordships' House and show cause why the particular schools should not be included, both on the ground of justice and in the interests of education.
  *THE BISHOP OF ELYpointed out that the argument put forward in favour of the Scheme was that, because the Conscience Clause was introduced at a certain time, the teaching at this school ceased to be that of the Church of England. That argument would apply to every school throughout the country; and if it were allowed, every elementary school being bound to have the Conscience Clause, thereby ceases to remain a Church of England school.
  LORD HALSBURY: One word; and I hope my argument will be as compendious as that of my noble and learned Friend. If the question here were simply one of law I should entirely agree that the Privy Council is the proper tribunal for its decision. But it is not merely a question of law, but of whether the Scheme is just or unjust; and that is a matter which this House ought to decide.
  On question? their Lordships divided: —Contents 77; Not-Contents 19.
  Resolved in the affirmative.
  Ordered accordingly; and the said Address to be presented to Her Majesty by the Lords with White Staves.

ENDOWED SCHOOLS ACT, 1869, AND AMENDING ACTS, AND WELSH INTERMEDIATE EDUCATION ACT, 1889.

  MOTION FOR AN ADDRESS.
  THE BISHOP OF ST. ASAPH moved—
  "That an humble Address be presented to Her Majesty praying Her to withhold Her assent to the following portion of the Denbighshire Education Scheme: Clause 87, Sub-section (b), from the word 'boarding-house' to the end; and the whole of Sub-section (c)."
  THE EARL OF ROSEBERY: My Lords, as I have informed the right rev. Prelate, the Government do not intend to put the House to the trouble of another discussion and Division upon this question. I do not know that the result of the Division we have just passed through would have encouraged the Government to do so even if it had any other views. The fact is, we feel bound to insert clauses of this description in these Schemes as embodying in some faint degree the feelings of the locality as suggested by the Joint Committee. The Commissioners introduced this Scheme in the belief that it embodied the feeling of the locality in this case; but, as your Lordships have already had a discussion, about six weeks ago, on substantially the same question with an absolutely conclusive Division, I do not think it necessary to renew or repeat the proceeding.
  Motion agreed to; and the said Address ordered to be presented to Her Majesty by the Lords with White Staves.

  INDIAN RAILWAY COMPANIES BILL. (No. 101.)
  Returned from the Commons with the Amendments agreed to.
  ELEMENTARY EDUCATION PROVISIONAL ORDERS CONFIRMATION (BARRY, &C.) BILL [H.L.]—(No. 54.)
  Committed: The Committee to be proposed by the Committee of Selection.
  COMMITTEE OF SELECTION FOR STANDING COMMITTEES.
  Report from, That the Committee have added the Lord Russell of Killowen to the Standing Committee; read, and ordered to lie on the Table.
  PRIZE COURTS BILL [H.L.]—(No. 56.)
  Reported from the Standing Committee without amendment.
  FISHERY BOARD (SCOTLAND) EXTENSION OF POWERS BILL.—(No. 57.)
  Reported from the Standing Committee without amendment, and to be read 3a on Thursday next.
  PRIVATE AND PROVISIONAL ORDER CONFIRMATION BILLS.
  Ordered, That Standing Orders Nos. 72 and 82 be suspended for the remainder of the Session.
  LOCAL GOVERNMENT PROVISIONAL ORDERS (GAS) BILL. —(No. 92.)
  House in Committee (according to Order): Bill reported without amendment: Standing Committee negatived; and Bill to be read 3a on Thursday next.
  LOCAL GOVERNMENT PROVISIONAL ORDERS (HOUSING OF WORKING CLASSES) (No. 2) BILL.—(No. 93.)
  House in Committee (according to Order): Bill reported without amendment: Standing Committee negatived; and Bill to be read 3a on Thursday next.
  LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 8) BILL.—(No. 94.)
  House in Committee (according to Order): Bill reported without amendment: Standing Committee negatived; and Bill to be read 3a on Thursday next.
  ELECTRIC LIGHTING PROVISIONAL ORDERS (No. 2) BILL.—(No. 99.)
  Amendments reported (according to Order), and Bill to be read 3a on Thursday next.
  LOCAL GOVERNMENT (IRELAND) PROVISIONAL ORDER (No. 7) BILL. (No. 72.)
  Read 3a (according to Order), and passed.
  COMMONS REGULATION PROVISIONAL ORDER (LUTON) BILL.—(No. 91.)
  Read 3a (according to Order), and passed.
  RAILWAY RATES AND CHARGES PROVISIONAL ORDER (EASINGWOLD RAILWAY, &c.) BILL.—(No. 96.)
  House in Committee (according to Order): Bill reported without amendment: Standing Committee negatived; and Bill to be read 3a on Thursday next.

  LOCAL GOVERNMENT (IRELAND) PROVISIONAL ORDER (No. 11) BILL.
  Brought from the Commons; Read la; to be printed; and referred to the Examiners. (No. 113.)
  House adjourned at a quarter past Six o'clock, to Thursday next, a quarter past Ten o'clock.