CLAUSE 3. (Hansard, 15 July 1898)

THE BISHOP OF WINCHESTER
There is a mistake in the wording of this Amendment as it appears in the Paper. It should be "after the first" and not "second," and then it would read— Page 3, line 3, after the first 'ground,' insert 'included in section 2 of this Act, or any other ground of unfitness or disqualification of the presentee.' The object, my Lords, of the Amendment is simply to carry out more accurately what I understand to be the purport and intention of the clause. The presentee whose institution is refused is granted an appeal to the archbishop and a lay judge. This is a newly-constituted court. But the appeal to that court is surely not intended to be on any other points than those which are defined in section 2, or similar grounds respecting the unfitness of the presentee. It must, however, be remembered that sometimes the bishop finds it necessary to refuse to institute on the ground of lack of sufficient title on the part of the patron, and so forth, and such grounds are clearly quite unsuited to come before a court so constituted. I do not think this Amendment will do anything more than give full expression to what is in the clause as it stands.

§ THE EARL OF SELBORNE
The object of this Amendment is to prevent it being supposed that a refusal on the ground of alleged want of title of a person presenting is to be taken to the new court; in other words, to try a question of the 1183 disqualification of the patron. I am quite prepared to accept this Amendment, which I think is quite necessary, but I would ask the right reverend prelate to alter the wording. If he would strike out the words "any other ground" and insert after the word "presentee" the word "otherwise," I think it would be improved. The Amendment would then read— Included in section 2 of this Act, or of unfitness or disqualification of the presentee otherwise.

§ LORD HERSCHELL
Would it not be well to put in some such words "now left open to the bishop"? Otherwise, if you put in "any ground of unfitness or disqualification," it rather suggests that the matter was to be left largely to the bishop.

§ THE EARL OF SELBORNE
I will consider that on Report.

§ LORD HERSCHELL
In line 6 I would suggest to insert, after the word "presentee," "in the prescribed manner," so as to bring the operation of the rule clause in. The only effect of that proposal is that the matter will be left to the rules.

§ THE EARL OF SELBORNE
I will accept that.

THE EARL OF FORTESCUE
In rising, my Lords, to move this Amendment I 1184 must begin by asking your very kind indulgence, which, much as I have always needed it, I latterly need more than formerly, because at best I only hear a part, and generally only an infinitesimal part, of the instructive speeches made by other noble Lords. When I gave up, for the reason I have indicated, my intention of calling attention on the Second Reading to what seemed to me and to certain other noble Lords, to be the greatest defect of the Bill, I fully hoped that some more able speaker would call attention to it with far more effect than I could possibly do. However, the next morning, having heard, though present, nothing of the Debate, I was sadly disappointed to find that no one had done so; I therefore reluctantly decided to give notice of this Amendment. When I say the greatest defect in the Bill, the Bill contains various provisions which claim my heartiest sympathy and support; but what seems such a very grave defect is the absence of any provision ensuring to the presentee or to the patron, if either of them desire it, any one public judicial hearing with a legal assessor assisting the prelate, and with opportunities of advising him and cross-examining the witnesses upon whose testimony institution is denied. That single hearing is necessarily a costly one. It is the hearing by the archbishop sitting along with a lay judge, whose joint judgment is final. Then neither of them has any further chance of appeal, because the bishop's procedure in the case of a presentee whom he declines to institute is indicated rather than explained in the Bill, and is utterly and absolutely at variance with the recommendations of the Ecclesiastical Courts Commission in their Report signed in 1883 by almost all of them. Now, the composition of that Commission is rather remarkable. Among other distinguished persons, it comprised two archbishops, three bishops, seven clergymen, three of whom have since been made bishops; it comprised several eminent lawyers, including the Lord Chief Justice of England, some of them peers, and some of them were at the time or have since that time become judges. This Commission made the following recommendation— If the clergyman does not submit, or if the complainant refuses to consent to the bishop 1185 pronouncing sentence without trial, a complainant may set down the case for hearing before the diocesan court. The diocesan court shall consist of the bishop, with whom shall sit, as legal assessor, the chancellor of the diocese, or some other person learned in the law, at the discretion of the bishop; unless the bishop shall call upon the chancellor to hear the case alone, or sends the case direct to the court of the province if both parties give consent. That is their first recommendation, to which there was very little objection. The second recommendation was— that an appeal shall lie from the diocesan court to the court of the province, which shall consist of the officials, and also— an appeal shall lie to the archbishop's court. To these last there were a few more objectors. In other words, the Commission recommends that the bishop may never, but a lawyer may sometimes, sit alone on such cases. We do not know exactly what the course of proceedings will be under this Bill. Happily, the noble Earl's vague proposal has just been rejected. We do not know what objections may come from parishioners and interfere with an innocent man's prospects for life; because it is to be remembered that the name is to be sent to the parish by the bishop, and I think that is in itself a desirable provision. But the refusal of the bishop becomes as public practically as the notice to the parish of the name of the presentee, and we may guess what effect such a statement would have upon the unfortunate presentee's prospects, and upon the character he would afterwards bear—not upon his own actual character, but upon his reputation. My Amendment is, almost the whole of it, in the words of that recommendation of this remarkable Commission, comprising, as I said, twelve ecclesiastics of recognised ability. That recommendation gave power to summon witnesses and to insist upon the production of documents, and also putting witnesses on their oath. A remarkable instance happened lately, in which the first appeal from a legally constituted court to a higher court took place, and the higher court vindicated the character of an innocent man. The Vicar of Silverton was condemned by the Consistory Court. He appealed to 1186 the Privy Council. I do not know whether Lord Herschell remembers the case, but the noble and learned Lord made some very strong comments on the injustice which had been done to an innocent man by the findings of the previous court. In what I am about to say I emphatically disclaim any want of respect for the present bishops, or want of appreciation of their pious zeal and self-denying labours; but in that aspect, as in various others, they contrast most favourably with too many prelates of the last century, and, indeed, far into the present century. But they are not a body, according to high authorities, on whom implicit reliance can be placed in judicial matters as distinct from administrative matters. It is to be remembered that upon their judicial discretion very large new demands are made by the Bill. There are new and rather vague grounds for the refusal of institution by the bishop; and the protection which they used to enjoy from the ordinary courts of justice open to all citizens is taken away by a clause in this Bill. That protection was a very real one. It had various disadvantages. It involved costly expenditure of time and money which was very undesirable, and it involved sometimes discredit to the Church, and, in addition to that, delay which was very disadvantageous to the parishioners. The refusal of the bishop being practically certain will expose the unhappy presentee to very serious disadvantages. I myself, in all the earlier part of my life after I went to a public school, lived under the episcopacy of Bishop Phillpotts, a very learned, able, and eloquent prelate. He was attacked, often unjustly, but too often with good reason for his nepotism, for his unfairness, and for his vehement political partisanship, and, latterly, for his long retention of his office after age had incapacitated him from the fulfilment of its duties. As we are engaged in passing not a mere provisional Act, are we quite certain that we are prudent in ignoring the possibility of the episcopate hereafter comprising some prelate possessing some of the less desirable characteristics of Bishop Philpotts? My Lords, beyond that I must be allowed to say that there have been public acts, not very remote, by much respected and 1187 zealous prelates, which have not tended to inspire lay Churchmen, at any rate, with confidence in their judicial discussions. I have been speaking throughout of them in their judicial and not in their administrative capacity, and I may add that Archbishop Thompson, with two clergymen, the Chief Justice, and Lord Chichester, who also with Lord Penzance objected to the bishop even presiding over his diocesan court, were opposed to the maintenance of the bishop's veto or proceedings under the Public Worship Regulations Act; and I consider the authority of the Commissioners clerical and legal pretty conclusive as to the un-desirableness of entrusting bishops with too much judicial power unassisted by lay assessors. Lord Penzance wrote a very remarkable Report, and he ended by saying this— Speaking generally, where discretion begins the proper administration of the law, as such, ends. He says that he does not consider that for the administration of strict law in this sense an ecclesiastic is by his training and acquirements well qualified. He says— That the bishop would not be careful to follow decided cases with which, perhaps, he would be little familiar, and that he would be apt to import into the enunciation of the law considerations of policy and the elasticity of discretion. The probable result would be a startling divergence of opinion in different dioceses, which, by rendering the law uncertain, would bring it into discredit and impair its efficiency. I thank your Lordships for your kindness and forbearance and patience in hearing me so long, and I cannot leave more emphatic and instructive words in your Lordships' thoughts than those with which I have just concluded.

§ THE EARL OF SELBORNE
If I do not follow the noble Earl's argument at length, he must not suppose that it is due to any want of respect to his authority or his views, but because the reasons which influence Her Majesty's Government in refusing his Amendment do not rest on the argument which he addressed to your Lordships' House; they rest on the fact that what the noble Earl proposes is to substitute a court of his own for the court of 1188 appeal laid down in this Bill. Now, my Lords, the court of appeal, as it is created under clause 3, has been the subject of very careful consideration, and it would not be possible for Her Majesty's Government at this stage of the Measure to even take into consideration the substitution of a new court for the court that has been deliberately selected, and which has stood the fire of very keen criticism in the House of Commons. When we come to deal with the actual composition of that court I shall, of course, be prepared to defend it in its details. At the present moment it will be sufficient if I assure your Lordships that we cannot accept the Amendment proposed by the noble Earl.

§ LORD HERSCHELL
I have moved this in order to make it quite clear. There are two archbishops, and if it is the archbishop of the province, why not say so?

§ THE EARL OF SELBORNE
I do not think it matters, but I will accept the Amendment.

§ THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS
I think that the present state of the House is hardly suitable for the adequate discussion of this Bill, and I would venture to suggest to your Lordships and to the House the adoption of the Order that was made a few years ago for cases of this nature, and to adjourn the further proceedings of the Bill till Monday, giving the Bill precedence over all the other business.

THE CHAIRMAN OF COMMITTEES (The Earl of MORLEY)
The question is, That the House resume.

§ THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS
I beg to move the adjournment of the Debate till Monday, and that this Bill have precedence over all business of the day.