Lords Sitting of 10 March 1909

TRENT RAILWAY AND BRIDGE BILL. [H.L.]
Report of the Board of Trade on the said Bill: Ordered to be laid before the House (The Lord Hamilton of Dalzell).

OXFORD STREET CHURCH OF ENGLAND SCHOOL, SWANSEA.
EARL CAWDORrose to call attention to the action of the Board of Education with respect to the Oxford Street Church of England School, Swansea; and to move for Papers.
The noble Earl saidMy Lords, in raising the question that I wish to bring under your Lordships' notice this afternoon, the words of which stand upon the Paper, it will, I am afraid, be necessary for me to detain your Lordships at some length, because, in order to make clear the issue, it is necessary that I should tell the story to some extent of what has occurred for some years past with respect to this school. Ever since the passing of the Act of 1902 there has been a dispute between the local education authority of Swansea and the managers of this school, and that dispute, I think, may be divided under three heads—first, with respect to the provision of accommodation in the school; secondly, with regard to the differentiation between the salaries of teachers in that school and the salaries of teachers in Council schools; and, thirdly, with the refusal of the authority to maintain the school at all.
As to the first point, the provision of accommodation, I propose only to say this, that during these years under great pressure the local education authority and the Board of Education have compelled the managers of this school to increase the accommodation very largely, at a cost, I think, of something over £16,000. In doing that the local education authority has insisted upon playground accommodation considerably in excess in regard to the amount of square feet demanded for each child of that which they have got for themselves in their own Council schools. I note that as a matter which appears to be not quite just. With the differentiation of salaries I must deal later, for that really is one of the main points that I wish to bring to your Lordships'
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notice this evening. The third point, the refusal of the local authority to maintain, reached a very acute stage. The local education authority at one time declined to pay salaries to the teachers in this school except at a considerably lower rate than that which they found necessary in the provided schools in order to maintain their efficiency. Between July, 1907, and January, 1908, the local education authority in this district actually refused to pay to teachers in this school any salaries at all. When they took this action the Board of Education at once wrote to say that they were taking an absolutely illegal position, that they were bound to maintain the school and pay the salaries; but, in spite of their knowledge that the local education authority were acting illegally, in spite of their having told them they were acting illegally, the Board declined to take any steps whatever either to support the managers or to relieve the school.
For three months the managers paid the teachers' salaries out of their own pockets. They then gave notice that they were not going to continue to pay the salaries any longer, and for, I think, two months the teachers in this school went without any salaries at all. This shows the animus which I am afraid we shall find page by page through what I think is rather a disgraceful story. The question with respect to salaries took no less than three years to decide, although, as your Lordships are well aware, the Board of Education had ample powers to deal with it had they chosen to do so. In the end the Board of Education took action only when forced under the definite threat of a mandamus by the managers of the school—not a very dignified position for the Board of Education, upon whom is placed the duty and the obligation of maintaining the efficiency of elementary schools all over the country.
After this threat of a mandamus a public Inquiry was ordered by the Board of Education in July, 1908, the discussion upon the question of salaries having begun as early as, I think, the early days of 1905, the appointed day, so far as I remember, in that school area having been somewhere about the month of September, 1904. The public Inquiry was ordered in July, 1908, and was conducted by a very distinguished lawyer, Mr. Hamilton,

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well known, I think, to many of your Lordships who are acquainted with the legal profession, and a gentleman who has since been promoted to the position of a Judge. He held the Inquiry on July 31 and August 1, the Report was made to the Board on September 30, and the decision of the Board was not given until December 17. Strangely enough—I suppose it was entirely an accident—that decision was not made known until Parliament was just rising, too late for any notice to be taken of it in your Lordships' House or elsewhere, and it was not published until the President of the Board of Education had started abroad on his holidays. I have no doubt, as I say, that it was entirely an accident, but I venture to think it was a very unfortunate one. It may have been, as my noble friend beside me suggests, almost a coincidence.
I must read to your Lordships a few paragraphs from the very able Report that Mr. Hamilton made to the Board of Education. I crave your Lordships' indulgence if I read some of these paragraphs at length, but it is absolutely necessary for the case that I have to state. I ought to mention that what was being tried and tested at this Inquiry was whether the local education authority had or had not properly maintained this school. That was the whole burden of the Report which Mr. Hamilton was asked to make. I ought, perhaps, to preface the reading of the paragraphs by asking your Lordships' attention to the Notice of the Public Inquiry that appears in the beginning of the Parliamentary Paper which the noble Viscount was good enough to lay on the Table the other day. The Notice runs—
"And whereas representations have been made to the Board of Education to the effect that the local education authority have failed to fulfil their duty under the Education Acts, 1870 to 1907, with respect to the staff of the said school;
"And whereas the Board of Education have determined to hold a Public Inquiry under section 73 of the Elementary Act, 1870, and section 23 (10) of the Education Act, 1902, with a view to satisfying themselves as to the said allegation and representations;
"Now therefore the Board of Education give notice that John Andrew Hamilton, Esquire, one of His Majesty's Counsel, will attend at the Guildhall, Swansea, on Friday, the 31st day of July, 1908, at 10 o'clock in the forenoon, for the purpose of holding the said Inquiry, and will then and there, or at any adjournment of the Inquiry, hear, receive, and examine any evidence and information offered, and
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hear and inquire into any objections or representations made respecting the subject of the Inquiry."
The Inquiry was duly held, and in his Report [p. 8] Mr. Hamilton says—
"Evidence was given before me that, in the opinion of the witnesses called on behalf of the managers, the refusal to pay to the teachers in the Oxford Street School the same rates of remuneration as were paid to teachers of the same qualifications in provided schools prejudices and imperils the efficiency of the school. There has been a general rise in teachers' salaries throughout the country. The local education authorities throughout the country pay teachers on a regular scale, and, except in the cases of the Boroughs of Halifax and Swansea, they do not discriminate between teachers in provided and teachers in non-provided schools as such. The discrimination against the teachers in the Oxford Street School—
and I ask your Lordship's attention to these words particularly—
"unsettles the teachers, leads them to seek other posts with better pay and less uncertain prospects, harasses them in their work, and deprives the school of the benefit of length of service and growth of experience in its teaching staff. The matter did not rest in opinion only, for evidence was given before me of the actual feeling of the teachers, and it was proved that, while there was a waiting list of applicants for posts in the provided schools so that vacanies were filled without advertisement, vacancies in the Oxford Street Schools were filled, if at all, only with difficulty and delay. Advertisements inviting applications, otherwise than on the basis of the provided schools' scale, met with no response, and were actually refused insertion in an influential newspaper, the organ of the National Union of Teachers. Such are the facts as I collect them from the correspondence put in and the statements of the witnesses."
Mr. Hamiltonproceeds—
"I have to report as to the facts as follows:—The Oxford Street School has regularly earned the grant and to that extent has been maintained and kept efficient, but this has been done, not by the authority alone, but only by the combination of funds provided by the authority and of funds collected by the managers 'other than expenditure for which,' under the Education Act, 1902, 'provision is to be made by the managers.' But for these sums provided by the managers, in my opinion the school would before now have ceased to be efficient in any sense. As it is, though it continues in a state of efficiency by earning the grant, its efficiency is, owing to the course taken by the authority, precarious. It is further jeopardised by the departure of experienced teachers and by the dissatisfaction and unrest created among those who remain. In paying the salaries for which the teachers pressed, the managers have neither played into the teachers' hands nor acted improvidently. They would have kept up the efficiency of the school without paying more than the authority fixed, if they could, but it was not practicable to keep the staff together, or to obtain a staff capable of keeping the school efficient unless they paid higher salaries than those which the authority fixed."

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In a paragraph a little further on Mr. Hamilton says—
"No circumstances appeared before me which would warrant any special distinction being made in regard to salaries between the provided schools and the Oxford Street School;"
and at the bottom of p. 9 your Lordships will find this statement—
"The statutory requirement is not satisfied by the mere fact that the school has been maintained and has been kept efficient; it must be maintained and kept efficient by the local education authority. The Oxford Street School has not been maintained and kept efficient by the local education authority, but in so far as it has been maintained and kept efficient, this is due to the combined acts and outlays of the authority and of the managers. Evidence that the managers, in paying salaries in excess of those fixed by the authority, had acted unreasonably and without necessity, would have been very material, but no such evidence was given. The witnesses for the managers stated that they had had no wish to spend more than was necessary, and would have been willing to engage teachers at the authority's scale of pay, if it had been possible to do so without imperilling the efficiency of the school, and I accept their statements."
I now ask your Lordships to turn to p. 12 at the conclusion of the Report. In paragraph 21 Mr. Hamilton says—
"I have to report that the Borough Council of Swansea, the local education authority within whose area the Oxford Street (Church of England) School is, have committed a 'default in the performance of their duties as respects' that school, and have 'failed to fulfil' part of their duties under the Elementary Education Acts, 1870 to 1900, and the Education Act, 1902, namely, their duty under section 7 of the last-named Act, to 'maintain and keep efficient' the Oxford Street (Church of England) School, being a public elementary school within their area."
That is the conclusion of an extremely able Report, a Report which anyone who wishes to really understand the bearings of this question should read, mark, and understand. After this Report nearly three months elapsed, and then we get the letter conveying the decision of the Board of Education. Looking to the story as told by the impartial and able Commissioner whom the Board of Education themselves had employed to go into this question, I can only say that I think the letter of the Board containing their decision is an astounding document. In order to carry out the Act, in order to enable the Board of Education to come to a decision in this matter, they were bound to hold a public Inquiry. They selected a man whose ability and fitness for the post no one will deny for a moment, and, having
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had their Inquiry, having had the whole of the evidence sifted with the utmost care by this distinguished lawyer, what do they say? They say—
"The Board have carefully considered Mr. Hamilton's Report, together with the evidence tendered before Mr. Hamilton at the Inquiry—
I should like to study that evidence myself. There are many who would. I asked the noble Viscount last week if he would lay the evidence on the Table, but he said he was unable to do so, because it was very voluminous. If it is the basis of the Board's decision that they do not concur in Mr. Hamilton's reading of the evidence given at the Inquiry, I think we are entitled to have that evidence laid on the Table. I return to the letter of the Board of Education conveying their decision. They say—
"The Board have carefully considered Mr. Hamilton's Report, together with the evidence tendered before Mr. Hamilton at the Inquiry, and have taken legal advice thereon."
It would, too, be rather interesting to know what the legal advice asked for was. The Board's letter proceeds—
"The true question at issue between the authority and the managers is one of fact, namely, whether competent teachers can be procured for the Oxford Street Church of England School at the scale of salaries to which the local education authority consented in their letter of April 18, 1907; if they can, it appears to the Board that the sums paid by the local education authority are adequate for the purpose of maintaining the school and keeping it efficient; if not, then the local education authority have failed in their statutory duty."
I will not repeat the words of Mr. Hamilton on that point. Your Lordships have them before you, and will bear them, I think, clearly in mind. The letter continues—
"The Board are of opinion that no sufficient evidence has been adduced to prove that the authority have so failed, and they see no substantial grounds for supposing that the task of the managers in procuring teachers at the scale of salaries to which the local education authority consented in their letter of 18th April, 1907, was an impossible one, or that they could not have filled any such vacancies as occurred or might occur at that scale if they had determined so to do."
That is the very point dealt with by the able lawyer whom they themselves appointed to sift and determine the facts. He heard the evidence and determined the facts, but his Report is waived aside without a word of argument. The Board continue—

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"It is suggested that the future efficiency of the school would be imperilled by the employment of teachers at the lower rate of pay, but this is a somewhat remote speculation."
I think I remember another statement by another President of the Board of Education in the same Government, who held a very different view of that position. In 1906 Mr. Birrell, dealing with the same salaries, at the same rate, and in the same school, wrote a letter to the local education authority in which he criticised severely what was taking place. He said that what was being done with respect to these salaries in his view—that was in 1906—gravely imperilled the efficiency of the school. What has happened since 1906 to make salaries which were then insufficient and were imperilling gravely at that moment the efficiency of the school, not in the opinion of the managers but in the opinion of the President of the Board of Education of that day, with all the legal advice behind him—What has happened to make those salaries adequate now? During the last few years salaries have gone up by leaps and bounds in Council schools. Yet we are now told by the President of the Board of Education that it is a somewhat remote speculation that the efficiency of this school will be imperilled by the employment of teachers at the lower rate of pay. It really is playing with the question to deal with it in such a manner as this. The Board conclude—
"The crucial question is whether their proposed expenditure is adequate for the performance of their statutory obligation."
Yes, that is the issue, the issue that has been tried by the man who heard the evidence. The Board go on to say—
"The Board do not find upon the evidence that the money provided by the authority for the salaries of the teachers has been shown to be inadequate for this purpose, and they decide accordingly that the authority have not failed in their duty to maintain and keep efficient the Oxford Street School."
Was it ever intended by Parliament that the holding of these public Inquiries, made necessary by Statute before the Board could come to their decision, should be gone into in this solemn way by the most skilled men you can find, and then waived aside as perfectly worthless for the purpose for which they were intended. It is turning into ridicule the main part of the Statute so far as this question is concerned. It would have been perfectly easy for the
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local education authority to have answered the evidence of the managers as to the difficulty of obtaining the proper staff for the school at the salaries that were proposed; but, in the exercise of their discretion, advised as they were by eminent and able counsel, they declined to produce any evidence at all. I have no doubt they were very wise in their generation, but it shows that they had no case. Therefore, all the more do I claim that we are entitled to have this evidence laid on the Table.
It may be said that the local education authority were doing their best and were really trying to get this school into a proper state of efficiency. I am afraid that is an argument that will hardly hold water. There was a discussion some little time ago—it was quoted in your Lordships' House by the right rev. Prelate the Bishop of St. Davids last year—in the Town Council of Swansea, not acting as the local education authority but as the town council. They had been asked by the Board of Education what they had to say against this charge brought against them by the managers that they were failing to keep the school efficient. A discussion took place upon that subject, and the bent of mind of at all events a large majority of the Town Council of Swansea was clearly shown in the resolution put forward and, I believe, declared to have been carried by the Mayor, but whether it was placed upon the records of the council I very much doubt. What was it? This is the proposed answer to an application from the Board of Education for an explanation of the improper non-maintenance of the school. The resolution ran—
"That the Board of Education be informed that the explanation of the Swansea Local Educational Authority for differentiating between the teachers of the provided and the non-provided schools is that the majority of the members being out of sympathy with the Voluntary schools desire to make the maintenance of the latter as difficult as possible."
Does not that show the bent of mind of the local education authority in dealing with a matter of this kind?
There is one other matter as to which I must say a word. In December last, two days before the decision given by the President of the Board of Education, he is reported in a local newspaper, an organ of his own party, the South Wales Daily News, to have had an interview with a

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representative of that newspaper, and to have said that he was dissatisfied with Mr. Hamilton's Report and that he "did not mean to give the Swansea people away." That statement also appeared in The Times, in a letter written by the right rev. Prelate the Bishop of St. Davids in December last; but it has never been contradicted. It is certainly to my mind a statement that throws a very lurid light upon the operations of the Board of Education in this matter. It is a very serious allegation indeed, and one that I think it will be well to clear up if any clearing up is possible.
I pass on for a moment to ask your Lordships to consider what has been up to the present time recognised as the law upon this question of differentiation of salaries. I shall read two or three quotations from the statements of persons in a position to give authoritative decisions. Sir William Anson, in the House of Commons in 1903, in answer to a question, said—
"The standard of efficiency at which all public elementary schools are maintained must be alike, unless special educational reasons can be shown for a distinction."
Sir John Lawson, when Attorney-General, arguing for the Board of Education in the West Riding case before the House of Lords, stated very clearly what the law was. He said—
"In this position of affairs the Education Act of 1902 was passed, the intention being, for the purpose of maintenance, to throw the two classes of school into one category, and to give to the non-provided schools the advantages which up to that time the provided schools only had enjoyed. In other words, the object was to provide out of public funds for the maintenance of non-provided schools on exactly the same footing and in the same way as the provided schools had been maintained prior to 1902."
I now come down to 1906. Mr. Birrell was then President of the Board of Education, and in July, 1906, in the present Swansea case, Mr. Birrell wrote as follows—
"The Board of Education are not aware of any circumstances which would justify a differentiation in the salaries paid to teachers in Voluntary and Council schools. They feel that the present uncertainty is unjust to the teachers, and is gravely imperilling the efficiency of the schools. They trust, therefore, to learn at an early date that the authority will give their consent to the agreements prepared. In view of the provisions of Article 15 of the Code, the Board do not feel able to sanction payment of the grants for the National and York Place Schools until they are assured that this matter has been satisfactorily arranged."
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Therefore, we have Mr. Birrell's statement of what he considered at that time to be the law. The noble Earl, Lord Crewe, said on March 23, 1908, in your Lordships' House—
"There is no change whatever in the view of the Board that, speaking generally, it is a desirable thing that the same salaries should be paid in the Voluntary schools as are paid in the Council schools. The right rev. Prelate quoted a letter written in July, 1906, when Mr. Birrell was at the Board of Education, in which it was stated that the Board are not aware of any circumstances which would justify a differentiation in the salaries paid to teachers in Voluntary and Council schools. So far, then, that is common ground."
I think that entirely destroys the allegation in the decision at which the Board of Education have just arrived. Of course, I may be told, "Lord Crewe merely said that generally speaking it was desirable." Yes, generally speaking "unless exceptional educational conditions are found to exist." That was Mr. Birrell's view adopted last year by Lord Crewe; and what is the fact as regards the present state of things in the Swansea school? We have the definite and clear statement by Mr. Hamilton himself that he had not been able to hear or find out any exceptional circumstances in the course of his enquiry which would justify any differentiation in the salaries paid in the school. I think that really disposes of that part of the story.
Then one naturally asks oneself what is the duty of a Government Department charged with quasi judicial functions. I shall venture to quote the noble and learned Lord on the Woolsack, who, in giving judgment recently in a case before the House of Lords with reference to the duties of licensing magistrates, whose position as an administrative body exercising quasi judicial powers is analogous to that of the Board of Education in the present case, said that—
"They must, of course, act honestly and endeavour to carry out the spirit and purpose of the statute."
I will not attempt to say a word upon that. It bears the impress of the noble and learned Lord on its face. I quote one more authority, that of Mr. Justice Channell. Mr. Justice Channell, in the recent Garforth case, in which the action of the Board of Education was challenged, laid down the obvious principle of law that—

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"Neither the local education authority nor the Board of Education had any right to say that because they did not like a law they would give directions that would frustrate its objects."
I rest my case as to what should be the duty of an authority, whether it be the local authority or a Government Department, exercising quasi judicial functions, on the words of those two learned Judges. So far as I can judge, there has been all through this matter a distinct and intentional evasion of the spirit if not of the letter of the law. I will give your Lordships a few reasons why I say that. I say it has been distinct, it has been intentional, and I am afraid I ought to add also it has been long continued. There has been a very continued attack upon education carried on, as your Lordships are aware, in Wales. There has been what has been commonly known as the Welsh revolt, but the Welsh revolt when it is in the hands of Ministers, when advocated by Ministers, is a far more serious thing for the State and the country than when it is advocated by outsiders and persons of no responsibility. Therefore, I ask your indulgence while I trace what has been done in this matter.
In March, 1903, speaking at a meeting of the Free Church Council at Brighton, Mr. Lloyd George moved a resolution urging the principle that local authorities should refuse to apply rates to Voluntary schools. The burden of his speech was that the object of the Act of 1902 was to be evaded in practice, especially by a method of delay, i.e., the Welsh local authorities were to adjourn complaints from managers or from Whitehall from meeting to meeting. Ultimately, he said, the local authority attacked by the Board of Education under the Conservative Government, might decline to hold meetings and so render futile any attempt on the part of the Board of Education to mandamus it to maintain a Church School properly. He ridiculed the machinery of the Education Act of 1902 as quite useless for the purpose of enforcing its aim and object, and ended with these significant words:—
"The Education Act was a great Act. It was a hopeless Act, and if the County Councils of England did what the County Councils of Wales meant to do, it would be a dead letter."
That was in 1903. I think that is a clear attack upon the spirit of the Act, not, however, by a Minister of the Crown.
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But I will go on. In a further speech made by Mr. Lloyd George to a general conference of representatives of Welsh local authorities at Cardiff on October 6, 1904, the principle upon which Welsh local authorities were to construe an Act of Parliament was clearly laid down. Mr. Lloyd George expressly referred to the arguments of his opponents that local authorities must carry out the spirit of an Act of Parliament, and derided the contention. He proceeded—
"They say, 'You administer only the letter of the law.' Yes, we administer the letter that killeth. They say we evade the spirit of the law Have you ever heard of a mandamus to compel a man to carry out the spirit of the law? Who are these gentlemen who say you must carry out the law in the spirit, and not the letter?"
That was in 1904. I now come to 1906. Mr. Lloyd George was then a Cabinet Minister and President of the Board of Trade. Just at the time when the President of the Board of Education was insisting on the local authority of Swansea doing its duty, the President of the Board of Trade went down to Cardiff and presided over a gathering at which the position of Swansea, as between the local education authority and the Board of Education, was discussed. A resolution was proposed urging the local authority to keep up its rebellion against the Board of Education. The President of the Board of Trade said he did not think he could quite second the motion, but, as chairman, he put it as against his colleague in the Cabinet. Those are strong measures and strong words from a Cabinet Minister. But I have another quotation from the same source.
Just before Christmas at Liverpool, Mr. Lloyd George, as Chancellor of the Exchequer, advocated the same principles in the most open manner in an attack upon the House of Lords for not allowing Mr. Birrell's Bill of 1906 to go through. He said—
"We have already made their Act of 1902 a burden to them in their own country, and we shall continue to do so until we get redress. And you may depend upon it that if the people there find they cannot get redress by constitutional means they will be driven into making these institutions intolerable."
And he concluded—
"And we can do it by keeping within the law."
If that is not a defiance, in plain terms, by a Minister of the Crown of the spirit of an

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Act of Parliament, I should like to know what is. There is, as your Lordships will observe, no statement of any legal point in the decision of the Board. They lay down distinctly that the true question at issue between the authority and the managers is one of fact, but I am told that there is some question of law to be raised in your Lordships' House as an answer to all this. We should be curious to know what it is, and I hope, if the noble Viscount is going to raise a point of law, he will make it perfectly clear and definite, so that we may know what that point of law is. We are entitled to think there may be something in this, because, speaking upon the Address in another place, the Prime Minister used these words upon this subject. Alluding to the state of things in connection with the Swansea school, Mr. Asquith said—
"Is it a state of things which does not exist now under the law as passed and amended by the right hon. gentleman? Will anyone tell me that there is a legal obligation, under the right hon. gentleman's Act or any other, upon the local authorities of the County to make the salaries in all the schools under their control the same and identical? I am not speaking in favour of starving salaries; I am speaking of the law. The hon. gentleman is a lawyer, and he knows very well that this is purely a legal question."
It is not made a legal question in the decision of the Board of Education, but it is said to be a purely legal question by the Prime Minister. Mr. Asquith continued—
"The Board of Education was simply invoked as a Court of Appeal. My right hon. friend did as he was bound to do. He took the highest advice he could get on the point at issue. The principal Law Officer of the Crown dealt with the legal question—
I ask, what was the legal question put to the Law Officer of the Crown?—
"and my right hon. friend, as anyone in his position was bound to do, followed the advice of his legal adviser and gave his award accordingly. That is the whole story."
That is the justification for the anticipation that some legal point is to be raised, and that we are not to be told to rely entirely upon facts. I trust it will be made perfectly clear; and if it is a legal question, I hope it may be decided by a Court of law. I would remind the noble Viscount that in another case bearing upon the Education Acts, in which a point of law was raised—the West Riding case—the Board of Education then said they did not propose to raise any technical point as to their right absolutely to decide this
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question under Section 7, Subsection (3) of the Act of 1902; but that they would raise no obstacle whatever to the case being taken to a Court of Appeal and being heard there. If a serious question of law does arise, I think we can put it to the noble Lord that in all fairness this case should be dealt with in the same way. All through this matter, all through these speeches which I have had to quote to your Lordships, what has been openly advocated and avowed is the intention to violate the spirit of the law. There can be no doubt of that. This is no mere local question. It is not, believe me, a question that can be brushed aside as a little squabble between a local authority and the managers of this school. Graver interests are concerned. It is a very serious case of neglect of duty by a Department of the State, and a Department entrusted with quasi judicial functions. It is a neglect of duty that must shake the confidence of the country in the impartiality and justice of public Departments; and it must tend to make us feel that we shall be much safer in the hands of a Court of law. That is a very sad conclusion to come to, but there can be no other conclusion unless the Departments of the State are to be purged from the unfairness which distinguishes the conduct of the whole of this matter. As I have said, this is not a small matter, or one of local interest alone. In my belief it goes to the root of our present method of dealing with local questions and matters of fact in Acts of Parliament by leaving them for quasi judicial decision by Departments of the State. That is the reason I have ventured to bring this case to your Lordships' notice.
Moved, That there be laid before the House the notes of evidence taken at the public Inquiry held by Mr. Hamilton, K.C., as to the Oxford Street Church of England School, Swansea.—(Earl Cawdor.)
THE LORD PRESIDENT OF THE COUNCIL (VISCOUNT WOLVERHAMPTON)My Lords, before I attempt to reply on the subject-matter of the noble Earl's speech, I must at once deal with what I think the noble Earl will regret—namely, the charge he made regarding the conduct of the President of the Board of Education. I agree that if the conduct of the Minister had been such as the noble Earl described it would have been deserving of severe censure, but having known Mr. Runciman for many

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years I felt instinctively that it was impossible that the statement made could have any foundation in fact. My right hon. friend happened to be on the steps of the Throne while the noble Earl was speaking, and he has sent me an absolute categorical denial of every word of that accusation. His words are—
"To the statement attributed to me by a newspaper quoted by Earl Cawdor I give the most unqualified denial."
EARL CAWDOROf course, I accept the denial of the President of the Board of Education, and any statement I made which he says is not accurate I withdraw at once. But I wish to point out to the noble Viscount that the statement was repeated in a letter published in The Times in December last, and not until now have we heard one syllable of contradiction. As I say, I accept the contradiction of the President of the Board, but I do think it is to be regretted that the contradiction has been deferred for three months.
VISCOUNT WOLVERHAMPTONI am a very sedulous newspaper reader myself, but I never saw the accusation or heard of the statement until the noble Earl brought it forward to-night.
A great deal of what the noble Earl said was contained in the speeches made twelve months ago, when the subject was discussed at great length in your Lordships' House. On that occasion my noble friend the Leader of the House, who I am sorry to say is unavoidably prevented from being in his place to-night, made the following observations in his speech:—
"I am not concerned with the administration of the Department. From my view of it" [the Swansea case] "the whole matter has been a very unfortunate squabble between the managers on the one side and the local education authority on the other, with occasional references, of course, from both to the Board of Education, conducted with extreme ingenuity and skill on both sides. But the skill has not always, I think, been employed to serve the best interests of education, and there has been an occasional loss of temper on both sides which did not reflect entire credit upon either party;"
and, standing in the place which the noble Earl would have occupied if he had been here to-night, I fully endorse that statement. It has been a squabble, and there has been a great deal said upon both sides which is I think to be regretted.
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The noble Earl opposite went into the history of the case, but he did not mention that many of the questions that arose between the local education authority and the board of managers have been settled to the satisfaction of all parties. The Government have not been indifferent to the merits of the question raised by the noble Earl. In the first place, I ask your Lordships to accept as the basis of my argument that the fixing of the amounts of salaries rests solely and exclusively with the education authority. That is their absolute duty, and in regard to that I may refer to the proceedings in the House of Commons when Clause 7 of the Act of 1902 was under discussion. There were several discussions in the House of Commons as to the exact amount of responsibility and financial power which should be vested in the local education authority, and Mr. Bryce, in order evidently to have it perfectly clear, said he would ask one question with regard to the salary of the teachers, which would be the most important element of expenditure. Mr. Bryce proceeded—
"Did they understand that whenever a teacher had to be appointed the managers would have to go to the local authority and obtain sanction to fix that salary at a certain figure, or would the managers be able, before they consulted the local authority, to advertise for a teacher at a certain salary?"
Mr. Balfour answered that question in these words—
"He had indeed spoken in vain if he had not made it quite clear to the Committee on the many occasions on which he had addressed it that, according to his view, the staffing of the schools and the payment of the teachers' salaries were all matters within the determination of the local authority. When he had talked in the House and in the country of secular education being under popular control, he had always meant what he said. It appeared to him that the determination of the staff and the salaries of the teachers in the various schools were perhaps the most important subject with which the education authority would have to deal."
Therefore I venture to say, with all deference, that the legal position of this matter is that whereas the Voluntary or non-provided schools were to be supported by the local authority, the local authority themselves were to be the uncontrolled judges—
LORD ASHBOURNESubject to maintaining the schools and maintaining them efficiently.
VISCOUNT WOLVERHAMPTONI am coming to that. I will endeavour to make myself as clear as the noble Lord desires. I could give a large number of quotations to show that the one principle which was not impugned was that the local authority were to control the expenditure of the money. That is my first point.
LORD ASHBOURNESubject always—
VISCOUNT WOLVERHAMPTONI shall be glad if the noble and learned Lord will allow me to make my own speech in my own way. Along with the local authority's control of the money is the duty to maintain and keep efficient all the public elementary schools within their area. There is no dispute between us on that point. The authority have control of the money, but it is their duty to keep and maintain the schools efficiently. The section specified the expenditure which would devolve upon the managers of the school—namely, expenditure other than expenditure for which provision was to be made by the local authority. The managers were required to provide the school house, keep the school in repair, make good certain damage, and so on "out of funds provided by them." A difference of opinion arose between the managers and the local education authority. I will not go into the various statements because the noble Earl's quotations were quite accurate as to that, though I do not think the point at issue was touched upon until just at the close of the noble Earl's speech. I will read the exact clause (Section 7, Subsection (1) of the Act of 1902)—
"The local education authority shall maintain and keep efficient all public elementary schools within their area which are necessary, and have the control of all expenditure required for that purpose, other than expenditure for which, under this Act, provision is to be made by the managers."
Then I come to Subsection (3)—
"If any question arises under this section between the local education authority and the managers of a school not provided by the authority, that question shall be determined by the Board of Education."
There is no arbitration there; it is the final decision; and whatever that decision is I do not think it is fair or just to attribute to the Board of Education improper motives. The noble Earl has quoted what he says the local education authority of
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Swansea did, but that is not the Board of Education.
EARL CAWDORBut what the Board knew the authority were doing.
VISCOUNT WOLVERHAMPTONUnder Section 23, subsection (10) the Board of Education may, if they think fit, hold a public Inquiry for the purpose of the exercise of any of their powers or the performance of any of their duties under the Act. Under that clause, therefore, the Board of Education determined to hold this public Inquiry on the question which had arisen between the two contending parties. The Board selected, as the noble Earl has said with perfect truth, an extremely able man, who has since been appointed to the Judicial Bench, to conduct the Inquiry, but he did not go down there as a Judge to try the case; he went there to report on the facts of the case to the Board of Education. The noble Earl seemed to think it had passed out of the hands of the Board, and that they had delegated their powers to Mr. Hamilton.
EARL CAWDORI did not say that.
VISCOUNT WOLVERHAMPTONBut the noble Earl's argument was based on that. The Board did nothing of the sort. Mr. Hamilton was in precisely the same position as an inspector of the Local Government Board sent out to hold a public inquiry. Hundreds of inquiries are held in this country every year by regular and special inspectors of the Local Government Board. Do the Local Government Board accept the decision of their inspectors in every case? No. They are not bound to accept a decision; the inspector's duty is discharged when he has made his report.
We then come to what the noble Earl has laid such stress upon, and what he calls the facts of the case. Mr. Hamilton's argument is a subtle one. He states the facts very clearly and wipes out completely a great many of the allegations made against the local authority by the managers. His case is that, whereas the school is to be maintained and kept efficient, the non-sanction of the salaries of the teachers which had been fixed would end ultimately in making the school non-efficient and not properly maintained. Mr. Hamilton states clearly what his view is on that point. In paragraph 15 of his Report he says—

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"Evidence was given before me that, in the opinion of the witnesses called on behalf of the managers, the refusal to pay to the teachers in the Oxford Street School the same rates of remuneration as were paid to teachers of the same qualifications in provided schools prejudices and imperils the efficiency of the school."
He stated that it had been said that it did. But in the next paragraph Mr. Hamilton says—
"I have to report as to the facts as follows: The Oxford Street School has regularly earned the grant and to that extent has been maintained and kept efficient, but this has been done, not by the authority alone, but only by the combination of funds provided by the authority and of funds collected by the managers."
The scale of salaries fixed was the scale in force when the local education authority came into power. The question really arose upon increasing the salaries.
EARL CAWDORAs the other salaries were increased.
VISCOUNT WOLVERHAMPTONYes, they were increased under pressure. Advertisements had been refused insertion because the National Union of Teachers had been offended. It really was to a great extent a trade union dispute. In the next sentence of his report Mr. Hamilton says—
"But for these sums provided by the managers, in my opinion the school would before now have ceased to be efficient in any sense. As it is, though it continues in a state of efficiency by earning the grant, its efficiency is, owing to the course taken by the authority, precarious. It is further jeopardised by the departure of experienced teachers and by the dissatisfaction and unrest created among those who remain."
There is no necessity to dispute that. We will admit that the school has been jeopardised; we will admit that it is being jeopardised; the point is,—is it now efficient? If the managers had allowed it to become inefficient, then the power of the Board of Education would come in. There is no conspiracy, as the noble Earl seems to think, on the part of the Board of Education to do what is unjust and unfair. The Board took the opinion of the principal Law Officer of the Crown as to their position, and the Attorney-General was perfectly definite on the point that you could not act upon a contingency which might happen and which might not happen, and he advised that the President of the Board could not apply for a mandamus. That is the whole secret of this great
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"conspiracy." There is, as I have said, no conspiracy whatever. The Board of Education is an impartial body; its Presidents, I presume, are not bound to follow exactly the policy of their predecessors.
EARL CAWDORI did not suggest that there was a conspiracy on the part of the Board of Education. I traced a conspiracy through other hands, beginning with those who were not in office and proceeding until they held the office of Minister of the Crown. By that I said there was a conspiracy to defeat the spirit of the Act.
VISCOUNT WOLVERHAMPTONBut now you are dealing with the Board of Education of which Mr. Runciman is the President, and I was sorry to see the statement made by a member of the other House that Mr. Runciman's action in this matter disentitled him to any consideration. The most rev. Primate knows as well as I do that no one has worked in a more conciliatory or fair manner than Mr. Runciman. The Government are willing to lay the Minutes of Evidence taken before Mr. Hamilton. The position of the Government is this. If the actual event which Mr. Hamilton expects does happen, and if what is a contingency becomes a fact, then the Board of Education will proceed accordingly; but at present they are advised that they have no power to obtain a mandamus. That is the answer to the case which the noble Earl has made. I can only say, in conclusion, that I deplore a good deal of the feeling that has been generated, and I hope, in the interests of education, for a settlement; but the two principles to be maintained are that the school must be kept efficient and that the education authority must be supreme in reference to the expenditure of the money they raise.
THE EARL OF HALSBURYMy Lords, I cannot help thinking that the noble Viscount has somewhat minimised the importance of this case. It seems to me that the question is very much deeper than that of merely a squabble in Swansea. In the first place, I should like very much to know what the noble Viscount regards as the duty of the local education authority, and, secondly, what he thinks is the duty of the Board of Education. It is perfectly

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true that the Board of Education is the final authority. If it were not, I suppose recourse might be had to a Court of Law; but it is the final authority, and my noble friend behind me is arraigning the conduct of the Board of Education. Does the noble Viscount suggest that the Board of Education claims the right to give different salaries to the Church of England school because it is a Church of England school? Does he claim that right? He does not answer my question, and, therefore, until I hear the contrary, I shall assume that he does.
VISCOUNT WOLVERHAMPTONI said it would be most unjust.
THE EARL OF HALSBURYI understand the noble Viscount does not claim that right on behalf of the Board of Education. What, then, is the question raised in this case? If it is a question of fact—whether or not differentiation has been made—that has been decided by Mr. Hamilton's finding, and the Education Board, having told us it is a question of fact, take their own view when the fact is found against their view and set aside the finding. That is the state of facts, and it seems to me to reduce it to this, that the Board of Education do claim that which the noble Viscount has disavowed. They do claim the right to affirm the conduct of the education authority in Swansea which is to differentiate between the salaries of the two classes of teachers. That has been found as a fact. Mr. Hamilton has also found as a fact that there is no educational distinction which could make the difference between the two sets of salaries. I really am unable to understand what the answer is. It comes to this—that because under the Statute the Board of Education is made the final Court of Appeal they are able to disobey the law, which is that there should be equality of treatment unless there is something to differentiate between the two. It is found as a fact by their own Commissioner sent down for the purpose of ascertaining the facts that there is no distinction which justifies differentiation. The only defence, it seems to me, which the noble Viscount could in fact make would be that the school was kept efficient. But how? Because although the education authority in Swansea neglected their duty other people who care more for education of the young have, out of their own pockets, provided
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the funds which it was the duty of the education authority to provide. That is their default. Mr. Hamilton says so in terms. I will read his words—
"I have to report that the Borough Council of Swansea, the local education authority within whose area the Oxford Street (Church of England) School is, have committed a 'default in the performance of their duties as respects' that school, and 'have failed to fulfil' part of their duties under the Elementary Education Acts, 1870 to 1900, and the Education Act, 1902, namely, their duty under Section 7 of the last-named Act, to 'maintain and keep efficient' the Oxford Street (Church of England) School, being a public elementary school within their area."
It is a mere juggling of words to say that the school has been kept efficient. That the school has been kept efficient is true, but it has been done, not by the education authority; yet the duty of keeping it efficient rests with the education authority. It is not the whole duty that the school has been kept efficient. The whole duty is that the school should be kept efficient by the local education authority. That has obviously been neglected, and—can anyone doubt after what my noble friend behind me has said?—because it is a Church of England school, and because the members of the Swansea Borough Council are not, as it is said, in sympathy with the Education Act of 1902. It appears to me a mere delusion to say that because the school has been in fact kept efficient by somebody else that is a performance of their duty by the local education authority. I must say, not perhaps for the first time, that this substitution of Ministerial directions for the requirements of a Statute is a very serious symptom. Noble Lords opposite forget, I think, that it is not absolutely certain that they will always be in office. Has it not occurred to them that they are establishing precedents which may be extremely inconvenient hereafter—precedents which I hope those with whom I usually act will not follow? But a very serious precedent is established when a Minister of the Crown, whose duty it is to impartially administer the law, disobeys an Act of Parliament because he is not in sympathy with it. What would be said of a Judge who did that? It has been suggested against Judges before now, but I am afraid it has not increased their reputation when the imputation has been successful that they have allowed themselves to be swayed in the administration of justice by the views they held on the particular topic

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which was under discussion. But there is here, it seems to me, an outrageous violation of a distinct obligation created by Parliament, made all the more serious because of a deliberate overruling upon a question of fact found by a man of the eminence of Mr. Hamilton. I say it is a disobedience of the law not to provide funds which they are required by law to provide simply because somebody else has aided by contributing to prevent the school becoming inefficient. I say that that is a deliberate defiance of the law, and one which I hope this House at all events will condemn.
LORD STANLEY OF ALDERLEYMy Lords, I wish, first of all, emphatically to affirm that the noble and learned Earl who has just spoken has introduced into the Act of 1902, not once but three or four times, a word, which is not to be found in it. The noble and learned Earl has repeatedly declared that the Act of 1902 imposed upon local authorities the obligation of equality of treatment. I say that is absolutely incorrect. The only obligation which that Act imposed upon local authorities was the obligation to maintain and keep efficient. Efficiency is a perfectly well understood thing in the language of elementary schools. It is that which satisfies the requirements of the Code, and which the Government, through their inspectors, accept. But after you have come up to that standard of efficiency there is no obligation to give to every school the same full measure of efficiency that the local authority may choose to give to some schools.
A local authority may provide special subjects, such as French, mathematics, woodwork and cookery instruction, in its own schools; but the Board of Education possess no power whatever to require the local authority to provide those things for the aided schools. The aided schools are entitled under the Act to have that which the Code requires to satisfy the test of efficiency. A council school may be staffed throughout with certificated teachers, but an aided school has no right to demand that it shall be staffed entirely with certificated teachers. The only obligation, as I have said, is to maintain efficient. I am not now on the second point of the noble and learned Earl—that there was failure to maintain efficiency because that efficiency was secured by contributions from others;
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I am now dealing with his point that there was an obligation to maintain equal efficiency, and I deny that that is part of the law.
I now come to the question of the school being maintained efficient and the question of the subsidy. I have not the slightest doubt that the managers, in order to retain their staff, might, from their own point of view, be well advised in making up to those teachers the extra salary necessary to put them on the same footing with the teachers in the provided schools. It would have been inconvenient to them, no doubt, if any of their teachers had resigned and they had been compelled to get other teachers who did not know the school. But the whole argument of Mr. Hamilton is hypothetical. It is contended that if the Oxford Street School had not been subsidised it must have become inefficient. I will tell your Lordships a fact that has not been mentioned in this discussion.
There are in Swansea no fewer than eight non-provided schools; three of them are in joint management, with Mr. Eden as the active secretary. The fight has nominally been on the Oxford Street School, but I have no doubt that those fighting for that school were fighting indirectly for the two other schools, and I am informed that some of the salaries in the two other schools under their management have been supplemented. Therefore I agree that, as to these three schools out of the eight, efficiency has been maintained partly by the contributions of the managers. But it is a very great step from that to infer that efficiency would not have been maintained without those contributions. The Town Council of Swansea have determined to maintain the old salaries in all the aided schools, and it is only in those for which Mr. Eden acts that the matter has gone so far that the salaries have been augmented by the managers. The other non-provided schools have had no supplementary aid; but in all efficiency has been maintained to the satisfaction of the Board of Education. It is not right, therefore, to infer that the Oxford Street School must have failed had such aid not been given.
The question before us to-day is one of law. If the people of Swansea acted within their legal rights it is useless to express resentment because your view does not coincide with theirs. A great many sen-

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tences have been read out to-night from the speeches of various persons, and some of those expressions have increased my desire to be cautious against what are known as obiter dicta. One of the speakers quoted has written book on that subject, and I think he recognises by now how unfortunate for a man his obiter dicta are. The noble Viscount who spoke for the Government quoted the clear words of Mr. Arthur Balfour—that in this question of salaries the responsibility of determination rests with the local authority, and that so long as the school is efficient no one can go into the question of salaries. The constant practice of the Board of Education since the passing of the Act was stated by Sir W. Anson, in reply to a question in the other House on August 4, 1903, in these terms—
"The local authority has, under Section 7 of the Education Act, the control of all expenditure required for the purpose of maintaining and keeping efficient the public elementary schools within its area. The matter of teachers' salaries is not one in which the Board of Education would intervene unless it could be shown that the reduction of salaries amounted to a failure of a local authority in its duty to maintain and keep efficient a public elementary school."
Everyone will agree that if the local authority told the managers they would not sanction more than a certain scale of salaries and the managers could not get teachers at those salaries a case of inefficiency would have arisen and the Board of Education would be bound to interfere. But you cannot act upon the hypothetical argument, especially when you have the evidence that in many of the eight non-provided schools in Swansea the scale of salaries denounced as inadequate has not led to inefficiency.
The noble Earl read the resolution carried by the vote of the Mayor in the Swansea Town Council as showing the real purpose and design of the local authority in their action, but I fancy the noble Earl knows the history of that resolution. It was carried by a snatch vote seized by the Conservatives in order to annoy their opponents, and I am informed that at a meeting called immediately afterwards the resolution was rescinded. We have heard a great deal of virtuous indignation against Ministers who act politically when they ought to act judicially. I agree; but you must not confound administrative with judicial action. The Board of Education have been notorious for its gross
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partiality to Voluntary schools and for its unfairness to Council schools.
THE MARQUESS OF LONDONDERRYWill the noble Lord give cases?
LORD STANLEY OF ALDERLEYYes. In October, 1902, on the eve of the passing of the Education Act of that year, by which Voluntary school managers would be screwed up a bit and compelled to make their buildings more suitable, the noble Marquess, who was then President of the Board of Education, addressed a conference of the chief inspectors under the Board, and, according to a report officially communicated to The Times, deprecated a too rigid application of the rules as to buildings and playgrounds, especially in the case of village schools. The noble Marquess said that many village schools which did not possess the best lighting and heating were yet giving the best education. I have been looking through the reports of our medical inspectors in the county of Anglesea, and I notice that they call attention to the serious condition of the sight of the children in village schools and dwell on the fact that in some cases the bad structure and bad lighting of the schools are responsible. Surely children in the country as well as in towns are entitled not to freeze in winter, and not to have their eyesight ruined by bad lighting. My point is that when we have this virtuous denunciation from noble Lords opposite of what Liberal Ministers are doing, they should look at home a little and see what a Conservative Minister for Education did on the eve of an Act becoming law, and by whose action an attempt was made to minimise the one great security that we had in return for giving public support with private management.
THE MARQUESS OF LONDONDERRYMy Lords, my noble friend behind me so completely stated the case of the Swansea school that it would be a waste of your Lordships' time for me to go over that ground again; but I venture to say that my noble friend has received no answer. With regard to what has been said by the noble Lord who has just sat down, I submit that the Act of 1902 did impose on local authorities the obligation of maintaining the efficiency of all schools; and I think the statements of the noble Viscount the Lord President and of Lord Stanley have been more in the direction of trying to

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drag a red herring across the course than of defending the line that has been taken.
I do not deny for one moment that the local authority are able to say that this particular school is efficient, but it is efficient not on account of the support of the local education authority but in consequence of the generosity of the managers, who are determined to support the school at all costs to themselves. I entirely dissent from the view of the local education authority in this case that the school is efficient, and can be kept efficient, even if they pay the teachers in the non-provided schools lower salaries than are paid to the teachers in the provided schools. If that were so, either the Council school teachers are receiving too high salaries or the teachers in the other schools are being under paid. The whole system of education is precisely the same in the two classes of schools. Why, therefore, should one set of teachers be paid on a higher scale?
The noble Lord opposite quoted the reply of Sir William Anson, for which I, as Minister for Education, was entirely responsible. What Sir William Anson said was this—
"The matter of teachers' salaries is not one in which the Board of Education would intervene unless it should be shown that the reduction of salaries amounted to a failure of the local education authority in its duty to maintain and keep efficient a public elementary school."
I submit that in the case of the Swansea school the reduction of salaries has been shown to be a failure within the meaning of the Act by the Board of Education's own Commissioner. The Board of Education, in the letter conveying their decision, say—
"It is suggested that the future efficiency of the school would be imperilled by the employment of teachers at the lower rate of pay, but this is a somewhat remote speculation."
How can this be said to be a remote speculation when it is admitted that the National Union of Teachers have advised their members not to accept service on the lower scale of salaries? It is not a speculation but more or less a certainty that this school cannot be maintained efficient unless something is done.
I had not intended to speak at any length on this question, because it is more of a legal nature. But I cannot pass unnoticed the criticisms made upon myself
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by the noble Lord who has just sat down. I regret the partial attitude which has been adopted by the Board of Education, in whose whole action during the last three years I see an endeavour to squeeze out and destroy denominational schools and to injure denominational teachers. I do not say for one moment that that policy is antagonistic to the feelings of a great many supporters of the present Government, but this I do say—that a great Department like the Board of Education should hold the scales fairly between all parties. The partial attitude of the Board in this matter is doing grievous injury to departmental administration. I have never made any secret of my belief in, and support of, Church of England schools, of which I have given practical proof in the district in which I live; but I have never allowed my own bias or prejudice to lead me even to think of doing an injustice to the schools of any other denomination when I was at the Board of Education; and I defy Lord Stanley of Alderley or any other noble Lord to bring against my administration of the Education Acts a single case in which I have shown the slightest partiality or done the slightest injustice.
The noble Lord laid great stress on the fact that on assuming office I had invited the inspectors of the Board from all parts of England to meet me. I did so advisedly. I wanted to learn, and I thought those inspectors could teach me. I heard their views and gave them mine. I certainly did tell them I laid great stress on children having physical exercise to develop their chests and I also spoke of the importance of outdoor exercise; but I said I thought that in rural districts playgrounds were not so necessary as in crowded towns, because the children came to school across fields and got exercise in that way. I also told them that they ought to induce the teachers to initiate the children into all the interests of the districts in which they lived, in order that they might be induced to remain in those districts when they grew up. If the same situation occurred again I should certainly do the same thing. In conclusion, I would express the hope that the Board of Education will not continue the partial attitude which it has displayed during the past three years. The President of the Board of Education, shortly after taking office, said he would be no party to vindictive ad-

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ministration but would endeavour to do justice to all parties. He has an opportunity now, for I do not think any impartial man will contradict me when I say that justice has not been done in this case.
THE LORD BISHOP OF SOUTHWARKMy Lords, the noble Lord who spoke from the back Bench, Lord Stanley of Alderley—whom I feel almost inclined on this occasion to call the noble and gallant Lord, for I think his defence of a very difficult position showed some gallantry—offered, as I understand, apologies for the action of the Government which they have not offered for themselves. It seems to me that our great interest at the present moment, whatever view we take on the education question, is that we should preserve as far as possible a high tone in dealing with the matter, and that whatever is done we should act from different sides in a way perfectly respectful to one another's position. Now, what was the noble Lord's contention? He has contended that it would be within the power of a local authority to treat quite differently, so long only as technical efficiency is maintained, two classes of schools within its area, and he illustrated that by what was a perfectly inadequate illustration. He said the authority may think it right to give in certain selected schools classes in woodcarving, cookery, and so on, which it would be unreasonable to require should be given in all schools. That certainly is very far from justifying the conclusion that, either legally or morally, a local authority, working under the present Education Acts, is entitled to differentiate, according to its own will, between two classes of schools. Therefore I am very glad that defence has not been put forward by His Majesty's Government. Again, the noble Lord went perilously near, I thought, to laying down that when a great public Department has got to act in its administrative character it cannot be expected to be too judicial. Now, that is the very thing that we most want to maintain, that when a public Department is charged with functions of this kind it should be as judicial as possible in the administration of them. Therefore I am glad again that it was the noble Lord who offered that defence and not the spokesman of the Government. But what was the defence offered by the noble Viscount the Lord President of the Council, who, I could not help feeling, seemed to labour under a sense that he had rather a heavy case to
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maintain? If I understood the noble Viscount rightly, the defence was that the President of the Board of Education had received legal advice which he was practically bound to follow. If that is so, we are in one sense very grateful for the explanation, because I think I shall not be saying anything improper when I say that, after all that has taken place recently with regard to the education question, the reputation of the present President of the Board of Education is an asset which is valuable to all parties; and, if it be true that, having to act in this difficult case, he was obliged to consult the Law Officers and having consulted them was bound to follow their advice, it may well be that we who are jealous of his reputation may feel that we have found some other party on whom to throw what seems to me the very onerous blame in this case. The advice given to the President of the Board of Education seems to be that the impossibility of maintaining a school efficiently can only be ascertained by letting it become inefficient. I put it to the House whether that is really a maintainable doctrine. Mr. Hamilton said—
"The matter did not rest in opinion only, for evidence was given before me of the actual feeling of the teachers, and it was proved that, while there was a waiting list of applicants for posts in the provided schools so that vacancies were filled without advertisement, vacancies in the Oxford Street Schools were filled, if at all, only with difficulty and delay."
Therefore they went to the very edge of actual proof. Suppose the managers had let down the school. What would have happened? Has the management of the Swansea case been so remarkable for promptitude that we could be sure that within even three months the thing would, have been set straight? What would have been meanwhile the condition of the children for whom the noble Lord (Lord Stanley) is generally so honourably jealous? The reputation of the present President of the Board of Education is, as I have said, an asset which is valuable to all parties. If he had taken courage and set aside the opinion of his legal advisers he would have saved the Board from this unhappy result, that at a moment when the education question had entered upon a more peaceful phase we should seem to have a more irrefragable instance of how the administrative pressure which has been freely talked of had been applied by a decision which was substantially unfair.
LORD ASHBOURNEMy Lords, the decision of His Majesty's Government, as stated in the letter of the Board of Education, is intelligible and plain, but I dissent from it. But I do not understand the position taken up by the noble Viscount the Lord President; it is not the same thing. The noble Viscount has not said a word of approval of what has been done, for reasons which I readily appreciate; but he has taken this extraordinary position that, because, under the pressure of necessity, the managers had out of their own pockets raised the teachers' salaries and thus prevented the destruction of their school, they had put themselves out of Court; but that if they had done nothing, if they had allowed their school to go to rack and ruin and to be smashed, then the Board of Education could have gone for their power of mandamus. That is the case that is presented by the noble Viscount.
I am informed that Mr. McKenna, the predecessor of the able gentleman who is at the head of the Board of Education at this moment, at an interview with the managers, stated that the payment by the managers of part of the salaries would not be used in the slightest degree to prejudice the case of the managers. If that promise was made, surely, in the name of fairness, commonsense, and common justice, it should be carried out. I do not care a farthing about the technicalities, but surely the managers should not be compelled to have their school destroyed; and if the Minister for Education told them that their school would not suffer because of their generosity, that is an overwhelming reason why the matter should not be pressed in this way. I have said that the speech of the noble Viscount, for whom I have every respect, did not deal at all with the official answer that must have been written after a consultation with the officers and which must have expressed the final view of the Government. He did not touch that. What is their case?
The true question at issue between the authority and the managers is one of fact, whether competent teachers can be procured for the Oxford Street Church of England School at the scale of salaries to which the local educational authority consented. If not, then the local education authority have failed in their statutory duty. Have they not failed? Surely you cannot throw aside every page of Mr. Hamilton's Report.
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Over and over again he affirms that the teachers could not be obtained without the increase. I take my stand upon the official answer of the Board of Education communicating their decision to the parties, by which they are judged, and there is not one solitary syllable to be said in defence of it. The Lord President has not suggested that he can throw over Mr. Hamilton's Report on all its findings. He has not suggested that; it would be an insult to Mr. Hamilton's high character to suggest it. Over and over again Mr. Hamilton indicates that the unraised salaries, which were the only salaries sanctioned by the local authority, made it impossible to run the school, to use a common expression. It was impossible to get the teachers, and the school would have to be closed if that standard were not raised.
Surely in dealing with this question we claim to be sensible men. I make no charge against the character and the integrity of the gentlemen who are administering this Act, but I say there has been a grave miscarriage of justice and fair play. I am not going to be dragged into an argument on points of law. For the purposes of argument I am willing to admit what has been said. The responsibility of judgment on Mr. Hamilton's Report when they received it and read it rested with the Board of Education. That is put for the purposes of argument and I accept it for the purposes of argument, though there might be qualifications to be attached. I have read their decision, not that announced by the Lord President of the Council but their decision on the question of whether it was proved that competent teachers could or could not be obtained without an addition to the low salaries sanctioned. Can any human being say that a judgment the contrary of Mr. Hamilton's clear finding can be sustained? Take it that it came before any Court of Law, no matter how humble. Would any Court hesitate? I pass by Courts and I will take any fair man. Take, as a typical fair man, the Lord President of the Council. If he had to read the Report of Mr. Hamilton and to form a decision upon it, would he, or could he, hesitate for a minute in saying, "Let right be done at last by these managers." They have been put off week after week, month after month, and year after year. The school has been in deadly peril with all the anguish of uncertainty, and now your

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last word apparently is this—"You are so good that you put yourselves out of Court. But if you condescend to be ungenerous, make your teachers discontented, make your school inefficient, then come to us," although a former Minister for Education said that such a monstrous consequence was not to follow.
THE CHANCELLOR OF THE DUCHY (LORD FITZMAURICE)My Lords, I have become almost persuaded during the last two or three minutes in listening to the impassioned oration of the noble and learned Lord who has just sat down that I am not here with other members of His Majesty's Government to explain the conduct of the Board of Education, but that we are members of the Swansea education authority summoned before a committee of noble Lords opposite to answer for our grave crimes and misdemeanours. Because, throughout the speech of the noble and learned Lord, and to a certain extent in the speeches of other noble Lords, there appeared a distinct tendency to assume that we were here to represent the whole case of the Swansea education authority and to support it, not only in principle, but in every detail.
My noble friend the Lord President pointed out that the conduct of the Swansea education authority, whether in principle or in detail in this controversy, which has extended over several years, is not the question before the House. The question before the House is whether or not it was the duty of the Board of Education in London to take certain steps in consequence of alleged defaults on the part of the Swansea education authority. That, and that only, is the question before your Lordships this evening. My noble friend pointed out quite distinctly that we have been advised that a case where any intervention on the part of the Board of Education could take place—whatever view may be taken, whether favourable or unfavourable, does not signify, of the conduct of the Swansea education authority—has not arisen, because the preliminary to any such intervention is, as was stated by the noble and learned Lord himself in perfectly clear language in quoting my noble friend the Lord President, that the school should have fallen into a state of inefficiency.
The noble and learned Lord does not, I think, dispute that as a legal argument.
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Nor did I gather from him that, as a lawyer, he questioned it. But what he said was that it was very hard upon this denominational school that, by its own good conduct, as he put it, it should not be able to invoke the assistance of the Board of Education, the reason why the school, according to him, has not fallen into a state of inefficiency being simply and solely because certain voluntary subscriptions were raised and brought into common account with the Government and Borough Council grants. That may be so. But there is an old saying that hard cases may be considered to bring about bad law. The noble and learned Lord opposite may think that the position created in this case is one of some hardship. But with all those opinions I really, on behalf of the Government, feel hardly concerned, because we are not responsible for the conduct of the Swansea education authority throughout a controversy which has gone on for, I think, two or three years. The position of the Swansea education authority is that of every local education authority in England. And here I must say that I do altogether demur—I do so, of course, with the greatest respect—to the statement of another great legal authority upon the Front Bench opposite. The noble and learned Earl who occupied the Woolsack in the days of the late Government laid down the proposition that there was an actual duty placed by Act of Parliament upon the local authority to observe absolutely equal treatment.
THE EARL OF HALSBURYI never said by Act of Parliament. That was one of the obligations that arose from the fact of their being obliged to maintain all the schools, and what I said was that there was the obligation of equal treatment. I never said equal salaries.
LORD FITZMAURICEI quoted the noble and learned Earl quite correctly. I did not quote him as having used the expression "Equality of salaries." I said, on the contrary, "equal treatment," or I will put it, if he prefers it, "equality of treatment." I deny, with all respect to the noble and learned Earl, that you can extract out of the well-known clause—I think it is Section 7—any direction as to equality either of salaries or of treatment; and for a good reason. If any words had been inserted in the Act out of which the construction could have been drawn, it would have placed every local authority throughout

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the country in a position of extraordinary difficulty. There are numerous cases where certain inequality of treatment arises out of the actual circumstances of the case.
THE EARL OF HALSBURYI am sorry to interrupt the noble Lord again. I pointed out that the only distinction was that where there were educational differentiations that then there might be inequality of treatment.
LORD FITZMAURICEThat is where I venture, with great respect, to join issue with the noble and learned Earl. There are a great many cases where, if you take the circumstances connected with large groups of schools together, you will find very great differences which, for example, would justify a local education authority in not giving absolute equality of salaries in every case. I do not wish to take up the time of the House by quoting details, but if the noble and learned Earl would enquire into the history of the administration of this Act since 1902 he would find that, especially in the early days of the Act, there was the greatest inequality, not only of treatment but of salaries, in many counties and in many boroughs of England. I can quote one illustration from my own experience. I remember perfectly well that when the county council of which at that time I was chairman and am now a member, decided to give equality of salaries in all schools, there was a strong body of opinion, not of Church opinion I grant, but consisting entirely of the political friends of noble Lords opposite, opposed to this decision, from the point of view of economy, and it was said, "Why not leave things as you find them? If the salaries were good enough in the Voluntary schools, which greatly predominated, before 1902, why raise them now?" If the county council had said, "We are willing to take that view in order not to increase the county rate and will leave the existing salaries as they stand," there were very strong arguments to be used in favour of that view. Although they were not arguments which commended themselves to my mind, I admit they were arguments legitimately used and used by persons for whom I have the greatest respect.
I know also that in several adjacent counties, with the affairs of which I am acquainted, it was, on grounds of economy,
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a considerable time before a uniform scale was set up from one end of the county to the other, because of the immense increase in the education rate foreseen as likely, and in connection with which, I am sorry to say, the worst fears of those who made those criticisms have been entirely justified. I have found during the last few days a very remarkable illustration of what I mean. A school may be said to begin with the teachers and to end with the school cleaners, and a county council is just as much responsible for the salaries of the school cleaners as it is for the salaries of its headmasters. Only the other day I observed—it was in the month of February in the year in which we are meeting and discussing this question here—that the education committee of the London County Council submitted a recommendation to apply the existing rate of pay of school-keepers in Council schools to those in non-Council schools, and it was pointed out that the increased expenditure would amount to £10,900 a year. Therefore for seven years, since 1902, there has been absolute inequality of treatment and of salaries between the school cleaners in the aided schools and those in the provided schools. Supposing the view of the noble and learned Earl were a correct one, either legally or administratively—that it was the duty of every local authority to put these schools on an absolutely equal footing—
THE EARL OF HALSBURYI have never so contended.
LORD FITZMAURICEAnd that there should be perfectly equal treatment between the provided and the non-provided schools, then according to that view the London denominational schools have all these years been suffering enormous injustice. I believe myself that if you were to deprive by any administrative action, let alone legal decision, the local authorities of the great responsibility and at the same time the great liberty which the late Government so wisely gave them, you would raise a far greater storm than any that will arise from this, as I hope, temporary quarrel between the managers of the Church schools in Swansea and the local education authority. Anybody who reads Mr. Hamilton's report can see that this is really simply the remains, probably the smouldering remains, of the larger controversy which I touched upon a moment ago as to whether or not

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there was to be equality of treatment. It has been settled throughout the great boroughs and counties of England and Wales, but the controversy lingers on here and there. I think we may trust, with time and patience, that this, as I venture to think, rather unhappy dispute will find a peaceful solution, and I am inclined to think that probably the less it is discussed and accentuated by speeches in Parliament the greater is the hope of a happy solution.
THE LORD ARCHBISHOP OF CANTERBURYMy Lords, I apologise for intruding at this period of the debate because I had hoped to see it concluded before now; but I cannot, after the speech we have just listened to, refrain from saying a few words. I do not think I shall be accused by the noble Viscount the Lord President or by the noble Lord who has just spoken of being one who tries to embitter a controversy of this kind. I have avoided throughout the use of any word in connection, directly or indirectly, with this particular dispute which could accentuate rather than allay strife. I own that I waited for the speech of the noble Lord who has just sat down in the hope that we should have had some kind of answer to what seems to me to be the deplorable result to which we have been brought by the grounds given for the decision that has been ultimately arrived at. If I understand rightly—and I hope I may be corrected if I am wrong, for the matter is one of supreme and far reaching public importance—the argument of the Government is this. If you are being subjected to really unfair treatment on a great scale by a local authority which is differentiating, on religious grounds, in the manner that has been so palpably shown in this case, your only course is to first ruin your school and come to us afterwards; you must ruin the school, break up the whole system of education, scatter the teachers hither and thither, and then come to us. Is it realised what that actually means? What has happened to-night may in some parts of England be taken by partisan authorities as an incentive to act in a particular way. Are we really told that the law, as interpreted now, is that there can be no remedy for that very gross injustice until the school has been reduced to absolute inefficiency, with the certainty that a long time must then elapse before an ultimate settlement can be arrived at? If that is so, it is well that the country should know that that is the
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interpretation put upon it. But I cannot honestly believe that that paradox, that intolerable conclusion, is virtually the counsel now offered to the authorities of this school in Swansea. If that is the interpretation of the law, it is an interpretation, as I understand it, that has been arrived at on the ipse dixit of a Prominent lawyer who holds high office under His Majesty's Government; but it must obviously be seen, from to-night's debate, that it is not the universally accepted opinion of those who are authorities on points of law. Is it then impossible that this question, if that be the paradox to which we are reduced, can be dealt with by His Majesty's Government by offering facilities to bring the issues to trial in a Court of Law? Do His Majesty's Government say—We rest on the conclusion arrived at by one of our Law Officers? Do they intend to hold to this position, which I venture to call a most paradoxical one? If facilities could be given for bringing the question to issue in a Court of Law it would show us at all events whether this is the final pitiable position to which we are to be driven. I hope I have not said anything unfair or unreasonable, but I do think we are entitled to know whether we are to rest with this as the final word and whether what we have heard is to be the counsel to be given to those thus affected.
EARL CAWDORI do not propose to say anything in reply to the debate which has taken place. I am perfectly content to leave the matter where it stands, so far as we on this side of the House are concerned. I understood from the noble Viscount that he was ready to give the notes of evidence which we asked for the other day.
On Question, Motion agreed to and ordered accordingly.

BISHOPRICS BILL. [H.L.]
Amendments reported (according to order): A further amendment made: Bill to be read 3a on Tuesday next, and to be printed as amended. (No. 13.)

TRENT RAILWAY AND BRIDGE BILL. [H.L.]
Report of the Board of Trade respecting: Laid before the House (pursuant to Order of this day), and to be printed. (No. 14.)
House adjourned at ten minutes past Seven o'clock, till To-morrow, half-past Ten o'clock.