HL Deb 02 December 1926 vol 65 cc1113-23

THE LORD ARCHBISHOP OF CANTERBURY moved to resolve, That in accordance with the Church of England Assembly (Powers) Act, 1919, this House do direct that the Benefices (Ecclesiastical Duties) Measure, 1926, be presented to His Majesty for the Royal Assent. The most rev. Primate said: My Lords, I ask your Lordships to agree to the Resolution which stands in my name on the Paper. On some occasions when the procedure of which I am now asking your Lordships to take advantage has been followed in this House comment has been made, not I think illegitimately, as to the Measure coming forward without there having been adequate time for deliberation upon it outside or beforehand. Such a matter will, I understand, be brought before your Lordships' House by the noble Earl opposite in a very short time. But in this case at all events no one will allege that difficulty.

This Measure, after a very prolonged discussion which began some three years ago, passed the Church Assembly by an overwhelming vote on July 8 of this year. It was at once sent by the Legislative Committee of the Church Assembly to the Ecclesiastical Committee of Parliament, and the Ecclesiastical Committee on August 2 recommended that it be presented for the Royal Assent. Four months have passed since then. There has been abundant consideration of the Measure and a great deal of detailed comment outside as well as in Parliament, and on the whole the opinion about it has been not only quite favourable to but overwhelmingly on the side of the proposals that are made in it. There have been adverse criticisms, but they have been based upon a curious misapprehension to which I will refer in a moment, and they are really insignificant in proportion to the support with which the Measure was welcomed in the Church at large. The Ecclesiastical Committee, to which your Lordships attach and rightly attach almost conclusive weight in this matter, are of opinion that it is desirable that the Measure should become law and that it does not affect prejudicially the constitutional rights of any of His Majesty's subjects. That does not mean that your Lordships are bound to give effect to their recommendation. I have never brought a Measure forward in this way in the House without saying how entirely and loyally I recognise the complete right of Parliament to deal as it will with Resolutions which come before it. In no kind of way does the Ecclesiastical Committee's recommendation carry binding force and in no way whatever does the fact of a Measure having passed the Church Assembly take away from Parliament the responsibility and, indeed, the duty of carefully considering the Resolution which comes before it.

I would like to say a few words about the object of this Measure. It is simple and the need for it is very real. I do not think that many of your Lordships are unfamiliar with cases in England in which the work of a parish is being inadequately done and the parishioners are suffering therefrom. This inadequacy is sometimes due to positive wrong-doing on the part of the incumbent; I mean, to evil behaviour of some kind. With such cases this Measure has nothing whatever to do. I am anxious to make it clear that this is not a disciplinary Measure for correcting the wrong-doing of incumbents. It has the object of protecting parishioners from the inadequate performance of duties the performance of which they have the right to claim. Cases of the other sort are, happily, very rare, we deal with them in another way altogether and, as I say, they have nothing to do with this Measure. The Measure deals with no specific or overt act of wrong-doing, but with the inadequate discharge of a vicar's rather complicated responsibilities.

That inadequacy may be on two grounds. It may be due to no fault of his, but to advancing years, or illness, or physical incapacity to do the work of the parish; or, on the other hand, it may be due to negligence on the vicar's part, not to wrong-doing but to reprehensible failure to discharge his duties actively. It is obviously an extremely difficult thing to define quite accurately what constitutes that sort of failure. We have endeavoured to do it, and I shall refer to it in a moment. For the parishioner's sake the question of the inadequate performance of duty due to negligence must be definitely and clearly dealt with. This subject has been before the Church and before Parliament for nearly eighty years and successive Measures have been introduced to deal more or less with it. As long ago as 1838 the Pluralities Act dealt with this question, but dealt with it in rather a complicated manner and it is a little difficult to give effect to that Act in any satisfactory manner. A good deal later, in 1885, what is called the Pluralities (Amendment) Act was passed which endeavoured to deal with this question of negligence as well as several other questions. Then, in 1898, what is called the Benefices Act was passed which, again, attempted the same thing.

None of these Acts is quite effective and none of them works out very well. They are very complicated and difficult to work. I think everyone familiar with the subject will admit that what this Measure does is to consolidate and to simplify the provisions of those Measures as well as to add a little of a new kind. In all the Measures that have been proposed or enacted the same large line of procedure has been followed. In all cases it begins with a duly constituted Commission of Inquiry being appointed to give a Report upon two points—Are the duties being inadequately performed? If they are inadequately performed, is that due to mere age or illness for which the incumbent is not responsible, or is it due to negligence? To those two points the Commission has to reply. The existing law provides that in the first of those cases, where it is due to nothing culpable, to nothing for which the incumbent is responsible, but to the fact that he is incapable physically or otherwise of doing the duty, the Bishop may call upon him to appoint a curate who shall assist him or take his place when he cannot officiate in the parish and carry on its work; and, if he fails to comply with that and the Bishop thinks it necessary, the Bishop may himself appoint a curate. In that case there is an appeal to the Archbishop of the Province as to whether the incumbent is being fairly dealt with.

Where the inadequate fulfilment of duties is due to negligence, the Bishop may, without the incumbent having any say in the matter, appoint a curate himself and he may, if necessary, go further and inhibit the negligent incumbent from himself officiating. In that case again an appeal is most necessarily provided. The appeal then is to a Court consisting of the Archbishop of the Province and a Judge of the Supreme Court, who sit together to decide whether or not the incumbent is being unfairly dealt with. These cases are rare, partly because it has been so difficult to define exactly what negligence means and, in the second place, because the existing law has been, as I have said, cumbrous and complicated and difficult to apply. I have myself sat with a Judge of the High Court in two such cases—I think only two—and I have felt how much the law needed simplification if we were to carry things out satisfactorily. Therefore we have the need of this Measure, which has gone through these years of very careful discussion and preparation, and which your Lordships are now asked to submit for Royal Assent.

The Measure does three things. First, it consolidates in a clear form the exist- ing Acts, which are complex and difficult to apply. Nobody, I believe, doubts that such consolidation is necessary and no one, as far as I know, has taken the least exception to the way in which the Acts are consolidated and made clear in the Measure as it Stands. The next thing that the Measure does is to define more carefully than hitherto the exact meaning of the charge of negligence, applied to an incumbent who comes under its provisions. The greatest care has been taken as regards that definition. The words are somewhat long and will be found in the second clause of the Measure which describes them very carefully. I believe the noble and learned Viscount on the Woolsack would be prepared to endorse what I say when I repeat that the very greatest care has been taken in drafting these words so as to be scrupulously fair to the incumbent as well as fair to the parishioners to whom he is called to minister. I will not go over the words, which are very far-reaching in their character.

The third thing the Measure does is to give great care to the improvement and re-drafting of the detailed rules about the possible inhibition of a negligent incumbent and the bearing of that inhibition upon the question of his residence or non-residence in the parish. Nothing is more unsatisfactory than that an inhibited man, whose duties and responsibilities have been transferred to another man nominated against the former's will, should continue to be resident in the parish notwithstanding that he has been found to have been negligent in the performance of his duties to such an extent as to involve the Bishop in the responsibility of sending someone else to take his place. We have in this Measure very carefully made arrangements in regard to that. There is a provision whereby, in case of necessity, an incumbent may be told that while the money will still be paid to him—he is not to be deprived of it—it will not be paid to him if he continues to reside in the parish the duties of which he has been forbidden to continue to undertake. The common sense of that will be obvious and it removes certain difficulties which have been found great in practice. I could go into them in much more detail if it were desirable, but your Lordships will find it very clearly set out in Clauses 10, 11 and 12 of the Measure. They go into the matter very carefully.

That is the Measure which is before your Lordships. It is the outcome, as I have said, of prolonged discussions. One of the Committees which sat upon it in the National Church Assembly consisted, I think, of between seventy and eighty men and everything was gone into with the very utmost care so as to ensure fairness to the incumbent as well as to the parishioners. I am sure that the real difficulties, with which we are all familiar, have been grappled with in a reasonable manner and I invite support for the Measure. There have been objections raised to it outside, but they are few and seem, by some strange accident, to have been based upon a real misapprehension of what the Measure is. In the first place, if anyone will look into the objections which have been raised and made public, sometimes in the Press, sometimes in speeches and addresses, not so much in the Assembly as outside it, they will find that the objectors seem scarcely to have noted the fact that the things they are objecting to are not things that are laid down now for the first time in this Measure, but that they are the existing Measures in a consolidated form. They are really objecting to something that has been the law for seventy or eighty years, but which is now made clear and lucid instead of being left complex and difficult. That cuts away the ground from a very largo number of the objections and criticisms which have been made with regard to the Measure.

Then again it has been said that the negligent incumbent is being treated unfairly because he has no certainty of having adequate knowledge of what is alleged against him. That is an extraordinary statement to make to any one who has the Measure before him. The provision of the Measure, if your Lordships will look at the last paragraph of Clause 2, is that .… no incumbent shall be deemed to have been negligent in the observance or performance of any of his ordination promises or the duties imposed upon him by the Rules for the Representation of the Laity unless such observance or performance has been required of him in writing by the Bishop, who shall give him opportunity of replying, before issuing any commission under the provisions of Section three of this Measure. Therefore the incumbent knows at the outset from top to bottom what is alleged against him and why the Commission is appointed.

Then the Commission is appointed; and it has sometimes been said in letters to the Press that the Bishop appoints a number of Commissioners who are his nominees and that they are to report to him as judge upon something which he has prejudged, so to speak, by the appointment of the Commission. Nothing can be more directly contrary to the fact. The Bishop's sole business is to say that a Commission shall sit. He has no appointment of any single member of it. The members are appointed in three ways. Some are ex officio as officers in that particular part of the diocese, some—the larger number—are appointed by election by the clergy of the diocese, the men themselves whose conduct may be impugned, and others either by the Lord Lieutenant of the County or Chairman of Quarter Sessions. Those are the ways in which the Commissioners are appointed and with them will sit a Commissioner appointed by the incumbent himself. Could there be any better security that the man is not unaware of what is said against him or will be adequately heard before the Commission? Your Lordships will find these points are clear if you look at the First Schedule of the Measure. You will see how clearly it is laid down that the incumbent himself is to be represented on the Commission.

There is one other thing. Hitherto there has been a serious lack in the existing laws of any provision whereby an inhibition laid upon an incumbent under one of the existing Acts can be ended. I am not prepared to say that it cannot be done but we lay down here that it can be done, that if it is shown that the incumbent concerned is able and willing to do his duty properly the inhibition can be properly removed. It is true that after five years of an inhibition running without being removed it is provided that the benefice will become vacant. It has been said that in that case the inhibited man will lose his pension under other Acts. That is quite a mistake. There is nothing of the kind provided and the pension would go on for him exactly as before.

I have tried to put before your Lordships what is rather a complicated Measure as clearly as I can. It is a difficult Measure but it is a necessary one, and in my opinion the passing of this Resolution to-night would illustrate well the nature and the advantage of that mode of legislating in Church matters which has now come into force under what is called the Enabling Act. The consideration of the details of this Measure has involved hours of debate and a great deal of criticism and amendment by successive Committees. I venture to say that the enactment of such a Measure would have been almost if not quite impossible without the present machinery of legislation. In view of the objections which may be legitimately made to a Measure—no doubt objections can be met and criticisms answered—it would be literally impossible for either House of Parliament to give time to going into such matters in detail.

Over and over again some of us have had our hearts made sick at finding that though there was a common desire that a particular Measure should be passed for the benefit of the Church it was impossible—I find no fault with anybody on that account—for the House of Commons to give the requisite time to the task. Here is a case in which abundant time has been given for everybody who desired to do so to express his opinion on the matter. The subject has been threshed out and debated from end to end, and now the Ecclesiastical Committee of Parliament recommends that the Measure be presented for the Royal Assent. I ask your Lordships to endorse that recommendation.

Moved to resolve, That in accordance with the Church of England Assembly (Powers) Act, 1919, this House do direct that the Benefices (Ecclesiastical Duties) Measure, 1926, be presented to His Majesty for the Royal Assent.—(The Lord Archbishop of Canterbury.)


My Lords, I desire to make two observations in addition to those made by the most rev. Primate, First, I want to be allowed to confirm of my own knowledge what he said about the careful consideration which was given to the definition of "ecclesiastical duties" in this Measure. The most rev. Primate was, good enough to call me into consultation and to recommend the adoption of one suggestion which I made. I am confident that to the definition as it now stands no reasonable objection can be taken. The second thing that I want to say is this, in order to calm certain apprehensions which have arisen. I have seen it stated in a letter in the Press that the Measure is unfair to incumbents because they will not have the opportunity of being heard before a charge of negligence is held to be proved against them. I believe that to be entirely a misapprehension.

First, every incumbent who is charged with negligence in the performance of his ecclesiastical duties will have notice of the charge and an opportunity of replying to it before any Commission is issued. Secondly, if a Commission is appointed to enquire into his conduct the. Commission will be appointed, as has been said, not by the Bishop but partly by the Chairman of Quarter Sessions or the Lord Lieutenant and partly in other ways. That Commission will have to consider whether the allegation is made out. I hold most strongly that the decision of the Commission cannot be given against the incumbent without hearing what he has to say. It has been laid down time after time, and I have had to lay it down myself in another capacity, that a body having judicial duties must hear both sides before coming to a decision. I cannot conceive that a Commission under this Measure would fail to observe that rule, and I am certain that if it did so it would soon be called to account. Lastly, there is an appeal against the finding of the Commission. That appeal is to be heard by a Court composed of the Archbishop and a Judge of the High Court. The Measure says that the Court is to be a public Court and is to be bound by the rules of evidence. It is inconceivable that a Court over which a Judge of the High Court is to preside under this Measure will be neglectful of its plain duty to hear both sides.


My Lords, I have read this Measure and I should like, if I may, to ask two questions of the noble and learned Viscount or of the most rev. Primate, who perhaps knows more of the details of its working. This Measure deals with the parochial clergy, but I should like to know if other Measures are proposed dealing with the more highly salaried clergy in the cathedrals which will enable similar discipline to be applied to them. My second question concerns the parochial clergy, who have as a rule very little pay. The tittle tattle of a village may cause a case to be brought up before the Commission without real foundation. As I read this Measure, if the incumbent goes up before a, Commission, or if he cares to communicate with the Bishop, he receives no costs at all, even if he wins, and it seems to me that this may lead to a certain amount of hardship. If the incumbent comes on appeal before a Court, I am not at all clear from the wording of Section 9 whether the expenses necessarily incurred in such procedure would be paid by the Ecclesiastical Commissioners if the appeal succeeds. If not, the expense of an appeal might very well frighten the incumbent and put him in a position of difficulty in the parish in which he lives. The Bishops are already provided for, because all their expenses are paid out by the Ecclesiastical Commissioners, but do not know if a parish priest can get any costs and I doubt very much, if he goes before a Court, whether he will get the costs that he has incurred or, indeed, any costs at all.


My Lords, by leave of the House I should like to say that the question of the higher paid ecclesiastics in cathedrals is dealt with under the statutes of the cathedrals whereby the conduct of those responsible for those duties can be brought to the notice of the Visitor who is empowered to deal with the whole matter. It is a different system altogether, and these clergy are not in the same position, since there are no parishioners with special need of protection. We are dealing in this Measure with the parish clergy and their functions and we are protecting parishioners who find themselves in a position in which adequate discharge is not given to the duties imposed. I do not think it would be easy to draft any Measure which would apply the same discipline to a cathedral staff—deans, canons or minor canons—but I think the noble Lord will find, if he will study the matter, that very careful provision is there made with regard to neglect of duty on the part of those who are subject to the surveillance and authority of the Visitor.


I am much obliged to the most rev. Primate for his answer concerning the cathedral clergy, but he has not given me an answer concerning the costs, which, to my mind, is a much more important point.


My Lords, that is an aspect of the Measure that has not hitherto been called to my attention, but my impression is that the Committee that has to meet to make rules under the Act could make rules under which costs could be given to the incumbent who succeeds in his appeal to the Court.


And to the Commission?


The Commission is a different body and its proceedings will be less formal and less expensive than those of the Court. But as to the Court, there is a body to be established which will make rules of court and, although this point has not hitherto been brought before me, I do not doubt that it will be taken into consideration by that body. I think it is a matter to which they will have to pay attention. I only wish to add that if the Commission has power, I am sure that it will exercise it in such a way as to give to the incumbent who has succeeded all the costs.


I am much obliged to the noble and learned Viscount for his remarks. I think that his answer may relieve some of the fears of persons who have expressed a doubt upon the matter.

On Question, Motion agreed to.