HL Deb 10 December 1926 vol 65 cc1487-96

Order of the Day for the Second Reading read.


My Lords, I am conscious of the inconvenience of the hour and of the day, and also of the state of the Order Paper, and I will therefore be as brief as I can in asking your Lordships to give a Second Reading to this Bill. Its main and immediate object is to relieve certain Roman Catholic charities from being deprived of the benefits of the Finance Act, 1921. It has been suggested in some quarters that this Bill, or any other Bill with that object in view, is quite unnecessary, and that all the Statutes that we seek to wipe out are already spent, dead and obsolete, and are never enforced. I am willing to admit that there is some truth in that contention, but those who put it forward either ignore or are unaware of the fact that religious orders in this country are illegal bodies and are exposed to difficulties and serious disabilities on that account.

The noble and learned Earl, Lord Birkenhead, in a judgment which, I understand from competent authorities, is held to be one of the most illuminating judgments on record—namely, that in the case of Bourne versus Keene, in 1919, I think—pointed out that religious orders are excluded from the Roman Catholic Charities Act, 1832, and similarly, I may add, from the Act of 1860. Accordingly, being still illegal bodies, gifts to them for the purpose of their work are illegal, and in the same case they were declared by the noble and learned Lord, Lord Buckmaster, whose absence we all deplore and also by the noble and learned Lord opposite, Lord Parmoor, to be void and invalid, and on this account illegal. The Inland Revenue authorities not long ago refused to a charity carried on by an order the relief given to all other charities by the Finance Act, 1921.

Then again, no property can be held on trust for a religious order, and accordingly their property has to be held privately by beneficial owners, with the result that on the death of the holder Death Duties become payable. That, as your Lordships will at once see, is a very severe and heavy handicap on some of these orders. Again, if one of these beneficial owners dies, then on the appointment of a new man in his place the 1 per cent stamp duty ad valorem has to be paid instead of the 10s stamp duty on the ordinary appointment of a trustee. Again, you will see, a heavy burden is imposed in many cases. Certain Statutes and old penal laws, though they have become obsolete for other purposes, still declare gifts to orders to be gifts for a "superstitious use."

It has been argued in some cases that the question of superstitious use is also dead, obsolete and of no effect; but that is not the case. The noble and learned Earl, Lord Birkenhead, in the judgment to which I have already referred, while it is true that he adjudged gifts I for Masses not to be for superstitious use, did say: "That is not to say there are now no superstitious uses or that no gifts for any religious purpose can be invalid." In the same case Lord Wrenbury used these words— I may say, however, that the Statute 23 and 24 Vic. Cap. 134, does in my opinion recognise and affirm that there are tenets of the Roman Catholic religion which are superstitious and trusts which are superstitious are not lawful heritable trusts. I therefore hope that in the few words which I have uttered so far as I have gone I have been able to show to your Lordships that we are under distinct disability and that it is not accurate or correct to say that we do not want legal relief therefrom.

What we ask is that the illegality of religious orders may be done away with. We ask that all provisions which exclude them from the benefits of the Roman Catholic Charity Acts and which make gifts to them gifts which are regarded by the law as given for a "superstitious use," should be removed, and that those orders should be put on an equal footing with all other religious bodies in this respect. We ask for no privilege. We are not asking for anything new to be given to them which does not already appertain to other religious bodies. I venture to remind your Lordships that these religious orders at the time of the War gave their full share to the work of chaplains during that conflict and you have only to ask their padre comrades of the Church of England to realise that they did their work with zeal, courage and devotion. I would also ask you to remember that many of these orders run schools—high class schools like our own great public schools in England, as well as schools for the middle classes and the poorer classes—and if your Lordships could see the figures you would realise that those schools turned out boys who gave their lives in the War in full proportion to those turned out by our great public schools. Is it asking too much to ask that they should be relieved from these disabilities?

I should like to assume for the sake of argument that it is accurate to say that all these Statutes are obsolete and of no effect whatever. I have shown that that is not the case, but I will assume that they are obsolete. After all, our religious convictions to us, as are yours to your Lordships, are very sacred things, and it is offensive to us that there should be on the Statute Book expressions which are offensive to our religion and the retention of which, as we now understand, is of no use and the removal of which will do no harm to anybody. If any friend of mine regards me as being superstitious he is, of course, quite within his right to hold that opinion, but is that any argument why his opinion should continue to be embodied in a so-called obsolete Act of Parliament?

I do not know that I need say anything more except on the Bill itself. I should like just to run through the clauses. Clause 1 speaks for itself. Clause 2 is, I believe, pure surplusage. It was put in on purpose by the promoters of the Bill in Grand Committee upstairs so as to make clear that we had no wish whatever or intention to interfere with the question of processions in this country. This Bill does not affect the question of processions at all. Whatever the law may be now with regard to processions it will be the same if and when this Bill passes. An attempt was made in the other House to bring in an Amendment dealing with processions and Mr. Speaker ruled it out of order. These are his words: The next Amendment, I am afraid, is not in order. It is outside the scope of the clause, and I think also would have been outside the scope of the Bill as a whole. Still, Clause 2 was put in as a bona fide attempt to prove to everybody that we did not, in any item at all, wish to make any change in the law as regards processions. Indirectly there is a change, because, if your Lordships grant us this Bill, a Roman Catholic priest will be relieved from the possibility of a penalty if he attends processions in his canonicals. Under the law as it stands, he is liable on conviction to a line of £50, and we ask that that should be removed. I think that is all it is necessary to say on Clause 2.

Clause 3, I believe, also is really unnecessary, but we are very glad to have it inserted in the Bill, so as to make sure that no change whatever takes place under this Bill with regard to the presentation to livings, benefices and so on. That clause has been inserted in the Bill after full consideration and co-operation with various members of the Church of England, and in another place, I am glad to say, they gave us enormous help. The Bill itself, in fact, was in charge of a member of the Church of England, and this clause was the result of complete agreement between all parties interested in the matter. The last clause reads:— This Act may be cited as the Roman Catholic Relief Act, 1926, and shall not apply to Northern Ireland. There is something rather humorous about that, because naturally the Government of Northern Ireland, having a Parliament of their own, do not want this Bill extended to them, and we were only too glad to meet their views. I am not sure, however, that it is necessary, because it may seem strange to your Lordships, but our co-religionists in the North of Ireland already enjoy all the advantages which we are asking you to give us in this country. The Government of Ireland Act, 1920, wiped out in regard to Northern Ireland all that by this Bill we ask your Lordships to wipe out in regard to this country.

I now come to the schedule. The first Act there mentioned is an Act of 1549, which forbids books of Roman Catholic ritual "ever to be kept in this realm." There are some very odd names of books in that Act, books called scrales, others called pies, others called portuyes, and others called cowchers. If I want to have a cowcher—I do not know what it is—may I not be allowed to have it without being troubled by the guilty sense of offending against the law of 1549? We come next to an Act of 1559, which characterises the religious orders as "superstitious," and makes orders illegal bodies unable to enjoy the privileges which other bodies are able to enjoy.

There is also the Act of 1791, which excludes from the benefit of the Act any priest who officiates in any place of worship with a bell and steeple. He can apparently officiate anywhere else, in any church or building which has no bell or steeple. I am afraid that for many years we have seriously offended in that way. I know I have attended service in many churches with bells and steeples. We ask that that absurdity should now be removed. Then we come to the question of funerals. It is illegal now for a priest to attend a funeral. We all die and we must all be buried somewhere and those of my religion want to be buried by a priest. The result is that the priest is exposed to the dangers and penalties of the law, if they were enforced, and we ask that that disability should be removed. Another section of the same Act provides that nothing in the Act shall make it lawful to establish a society of persons professing the Roman Catholic religion and that all uses, trusts and dispositions which would have been deemed superstitious and unlawful before the date of the Act should continue to be so deemed.

Then we come to what is generally known as the Catholic Emancipation Act. Section 26 enacts that if any priest exercises any of the rites of the Roman Catholic religion or wears the habits of his order save within the usual place of worship of the Roman Catholic religion or private house he shall forfeit £50 for each such offence. Section 28 provides that members of religious orders must register with the clerk of the peace of the county and forfeit £50 for every month during which they remain in the United Kingdom without having so registered. Section 29 provides that any member of a religious order coming into this realm is to be banished for the term of his natural life. Section 30 permits any such persons being natural-born subjects to return to this Kingdom provided they register under Section 28, and the next section enables the Secretary of State to grant licences to such persons to remain in the United Kingdom for not more than six months. Section 32 provides for an annual return of such licences. Under Section 33 any such person who admits any other person to become a member of a religious order is guilty of a misdemeanour. Section 34 provides that any person so admitted shall be sentenced to banishment for life. Section 35 provides for the deportation of a banished person not departing within thirty days after sentence. Section 36 provides that any person sentenced to be banished and found at large after the end of three months shall be transported for life. Two later Acts, the Roman Catholic Charities Act, 1832, and the Roman Catholic Charities Act, 1860, continue the provisions of the Roman Catholic Relief Act, 1829, respecting the suppression of the religious orders.

May I say in conclusion that when this Bill reached its last stages in another place the comparatively small minority who were opposing it most generously gave way and allowed the Bill to come up to your Lordships' House without dividing against it; therefore it has come up to your Lordships with unanimity. I venture to express a hope that your Lordships will equally be unanimous in your reception of this Bill so that it may go forth from this Parliament as a message of peace and goodwill not only to my co-religionists in this country, whom it directly affects, but also to those millions of Catholics throughout the Empire who will be only too grateful to accept such a message.

Moved, That the Bill be now read 2ª.—(Viscount FitzAlan of Derwent.)


My Lords, I hope you will give a Second Reading to this Bill. The noble Viscount has stated the facts respecting it with characteristic clearness, reasonableness and courtesy. I will not follow him into the legal questions with which he began his speech respecting the working of the law about charities. I have neither the general knowledge nor the detailed legal experience which would enable me to judge about it. I am certain that we should all wish to remove any restrictions, if such there be, which hamper Roman Catholic charities on account of the faith of the beneficiaries or of their membership in a religious order.

I think it may plausibly be argued—I do not so argue—that not much was or is to be gained by legislating for the removal of existing provisions or restrictions which are practically inoperative. Once the principle of freedom of public religious worship has been conceded, as it happily has, no one to-day would think of contending for the retention of such detailed and even petty restrictions of that freedom, as for example, that no priest shall officiate in a church with a steeple or bell, or at any funeral outside, or wear in the open air the habit of his order. I imagine there is no one in England who would now suggest that those rules ought to be put into practice. They have long been dead. It is not difficult to follow the history of how they originally came into being. The conditions are entirely changed and I hope they will disappear from the Statute Book.

On the other hand I think I perfectly understand the feeling to which Lord FitzAlan has given eloquent and pointed expression. It is natural that the members of a great religious community should resent the fact that there are certain normal practices of their religious life which everybody agrees that they should perform and which nevertheless are still, according to strict Statute law, illegal. I suppose your Lordships will agree that on general principles it is an eminently harmful thing that laws should exist and should be by common consent disobeyed. That does harm in many directions. Law as law is a sacred thing. We ought not to tamper with it, and if our Roman Catholic friends desire to do so they can, I think, rightly and reasonably claim that an amending Statute should be passed to set them free from these anomalies even if the restrictions exist only in Statutes hard, as the records of these debates show, even to discover, and some of them certainly not in common circulation or brought to the notice of ordinary people. I for one am entirely ready to meet the wishes of my Roman Catholic friends in that respect.

I feel bound at the same time to emphasise that there still remain what the noble Lord himself, I think, alluded to and what can rightly and truly be called disabilities of a certain sort. The foremost instance is, of course, the Act of Succession. Nobody has ever whispered any desire to change its provisions. A Roman Catholic cannot sit upon the Woolsack. The. Woolsack has great duties to discharge towards the Church as well as the State and the Law Courts, and, in ancient phrase, he is the keeper of the King's conscience. We enact at present that the office cannot be held by a member of the Roman Catholic Church. Again, I think it is indisputably right that one who is a Roman Catholic and holds what we call the patronage of livings in the Church of England should be bound to leave to others actually as well as nominally the decision about each appointment.

If it be asked why we need retain these disabilities or any disabilities at all and why we should not make a clean sweep of the whole thing, as one or two people have suggested in the course of these debates, the answer lies in the history of England. The last, thing I wish is to say a single unkind or discourteous word, but we cannot obliterate from our history or from memory occasions when what I would venture to call the spirit of the Papacy has threatened our liberties. Further, it must be said that even in the present attitude of that great communion there is sometimes evidence of the persistence on the part of its ecclesiastical chiefs of a spirit or a system which is out of touch with our normal and characteristic English spirit in Church and State. While that system persists the reason for retaining some safeguards is not far to find. Happily in the Bill before us the abolition of these restrictions is not even suggested. What the Bill does effect is the removal of anomalies which no longer correspond to the facts of present-day life, and I entirely agree with what the noble Viscount said in this respect. I hope your Lordships will give a Second Reading to the Bill.


My Lords, I desire most heartily to support the Second Reading of this Bill and I re-echo the hope of the noble Viscount who moved it that there may be a unanimous expression of opinion in that direction in this House as there was in the concluding stages in another place. The most rev. Primate has already expressed a view with which I entirely agree about the omission from this Bill of any reference to the topics to which he has himself referred and, therefore, I do not desire to refer to them again. But I think it is a mistake to retain upon our Statute book Statutes which are said to be obsolete but which from time to time may be referred to as though they were still operative for certain legal purposes. I have looked very carefully through the schedule of these Statutes and the reference to them in the Memorandum and I am entirely in accord with the view put forward by the noble Viscount opposite.

The main point which strikes me is that no great Christian community ought at this stage to be put under any special disabilities and that all Christian communities ought to rejoice in thinking that the main test is sincerity, and sincerity is best obtained not in attempting to get a rigid uniformity but in recognising that faith and Christian hope can be expressed under different terms and in different ways. The only other point about which I wish to say a word is the case of Bourne versus Keene. I see the noble Earl, Lord Birkenhead, is now in his place. I had the honour on that occasion of taking part in the decision when the noble Earl was Lord Chancellor, and my recollection is that that decision dealt especially with what is known as superstitious uses and particularly with the fact that legacies left for Roman Catholic charities should not be curbed but should have full liberty. My recollection is that that is the chief point. I sent for the book, but I am sorry to say that I have left my glasses at home. However, I entirely agree that the decision does not go the length for which the remission of these old Statutes is sought in this Bill; but the spirit, the motive, and the underlying current of thought are much the same in both cases.

I do not want to repeat myself beyond saying that I believe all those with whom I act in political life are agreed that this Bill should be passed and all are in substantial if not in actual agreement—I am in actual agreement—with the very words and phrases used by the noble Viscount on behalf of his own religious community in presenting this Bill for Second Reading in your Lordships' House. I heartily hope that a Second Reading may be unanimously given.

On Question, Bill read 2ª and committed to a Committee of the Whole House.

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