HL Deb 18 February 1932 vol 83 cc617-26

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (VISCOUNT SANKEY)

My Lords, I beg to move the Second Reading of this Bill. Its object is to transfer in certain cases the jurisdiction of the diocesan court to the County Court. With your Lordships' permission I will make a short general statement, and then draw attention to one or two particular dates. There is in Cambridgeshire a parish of the name of Hauxton, and that parish is in the diocese of Ely. There was a gentleman named Mr. Stevens who, in 1927, was the owner of certain land in the parish. Unfortunately, at that time the chancel of the parish church was out of repair, and it was estimated that it would cost about £30 to put it right. The parochial church council were entitled—and it was their duty—to go into the matter, and they were advised that Mr. Stevens was liable to put the chancel into repair, because he happened to be the owner of land in the parish. And so they communicated with Mr. Stevens, and he denied his liability. The matter then came, at the instance of the parochial church council, before the diocesan court of the diocese of Ely, and the Diocesan Chancellor went into the matter. He came to the conclusion that Mr. Stevens had had notice, but he said it was quite immaterial whether Mr. Stevens had had notice or not, because the mere fact that he was the owner of the land in the parish, and that this land was charged with the burden of repairing the chancel, was sufficient. Therefore, he said, Mr. Stevens was liable as the landowner for paying for the repairs.

Now, one would have thought that a simple way of finding out what Mr. Stevens was to do would have been to say: "Well, the repairs will cost £30; that is a reasonable sum: judgment against you for £30"; or it might have been a reasonable thing, in ordinary circumstances, for the council to have done the repairs. Then they could have sued Mr. Stevens for the £30, and, having proved that he was liable, and that the sum was a reasonable sum, judgment in normal circumstances would have been given for the £30. But, unfortunately, the Consistory Court, the diocesan court, had no such power. The only power apparently that the Consistory Court had was this: it was entitled to admonish Mr. Stevens, and to say to him: "Well, you must do the repairs." Centuries ago an admonition by an ecclesiastical court no doubt could have been enforced by excommunication, and it would have been a very powerful weapon for getting those repairs done—"unless you do these repairs you will be excommunicated." But even centuries ago that was thought to be rather a difficult way of proceeding, and by a Statute as far back as the reign of Queen Elizabeth another procedure was laid down.

Under that procedure—and I will not go into the very technical terms—what happens is this, that a man who has a judgment in the ecclesiastical court, under which his opponent is admonished to do a certain thing, can invoke the civil power to come to his rescue, but he has to invoke it in a somewhat peculiar way, the theory being this. It is said to his opponent: "Here is an order of a court against you. You have not obeyed the order, therefore you are guilty of contempt of court. Therefore, if you do not pay you may have to go to prison for contempt." That was what happened in this particular case. The civil power was invoked. The wheels of the machine were set going, and in due course of time Mr. Stevens found himself in Bedford gaol. There he remained till, to use the technical term, he purged his contempt: he paid the sum and costs. He also had to apologise but I do not attach any importance to that.

As a result of this gentleman's going to prison in these circumstances there was a very considerable public agitation, in fact, I am almost justified in saying that there was a public outcry. But I am a churchman—I hope I am among the most loyal churchmen—and, in addition to that, if you will allow me to tell you, before I became a Judge I was also a Chancellor of a diocese. Therefore I am not wholly unfamiliar with how things are done in this sort of matter. I should like to say that a good deal of this public criticism was rather ill-informed, because it was no fault of the Church and no fault of the learned Diocesan Chancellor. All he had to do was his duty and to decide in accordance with the facts. All that he did; but, even loyal churchman as I am, I have come to the conclusion that this jurisdiction is not one to which the Church really ought to attach very much importance in these days. This is not an ecclesiastical principle for which I am prepared to go to the stake, and in my view the Church would be well advised in her own interests to jettison a jurisdiction of this character. These events happened soon after I had the honour of presiding over your Lordships' House and I was the recipient of many indignant communications, to which I sent a formal reply, but it seemed to me the best thing to do was to refer the matter to a small Committee in order that they might examine the position and make a Report. I was very fortunate in being able to secure as the Chairman of that Committee the present Attorney-General, Sir Thomas Inskip, Sir Stanford Downing, who is the secretary of the Ecclesiastical Commission and a very distinguished Diocesan Chancellor, and the late Mr. Aubrey Lawrence, who unfortunately died before the Report was made. His death was a great loss to the Church. The Committee made a Report, and the object of the present Bill is to put their recommendations into an Act of Parliament.

I am sorry to trouble your Lordships with some small details, but I had better tell you the facts contained in the Report of the Committee. It appears that as long ago as the year 1798 the Dean and Chapter of Ely were impropriators of the rectory of Hauxton- with-Newton, and as such they were entitled to the rectorial tithes arising from lands in those parishes and thereby they came under a liability to repair the chancel of Hauxton Church. By an Enclosure Act of the same date they were given certain lands instead of tithes and those lands became charged with the repairs of the chancel. In 1863 the Dean and Chapter granted to Mr. Henry Hurrell a lease for twenty-one years and this lease contained a covenant binding the lessee to repair the chancel of the church. Under certain orders with which I need not trouble your Lordships this land passed into the hands of the Ecclesiastical Commissioners and in 1871 the Commissioners sold all the land originally allotted, with one exception, to Mr. Hurrell and the conveyance was subject to a perpetual covenant by the purchaser to repair the chancel. In 1916, Mr. Arthur Hurrell, to whom the estate had descended, sold the property to Mr. J. H. Stevens, the gentleman who eventually found himself in Bedford gaol. The conveyance to Mr. Stevens made no reference to the conveyance of 1871, but it was clear, as I have already stated to your Lordships, that Mr. Stevens was liable to repair the chancel by reason of his ownership of the land, whether he had notice or not.

The Committee included the Hon. A. E. A. Napier and His Honour Judge Owen Thompson, and they say in their Report that having taken into their consideration all the matters … we have come to the conclusion that the existing remedy in cases of disputed liability concerning the repair of chancels by impropriators is not satisfactory …. In our opinion the whole procedure is cumbrous and antiquated, and in particular, the enforcement of what is really a. pecuniary liability by imprisonment belongs to a system of law which ought to be and is in fact regarded by most people as obsolete. Probably every member of your Lordships' House will agree with that statement. They then put forward their recommendation. They had to consider what was the best thing to be done, and they came to the conclusion that in the circumstances the best thing was to transfer the whole of such questions to the County Court for its decision. Your Lordships will recall that in this particular case the amount at stake was only £30 and it does seem rather absurd that a litigant should first of all have to go before the diocesan court to establish liability and then should have to resort to a process of the civil court to enforce his judgment.

There were one or two gentlemen on the Committee who were of the opinion that the best way still was to let the Diocesan Chancellor decide the question of liability and then to go to the County Court for its enforcement. What they said was, this: Some of our members pressed the view that it was unnecessary, and therefore undesirable, to destroy the jurisdiction in this matter of the ecclesiastical courts and that in would be better, in view of the origin and history of the duty to be enforced, that the question of liability, or subjection to the duty, should be left as heretofore to the adjudication of the ecclesiastical courts … As, however, this did not commend itself to the majority of the Committee and as the primary aim of all had been to provide machinery which should be workable and fair between the parties concerned, these members, without dissenting from the recommendation now put forward, only asked that their view should be placed on record.

As an old Diocesan Chancellor I am very glad that it should be placed on record, but as far as the public is concerned, and it seems to me as far as the law is concerned, it is more desirable that there should be identity of proceedings and that the whole matter should be transferred to the County Court where it could be dealt with expeditiously, cheaply and to the satisfaction of all parties. If I were asked to say why it would be better to transfer the whole to the County Court, and were to use technical language, I should say that to divide the jurisdiction between the courts was an undesirable dichotomy, but talking ordinary English let me say that it is not wise to have two bites at a cherry.

May I come to the Bill itself? Its object is to keep the law unchanged except so far as it will be necessary to transfer the jurisdiction from the diocesan court to the County Court, and to convert the personal obligation into a pecuniary liability. Clause 1 does that, and the marginal note correctly says "Abolition of jurisdiction of ecclesiastical courts over repair of chancels." Clause 2 provides the Machinery for doing it—machinery which is to operate when the defendant does admit that he is liable and when he is willing to repair. Clause 3 provides for urgent cases and says that the responsible authority may in certain cases do the work themselves and afterwards sue. Clause 4 contains certain general provisions as to proceedings and transfers the question to the County Court. Clause 5 enables the Lord Chancellor for the time being to "make rules prescribing anything which is required or authorised by this Act to be prescribed." Clause 6 is an interpretation clause and Clause 7 is the title. That is the whole matter. I am sorry to have detained your Lordships so long over what is a very simple matter, and I now beg to move that the Bill be read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, although this may seem a very simple and technical matter yet it is going to make a new departure in the jurisdiction of courts which are as ancient and as much courts of the realm as any others. I hope, therefore, that your Lordships will think I am justified in offering one or two observations upon this Bill. The noble and learned Viscount on the Woolsack has put before your Lordships the circumstances which have made some such Bill as this necessary. With regard to the Hauxton case, I think it is well to remember that no question arises as to the liability of lay rectors to pay for the repair of chancels or as to the conduct of proceedings in Consistory Courts, but a very serious question arises as to the fitness of imprisonment as a penalty for refusing to obey the order of the Consistory Court directing the defendant to carry out repairs to the chancel. I am satisfied that there must be general agreement that this penalty is wholly inappropriate and that, once the liability has been determined, the ensuing debt should be regarded as a pecuniary debt recoverable by ordinary process of law. On that ground there is certain to be agreement, but I think it would have been well, in spite of what the noble and learned Viscount the Lord Chancellor has said, if the Bill had been drawn on somewhat different lines leaving the determination of the liability of the rector to the ecclesiastical courts and the enforcement of the consequent debt to the County Court, which is the appropriate court for dealing with all simple actions for debt.

May I very shortly put before your Lordships my reasons for that opinion? In the first place, from time immemorial the whole church building, and indeed all consecrated ground, has been under the jurisdiction of the ecclesiastical courts and I should be very reluctant that any jurisdiction of the ecclesiastical courts over the chancel should be withdrawn from them. In the second place, you will not altogether, by this Bill, escape the difficulty of two courts dealing with the same subject matter. The question of determining the rights of a rector will remain as before with the ecclesiastical courts, and it will be for the County Court to determine the liability of the rector to carry out repairs to the chancel. You then may have one court deciding who is rector by right and another deciding who is rector in virtue of liability to make repairs—two different courts with different jurisdictions dealing with the same matter. In the third place, the determination as to what person or body of persons constitutes a rector is one of very great difficulty, and one requiring a knowledge of the whole history of lay rectors and of ecclesiastical case law, which it is not to be expected that County Court Judges or the learned lawyers who practise before them are likely to possess. For these reasons I think, in spite of what the noble and learned Viscount said, that it would have been better if the question of determining the liability of a rector had been left in the hands of the ecclesiastical courts and the enforcement of the ensuing pecuniary debt put in the hands of the County Court.

I take it, however, after what has fallen from the noble and learned Viscount the Lord Chancellor, that after giving careful thought to this matter he has decided that the transfer of the whole jurisdiction to the County Court must be regarded as integral to his Bill. This is not really a question of principle. After all, the main jurisdiction over the chancels—namely, the giving or withholding of faculties for alterations of, or additions to, chancels—will remain where it has always been, in the hands of the ecclesiastical courts. This is really in the main a purely monetary matter about which I do not feel disposed to raise any question of principle. I am bound to admit that the consideration which has been put before your Lordships by the noble and learned Viscount the Lord Chancellor is of very great weight, that it would be very inconvenient and that it might be more costly for the litigant to have to deal with the same matter before two different tribunals. For these reasons, though I should have preferred that the whole jurisdiction had not been taken from the ecclesiastical courts, I am not prepared to advise your Lordships to oppose this Bill. Nor do I feel bound to press for amendments in the direction I have indicated when the Bill goes to Committee. I think it very likely that there may be other amendments moved with the object of simplifying the procedure, about which I have some doubt, in spite of the claims put forward, but, subject to what may be done afterwards in Committee, I am willing myself to accept the Bill in spite of the objections which I see to it and to regard it as carrying out a reform which has become necessary.

LORD ATKIN

My Lords, the noble and learned Viscount the Lord Chancellor was good enough to submit the proposed Bill in draft to his colleagues who hold judicial office in this House, so that I have had the opportunity of considering it. I venture to think that it will be a great satisfaction to your Lordships to know that, in spite of the quite serious objections which the most reverend Primate suggested might be raised to the provisions of the Bill, yet upon the whole he accepts it. Undoubtedly it would have been a grievance, and a great grievance, to the persons concerned in these matters if they had to have recourse to two courts instead of one for the purpose of settling what, in money, might represent a very small sum—£20 or £30 or £40. Therefore I think your Lordships will have no difficulty in coming to the conclusion that this liability, which is certainly very closely akin to a liability which civil courts are determining every day, should now be enforced in the civil courts; that is, in the County Courts.

But I am bound to say that the actual form of the proposal seems to me at present capable of improvement. One of the objections made recently to our ordinary civil proceedings is that there is delay in enforcing a remedy and that it costs a good deal of money when the delay has been overcome. Therefore, I think it is very incumbent upon us when creating a new jurisdiction to see as far as possible that we avoid both delay and extra cost, and if your Lordships would take the trouble at any time to investigate the procedure suggested you will see that it is extremely complicated and cumbrous, that it causes delay and will, I think, cause a great deal of unnecessary cost. I have no doubt it carries out faithfully the Report of the Committee, but that Committee consisted of those learned in ecclesiastical as well as in secular law, and I cannot help thinking that this procedure has adopted a combination of ecclesiastical and civil procedure which has made the Bill somewhat complicated.

To begin with you cannot enforce the obligation upon the lay rector until you have given him notice to repair the chancel within a period of three months. That seems to me to be an extraordinarily long period, for a great many of the repairs may be nothing but a small matter. There may be a few slates wrong, there may be something wrong with tiling or paving or something wrong with the walls—something capable of being remedied in quite a few days and regarding which three months' notice seems quite unnecessary. Then the rector is asked to make an admission that he is liable as rector. That is contrary to our ordinary procedure. If you are suing a tenant for repairs you do not ask him to admit that he is liable. This seems to me an unnecessary introduction of a form of auricular confession imposed on a rector which I should have thought merely complicated proceedings. Again, when you have the man before the court if he has not made the admission—and many plainly liable often shrink from making a written admission—the court can do nothing but declare he is liable and wait till the three months or an extended period has expired, and it is not until after that period has expired that you come before the court again and claim damages.

Clause 3 occupies a whole page of the Bill and provides for the machinery where the parochial church council wish to do the repairs themselves in case of urgency. They must give detailed notice of the nature of the repairs required, which involves consulting a surveyor and getting out a specification of repairs and so forth, all expensive and complicated matters, and then the Court can give leave to the parochial church council to do the repairs themselves if urgent. Even then the Court cannot order the man to pay, because they must wait until the expiration of three months unless he has admitted he is liable. All this procedure seems to me to be beside the mark. It would be simple to bring the man before the County Court Judge and leave the County Court Judge full discretion to make the proper order in the case.

Those are the only criticisms I wish to direct to the matter. I sincerely hope that before this Bill comes before the Committee the Lord Chancellor will be good enough to consider this question of procedure and see if we cannot devise something simpler. This method involves considerable delay, because in many country districts the County Court Judge only sits once a month and sometimes only once every two months, and sometimes six months may elapse before any remedy can be got. I suggest that this complicated procedure is capable of being improved, but on the principle the Bill appears to me to be a great relief to His Majesty's subjects.

THE LORD CHANCELLOR

My Lords, it is very satisfactory to find that both the Primate and my noble and learned friend Lord Atkin are in favour of the principle of the Bill, and I feel quite sure it will commend itself to every one of your Lordships. With regard to the machinery I will bear in mind the criticisms of my noble friend and if he will allow me to do so I will discuss the matter with him before it comes to the Committee stage. Any appeal to expedite proceedings or to economise will never fall, so far as I am concerned, on deaf ears. I want to do everything I can to economise and to expedite proceedings. At the same time I think people ought to be given a little time. It may be that three months is too long, it may be that the appropriate time is two mouths and two weeks, but those are small, though I agree, important points.

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