HL Deb 09 May 1933 vol 87 cc766-76

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Strathcona and Mount Royal.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clauses 1 and 2 agreed to.

Clause 3:

Non-statutory properties and endowments of quoad sacra parishes.

3.—(1) The trustees or other persons in whom any properties or endowments, whether heritable or moveable, of a parish quoad sacra, other than the statutory properties and endowments of the parish, are vested shall, if so required by the General Trustees, convey or transfer such properties and endowments (hereinafter referred to as non-statutory properties and endowments) or any of them to the General Trustees or to any other body authorised for the purpose by the General Assembly, and on their so conveying or transferring the same, such trustees or other persons shall be thereby fully exonerated and discharged of the trust under which the said properties and endowments were held without the necessity of any further release, discharge or exoneration.

LORD STRATHCONA AND MOUNT ROYAL moved, in subsection (1), after "General Trustees or," to insert "in the option of such Trustees or other persons." The noble Lord said: This Amendment and the following one are designed to give any trustees who hold properties and endowments of a parish quoad sacra the option, when the General Trustees call for a transfer of the properties and endowments, of transferring, instead of to the General Trustees, to a body specially authorised for the purpose by the General Assembly or to some permanent local body.

Amendment moved— Page 2, line 37, after ("or") insert the said words.—(Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

Amendment moved — Page 2, line 38, after ("Assembly") insert ("or to a permanent body of local trustees").—(Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYAL

The next Amendment is drafting.

Amendment moved— Page 2, line 40, after ("persons") insert ("as aforesaid").—(Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYALmoved, in subsection (2), to leave out "shall" ["and shall apply the proceeds thereof"] and insert "to." The noble Lord said: The effect of this Amendment is to enable, instead of requiring, the General Trustees or other body by whom any non-statutory properties may be sold, to apply the proceeds to such purposes as the General Assembly may direct.

Amendment moved— Page 3, line 7, leave out, ("shall") and insert ("to").—(Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYAL

The remaining Amendments to Clause 3 are drafting.

Amendments moved—

Page 3, line 9, after ("that") insert ("the consent of the General Assembly declared by Act of Assembly shall be required to the sale or disposal of any such properties and endowments")

Page 3, line 10, after ("where") insert ("by")

Page 3, line 12, leave out from ("held") to end of clause and insert ("the General Trustees or any trustees or other persons holding the same have power to sell or to dispose thereof without such consent ").—(Lord Strathcona and Mount Royal.)

On Question, Amendments agreed to.

Clause 3, as amended, agreed to.

Clause 4:

Chapels of ease and mission churches.

4. Any trustees or other persons in whom any chapel of ease, mission church or church hall is vested or the General Trustees if the same shall be vested in them shall have power to sell or otherwise dispose of the same and to apply the proceeds thereof for such ends, uses and purposes as the General Assembly may direct. Provided always that, except where the terms of the deed of trust, conveyance or other deed under which any chapel of ease, mission church or church hall is held authorise the sale or disposal thereof, the consent of the General Assembly declared by Act of Assembly shall be required to any sale or disposal thereof.

LORD STRATHCONA AND MOUNT ROYALmoved, after "power," to insert "subject to the provisions of any deed of trust, conveyance or other deed applicable thereto." The noble Lord said: This Amendment is designed to ensure that the power given by the clause to sell the subjects referred to is not to override any restriction contained in the titles on which the subjects are held.

Amendment moved— Page 3, line 19, after ("power") insert the said words.—(Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYAL

The next three amendments are drafting.

Amendments movsd—

Page 3, line 22, after ("that") insert ("the consent of the General Assembly declared by Act of Assembly shall be required to the sale or disposal thereof")

Page 3, line 24, leave out from ("held") to end of clause and insert ("the trustees or other persons or the General Trustees holding the same have power to sell or to dispose thereof without such consent").— (Lord Strathcona and Mount Royal.)

On Question, Amendments agreed to.

Clause 4, as amended, agreed to.

Clause 5:

Parliamentary churches and manses, etc.

5. Notwithstanding anything in the Act George IV, chapter 20, or in the principal Act, the General Trustees shall, subject to the consent of the General Assembly, declared by Act of Assembly, have power to sell or otherwise dispose of any parliamentary church or manse, or any other subjects connected therewith vested in them under Section twenty-three of the principal Act and shall apply the proceeds thereof for such ends, uses and purposes as the General Assembly may direct. Provided always that no ground used as a burial ground shall be put to any other use.

LORD STRATHCONA AND MOUNT ROYALmoved, after "power," to insert "subject to the provisions of any deed of trust, conveyance or other deed applicable thereto." The noble Lord said: This amendment is similar to that on Clause 4, the object being to preserve any restrictions contained in the titles to the properties.

Amendment moved— Page 3, line 31, after ("power") insert the said words.—(Lord Strathcona and mount Royal.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

Clause 7 [Suppression or union of parishes]:

LORD STRATHCONA AND MOUNT ROYAL

The Amendments to this clause are purely drafting.

Amendments moved—

Page 4, line 13, leave out from beginning to the first ("the") in line 14, and insert ("Notwithstanding anything contained in any Act of Parliament, decree of the Court of Session or Court of Teinds, or deed of constitution or in the titles2 deeds, or certificates relating to any parish quoad secraor any parish quoad omnia included in the Eighth Schedule to the principal Act")

Page 4, line 17, after the first ("any") insert ("such")

Page 4, line 17, leave out from the first ("parish") to the first ("or") in line 19.

Page 4, line 34, after ("any") insert ("such")

Page 4, line 38, after ("thereof") insert ("or any part thereof")

Page 4, line 41, after ("no") insert ("such").—(Lora Strathcona and Mount Royal.)

On Question, Amendments agreed to.

Clause 7, as amended, agreed to.

Clause 8:

Application of properties and endowments on, suppression of union of quoad sacra parishes.

8. Upon the suppression of any parish quoad sacra or of any parish quoad omnia included in the Eighth Schedule to the principal Act, or upon the alteration or extension of the bounds of such parish or the uniting of the same with any other parish or parishes by the General Assembly or by such body as aforesaid, whether such suppression or uniting shall have taken place prior to the commencement of this Act or shall take place at any date subsequent thereto, the following provisions shall have effect:—

(1) Any obligation by any third party contained in any bond or other deed or document representing or making provision for part or the whole of the statutory endowments of the parish being a parish quoad sacra, or any obligation at common law for payment of the stipend or part of the stipend of the parish being a parish quoad omnia, shall not be prejudiced or affected by such suppression or union or alteration or extension of bounds, but shall remain in full force and effect unless and until expressly discharged or otherwise dealt with by the General Trustees, and the statutory properties and endowments of the parish being a parish quoad sacra shall be held, or if the General Assembly by Act of Assembly so direct, shall be sold or otherwise disposed of by the General Trustees, and the income of such properties and endowments or the proceeds thereof, if sold or otherwise disposed of as well as the income of such proceeds, shall be applied by the General Trustees; subject to the provisions of Section thirty-six of the principal Act, for such ends, uses and purposes as the General Assembly may direct. Provided always that no ground used as a burial ground shall be put to any other use:

LORD STRATHCONA AND MOUNT ROYAL

The first Amendment to this clause is drafting and is similar to that made to Clause 4.

Amendment moved— Page 5, line 30, after (" shall ") insert (" subject to the provisions of any deed of trust, conveyance or other deed applicable thereto ")— (Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD FAIRFAX OF CAMERONmoved to insert in paragraph (1) after "Provided always that":

  1. "(a) Any bond of annual rent or other heritable security permanently provided or secured for the maintenance of the church or manse of any parish quoad sacra shall, if such church or manse is sold or otherwise disposed of, be discharged by the general trustees as regards the subject so sold or disposed of, quoad the obligation for such maintenance, unless the debtor in such bond or other heritable security consents to such obligation remaining in full force and effect; but that without prejudice to any obligations for payment of stipend or otherwise contained in such bond of annual rent or other heritable security such as aforesaid, or for the maintenance of any church or manse remaining unsold or undisposed of and falling to be retained for any ecclesiastical purpose; and
  2. (b)." The noble Lord said: Under a number of old Scottish Acts alterations in parishes could be effected by uniting them or disjoining parts of one parish and annexing those parts to another parish. The matter was carried a stage further by the New Parishes (Scotland) Act of 1844 which enacted that when any persons had built or undertaken to build a church application might be made to the Teinds Court for permission to make such church into a parish church and to designate a district to be attached to the church known as a quoad sacra parish. The Teinds Court was authorised to grant the application provided that the titles to the church were in order, that provision was made for the maintenance of the fabric of the church, and that a stipend of £100, with a suitable manse, was secured to the minister, or a stipend of £120 without a manse. These endowments were known as the statutory endowments of the parish. Not only fee simple proprietors but also heirs in entail could burden their estates for the purpose of endowing a quoad sacra parish. The endowment was effected by granting a bond on the property. The bond might be granted for the purpose of paying the minister's stipend or with 772 object of providing a certain sum annually for the maintenance of the manse or the church or both.

Clause 8 of this Bill provides that upon the suppression of any quoad sacra parish any obligation by any third party contained in any bond making provision for part of the statutory endowments of a quoad sacra parish shall remain in full force and effect unless, and until, discharged by the General Trustees of the Church. The clause also provides that the statutory endowments may be sold or otherwise disposed of by the General Trustees and the proceeds may be applied by the General Trustees to such purposes as the General Assembly may direct. The object of my Amendment is to give a heritor whose estate is charged with a bond of annual rent for the maintenance of the church or manse of a quoad sacra parish the right to have that bond discharged quoad that obligation if the church or manse is sold or disposed of. This Amendment has been agreed to by the Scottish Land and Property Federation and also by the General Trustees of the Church of Scotland, and I hope my noble friend will accept it.

Amendment moved— Page 5, line 38, at end insert the said new paragraph — (Lord Fairfax of Cameron.)

THE LORD CHAIRMAN

That will mean that the proviso at the end of line 38 will come in as sub-paragraph (b).

LORD STRATHCONA AND MOUNT ROYAL

I accept this Amendment.

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYAL

The next Amendment is consequential on a previous Amendment.

Amendment moved— Page 6, line 14, after ("that") insert ("the consent of the General Assembly declared by Act of Assembly shall be required to the sale or disposal of any such properties and endowments")— (Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYAL

The next three Amendments are also consequential.

Amendments moved—

Page 6, line 14, after ("where") insert ("by")

Page 6, line 16, leave out from ("held") to end of subsection and insert ("the General Trustees or any trustees or other persons holding the same have power to sell or to dispose thereof without such consent")

Page 6, line 31, after ("shall") insert ("subject to the provisions of any deed of trust, conveyance or other deed applicable thereto").—(Lord strathcona and Mount Royal.)

On Question, Amendments agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Rights of superiors and others]:

LORD FAIRFAX OF CAMERON had given Notice to move the insertion of the fallowing paragraph— (2) Where any ground has been feued for a nominal feu-duty for the site of the church or manse of any parish and where nothing is stated in the feu charter, feu contract or other deed under which such ground is feued as to the feu-duty which is to be payable by the vassal in the event of the church or manse being sold or disposed of for other than any ecclesiastical purpose, the feu-duty to be payable for the said ground after such sale is effected shall be such sum as shall be agreed upon between the superior and. "he general trustees or such sum as, failing agreement, shall be determined by an arbiter to be appointed by the sheriff.

The noble Lord said: This Amendment is. Moved in order to get over a difficulty which may easily arise if a church or manse is sold. In many cases of quoad sacra parishes the ground which is to be used as the site of the church or manse has been feued by a superior for a nominal feu-duty. The ground according to the feu charter was feued for the purpose of providing a site for the church or manse as the case might be. If the church or manse is sold or otherwise disposed of, what is the legal position of the feu right, and what feu-duty should be payable in future to the superior when the ground is no longer so used? To avoid such a difficulty or doubt, the Amendment provides that in all such cases the feu-duty to be payable for the ground is to be such sum as shall be agreed upon between the superior of the ground and the General Trustees of the church, or such sum as, failing agreement, shall be determined by arbitration. I hope that the noble Lord will also see his way to accept this Amendment.

LORD STRATHCONA AND MOUNT ROYAL

The Government is prepared to accept this Amendment subject to the insertion in the third last line, after the ward "trustees," of the words "or other vassal." I understand the noble Lord himself has agreed to this. This would enable the agreement as to the amount of the feu-duty to be made by the landowner and the person to whom the church sells, if that should be more convenient.

THE LORD CHAIRMAN

I shall put the Amendment in that form.

Amendment moved—

Page 7, line 8, at end insert: (" (2) Where any ground has been felted for a nominal feu-duty for the site of the church or manse of any parish and where nothing is stated in the feu charter, feu contract or other deed under which such ground is feued as to the feu-duty which is to be payable by the vassal in the event of the church or manse being sold or disposed of for other than any ecclesiastical purpose, the feu-duty to be payable for the said ground after such sale is effected shall be such sum as shall be agreed upon between the superior and the general trustees or other vassal or such sum as, failing agreement, shall be determined by an arbiter to be appointed by the sheriff.")— (Lord Fairfax of Cameron.)

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Vesting of stipends of ministers of burgh churches, etc.]:

LORD STRATIICONA AND MOUNT ROYAL

The next Amendment is consequential.

Amendment moved— Page 7, line 13, leave out ("hereinafter mentioned") and insert ("of the passing of this Act").— (Lord Strathcona and Mount-Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYAL

The next Amendment is of the same character.

Amendment moved—

Page 7, line 22, leave out from (" incumbent ") to end of clause and insert: Provided that the minister of any such church as aforesaid, being the incumbent of the benefice at the date of the passing of this Act, or where an assistant and successor has been appointed to such minister, either the minister or the assistant and successor, with the consent of the assistant and successor or of the minister (as the case may be), or failing such consent, with the authority of the presbytery, may elect, by intimation in writing addressed to the General Trustees, that the provisions of this section shall apply to his stipend, and in such cases the benefice shall, for the purposes of this section be deemed to have become vacant as at the date of the said intimation."— (Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Vesting of glebe feu-duties, etc.]:

LORD STRATHCONA AND MOUNT ROYALmoved to add the following proviso: Provided however that the minister being the incumbent of the benefice at the date of such transfer, or where an assistant and successor has been appointed to such minister either the minister or the assistant and successor, with the consent of the assistant and successor or of the minister (as the case may be) or, failing such consent, with the authority of the presbytery, may elect, by intimation in writing addressed to the General Trustees, that the provisions of this section shall take effect as if a vacancy in the benefice had occurred, and in such case the benefice shall, for the purposes of this section, be deemed to have become vacant as at the date of the said intimation. The noble Lord said: The Amendment is similar to that on Clause 10.

Amendment moved— Page 8, line 4, at end insert the said proviso.— (Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12 agreed to.

Clause 13:

Notarial execution by minister of wills, etc.

13. A minister of the Church of Scotland acting in any area or district to which he has been appointed without limit of time or for a period of years to officiate as minister shall, in such area or district, have the like power as regards the notarial execution of wills or other testamentary writings as is conferred by subsection (1) of Section eighteen of the Conveyancing (Scotland) Act, 1924, on a parish minister acting in his own parish, and any reference in the said section to an assistant and successor shall be deemed to include a reference to a colleague and successor.

LORD STRATHCONA AND MOUNT ROYAL

The next Amendment is purely drafting.

Amendment moved— Page 8, line 27, leave out from ("Scotland") to ("has") in line 28 and insert ("who").— (Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYAL

This is also a purely drafting Amendment.

Amendment moved— Page 8, line 28, after ("appointed") insert ("to a charge").—(Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYAL

The next is also a drafting Amendment.

Amendment moved— Page 8, line 30, leave out ("such area or district") and insert ("any parish in which such charge or any part thereof is situated").— (Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

LORD STRATHCONA AND MOUNT ROYALmoved to leave out all words after "own parish" and insert the following new subsections: (2) A certificate by one of the principal clerks, or the principal clerk if there shall be only one, of the General Assembly, stating the parish in which the charge of any such minister is situated shall be accepted as conclusive evidence thereof. (3) In the foregoing provisions of this section the expression 'minister' shall include an assistant and successor or a colleague and successor of such minister. (4) Any reference in subsection (1) of Section eighteen of the Conveyancing (Scotland) Act, 1924, to an assistant and successor shall be deemed to include a reference to a colleague and successor. The noble Lord said: This clause enables a minister of any charge in a parish to execute in the parish a will on behalf of a person unable to write. The Amendment makes provision for a certificate by the clerk to the General Assembly that the minister's charge is situated within a particular parish, a matter which might not be generally known.

Amendment moved— Page 8, line 34, leave out from the second ("parish") to end of clause and insert the said new subsections.'— (Lord Strathcona and Mount Royal.)

On Question, Amendment agreed to.

Clause 13, as amended, agreed to.

Remaining clauses agreed to.