HL Deb 16 May 1963 vol 249 cc1435-75

3.46 p.m.

THE LORD BISHOP OF CHESTER

My Lords, I beg to move the Motion standing in my name on the Order Paper, That in accordance with the Church of England Assembly (Powers) Act 1919 this House do direct that the Ecclesiastical Jurisdiction Measure 1963 be presented to Her Majesty for the Royal Assent. I am grateful to the House for giving me the opportunity of presenting the Measure at this time. Before I start my speech, the most reverend Primate the Lord Archbishop of Canterbury has asked me to say that, owing to the change of time of this debate, he may have to be absent for a short time during it. He hopes the House will understand his absence.

The Ecclesiastical Jurisdiction Measure is one of the most important that has come from the Church Assembly to receive the consent of Parliament. It has as its purpose the recasting of the Ecclesiastical Courts and of their method of working. The system of Ecclesiastical Courts is of very ancient origin, dating from at least the Ordinance of William the Conqueror who separated the Ecclesiastical from the Secular Courts of the Realm. They are part of the judicial system of the land. They exercise, of course, a limited and specialised jurisdiction, for apart from faculty cases, of which I shall speak later, they are solely concerned with the trial and, if necessary, the sentencing of clergymen of the Church of England who are accused of offences involving either their conduct or doctrinal, ceremonial or ritual matters. But the Ecclesiastical Courts are the Queen's Courts, the Judges are the Queen's Judges administering the law of England. Any attempt to reform these courts and their working must therefore be approached with a sense of great responsibility, and this the Church may claim to have done.

The immediate incentive for this Measure comes from the Archbishop's Commission on the Revision of Canon Law which reported in 1947. In the consideration of the sections on the Ecclesiastical Courts it was decided that the matter was so complex and technical that it must be subject to special investigation. At the request of the Convocations, the Archbishops in 1951 set up a Commission on the Ecclesiastical Courts under the chairmanship of Mr. Justice Lloyd Jacob. The Commission reported in 1954. Its Report was debated in the Church Assembly in the spring of 1955, and the Canon Law Steering Committees of Convocation and the House of Laity were instructed to make proposals for further action in the Assembly. This they did a year later, and when the Assembly set up a Commission to prepare a Measure it debated the directive it should give to the Commission on the specific reports. Five years later in the summer of 1961 the Measure was presented and received general approval.

In the spring and summer of 1962 it was, because of its importance and complexity, subjected to two stages of revision. In the autumn of 1962 a number of drafting amendments were accepted and the Measure was given final approval. Throughout its passage in the Assembly the Measure was keenly scrutinised; a number of amendments were proposed, and some of substantial importance were carried. No amendment was pressed to a Division. The House may rest assured, therefore, that the Measure has received the full consideration over a long period of time of the Church Assembly, and that there has been no undue haste in presenting reforms of so important an aspect of the life of the Church of the nation.

What is the need for this large-scale reconstruction? The answer is a simple one. It is that in the course of time the system of courts has become so complex and many of them have become anomalous, and in legislation over the last 120 years it has been customary to create new courts to deal with new situations. In consequence, there are at the present time for each diocese four courts and five quasi-courts, as they are called. For each Province of Canterbury and York there are six courts, and at the top there is the Judicial Committee of the Privy Council. This Measure aims at producing order and as much simplification as possible out of what the Lloyd Jacob Commission called "a jungle of courts". It is quite true, as I have said, that the incentive for reform comes in this instance through the Canon Law Commission, but the new system proposed by the Measure is in no way dependent upon Canon Law revision, nor does it prejudge what may be later decided. A Measure is needed, Canon Law revision or no Canon Law revision, to clarify and bring order into a system which is at present obscure and chaotic.

I will not burden your Lordships with a detailed description of the system of courts which is proposed, for this can be found in the Measure and in the Explanatory Memorandum. I ask the House therefore to be content with a very rapid survey of their structure. In broad outline, they are designed to deal with three types of proceeding. First, faculty cases; that is to say, applications which in the main deal with the fabric and furnishings of the church. For these the Measure makes only one significant change from the existing procedure. They will be heard in the first instance by the Chancellor sitting in his consistory court in the diocese. There is an appeal to a provincial court and finally to the Judicial Committee of the Privy Council. Only one major change is there, and that is that if the issue involves a matter of doctrinal, ceremonial or ritual consequence the appeal lies to a new court, of which I shall be speaking later, the Court of Ecclesiastical Causes Reserved.

The second group of proceedings are conduct cases: cases which involve breaches of the laws ecclesiastical, unbecoming conduct or serious neglect of duty on the part of a clerk in Holy Orders. In such cases, if the Bishop decides not to exercise his veto the matter is first remitted to an examining lawyer who decides if there is a charge to be answered. Then there is a trial before the Chancellor sitting with two clerical and two lay assessors who act as a jury and are judges of fact, and then there is an appeal to a strengthened Provincial Court. Different procedure is provided for the trial of an Archbishop or a Bishop on a conduct charge, and we trust that this machinery will not often be put into effect.

Finally, there are the cases in which a clerk in Holy Orders is charged with an offence involving doctrines ceremonial or ritual—reserved cases, as they are called. Here the Measure preserves the Bishop's right of veto. If he allows the case to go forward it is first examined by a provincial committee of inquiry. If it recommends that there is a case to be answered, it is to be submitted to a new court, the Court of Ecclesiastical Causes Reserved, which coinsists of three Bishops, and two persons who have held high judicial office, sitting with five expert advisers. From this Court the Measure suggests an appeal to a special Commission consisting of three Lords of Appeal who are communicant Members of the Church of England and two Bishops who sit as Lords of Parliament.

The Measure preserves, with certain liberalising amendments, the existing machinery for automatic deprivation consequent upon the conviction of a clergyman in the secular courts for certain serious offences and matrimonial offences. It creates a legal aid system to be financed by the Church Commissioners and the Central Board of Finance of the Church Assembly, and it provides a Rule Committee to draw up rules for the procedure of the courts. It is not to be expected that in a Measure of such length and complexity there would be no controversial elements. The surprising thing is that in fact there are so few, and what there are have been fully considered and vetted in the course of the passage of the Measure.

Broadly, there are three major matters which have caused concern, and I will comment upon them briefly. First, there is the abolition of the Judicial Committee of the Privy Council as the final court of appeal in conduct and reserved cases. In general it is to be noted that the jurisdiction of the Privy Council is in any case of recent origin, having been introduced as late as 1832 to replace the Court of Delegates. In conduct cases under the Clergy Discipline Act, 1892, the Privy Council Judicial Committee exists only as an alternative court of appeal to the Provincial Court, and in the Incumbents (Discipline) Measure, 1947, which has been approved by Parliament, there is no appeal to the Judicial Committee. All six Commissions on the subject since 1883 have recommended that the Judicial Committee should cease to be the final court of appeal in conduct cases. This is a consolidating Measure, and when the framers of it had to decide how they would advise they had before them these alternative procedures, and they decided that this was the right way to go about the matter. So the Measure follows the Lloyd Jacob Commission in providing a strong Provincial Court as the final appellate court in conduct cases.

The existence of the Judicial Committee of the Privy Council as the final court of appeal in reserved cases has long been a serious cause of conscientious scruple in the Church, for it is widely felt that in the interpreting of the doctrine of the Church of England there should in the last resource be access to a spiritual court. No one would for a moment question the prestige and the authority of the Judicial Committee, but we cannot disregard the undoubted fact that much of the trouble of the last 100 years has been due to the inability, on conscientious grounds, of a great number of churchmen to accept the authority of a court the members of which need not be members of the Church of England, or, indeed, Christians at all, as the final arbiter of the faith and practice of the Church.

As the Lloyd Jacob Commission said, even a court composed of lay judges who are members of the Church of England will not meet the real needs of the Church. In addition to such judges a final court must also consist of judges who both by their office in the Church and by their training have authority to speak on doctrinal, liturgical and spiritual issues. Only the judgments of such a court will command the confidence of the Church. Accordingly, the Measure provides, as the final court of appeal in reserved cases, in place of the Judicial Committee, a Commission under the Great Seal consisting of five persons appointed by Her Majesty, three of whom shall be Lords of Appeal who are communicant members of the Church of England and two of whom shall be Bishops who sit as Lords of Parliament.

I would draw the attention of the House to the fact that there is no attempt here to remove these matters from the jurisdiction of Her Majesty's Courts. The Commission will be one of great eminence, and also it should be noted that the lay judges will be in a majority of its members. Rightly or wrongly, as I have said, the existence of the Judicial Committee as the final court in cases involving doctrine, ritual and ceremonial has been of grave conscientious scruple for the Church of England. I am sure that noble Lords will agree that if it can reasonably be avoided, the law ought not to burden the conscience of those who are subject to it. It is a considerable achievement that the Church Assembly, clergy and laity alike, have come to a common mind and have accepted the Commission under the Great Seal as the proper court of final appeal in these matters. It is greatly to be hoped that Parliament will agree to provide the Church with this means of bringing peace and agreement.

In the second case, the Incumbents (Discipline) Measure, 1947, provides that no clergyman may be proceeded against by virtue of his social or political opinions. This Measure continues the defence of political opinions, but no longer allows social opinions as a defence. The reason for this is that the framers of the Measure were advised that the term "social opinions" is so vague as to be incapable of definition, or alternately, it is so wide as to admit a defence in almost every possible charge. The 1892 Clergy Discipline Act does not admit such a defence as this, and therefore the framers of the Measure had to decide the best way of dealing with it. Your Lordships will remember that there are many safeguards in this—the Bishop's veto and the preliminary investigation—so it is not likely that a clergyman would ever be charged in a frivolous way under this heading. And so it has been thought wise to preserve the defence of political opinion, but to go no further.

The last major area of disagreement concerns the retention of the right of the Bishop to veto proceedings in a reserved case. I stress the word "retention" because it is sometimes suggested that this is an innovation in the Measure. In point of fact, it has ancient origins. As the Lloyd Jacob Commission commented, in old days no criminal suit could proceed unless the promoter had first secured leave of the judge for his office to be thus promoted, since, as Lord Stowell said in Maidman v. Maltless in 1794: The criminal jurisdiction of the Ecclesiastical Courts was not to be exercised without discretion, or to be left entirely to the judgment of passions of private persons. The judge had a limited power of refusing leave; but it is from this power of refusal which the judges had in criminal suits that the modern Bishop's veto in clergy discipline cases has developed. The procedure, both in criminal and civil suits, was not that of the Common Law courts but an adaptation to the needs of the Church of the procedure of Roman civil law.

In point of fact, all the Discipline Acts and Measures since 1840 preserve the Bishop's right to veto the proceedings, if he sees fit, in both conduct and reserved cases. It is true that the Lloyd Jacob Commission recommended the abolition of the Bishop's veto in reserved cases; but it made an important reservation: it presumed that the introduction of the new courts would coincide with a revision of the law of worship. Again, may I quote its exact words: We Welcome what has already been achieved in the revision of the canons towards ending the divergence between law and practice in public worship. It is conditional on this work being carried to completion that we recommend the adoption of the procedure set out in the following pages, for the correction of ritual and ceremonial as well as doctrinal offences, and the consequent abolition of the procedure contained in the Church Discipline Act, 1840 and Public Worship Regulation Act, 1874. If, in spite of what has already been achieved in the new canons, the Church decide that the time is not yet ripe for any further action towards ending the divergence between law and practice in public worship, we can see no useful purpose in at present including in our proposals any but doctrinal cases. There will remain for ritual and ceremonial cases the provision of the Church Discipline Act, 1840 and the Public Worship Regulation Act, 1874. In this event, the only safeguard against the enforcement of a law which is repudiated daily in the practice of the Church will be the veto of the Bishop. That revision of Canon Law and of the law of worship has not yet been possible; and therefore, without the veto, the door would be wide open to frivolous and vexatious prosecution because of the vagueness of the present law of worship. In such cases as may come before the Courts Ecclesiastical the clergy are in a most vulnerable situation. They are to be tried for offences which are not chargeable in the case of the laity in the secular courts—for instance, adultery or heresy. If found guilty, they may lose their office and their means of livelihood. In conduct cases they are particularly subject to malicious gossip and tittle-tattle. In reserved cases, since every word of the Book of Common Prayer is the law of the land and every departure from its strict letter is a breach of the law, the clergy are laid wide open to vexatious prosecution. The power of the Bishop in exercising his pastoral office to veto further prosecution is an essential protection for the clergy, whatever tradition they may follow.

I am sorry to labour this aspect of the Measure, but I must do so in view of the representations which have been made to Members of the House and of recent correspondence in the Press. These imply that the retention of the Bishop's veto in the Measure is an innovation and represents an increase in the power of the Bishops. I hope I have convinced the House that this simply is not so. I have examined these representations as sympathetically as I can and, frankly, I am unable to understand what those who object to the veto expect to gain if they should succeed in persuading Parliament to take the grave step of withholding consent for this Measure. Should this Measure not become law, then we are back where we started, with the Bishop's veto operative as it is to-day in every Act and Measure affecting clergy discipline. Nothing will have been gained, and the clergy and laity alike will be deprived of the many liberalising elements which are unquestionably of benefit in the Measure. The abolition of the Bishop's veto in reserved cases was tested on amendment in the Church Assembly. There was a long and careful debate in the Assembly and the amendment to remove it was decisively defeated without resort to a Division. In this way the Church has clearly expressed its mind.

I must apologise to the House for having spoken at such length. Your Lordships will appreciate that behind this Measure lies not only the thought and labour of the last ten years or so, but the investigations of eight Commissions since 1883, which have devoted their attention wholly or in part to the reform of the Church courts. At last we have something to present. At every stage in the framing of this Measure we have consulted with Government Departments, the Bar Council, the Law Society and other interested and eminent bodies. We have had the benefit of advice and experience of such eminent men of law as Sir Thomas Barnes and the late Sir Alan Ellis. We believe that this Measure will make a substantial contribution to the better ordering of the life of the Church. I commend it with confidence to this House, for its approval.

Moved, to resolve, That in accordance with the Church of England Assembly (Powers) Act 1919 this House do direct that the Ecclesiastical Jurisdiction Measure 1963 be presented to Her Majesty for the Royal Assent.—(The Lord Bishop of Chester.)

LORD CHORLEY

My Lords, might I ask the right reverend Prelate about the composition of the Court of Ecclesiastical Causes Reserved, which he said was to have a predominance of lay lawyers? Which section covers this?—because looking at Section 5 it seems to be the other way round.

THE LORD BISHOP OF CHESTER

The Court of Ecclesiastical Causes Reserved has a majority of Bishops: it comprises three Bishops and two persons of high judicial experience. The final court of appeal, which is the Commission under the Great Seal, reverses that situation and has three Lords of Appeal and two Bishops.

LORD CHORLEY

Could the right reverend Prelate tell me where this appears in the Measure? I cannot find it.

THE LORD BISHOP OF CHESTER

On page 8, in Clause 11(4).

4.14 p.m.

EARL ALEXANDER OF HILLSBOROUGH

The Question has been put, and therefore I rise to speak to the Motion and to give notice that at the end I intend to move an Amendment to adjourn the debate for the time being. I am very sorry to have to do this. It is true that the Motion was on the Paper, but in the turmoil which we in Opposition have been suffering in arranging Business in the last fortnight—which any Member of the Front Bench opposite would agree has been the position—this matter has hardly been in our thoughts at all. If there has been any inconvenience to the right reverend Prelate the Lord Bishop of Chester because of what I have to do now, I regret it; but in view of the importance of the Measure, which he has no more than outlined to-day—if I may say so; he has given a highly skilled summary of this Measure—there are those of us who have to consider the actual effects of this, not from the point of view of discussions in Convocation but of the effect on the people of this country as a whole.

What is to happen to certain rights which civilians have in regard to some processes of law which must necessarily be laid down and, I hope, followed in conjunction with what is, after all, a State Church? Since it is connected with the Constitution of the country, the only Constitution, with Her Majesty as its head, there is an implication that we must have it properly governed in the interests of the only piece of statutory Constitution of the country as a whole that I can ever find (the noble and learned Lord, the Lord Chancellor, will correct me if I am wrong), and that is the Act of 1689, which is the only piece of Statute we have which preserves the Protestant succession. I am bound to say that in this connection I have very grave doubts as to what is in the minds of some people—not all—in the Church as to what the future of the Church in relation to this matter will be.

The right reverend Prelate said in the course of his speech that it was not intended to do this or to do that, but that some of these alterations were necessary. Let me take one point which is very prominent in my mind. There are civil rights in the community, in connection with both Church ecclesiastical law and Church practice, which a civilian has. We are, whether we like it or not, in law a Protestant State. I have not enjoyed very much the opinions which have been expressed in previous debates, such as that on May 10, 1961, and I do not enjoy having to engage in them. But I was born into the Church of England as a baby, I was brought up in it until I was 22; I sang in the choir for many years; and I have said more than once in this House that I love the Prayer Book of the Church of England, I have a great affection for it. In my Nonconformist preaching I often use great passages from it, and I do not suppose there is any other document in my mind which can possibly compare in richness, in humility and praise with the General Thanksgiving in the Prayer Book.

I am also aware of the fact that the Prayer Book is not being followed by ministers. Probably a majority of the clergy in the Church of England to-day deliberately ignore the decisions of Parliament in 1927 and 1928, in spite of the trenchant comments in the Report of the Royal Commission in 1906 that the existence of such a state of affairs was a public scandal. Nothing seems to be done about it, or to make sure that the Prayer Book is being properly used and expounded and loved as it should be. If I and high members of espiscopacy take it into their minds to go and deliver sermons at services or meetings which support the clergy in doing these things it becomes an even greater abuse. I cannot understand how a metropolitan Bishop, or the Lord Bishop of Colchester, whom I know slightly, will go and preach in a Church of England, or at a Church Conference, or an Anglo-Catholic Conference, at a Celebration of High Mass, when the trenchant Articles of Religion clearly lay down that it is the belief of the Church of England that the Mass is a blasphemous fable and a dangerous deceit.

You must not expect that all the members of the Church of England can be in Convocation or in Church Assembly, or that there is not a very considerable number of the members of the Church of England who are not in agreement in all respects with the kind of Measure which is now proposed—although I am quite sure that the great majority of Church of England members will welcome many of the milder reforms which are in this Measure. But before Parliament can really make a decision on a Measure of this kind, surely it is entitled to have time to study all its legal implications and what may be its results. I doubt very much whether any lawyer in the House at the present time, unless he is a very confirmed member of the Church who has been interested all the time in the meetings of Convocation and the Church Assembly, could tell me the meanings of every clause in this 89-clause Measure. Nor have we had anything like a detailed explanation by the right reverend Prelate, who spoke so well but in summary. This is a Measure which requires real legal delving into before what is likely to be the result can be fully appreciated.

Now let us look at the reason why I think it is necessary to postpone it for a full debate. I noted all that the noble Prelate said about the question of the Bishop's veto. I noticed that he said that it was a retention, and in no sense an expansion. However, it is perfectly true that there are very well respected clergy in the Church of England who are nervous about it; and before I had a chance even to see it at that time I was present at a meeting at Caxton Hall as recently as May 7, at which the Reverend Paul Johnson, a very able speaker and a great preacher of the Gospel, and the incumbent, I think, of that famous church, St. Mary's, Islington, was the principal speaker. To-day I have got hold of a copy of the English Churchman magazine, which reports that meeting, and it picks out in block type words which the Reverend Paul Johnson used. He said: Britain's national church is in danger of becoming an episcopal sect". That is one comment upon it. It goes on to say: The New Testament pattern of the local church is in danger of being replaced by a system of diocesan …", and so on. It goes on to say—I am sorry my sight is not good enough for me to read quickly on this matter; it is purely a question of sight at the moment: The doctrinal basis of the Thirty-nine Articles is in danger of being undermined by the sanctioning of services which are anti-Reformation and unscriptural. For all the years I have been in London there has always been a ministry from St. Mary's, Islington, of great dignity, great honesty, always basing itself, perhaps primarily, as I think it should, upon the authority of the Word of God as being the prime authority to which to turn. The Reverend Maurice Wood, the predecessor of Paul Johnson, was a very charming man and able to get on with most people, but on these matters he was equally firm.

The first real publicity which came to the general public, as distinct from those who were specially interested in meetings of the Church alone in the Church Assembly or in Convocation, was published—and I am glad they did it—by the Daily Telegraph yesterday in a letter from the Editor of the Churchman. I am sure all the right reverend Prelates present will agree with me that the Churchman is a good paper. It is, I think, the official organ of the Church Society, which is known to be, of course, quite Protestant in its views, but which contains large numbers of very faithful members of the Church of England—very faithful—and not only clergy but also laymen of that Church. The emphasis laid in that letter was no doubt one of the things which the right reverend Prelate the Lord Bishop of Chester had in mind when he was answering on this question of the veto of the Bishops towards the end of his speech.

But then I see that that is followed up by a circular to all Members of Parliament of both Houses, signed by six lawyers. I do not need to go through the whole list of six; I would take two as being amply sufficient evidence of their capacity and integrity. One is Professor Anderson, who is the Professor of Advanced Legal Studies at the University of London, and the other is Mr. Roche, Q.C., whose reputation at the Bar and whose capacity as a counsel I am quite content to leave in the hands of the noble Viscount the Leader of the House or the noble Lord who sits upon the Woolsack, for them to give their opinion. There is no doubt about their opinion as to the result of the proposals in this Measure with regard to the veto. This Measure extends it.

THE LORD BISHOP OF CHESTER

It extends it in no way whatsoever, my Lords.

EARL ALEXANDER OF HILLSBOROUGH

That is my view, at any rate, from the brief time I have had to look at it. I will go back again to my studies. I do not want to contradict the right reverend Prelate at all. I will look again at it; but that is the impression in the mind of the Editor of the Churchman, and it is the impression, obviously, in the minds of the six learned lawyers who wrote their circular to Members of both Houses of Parliament—and I have looked at that very carefully.

THE LORD BISHOP OF EXETER

I do not think so, my Lords. I think the impression the lawyers were trying to give was not that the episcopal veto was being extended, but that it was a bad thing in principle and ought to be abolished.

EARL ALEXANDER OF HILLSBOROUGH

Perhaps one or two phrases might be read in that connection, but I think that the general weight of the letter is that it is a Measure which ought to be most carefully considered by Parliament—most carefully considered. The right reverend Prelate the Lord Bishop of Chester was present, I think, at the meeting which prepared the Report of the Ecclesiastical Joint Committee; and I think that Report now says that there are two matters only, outside the other matters connected with the courts and in relation to the veto of the Bishops, that are really important. They are—I speak from memory—in Clause 45(3) and Clause 48(5) of the Measure. I take this as referring to the question of the future of the access to the Privy Council Judiciary. That is now to be put in such a way that cases connected with doctrine, ritual and ceremonial can be excluded altogether. In part (from what the right reverend Prelate the Lord Bishop of Chester said) in some respects some of these matters have already been restricted in certain matters of appeal; but in this case they are deliberately provided for to make the law of the future what is outlined in the two subsections which I have mentioned.

How does that really work? I do not know exactly. What I suspect is that, to some degree, part of it has been put in because it is believed that only foolish or highly hysterical people would raise matters in these connections in a charge against an incumbent or other persons or against a Bishop or any Archbishop. That is not so at all. I am President of the United Kingdom Council of Protestant Churches; I am a Vice-President of the International Council of Christian Churches; I am a Vice-President of the Protestant Truth Society. I have a pretty wide circle of contacts and of experience of being able to assess what is in people's minds. In all those organisations we have very many people representative of the Church of England. Some of us are Nonconformist, including Congregationalist. Perhaps to-day the Church of England strongly rue that they ever had them expelled in 1662. They rue the expulsion from the Church of men like Richard Baxter and his like. What a pity that was! I find that in these large and joint Protestant organisations, these people are very reasonable. But always they have the firm belief that from the moment the Church of England became a reformed Church, following upon the Reformation led by Martin Luther, then matters changed for this country; and the actual progress and development of this country, and its world influence, have largely been based upon the principles of civil and religious liberty which came only with the Reformation of the Church of England as well as the reformation of other Churches. That is the opinion.

They like to feel to-day, in the Protestant sections of the Church of England, that they have the authority of the Prayer Book which is loved, but which is not always kept. They love the service which was prescribed, and which sometimes is varied in a somewhat sensational manner. I will not comment upon that, because I have not myself heard these sensational services; so I do not know much about them. But there is a feeling in the Church of England, among these members with whom I am acquainted, and whom I respect and admire, that we are tending to fall away from the great high principles of witnessing that we had in the reformed Church of England. That would be a very great pity. The whole state of the world at the present time, I think, would be all the better if there were complete unity in the Church of England on the basic Protestant doctrines which are inherent in the Constitution of our reformed State Church.

It seems to me that if there is a continuing breaking-away from that, then no longer will there be a really fundamental ability to establish the rights of the Church of England alone to be the State Church. That is why I said yesterday, and I say again to-day, that in dealing with laws likely to affect the civil population (as I think they will be affected by the break in the right of appeal to the Privy Council) then, if that break is there, I think you are getting into very dangerous situations. The question of a civil right being taken by means of a part of a Measure published under the authority given by the 1919 Act and having a general effect on the rights of the citizens in this matter is a constitutional concern of the first importance. I do not want to take an unreasonably long time to-day; but in my view it would be very much better if, having heard the summary, which was put in a skilful way by the right reverend Prelate the Lord Bishop of Chester, we were now to postpone for the time being the rest of the debate and proceedings on this Bill. Perhaps someone would be willing to take up the offer I made, and we could have a joint agreement between the leaders of the Parties and representatives of the Church so that we could give a whole day at least to a discussion of this matter. When those discussions come, I would suggest that consideration of the constitutional implications of the changes as I see them—where a constitutional change affects not just the Church but the citizenship of the country—ought first to be held not in your Lordships' House, but in the elected Chamber as constitutional business.

I have a lot more in my mind to say. I do not want to delay the House any longer but I think I have made a case that there is grave disagreement in some parts of the country about the proposed changes, and that the people of the country in general have not yet had the opportunity of studying it. The Measure itself, which I have before me and which I see was ordered to be printed by Parliament, could not be bought in Her Majesty's Stationery Office any time this week by any of my friends. They were turned away and sent to the Church Information Office in order to obtain copies. It is only after those people who could get hold of the Measure from about May 4 or 5 have had time to go into the matter in detail that you get the kind of communication published in the Daily Telegraph yesterday and a circular from the lawyers to us—and many more will come. I beg the House to agree that we should postpone further debate on this matter. I will certainly do my best to assist in the arranging of a whole day for discussion in your Lordships' House. At the same time perhaps the right reverend Prelate the Lord Bishop of Chester will consider whether it would not be wise after all, to place this Measure for debate first of all in another place. I beg to move.

Moved as an Amendment, That the debate be now adjourned.—(Earl Alexander of Hillsborough.)

4.39 p.m.

LORD SILKIN

My Lords, the last thing I ever imagined was that I would wish to speak on a matter of this kind. But I feel impelled to support my noble friend for two reasons. Normally I have always regarded these Measures which have come from the Church Assembly as domestic Measures which this House is asked to approve as a matter of form, and I think the matter has been treated in that way. But after the explanation of this particular Measure from the right reverend Prelate, it does look as if there are certain matters of principle to which this House will be asked to agree, and I think that in these circumstances the assent of the House should be a real one. It is true that the Measure has been on the Order Paper for ten days. My noble friend says that copies of the Measure were not actually obtainable until quite recently. Be that as it may, I think that most of us who saw it on the Order Paper regarded it as one of the normal Measures which come before us and are passed, after explanation, as a matter of routine.

There are at least two matters which some of us would like to think about and discuss with others perhaps more qualified to express a view than we are ourselves. I am not going to enter into any doctrinal discussions, because I am not qualified to do so. The first point is, as I understand the Measure, that in certain circumstances there is to be a tribunal set up which will consist in part of three High Court Judges, all of whom should be confirming members of the Church of England.

THE LORD BISHOP OF CHESTER

Lords of Appeal.

LORD SILKIN

Yes, my Lords. There may conceivably be a good case for that. But one would like to think about it. I am bound to say that, with my knowledge of the English Constitution, I have never come across a case where a court is built up on the basis of the religious beliefs of the Judges. We pride ourselves that we make no inquiries about the religious beliefs of Judges, and we have Judges of all kinds of religious belief, and possibly of none at all. That a person should hold one particular religious belief or another we do not regard as prejudicial to the holding of high judicial office.

In fact, in the past, we made great sacrifices for the freedom of religious belief and for the avoidance of any kind of bar to holding any kind of office on the basis of religious belief. And in the

high office which the noble and learned Lord the Lord Chancellor holds, there have been men of various religious beliefs, including the late Lord Reading, who was a Jew and not a Christian at all, and he held office with high distinction. While, as I say, there may be a case for this particular court to be composed in the way in which it is proposed, it is a matter which I think this House should not approve lightly or without full consideration, and we have not had an opportunity of that consideration.

Then it is proposed to end the right of appeal to the Judicial Committee of the Privy Council in certain types of case. The right reverend Prelate told us that this was of fairly recent origin, going back only to 1832. But that is quite a long way back and, in fact, it has been the law for 130 years. Again, it should not be lightly abolished. I am not saying that there may not be a case for it, but I would submit to the right reverend Prelate that before Parliment is asked to agree to this, it ought to have a proper opportunity of considering it. The right reverend Prelate has explained quite clearly and fairly what this Measure is, and he has rendered great service to the House in telling us of the substance of the Measure, but, of course, we have not had an opportunity of examining it.

I think that, with the right reverend Prelate's explanation and the Measure before us and a little time, when we are less pressed than we are to-day, we should have a better opportunity of judging whether these revolutionary proposals should be accepted or not. I would appeal to the right reverend Prelate, having made his speech, not to press us further to-day and to give us an adequate opportunity of considering the matter. If the right reverend Prelate presses us, I imagine that he will have his way, but, if I may respectfully say so, he would be ill-advised to do so.

4.47 p.m.

On Question, Whether the Amendment shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 66.

CONTENTS
Airedale, L. Allendale, V. Champion, L.
Alexander of Hillsborough, E. Carrington, L. Chesham, L.
Chorley, L. Henderson, L. Melchett, L.
Devonshire, D. Henley, L. Mersey, V.
Dudley, E. Inman, L. Ogmore, L.
Effingham, E. Jellicoe, E. Shepherd, L. [Teller.]
Elliot of Harwood, B. Lansdowne, M. Silkin, L.
Faringdon, L. Latham, L. Sinha, L.
Ferrers, E. Listowel, E. Stonham, L.
Fraser of North Cape, L. Lloyd, L. Summerskill, B.
Grantchester, L. Lucan, E. [Teller.) Walston, L.
Harvey of Tasburgh, L.
NOT-CONTENTS
Ailwyn, L. Dundee, E. Margesson, V.
Albemarle, E. Eccles, L. Merrivale, L.
Aldington, L. Exeter, L. Bp. Meston, L.
Alexander of Tunis, E. Exeter, M. Mills, V.
Amherst of Hackney, L. Fortescue, E. Milverton, L.
Ampthill, L. Fraser of Lonsdale, L. Molson, L.
Astor, V. Gage, V. Monk Bretton, L.
Balfour of Burleigh, L. Goschen, V. Montgomery of Alamein, V.
Beauchamp, E. Hamilton of Dalzell, L. Newcastle, L. Bp.
Bessborough, E. Hanworth, V. Newton, L
Blackford, L. Hawke, L. [Teller.] Onslow, E.
Boston, L. Home, E. Poulett, E.
Brentford, V. Horsbrugh, B. St. Aldwyn, E.
Bridgeman, V. [Teller.] Howe, E. Salisbury, M.
Chester, L. Bp. Ilford, L. Saltoun, L.
Colgrain, L. Jessel, L. Sandford, L.
Colyton, L. Killearn, L. Somers, L.
Conesford, L. Kilmuir, E. Soulbury, V.
Craigton, L. London, L. Bp. Stuart of Findhorn, V.
Davidson, V. Long, V. Suffield, L.
Denham, L. Luke, L. Twining, L.
Dilhorne, L. (L. Chancellor.) McCorquodale of Newton, L. Winchester, L. Bp.

On Question, Motion agreed to.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, this means that we can go back now to discuss the merits of the Measure, because it has not been fully discussed, and I hope that any Member on any side of the House who has views about it will not let this Measure go through by mere default of proper examination and debate. We have moved, and succeeded in getting people of all Parties into the Division Lobby, in favour of the Amendment for Adjournment and I think at this stage I should like to leave the debate to other noble Lords, if they will join in.

4.57 p.m.

VISCOUNT BRENTFORD

My Lords, it really is a matter of sincere regret on my part that I find myself in opposition to this Motion, first, because I know it is always a great mistake, as well as a matter of personal regret, to find myself on the opposite side of debate to the right reverend Prelate the Lord Bishop of Chester; and secondly, because I am exceedingly conscious of the immense need for a reform of the Ecclesiastical Courts. I am equally conscious of the tremendous amount of work, effort, thought and prayer which has been put into the consideration of the reform of the Ecclesiastical Courts over the last ten years. There is so much in this Measure which is good and of which I would whole-heartedly approve that it is, as I say, a matter of exceedingly deep regret that I find there is one point in it which precludes me from voting in favour of its passing.

There are quite a number of points in this Measure which I would prefer to see amended or altered, but there is only this one point which, to me, is fundamental and which causes me to adopt this rather drastic course of voting against it. That point is the one to which the right reverend Prelate addressed himself at considerable length, with great fluency and very convincingly—namely, the question of the retention of the Bishop's veto in reserved cases. There was one point upon which I should like to comment in what the right reverend Prelate said in regard to the debates in the Church Assembly. He repeated very faithfully the history of how the debates went; but I think it is fair to say that when a decision was taken in the Assembly on this particular question of the Bishop's veto, the overwhelming majority of the House of Clergy, not unnaturally, voted for, or expressed themselves in favour of, the Bishop's veto, and in the House of Laity there was a substantial minority which expressed themselves as being opposed to it.

The basic reason why I am opposed to the Measure on the ground that it retains the Bishop's veto in these reserved cases is that, by so doing, it departs from the basic principles in the Lloyd Jacob Report. There is one thing that I should like to take up with the right reverend Prelate, and that is as regards this being a retention. Of course it is a retention in the sense that in the 1874 Act the Bishops have a right of veto, but I think I am correct in saying that they were able to exercise that right of veto under that Act only with full publication of what they were doing and why they were doing it, whereas in this Measure the right of veto by the Bishop is an entirely private thing, and he is under no obligation, by virtue of the Measure, to impart anything but his decision to anybody at all.

Nor is he under any obligation to give any reasons or causes which have led him to arrive at the decision. If I may refer your Lordships to the Report of the Lloyd Jacob Commission, they say on page 74: In the correction of the kind of offence which we have placed in the reserved category there must be some authority with power to decide whether or not the case is to go forward for trial. Even if there is a prima facie case against the accused a trial in a court of law may not be the best means of dealing with the matter, but whether or not the case is allowed to go forward for trial the complainant has every right to have a full inquiry made into the act of which he complains, since it may affect his faith and his part in the services of the Church, and in the event of the case not being allowed to go forward he has a right to know the reason why. The full inquiry, and the decision whether the case should be tried or not, should be made by a body which is more widely representative of the Church than the Bishop of the diocese where the case has arisen, but the Bishop as a pastor will have his own particular knowldege of the circumstances and should be allowed an opportunity of pastoral action before the inquiry stage of making appropriate representations at that stage. The vital importance of that quotation is, I think, that the full inquiry should be made by a body which is more widely representative of the Church than the Bishop of the diocese, because it may well be understood that it is only in that way that it is possible to obtain the uniformity with regard to the three points which come up for consideration under this Measure, namely, the questions of doctrine, ritual and ceremony. Following upon this quotation, the Report goes on at the bottom of page 76 to make the definite recommendation that the Bishop should be informed at the outset that the complaint has been made, and that he should be given an opportunity of settling the case by pastoral action. For this he should be allowed one month. The Bishop will not be able to veto the proceedings or to try or sentence the accused clergyman. His action is to be that of a pastor. By talking the whole matter over with the complainant and the accused he may be able to bring both to such a frame of mind that the complainant may decide to withdraw his complaint. That is the recommendation of the Lloyd Jacob Report, which has been departed from in this particular Measure.

The Commission go on to recommend that there should be a court of inquiry, and the provision with regard to the inquiry is that it should be by a Convocational Committee which would be representative of the whole of the Province. This recommendation was adopted by the Measure and the Committee was also given power of veto, and, therefore, in the Measure as it stands at the present time any complainant has to overcome two hurdles before he can even get his complaint raised in the courts on an action or trial. First of all, he has to overcome the Bishop's right of veto and, secondly, he has to overcome the right of veto of the Committee of Inquiry. Both those rights of veto are entitled to be exercised on exactly the same grounds, namely, that the matter is a trivial one; that it would not be in the interests of the Church of England for it to be pursued, or that the cause arose through extenuating circumstances. In any of those three events, not only is the Bishop given the right of exercising his veto upon the initiation or continuation of the proceedings, but the committee of inquiry is similarly given the same right.

One argument I think the right reverend Prelate put forward for the retention of this right of veto was that it was hallowed by the passage of time, having been exercised by Bishops since early in the last century. But I would pray in aid another argument which my noble friend used himself, and that was with regard to the Judicial Committee of the Privy Council. He pointed out that that Committee had been hearing appeals in these cases since 1834 (I think it was) but, nevertheless, that was not any longer hallowed by the length of time in which it had been exercised. When an alternative means of appeal, superior, in my noble friend's estimation, to the Judicial Committee of the Privy Council, came to be discovered, then it was right and proper that the Privy Council's rights of hearing appeals of these cases should be done away with. What is just for the Privy Council is surely just for the Bishop's veto, and if it is found that the Bishop's veto can be superseded by some superior method, then I submit to your Lordships that it is right and proper that the Bishop's veto should go. I submit that this alternative method proposed by the Lloyd Jacob Committee is a superior method.

The right reverend Prelate also indicated that one necessary reason for the Bishop's veto was to put an end to the possible raising of frivolous complaints, for which it was hardly worth while to bring together the superior machinery of this Provincial Committee of Inquiry. I do not attach any importance whatsoever to that argument. To begin with, complaints under Section 19 of the Measure can be made only by an authorised person—that is to say, some person in the parish who has been authorised by the Bishop to make the complaint, or by six members of full age, whose names are on the electoral roll. Those people are going to be sensible and responsible, and they are not going to bring forward a whole host of frivolous complaints, such as was rather indicated might be the possibility and which might lead to the need of the Bishops' veto.

But there is another argument, too, in favour of letting the Committee of Inquiry deal with this matter direct, and that is, that the Committee of Inquiry have the power of ordering a frivolous complainant to pay the costs of the application; and that, I submit to your Lordships, is a very valuable sanction and is certainly going to make people think twice, if not thrice, before they introduce any frivolous complaints.

I do submit to your Lordships that the Bishops' Veto is bad because, among other things, it enables a Bishop to prevent the enforcement of ecclesiastical law with which he may personally be in disagreement, and I think it might put several of the right reverend Prelates into a position of very grave difficulty if they were called upon to decide whether or not to exercise their right of veto in regard to an infringement of the law which they themselves have regularly practised in the days before they were translated to the Upper Bench. But, in any event, such a procedure would inevitably result in the very grave danger of a lack of uniformity in the enforcement of the ecclesiastical law in the law of this country.

I believe that the inclusion of the Bishop's veto derogates very strongly indeed from the fundamental principle which is implicit in the Report of the Lloyd Jacob Commission, that reserve cases which deal with doctrinal, ritual or ceremonial, and may therefore well affect the whole Church, should be dealt with only at a Church, national or provincial level. This I differentiate from conduct cases, because conduct cases are very largely of a domestic character and can perfectly well be dealt with in the diocese and through the diocesan Bishop himself. But these reserve cases are of infinitely wider importance and wider application to the Church of England as a whole.

My Lords, I will conclude with one quotation, if I may, from a book written and published this year by the Archdeacon of Hastings entitled The Church of England: its members and its business,—and he has noted with dissatisfaction how, as a result of Church Assembly legislation, the diocesan Father in God and pastor, with a limited constitutional reign over his diocese, is being replaced by the prelate with the powers of an administrative autocrat. Almost annually some new Measure of the Church Assembly adds to his power of veto and consent in administrative matters. In England the trend is away from constitutional episcopacy to a monarchical Bench of Bishops …. Yet these anomalies have been created by Church Assembly legislation. It may therefore be supposed that the Assembly is not aware of the full effect of some of the Measures of which it approves. I submit that the Bishop's veto would be a further instance of this anomalous trend, which, by increasing the Bishops' autocratic prerogative, can in the end only weaken their pastoral authority. Neither the trend as a whole, nor this particular instance of it, seem to be in the best interests of the English Church, and I therefore submit to your Lordships that we should not pass this Measure.

5.15 p.m.

LORD SALTOUN

My Lords, I think it is a very long time since I have seen our Bishops' Bench in your Lordships' House so well and so worthily occupied, headed by the most reverend Primate himself. In spite of that fact, I cannot help thinking that this Measure which is proposed to your Lordships is something of a curate's egg; parts of it are quite excellent but there are one or two parts on which I should like my mind to be clear before I give a vote of consent to it. In my lifetime, the ritual practice of the Church of England has altered very much indeed. I very much suspect that its doctrine has also altered a good deal, but that is only a suspicion because I am not such a fool as to engage in doctrinal arguments with my parson. I was brought up ferociously plain, and I defy anybody to call the ritual that is practised in the Church of England to-day ferociously plain. I do not mind: it does not matter to me what other people do; other people please themselves. So long as they do not molest me, it makes no difference to me.

LORD HAWKE

My Lords, if I can interrupt my noble friend for one minute—I know perfectly well that within a mile of your Lordships' House he will find at least one place of worship which he would call ferociously plain, and others which are the other extreme. In the Church of England we have to try to find the one we like among many different types.

LORD SALTOUN

I am greatly obliged to the noble Lord, Lord Hawke, because he anticipated me in making exactly the point at which I was going to arrive, because my view of the Church of England is that it is a national Church. It ought, therefore, to accommodate as many varieties of people as it possibly can within its arms, and my feeling always is that of Erasmus, in that you should define doctrine as little as possible in order to embrace all men in Christianity. For that very reason, I am very much disturbed at the proposed abolition of the jurisdiction of the Privy Council in doctrinal matters, because doctrine is a matter very largely of definition and I am perfectly certain that the Judicial Committee of the Privy Council is very much more highly efficient in defining the philosophic meaning of terms than would be an ecclesiastical body—for this reason. The ecclesiastical body must necessarily be orthodox, and, therefore, its mind is occupied by certain definite interpretations, whereas the Judicial Committee will have a very much wider scope.

The quarrel in this matter is really the quarrel of authority against logic, and I will remind your Lordships of a very old story which most of the right reverend Prelates who are listening to me will probably remember. It is of the case of Bishop Colenso, who denied entirely the existence of Hell, and so, of course, was guilty of heresy because Hell is mentioned in the Apostles' Creed, which is enjoined by the XXXIX Articles. He was condemned of heresy and he appealed to the Privy Council. The Privy Council absolved him and let him go clear, and the evening papers of the day announced the fact in glorious headlines, saying, "Hell dismissed with costs". For these reasons, I should be very sorry to see the jurisdiction of the Privy Council abolished.

There is another point in this document which gives me considerable concern, and that is that it is proposed that the Court of Ecclesiastical Causes Reserved should take powers to try the most reverend Primate. What would they try him for? I presume it would be for heresy. I have met with an 18th century case of an Archbishop who was tried for heresy by a conclave of Bishops. He was the Archbishop of Lima. The conclave sat, and I believe his body is said to be beneath the central aisle of the cathedral of Lima; and that was the conclusion of that case. But I think it is utterly wrong that a court should take powers to try, on any ecclesiastical charge, the most reverend Primate. If they did so, what would be the effect? The most reverend Primate is chosen by Her Majesty. A congé d'élire goes to the Chapter and they elect him. On election and consecration he becomes, after the Princes of the blood, the principal subject of Her Majesty in this land and a leading Member of your Lordships' House.

Supposing he was condemned in heresy, what would be the result? He could walk in here exactly the same. It would have no effect. It would be a most absurd procedure, and in any case I think it would be most indiscreet. To take power to commit an indiscretion is a very stupid thing. What is heresy? Every lively church is full of heresy. One of the saddest, if most amusing, episodes in the 19th century, to my mind, is that Cardinal Newman left his Church and went to Rome because he could not make sense of the XXXIX Articles. Well, my Lords, who can make sense of some of the XXXIX Articles? If you could make sense of them they would not be fit to be articles of religion, because the world and the ordering of the world, in spite of all the Church does, is still a large question mark. And the very fact that you cannot make logical sense of some of the XXXIX Articles is that which fits them for their place, because it is reverence for the things you do not know.

Therefore, to me, the only charge conceivable on which the most reverend Primate could be tried by this new court is that of heresy; and to try him would be absurd. And as I hope that not only my noble friends the right reverend Prelates, but the most reverend Primate himself, are very often guilty of heresies, because it shows that their faith is alive, on that ground, too, I would urge an alteration in this Measure. For those two reasons I think the Measure should be taken back and reconsidered, and I hope that many of your Lordships will agree with me.

5.25 p.m.

LORD CHORLEY

My Lords, I think most of the Members of the House who have taken part in, this discussion this afternoon have been practising members of the Church of England. I do not speak from that point of view. The Church is, in fact, the Established Church, and every citizen is therefore entitled to consider all measures of a constitutional character with which it is concerned. Also I have been asked by friends who are strong members of the Church and lawyers to put the point of view, or, rather, to dot the "i's" and cross the "t's" of the remarks made by the noble Viscount, Lord Brentford. Therefore, from that point of view, too, I should like to take up a few minutes of your Lordships' time.

I think the main argument against this Measure is the problem of the veto, which has been well put before your Lordships. But before adding a few words on that matter I would cross swords with my noble friend Lord Saltoun, because I think he got the Colenso case a little bit wrong. I agree that the Colenso case is a very strong argument for the view that the jurisdiction of the Privy Council should be retained in cases of this kind. Colenso was the Bishop Barnes of his time from many points of view, because he was, in fact, one of the most eminent mathematicians of mid-Victorian times, just as Bishop Barnes was one of the most eminent mathematicians of the earlier part of this century; and he was, for his own time, very heretical. I do not think he denied Hell: what he said was that punishment was not eternal. He said that it was not consistent with his conception of the Deity and any really proper conception of the Deity to believe that punishment could be eternal. In mid-Victorian times that was a very unorthodox doctrine. He had, of course, been made Bishop of Natal; and, as I recollect it, the Metropolitan of South Africa, Cape Town, proceeded to remove him from the bishopric. And the basis of his appeal to the Privy Council was not really that doctrinal point at all, but on the basis that the Metropolitan of Cape Town was exceeding his jurisdiction in removing him from the See of Natal. It was on that point the Privy Council ruled.

I think that if the noble Lord will refer to the books on the subject, he will find that, although the Lord Chancellor of the day, who presided in the Privy Council, was popularly said to have "dismissed Hell, with costs", the Privy Council did not, in fact, rule on the doctrinal point at all but on the question of jurisdiction. The value of the case is that it needed the objective consideration of these facts by the Privy Council to deal with this matter in a just way. But heresies which now are held by many very devout Christians, including Bishops, had raised such a feeling of emotional passion, not only in South Africa but also on the part of members of the Church of England and Bishops in this country, that they were not able to take an objective view and deal with this matter dispassionately. That, I suggest, is one of the compelling reasons why the Privy Council should be kept in this position in regard to matters of this sort, because they are matters which arouse passions of the most virulent kind, as anybody who has made any sort of study of religious history knows. I think the noble Lord, Lord Saltoun, is quite right in saying that the Privy Council's jurisdiction should be retained, even if he did not get the historical facts exactly right.

This question of the veto is a very important one. The arguments set out by these six lawyers, mostly men of considerable eminence in the law and strong churchmen, have been sent, I think, to all Members of the House, and I do not want to go over that ground again in detail. But it does seem to me that there is a strong case against the Bishop coming in, so to speak, as a legal officer. Surely the Lloyd Jacob Commission were quite right when they said that the Bishop ought to be in these cases as a conciliator, as a higher pastor, so to speak, who sees the complainant and discusses the problem with him and, if it seems to be frivolous, tries to dissuade him from going on with it. But that is hardly compatible with the position of being a judge which is then put upon him. He cannot really do both these jobs, and it is not fair to him to require him to do so. No judge who was on terms comparable with those on which a Bishop should be with the priest in his diocese, would do such a thing.

Quite apart from that, in many cases they are on terms of personal friendship, and probably were at college together. Whether it is a case of an allegation of immorality or heresy, how can a Bishop possibly bring a really objective and fair mind to deal with the situation of deciding whether or not to exercise his veto? Suppose it is a question of ritual; he may be a strong ritualist himself. In those circumstances, some bishops would probably say, "This is a silly objection to ritual; I am going to veto it". Others would fall over backwards, in order to try to show that they were being fair, and would go to the other extreme. The great difficulty in a situation of that kind is exercising a judicial function at all.

In this House there are many of your Lordships who are justices of the peace, and you know perfectly well—I have had it happen to me—that if a case comes before the bench in which you know the accused you immediately say, "I cannot sit on this case; I know the accused". Yet here there is exactly the opposite position: a Bishop knows the accused as one of the priests in his diocese—a man who may be one of his oldest friends—and he is called upon to exercise the veto. Really, my Lords, it is not good enough. Surely the Lloyd Jacob Commission took the only proper view in this sort of situation. As we have heard so often, justice should not only be done but should be seen to be done. This is emphatically a case, where if this proposal goes through, that important principle will be broken.

There are many other points in regard to this matter which are predominantly ecclesiastical. The composition of the Reserved Court itself. It is true that in an exceptional case where there is a petition to the Crown there may be three bishops and two laymen; but in the ordinary case, as I pointed out when asking the right reverend Prelate about Section 5, the tribunal is predominantly ecclesiastical and not lay; and that is so in regard to other points, as pointed out in this Memorandum by the lawyers. So there are really quite a number of serious objections to this Measure as it comes before your Lordships this afternoon. They can be quite easily put right if the Church would take the Measure back and correct it. As most of it is unexceptionable, I am certain that there would then be no difficulty in persuading your Lordships to accept it.

5.35 p.m.

VISCOUNT ASTOR

My Lords, I wish to say a very few words in general support of this Measure. I do not think it is fair to say that it has been rushed on this House. It is the result of a very long period of thought, deliberation and prayer, and it is not necessary for one to have read Church literature—it is enough to have studied merely the responsible Press—to have followed how, over the past two years, this Measure has been worked out. There has been ample opportunity to know its contents.

I think the cause which is closest to the hearts of most Christians to-day is the reunion of the Christian Churches. We know that it may not take place in our lifetime, but we also know that in the last few years there has been a change extending through the whole spectrum of Christianity to an increase of charity and a desire for unity. One of the obstacles to unity has been the fact that it is hard for Churches to get together when one of them is subject to essentially political control—a control that may be exercised by Governments which have a very small Christian element in them. That fact was recognised in the Report of the Commission of the Church of England and the Methodist Church sitting under my own diocesan Bishop, the Lord Bishop of Oxford, when the Church of England representatives frankly acknowledged that one of the reasons why the Nonconformists had separated from the Church was that they had objected to the fact that there was a political control (political in a broad sense) over what should be a spiritual society, and that in the long run the Church would have to become again a spiritual society rather than a part of the temporal structure of a political country.

That is equally true in the international sphere. One cannot imagine that if there is to be reunion of Christianity it will be easy to fit in Churches which depend on the Government of some particular country. It can be done only on a universal basis. If that is so, this Measure surely is a tentative but proper step in that direction. With an immense number of safeguards it allows the Church to be more mistress of her own house, but while there has been a great lay element in it, an element appointed by the Crown in this Act, it is moving towards giving more control over its own affairs, becoming a more self-governing spiritual society and less dependent on Parliament.

After all, we know, I think, that one of the reasons why Parliament controlled it was that, at the time of great ecclesiastical fighting, when the aim was to make a line and to say "This is the line you have got to follow"—after the days of the great civil wars, and so forth—was to prevent moves to the right and to the left, if I may use those terms. Now that has changed. Far from trying to be restrictive, the Church is trying to extend hands both to the right and to the left towards reunion. I know how strongly some noble Lords, for whom I have the greatest respect, feel on this matter, but those of us who have been brought up in this century have always felt that one of the greatest obstacles to our minds and consciencies was to see denominational strife. Those of us who have lived some time abroad in countries where the Christians form a small minority have always thought it a most awful thing to see the Churches of Christ, instead of loving each other, always pulling at each other and rivalling each other.

Equally those of us who were brought up not in the age of the last century, when everybody was assumed to be Christian, but in the twentieth century, where Christianity has had every form of intellectual and materialistic, agnostic and atheist attack, the Church can no longer, if it is to hold out against attack, afford the luxury of internal denominational strife within the Church. In the end, if it is to play its role it must be an international spiritual society not dependent on Governments; and this Measure is, I think, with great respect, a move in that direction. Obviously if any of us had to draft it, we could each have done it better. But in the end, my Lords, I think it is right that the Church, which has spent such a long time on this, should have the support of this House. The amount of opposition is extraordinarily small, considering how wide and independent the Church is, and it is right that this House should express its confidence and support this Measure.

5.40 p.m.

LORD GRANTCHESTER

My Lords, I am glad that the noble Viscount, Lord Astor, has spoken as he has done, because he has been the first to bring out the wider implications of this Measure. This is why I regret that we did not have a greater opportunity to consider these implications and discuss them, and I hope even now that this Measure may be withdrawn to-day and brought up for fuller discussion when these matters can be more fully dealt with.

The right reverend Prelate, the Lord Bishop of Chester, showed great skill in introducing this Measure but he made no reference to its far-reaching implications—he did not even mention them. What are these implications? Surely this is the first step in an attempt to bring the government of the Church within its own jurisdiction. Whatever the merits of this wish—and I agree largely with what the noble Viscount, Lord Astor, said in this matter—the question of Establishment could become involved. It seems to me, therefore, that much longer time should be given for the consideration of this first move in what is really only one of a series of Measures which are being prepared before we are asked to accept it to-day.

5.42 p.m.

THE LORD CHANCELLOR (LORD DILHORNE)

My Lords, I cannot share the view of the noble Lord who has just sat down that the right reverend Prelate did not give a perfectly clear, full and complete exposition of this Measure. I cannot really share his view that this Measure is the beginning of an attempt to bring the government of the Church within its own jurisdiction as a step towards Disestablishment. It really is no such thing. You have only to look at the Measure to see that.

One interesting thing about this debate has been that no one has challenged for one moment the need for the reform of the ecclesiastical courts. That appears to be completely common ground. I entirely support the view that the time has come when there should be large-scale reform of the existing courts. The right reverend Prelate, in moving this Motion, referred to the fact that there had been full consultation with all Government Departments. I know that there was full consultation with my predecessor at all stages. If there be, as I think there is, an unanswerable case for reform of the existing machinery so far as ecclesiastical jurisdiction is concerned, then it must be a matter for the Church Assembly to tackle. That is their function; Parliament has delegated it to them. It is quite clear, from what the right reverend Prelate said, that they have spent a great deal of time and have gone to infinite trouble to try to devise a satisfactory form of procedure for the modern world and for the modern Church.

I do not say that if we had this Measure before us as a Bill and were asking for a Second Reading there would not be a long and interesting debate on various points in that particular Bill—the kind of point raised by the noble Lord, Lord Saltoun, and many other points. Views on those will differ. But Parliament has delegated to the Church Assembly the task of producing this kind of Measure, which is a most important Measure. I do not think any of us would wish to minimise its importance. But, having done that, then surely when we are asked to approve it we cannot subject it to the kind of examination to which we subject a Bill on Committee. We have to look at it broadly and to say whether or not we are in favour of the principle which is embodied in it; and I certainly am in favour of reform of the ecclesiastical courts.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, may I interrupt the noble and learned Lord the Lord Chancellor? While I agree with the general opening of his speech, I really cannot hold with that last argument, if we have a Motion to resolve, either for or against its approval, and there is no right to amend, however favourably we might amend it, that is quite unreasonable.

THE LORD CHANCELLOR

My Lords, that may be quite unreasonable, but it is the present position with regard to the law.

EARL ALEXANDER OF HILLSBOROUGH

Exactly.

THE LORD CHANCELLOR

The law is, our having delegated this function to the Church Assembly—and no one can suggest for a moment that the production of this Measure is not within the powers of and, indeed, part of the task of the Church Assembly—under our Constitution it is then for Parliament to say "Aye" or "No" whether it approves of the Measure. I do not think there is any dispute between the noble Earl and myself about that.

The point I was making was that we must go to the substance of the matter. There may well be in this important Measure different points on which there are different points of view. Indeed, it was interesting to hear the noble Viscount, Lord Brentford, say that there were a number of points on which he felt doubt. The noble Lord, Lord Chorley, said the same. But both of them fastened really on the one point, the point of principle which led them to the conclusion that this Motion should not be carried. There was no real criticism, I think, from either of them as to the constitution of these courts. There was some criticism from the noble Lord, Lord Saltoun, of the fact that the Judicial Committee would lose its jurisdiction, but of course there will still remain on the court which takes the place of the Judicial Committee three Lords of Appeal constituting the majority of that court.

The point of principle on which so much weight has been placed in this debate is what has been referred as the Bishop's veto. I do not speak as any expert in this particular field, but I have had experience over a number of years of having to try to deal and cope with vexatious litigants—people who have a firm belief in the rightness of their case and who will pursue it over the years to the bitter end. We have in our own courts, in our own judicial system, a procedure whereby we can stop vexatious litigants. I have often had to put it in use. It is a painful process, because those people who are vexatious litigants so often believe most sincerely in the righteousness of their cause.

I, myself, believe that if you are going to have this new system of ecclesiastical jurisdiction there must be some veto upon what I would call ecclesiastical vexatious litigation. I do not believe it can be dismissed out of hand, as it was by the noble Viscount, Lord Brentford, who referred to the categories of people who would make complaint, because you can get feelings running high over the most trivial matters, and again they are pursued to the bitter end. If someone is going to have the veto—if that is accepted—in whose hands should the responsibility for its exercise rest? That, I imagine, is the question which gave the Church Assembly a considerable amount of difficulty, and to which a considerable amount of thought has been attached, and their decision is that it should be exercised by the Bishops. If you are going to create this particular system of courts supported by the Bishops, I find it difficult to believe that they, because of any personal views of theirs, would stop any proceedings from coming before these new ecclesiastical courts for the resolution of some particular difficulty.

I did not intend to speak for very long on this because I am not really fully qualified to do so, but I should like to conclude by saying this. This Measure is the result of many years of effort on the part of many people. It commands, I think I am right in saying, a tremendous amount of support. The real criticism of it has been on account of the Bishop's veto. I think that there must be some veto, and if that veto is wrongly or improperly exercised I think that we can leave it to the Church Assembly to bring in an amending Measure.

5.50 p.m.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, the right reverend Prelate who has introduced the Motion has already made my apologies for absence during part of the debate on account of an urgent engagement; and I especially regret having missed the concluding part of the speech of the noble Earl, Lord Alexander of Hillsborough. I know that he will forgive me. I always listen to him with great admiration for the depth of his Christian convictions. He and I differ in many things, but when we both go very deep down we find that the things which we share matter far more than the things on which we sometimes have argument.

I should like to ask your Lordships to step back a little and see the matter in rather larger historical perspective than has been mentioned hitherto in this debate, because the particular need of the Church with which this Measure is concerned is connected with a number of other needs of the Church which have been very evident for some time. If we go back to the year 1906, there appeared in that year the Report of the Royal Commission on Ecclesiastical Discipline, a weighty Report which dealt comprehensively with many aspects of of the life of the Church. The findings of that Report were, in their main aspects, twofold. First, it was urged that there should be a restoration of order and discipline in the Church. Second, it was urged that there should be reform of the Church's law on public worship so as to make that law more contemporary in view of the Church's living needs. Those two things, in the judgment of the Royal Commission, went together then, and go together still; and I do not believe that they can be separated.

The task given to the Church by letters of business consequent upon the Report of 1906 was a very formidable task involving a long process. In that process there were a number of frustrations. I need not recount the history of these frustrations. The years 1927 and 1928 are a sufficient symbol of what those frustrations were. However, after the last war the Church of England, under the leadership of my predecessor, Archbishop Fisher, set about a comprehensive process of reform dealing with a number of needs of the Church which cannot really be separated. One of those needs is the establishment of workable courts, and the Measure before your Lordships' House deals with that. A second parallel need is for the reform of the law of public worship. That is a complicated matter, and it is our intention to bring before Parliament measures to enable that reform of public worship to take place, not by the method of a comprehensive revision all at once, as in 1927, but by the method of experimental variations for which we will ask for Parliamentary sanction—the sanction for such variations to be made for experimental periods under the Convocations, and, be it noted, the House of Laity as well.

These matters, in a way, all go together—with this difference. The reform of the courts, though it is as complicated in appearance as the Measure now before the House, is far more simple in that it is a thing that, if rightly done, legislation can carry out on one occasion. The reform of public worship is, however, a very much slower and more complicated process, a process that will be spread over a good many years. None the less, the two matters of the reform of worship and the reform of the courts go together in the sense that it is no use having up-to-date courts which litigants are going to use unless you also have an up-to-date law to be worth while using. Equally, it is not much use having, an up-to-date law of public worship unless you have courts with the necessary sanctions behind them. But it is just because it is very difficult to correlate these two things, and because the reform of worship is a very much longer process, that the difficult matter of the Bishop's veto has come into the field.

What is the real point of the proposal about the Bishop's veto? The real point, I think, is that until there is a total and complete reform of the law of public worship many things will go on being illegal, both serious things and minor things; and the Bishop's veto is a necessary institution to prevent really vexatious, and perhaps trivial, litigation from occurring in the parishes. I believe that that veto will greatly help the process of order and reconciliation, a process which must always be partly legal and also partly pastoral. It is impossible for it to be wholly one or wholly the other. I believe that the Bishop's veto will maintain that true character for it.

One more thing to which I would refer is this. The noble Lord opposite me referred to the question of Establishment; and, if I understood him rightly, he hinted, if he did not actually say, that this Measure was one of a number of things which might progressively lead to the Disestablishment of the Church. I believe that that is a misreading of the situation. I believe, on the contrary, that this Measure is one of several things which are a necessary condition for the effective continuance of Establishment and the connection of Church and State in this country. Establishment will continue if certain modifications are made in its working, and I believe that this Measure imperatively embodies one of those modifications. I would conclude with a reference to the powerful plea made by the noble Earl, the Leader of the Opposition, and say that, if your Lordships are moved by his plea to reject this Measure, the law and order which he so greatly desires in our national Church will not be improved by one whit, but will, indeed, be greatly hindered.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, I have not asked for your Lordships to reject this Measure to-day. I have moved that the debate be adjourned for the specific reason that I might then have consultations with the Leader of the House, who I hope will consult with the Bishops, so that there may be adequate time for study and, afterwards, to debate the issue.

THE LORD ARCHBISHOP OF CANTERBURY

All that is true, but I am sure, my Lords, that we were in no doubt whatever as to the view of the noble Earl on what ought to happen to this Measure—no possible doubt whatever, in words and arguments, if words and arguments mean anything.

LORD SHEPHERD

My Lords, may I just put this point? I supported my noble Leader, but it was not as the most reverend Primate has said. I supported him entirely on the question of procedure, and I do not wish to be identified with the remarks that he has made.

THE LORD ARCHBISHOP OF CANTERBURY

I referred personally to the noble Earl, partly because of my very great regard for him and partly because of the great power of the speech he made this afternoon. But let me retrace my steps and speak in reference to all those who have opposed this Measure, or have argued for its rejection or delay. To them, my answer would be that by rejecting or delaying this Measure you will not be promoting law or order in the Church by one whit. On the contrary, you will be frustrating a number of the other processes also, which, altogether, are needed for the restoration of law and order and efficiency. The other thing I would say is that by passing this Measure I believe your Lordships will be passing something which embodies one of those conditions upon which the connection of Church and State cart effectively be continued for the good of the country and also for the co-operation of all the Christian Churches in, our land.

6.2 p.m.

THE LORD BISHOP OF CHESTER

My Lords, those of us who have the welfare of the Church and its good order at heart will be very grateful indeed for the serious way in which this House has debated this Measure. I do not think it is necessary for me to go into the detailed points that have been made, because I dealt with many of them in my opening speech. I can assure the House that as we in the Church Assembly went through this Measure, clause by clause, day after day, all these matters were raised, there was a very free expression of opinion, and we came to a mind on each of them. If we were to go over all of this again, there would be reasonable and legitimate differences of opinion and we should have to try to find some way through them. We believe that this Measure does so.

I think I ought just to make one point about the Court of Ecclesiastical Causes Reserved. In the past, these doctrinal cases have been bedevilled by the fact that they took place in a criminal atmosphere. We are hoping that this court is going to lift the whole thing up into quite a different sense and feeling, so that these matters of doctrine and ceremonial will be treated more as in a court of arbitration than a man upon his trial for misdeeds. I hope that the noble Viscount, Lord Brentford, who made such a reasoned speech, will realise that that is our hope for this court and that now that we have got this court of inquiry which will look into the matter if the Bishop allows it to go forward, the Bishop will be much less inclined to impose a veto except on something which is of very minor importance.

I think we are all extremely grateful to the noble Viscount, Lord Astor, for the note which he struck in his speech. What we want from this Measure is peace in the Church; and we also believe, as he pointed out, that it will lead also to peace with other Churches, eventually. We have wrestled with this matter, we have worked upon it and we bring it now to Parliament in the firm conviction that this is going to bring into the Church that peace and order which the noble Earl so earnestly requires. We hope, therefore, that your Lordships will overwhelmingly give it your consent.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, before the noble Lord the Lord Chancellor puts the Question, in view of the way things have been put to me by the most reverend Metropolitan and the Lord Bishop of Chester, may I say a word? I think that I have a right to speak on the Motion.

THE LORD CHANCELLOR

My Lords, I understood the noble Earl to speak after the Motion had been moved by the right reverend Prelate. I thought that he spoke to that Motion, and at the end of his speech put his Amendment. I am young as a Member of this House, but I should myself have thought that the noble Earl, having spoken then, had already spoken to this particular Motion.

EARL ALEXANDER OF HILLSBOROUGH

I do not agree. We had a Division upon our Amendment to postpone the debate, and it was in order to get support for that Amendment, which support came from both sides of the House in the Division Lobby, that I made the speech I did. However, I am not going to make a speech, but would say just a word in reply to the points that have been raised by the most reverend Metropolitan and the Lord Bishop of Chester. We are asked this afternoon to approve, without amendment, this Measure as a whole. We do not wish to hold up the Measure at this stage, in view of what has happened, because none of us has had sufficient time to study the matter in order to be able to give a sensible vote. I will take no further action at this stage, but it must he obvious that those of us who have spoken, not on behalf of our particular Party but upon our own individual views, will have to ask for time to have the matter discussed.

On Question, Motion agreed to, and ordered accordingly.