HL Deb 11 June 1974 vol 352 cc415-33

7.15 p.m.

THE LORD CHANCELLOR

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

LORD HAILSHAM OF SAINT MARYLEBONE

My Lords, I rise to move the Second Reading of the Bill which I introduced earlier in the Session. I am speaking from the Dispatch Box by courtesy of my noble friends, but I should like to make it plain to the House that I speak in my own capacity. I have made no attempt to solicit or obtain the support of my Party but I hope, none the less, to command the support of all quarters of the House. The purpose of the Bill is to remove a doubt which has long troubled constitutional lawyers as to the capacity of Roman Catholics to hold the office of Lord Chancellor, and there are certain consequential provisions.

First of all, let me make it plain what the Bill cannot do. The question whether any given Prime Minister might, politically or constitutionally, find it desirable to recommend Her Majesty to appoint a Roman Catholic as Lord Chancellor is not within the scope of this Bill. I hasten to express a view which I hold, having held that office for four years, and my father having held it twice in the earlier reign, that there is nothing to bar anyone of any religious persuasion from conscientiously discharging the duties of Lord Chancellor, providing he has the necessary standing in politics and the law and the necessary quality in both lines of activity. But this Bill is not concerned with that. That is a question of politics, a question for the Prime Minister of the day subject to his responsibility to Parliament and the electorate.

This is a Bill which deals with the question of capacity to hold the office. For reasons that I shall give, I happen to hold the view that there is, in fact, no bar at this moment to a Roman Catholic holding the office of Lord Chancellor. But very respectable authorities have, from time to time, expressed a contrary view. One can see it, for instance, expressed in the Second and, I think, the Third Editions of Halsbury's Laws of England. There are plenty of others who would hold the contrary view. This Bill is therefore cast in a form to remove a doubt. I feel that I am entitled to ask for the support of the House for this reason. Of course, if we wish to impose a legal incapacity for Roman Catholics or adherents of any other faith to hold particular office, then let us say so openly and candidly. I do not wish to do so. I can see no justification for it. What is not tolerable is that a candidate for any public office, including that of Lord Chancellor, should be debarred as a practice from holding that office, not because there is any legal bar to his holding it, but because it is thought that there might be.

It so happens that the last time the question was debated at any length in your Lordships' House—that is to say, I think in 1943—the late Lord Simon, who was then Lord Chancellor, expressed the view that the doubt was sufficiently real as effectively to stop a Prime Minister, in practice, from recommending the appointment of an otherwise suitable candidate. The consequences of recommending and purporting to appoint a candidate who was incapable of holding the office would, of course, be very serious. The Lord Chancellor's acts would become invalid because he would not be the Lord Chancellor, and among those acts would be every writ, even in the High Court, on which his name has to appear, until they change the rather foolish form in which the writ is now held.

I have been asked why this Bill does not deal with other religions: why it deals with Roman Catholics specifically and not with Jews, Moslems, Christian Scientists, Buddhists or atheists. The reason is that there is no doubt about those other categories, so far as I know, I have no doubt the noble and learned Lord on the Woolsack, whom I am sure the House is very glad to see occupying his customary place in this debate, will wish to confirm that, if it is correct. The position of Jews is dealt with by the Jews Relief Act 1858, according to the best view that I can form, and no question has been raised ever with regard to any other faith. It is, of course, within my knowledge—I do not want to name names—that more than one Lord Chancellor has been a devoutly practising atheist and has discharged his functions, notwithstanding his incapacity, to the satisfaction of the community at large. It would be improper for me to canvass the possibility of a Congregationalist holding the office of Lord Chancellor, since I understand the noble and learned Lord now sitting on the Woolsack is in fact a member of that religious community.

The reason why I have only dealt with Roman Catholics is that it is only with regard to Roman Catholics that a bar is alleged to exist, and if there is a bar, a legal incapacity, I must tell your Lordships that it is almost certainly due not to any conscious act of policy but to inadvertence on the part of the 19th century draftsman who drafted the Act of 1867 in that particular way.

I will, therefore, give my reasons for saying this, in as short a compass as I can. There was, of course, at Common law no bar to any Christian holding the office of Lord Chancellor, and at Common law there is no difference between a Roman Catholic and a Protestant. The bar came to exist, if it did, or when it did, in the aftermath of the Reformation, and in particular after the attempt by James II to infiltrate the Church of England by appointing open or covert Roman Catholics to high office in the Church and State.

But, my Lords, our ancestors knew what they were about when they imposed tests. They did not, save in the case of one or two offices, notably the Crown itself, create an incapacity to hold the office. It is in fact very difficult to know what you mean by a Roman Catholic or by an adherent of any religion. So our ancestors imposed tests; they did not create an incapacity. In particular they imposed a sacramental test, and a series of Oaths and Declarations which a conscientious Roman Catholic could not take, against the Pope, the Doctrine of Transubstantiation, the Doctrine of the Invocation of Saints and so on. But if a Roman Catholic, contrary to his religion, took the sacrament and made the affirmations, I do not believe there was anything at any time to stop him being Lord Chancellor. Incidentally, our ancestors were a little illogical because they put in the Declaration an affirmation that there was no mental reservation, and, of course, this involves a logical fantasy which I am sure the noble and learned Lord, and the right reverend Prelate present, would be the first to recognise.

The Catholic Relief Act of 1829 removed any bar from Roman Catholics holding office by way of incapacity, other than a few named offices, the Crown, for instance, the Regent, or the Lord High Commissioner of the Church of Scotland. But it expressly declared that the Act should not enable any person to hold the office of Lord Chancellor "otherwise than he is now by law enabled", that is, by taking the tests, which at this time included the three Oaths and two Declarations which effectively debarred conscientious Jews and conscientious Roman Catholics from taking the office.

I need not detail to the House the rather complicated history of the matter, but the objectionable Oaths and Declarations were successively abolished by a series of Victorian Acts, and my opinion is that from 1871 onwards there ought to be no doubt that Roman Catholics have been capable of holding the office. I am fortified in this view by the fact that it was held by Sir John Coleridge when he was Attorney General in 1872, which was immediately after the Act in question, and his opinion to this effect is published in the Hansard of that date. I also managed while I was Lord Chancellor to dig up, by a piece of independent research into this subject with the aid of my officials, the fact that the late Lord Haldane, when he was in private practice in 1900, had actually advised a client that there was no legal incapacity in a Roman Catholic from holding the office of Lord Chancellor; and I obtained, by identifying the firm of solicitors involved, an actual copy of that Opinion which was signed by the late Lord Haldane and the late Lord Davey, both of them known at the Bar, and by two other barristers. Incidentally, it rather indicates the degree of inflation in legal fees since that date that the Opinion of all four cost in all 65 guineas. Thus, if I err in my opinion, I err in very good company.

But it is not the only view. As I say, there is another view expressed. The other view expressed is that the peculiar wording of the Act of 1867 imposed a new disability which had not previously existed. If so, I am satisfied myself that it was by inadvertence and not as a result of policy. I think both in the strictly pedantic legal sense and in the political context such a view is highly improbable. Therefore, I have introduced Clause 1 in a declaratory form. I hope that, on the whole, the House will agree both that I have made out my case and that the direction in which I have declared the law is the one which we ought to take.

Now I must say just a word about Clause 2. The reason for Clause 2 is that, quite apart from the position of the Lord Chancellor, there is a general statutory bar to the exercise of ecclesiastical patronage by a Roman Catholic, and a positive provision in the Catholic Emancipation Act 1829 that where ecclesiastical patronage is exercised by somebody who is a Roman Catholic it should be exercised by the Archbishop of Canterbury; in other words, it should lapse from the holder of the diocese to the Archbishop. That is contained in Section 17 of the Act of 1829.

The implications of either repealing the provision of the lapsing of gift to the Archbishop or leaving it unrepealed would, I think, fall outside the scope of this comparatively modest Bill, and might affect the prerogatives of the Crown, the relations between Church and State, the right to present the various livings throughout the country and other matters in which I do not desire at this stage to meddle. I do, however, respectfully record my own opinion that the ecclesiastical patronage at present exercised by the Lord Chancellor could be effectively exer- cised by anybody of any religion with the aid of the existing patronage office

It would be very inconvenient as a matter of fact to separate the ecclesiastical patronage from the Lord Chancellor unless it was transferred to the Prime Minister, because—following, I think, the activities of Lord Dilhorne and of Lord Gardiner—the two offices of patronage, the Prime Minister's and the Lord Chancellor's, were amalgamated. They have a common list of persons who desire to be presented to Crown livings. This is a very convenient arrangement, and it would be highly inconvenient to divert part of it to the Archbishop of Canterbury.

So that I have taken what is admittedly an exercise in judgment in saying that it should either remain where it is, which is possible under Clause 2, or that it should be transferred to another Minister, who would be in effect the Prime Minister. I am aware that I am taking a temporary provision while the Churches and the States are agonising over their respective relations. I hope that the Bill will not be held up while this necessary reappraisal takes place.

There remain three small details. I have been asked why I have done this by Private Member's Bill and did not attempt it by Government legislation when, until compartively recently, I was in Office. The answer is that I tried that one out, but I do not feel at liberty to disclose what actually happened to the attempt. At any rate, I would not advise any other Lord Chancellor to make the attempt for some time. I hope that the Government will embrace the opportunity I am giving them of a purely private enterprise activity, despite their preference for nationalisation.

The second minor detail is that I informed the most reverend Primate the Archbishop of Canterbury of my intention and got his blessing to what I proposed, which I hope will be repeated by the right reverend Prelate. It would have been a discourtesy not to approach the most reverend Primate, but I had such a warm response that I was encouraged to go on.

Thirdly, I do not know whether the Bill actually impinges on the Royal Prerogative, since it is really an enabling Bill and not one restricting the Crown in any way, but I was very grateful to the noble and learned Lord ex abundanti cautela for having removed that doubt. My Lords, I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(Lord Hailsham of Saint Marylehone.)

7.31 p.m.

LORD GARDINER

My Lords, having had the honour of occupying the Woolsack for nearly six years I thought that perhaps the House might expect me to say something on this Bill. As time is short, I apologise to the Hansard staff in advance if I talk rather fast. We live in days when we are told that we must declare an interest, so may I say that nearly all my father's family back to Queen Elizabeth I were very minor country clergy in the Church of England. I am a member of the Church of England, and it has for some time been my private opinion that the Church of England would be strengthened rather than weakened if it was disestablished. When I was an adolescent my mother became a Catholic convert, so I have many Catholic friends as well as Protestant friends, and I think I am generally familiar with the Catholic views on most points.

The first question is whether there is a substantial doubt that a Catholic can be Lord Chancellor. I have read most of the learned opinions referred to by the noble and learned Lord, including Lord Simon's opinion, and I am of the opinion that there is a substantial doubt. The second question is whether, if so, it should be resolved. It obviously ought to be resolved, in part because of the appalling consequences mentioned by the noble and learned Lord if a Lord Chancellor was illegally appointed. The third question is whether it should be resolved in favour of allowing a Catholic to be Lord Chancellor. My Lords, I have no doubt at all that it should.

There is no qualification for being Lord Chancellor. As your Lordships know, the first Chancellor was appointed in 605, nearly 1400 years ago. His name was Augmundus, and he was a monk who came here with St. Augustine from Rome to convert the English barbarians to Christianity. St. Augustine, like St. Paul, always went for the top man. They arrived here in 595, and it took them ten years to convert a King. He was our first Christian King who, after appointing an Archbishop of Canterbury, appointed Augmundus Chancellor, and we have gone on from there. There has never been any qualification for the office. You do not have to be a Bishop or a lawyer. You do not have to be able to read. You do not need to be a man, because we have already had one woman Lord Chancellor. There is no disqualification except this doubt as to whether a Catholic could be Chancellor. That is obviously wrong and ought to be altered.

Ought this to be done by a Private Member's Bill in this Session? If I may say so, I think that is quite right. I remember when the noble Earl, Lord Iddesleigh, who was held in affectionate regard in all quarters of this House, came to see me about this matter when I was Lord Chancellor. I said, "Why don't you introduce a Private Member's Bill to remove the doubt? I should think it would go through very easily". He went away saying he would consider it. He never introduced such a Bill, and I never learned why. It would be invidious to have to consider this question with a named person in mind, and that is why I think that it is a good plan to do it in this Session by a Private Member's Bill. I therefore fully support Clause 1 of the Bill.

My difficulty arises over Clause 2; that is, the exercise of the ecclesiastical functions. These functions consist of the appointment to about 500 very small livings, and being the visitor to St. George's Chapel, Windsor. What happens in practice—and I think that this is of some importance—is that the main work falls into the hands of two members, who used to be in the Lord Chancellor's staff and are now in the General Patronage staff, a Brigadier and a Colonel, both of whom are devout members of the Church of England and are extremely conscientious. They interview everybody on the register, and obtain such references or other information about them as they desire. When a living falls vacant they take an enormous amount of trouble to go through the register and find the best possible man, taking care not to appoint a High Churchman to a Low Church parish, or vice versa. If it is a modern housing estate with many young people, they find some young curate who is known to be good at dealing with young people, and so forth. It is very rare for any difficulty to arise. If it does they discuss it with the Lord Chancellor. They make the recommendations, and it is his responsibility. It works extremely well, and I am certain that if I had been a Catholic I should have made exactly the same appointments as I did.

As to being visitor to St. George's Chapel, Windsor, this means going there once or twice during a Lord Chancellorship to attend a service. We have one judge who is a Buddhist, if not more. No doubt we have agnostic judges, and for all I know atheists. So far as I know none of them feels any difficulty in attending service at the opening of Assizes. I do not know about now, but I suppose it is almost inevitable that some day one of the minor members of the Royal Family will be an agnostic. I hope that that will not affect in any way their public duties. I do not know of any agnostic who minds going to a church service. Therefore, I should have thought that these duties could be performed by any Lord Chancellor. What this Bill provides is that that cannot be so in the case of a Catholic.

LORD HAILSHAM OF SAINT MARYLEBONE

My Lords, it can be so in the case of a Catholic, but there is power to make it not so.

LORD GARDINER

My Lords, I am obliged. That would seem to me to be peculiar. As the noble and learned Lord has said, one Lord Chancellor certainly was an atheist. I believe that others have been agnostics. It seems peculiar if, as is the position, the ecclesiastical functions of the Lord Chancellor can be performed by a Buddhist, an agnostic, or an atheist, and, apart from the Jewish Relief Act, the only person from whom that may be taken away is a Catholic. I venture to raise this point because I am not happy about Clause 2. I see no reason whatever why a Catholic Lord Chancellor should not be a proper Lord Chancellor able to fulfil all the duties of a Lord Chancellor. I hope that this point may be given consideration.

I have promised to be brief, and I only add that I do not propose at the Committee stage of the Bill to put down an Amendment of any kind. My reason for this is, I hope, a sensible one, that while I think that Clause 2 will lead to a good deal of trouble in another place, if not here, I am at one with the noble and learned Lord in wishing the Bill well. I hope that it will succeed in reaching the Statute Book this Session. Where we differ is on how to deal with the ecclesiastical functions of the Lord Chancellor from the point of view of getting the Bill through. The noble and learned Lord has the great advantage, which I have not, of having had long experience in the House of Commons as well as a longer period in this House. It is his Bill, and I should not venture to cross swords with him in any way in the Committee stage of the Bill. We both want the same thing, but one has to bear in mind that it is possible for a reasonable man to take one of several views. It is a possible view, which any reasonable man might take, that only a Lord Chancellor who is a member of the Church of England should be appointing clergy or should discharge the ecclesiastical functions of the Lord Chancellor.

It is a second reasonable view that any Christian Lord Chancellor should be able to perform these functions but not a Buddhist or an agnostic or an atheist. But the view with which this Bill will end up if it is left as drafted (that a Catholic Lord Chancellor alone, and a Jewish Lord Chancellor under the Jewish Relief Act, which I should like to see this Bill repeal so that all Lord Chancellors could perform this ecclesiastical jurisdiction, such as it is) is that only a Catholic will be under the penalty that he may have part of the Lord Chancellor's ordinary functions taken away from him. I feel that while that cannot happen in the case of an atheist or a member of a non-Christian religion this is illogical and very difficult to defend. The Bill is the noble and learned Lord's Bill, and I am as anxious as he is to see it reach the Statute Book. The difference of view which I venture to express is simply a difference as to what form it would be easiest for this Bill to reach the Statute Book.

7.41 p.m.

THE LORD BISHOP OF PORTSMOUTH

My Lords, my first duty is to apologise on behalf of the most reverend Primate the Archbishop of House to-day. The switch of day unfortunately made it impossible for him to attend as he has an engagement in Lincoln and he especially asked me to express to the noble and learned Lord, Lord Hailsham of Saint Marylebone, his apologies for not being here. He then went on to ask me to say how very warmly, as the noble and learned Lord has already said, he supports this Bill and hopes very much that the House will give it a Second Reading and that it will reach the Statute Book. I think I can say that that view would have unanimous support from these Benches and we should want to give it every blessing of which we are capable.

The noble and learned Lord, Lord Gardiner, has raised the question of Clause 2. I think the feeling on our side is one of very real regret that it has been or is necessary to make rules affecting Roman Catholics which are not applied to members of any other Christian community. I entirely support what the noble and learned Lord, Lord Gardiner, said about the working of the Patronage Office and the care and concern which the officers of that office show, and I think all of us within the Church have been very conscious of the fact that any Lord Chancellor is very much dependent on the advice he gets from the servants of the office. It would therefore seem to be unfortunate that a Roman Catholic should be singled out in particular as being unable to fulfil the ecclesiastical duties of the office. Here I am showing complete ignorance—whether this is a result of the general law and whether it is possible that this kind of rule might be omitted one needs to he advised about. We feel quite strongly a deep sense of regret that it is necessary to do it in this way. Apart from that I can only say on behalf of the Prelates in the House that we very warmly support the noble and learned Lord, Lord Hailsham, in his Bill.

7.44 p.m.

LORD HACKING

My Lords, I join other noble Lords in welcoming this Bill, and as other noble Lords have said if there is any doubt whether the Lord Chancellor's high office can be held by a person professing the Roman Catholic faith then it is right that the doubt should be cleared away. In reference to some of the comments made by the noble and learned Lord, Lord Gardiner, in reference to Clause 2, it is interesting to note that so far as I know there has been no bar on a Prime Minister being a Roman Catholic since, I think, the Roman Catholic Relief Act of 1829, some 145 years ago. He also holds in the name of the Crown gifts of patronage to a number of livings.

LORD HAILSHAM OF SAINT MARYLEBONE

My Lords, the noble Lord is wrong about that. The Prime Minister's patronage is Crown patronage. The Lord Chancellor's patronage is held by the Lord Chancellor, and therefore the Prime Minister is not in the same position as the Lord Chancellor. What happened was that in the reign of Elizabeth I, Elizabeth gave all the poorest livings to the Lord Chancellor and kept the fatter ones for herself; and since then the Lord Chancellor has had the actual patronage of what were the poorer livings in the reign of Elizabeth I, which is not necessarily the same now, and the Prime Minister I think technically advises the Crown over the exercise of her own patronage.

LORD HACKING

My Lords, I am very much obliged to the noble and learned Lord. My education is being taken further. In any event, there has been no bar on the Prime Minister for the last 145 years from holding or professing the Roman Catholic faith. Not only do I welcome the Bill, but I also congratulate the noble and learned Lord on the tact and skill with which he is handling this ancient problem, because, as he told your Lordships, the last debate in this House was as long ago as May, 1943. Indeed, as the noble and learned Lord knows, the presentation of this Bill also gives much pleasure to the Edmund Plowden Trust, who in their own words, have undertaken a large amount of painstaking and unobtrusive study and research into this problem, travelling from the Act of Uniformity of 1559 to the Victorian Acts, principally, of course, the Promisory Oaths Act of 1868, the last one of that study. My Lords, this has been an interesting debate and I merely join other noble Lords in wishing this Bill a fair wind and a good voyage through Parliament.

7.46 p.m.

LORD FERRIER

My Lords, I rise with great reluctance and with great diffidence as the only member here of the Church of Scotland to say, as I feel it is my duty to your Lordships, that this Bill should be treated with the utmost care in regard to the problem (which perhaps the noble and learned Lord on the Woolsack will be able to clear up) which I know is in the minds of some people in Scotland; namely, that one of the Lord Chancellor's functions is to be the Keeper of the Monarch's conscience —exactly how that works out I do not know. I speak as one who remembers when in the General Assembly an elder came up to me and spoke of the then Lord High Commissioner and said, "I do not trust that man; he sends his daughters to a convent". I said, "As a matter of fact my daughters are at a convent", and I have always supported the ecumenical movement in the Church of Scotland as I think most people do. As your Lordships know, we are plagued by a quite violent small body of people who make a nuisance of themselves over it.

I only intervene in this debate to ask the noble and learned Lord on the Woolsack, and perhaps my noble friend Lord Hailsham of Saint Marylebone, to bear in mind that whereas the principles of this Bill, in view of what has been said, are entirely acceptable, there is a possibility that there might be difficulties with the Church of Scotland. I apologise to your Lordships for not having tumbled to this sooner, but until an hour ago I had not seen the Bill and felt it my duty to beg of your Lordships to treat it with the utmost care in regard to this particular point in respect of the Monarch's Oath to maintain the Protestant faith.

The noble and learned Lord, Lord Gardiner, referred to earlier Lord Chancellors long before the Reformation. His Majesty King James II, to whom the noble and learned Lord, Lord Hailsham, referred, caused some of the difficulty. All I can say is that I feel that this is something which must be handled very delicately in regard to Scotland and I look forward to the further progress of the Bill and have no intention of opposing the Second Reading.

7.49 p.m.

THE LORD CHANCELLOR

My Lords, this has been a fascinating debate in which we have learned a good deal of the ancient history of the office which I now hold. It is an awesome thought to me that it dates back to Augmundus and St. Augustine and that thereafter there were three saints among my predecessors, although I think King Henry VIII did manage to contrive a judgment of ouster against St. Thomas A'Becket in thoroughly discreditable circumstances.

I rise to indicate the approval and full support of the Government to the endeavour and purpose of the noble and learned Lord, Lord Hailsham of Saint Marylebone, in introducing this Bill. I certainly wish him well. As he has so delightfully explained in his attractive speech, the question whether a person professing the Roman Catholic religion may be appointed to be Lord Chancellor turns on the correct interpretation of a complicated series of Statutes, first erecting hurdles over which practising Roman Catholics could not conscientiously jump, if that is not too irreverent a way of putting the matter, and then dismantling them bit by bit. Whether the hurdles have been completely removed in the case of the Lord Chancellor is a matter upon which, as your Lordships have been told, there has been argument by and disagreement among eminent authorities for something like a century.

I certainly cannot claim to have examined the matter with the degree of thoroughness which the noble and learned Lord has manifestly brought to his study of the problem. But I have reached the firm, though hardly daring, conclusion that the precise effect of the law as it stands at present remains open to substantial doubt. As the noble and learned Lord, Lord Hailsham, has said, the late Lord Simon, speaking in the House as Lord Chancellor in 1943, said that any Prime Minister would be acting most imprudently in appointing a Roman Catholic to the office of Lord Chancellor unless the law had first been made plain by Statute. That pronouncement has been accepted as perhaps the most authoritative expression of opinion on this subject. So accordingly, my Lords, we are faced with a situation that the law that applies is uncertain, and of course, uncertain law is bad law. It is right that the uncertainty should be removed. In my judgment the Bill would achieve that purpose.

My Lords, on the main issue, I would hope, and indeed expect, that the great majority of people to-day in Scotland, even in Wales and indeed in England, would regard it as an indefensible anachronism that a person should be debarred from public office, and this public office of Lord Chancellor in particular, because of a doubt as to whether Parliament intended that his religious beliefs should disqualify him. The House will have noted the warning that the noble Lord, Lord Ferrier, has very rightly given, with his devotion to the Protestant faith and the knowledge of the feelings of Protestants, that this is a matter which needs to be handled sensitively, as, if I may say so, the noble and learned Lord has done, and that is of course recognised. But it has been gratifying that there has been general approval, at any rate to-night, of the proposition based on religious tolerance that is embodied in Clause 1 that the remaining disqualification for the office of Lord Chancellor should be removed. The Government share this general approval of Clause 1. Although there may be two views as to whether the technique of drafting by way of avoidance of doubt is appropriate in the circumstances, in my view Clause 1 adequately achieves the purpose which the noble and learned Lord has in mind.

Clause 2, as he has explained, would enable Her Majesty, by Order in Council in the event of a Roman Catholic being appointed Lord Chancellor, to transfer to another Minister the exercise of functions relating to the Established Church and the duty of visiting certain institutions which are normally performed by the Lord Chancellor. Clause 2 has been criticised by my noble and learned friend Lord Gardiner, and by the right reverend Prelate, as perhaps discriminating in a sense against a Roman Catholic holding my office.

Perhaps it suffices if I say that the Government have formed no concluded view on Clause 2, although I am bound to say there is much to be said for the view that as a merely consequential provision depending on Clause 1 it is satis- factory; and that for the limited purpose of this Bill the noble and learned Lord may well be right to deal only with the problem of Roman Catholics and to deal with that limited problem in a practical way that will not embroil this House or another place in difficult and wider areas of law and of practice. It may well therefore be that as a matter of political judgment it is convenient that it should proceed as it now stands. But as I have said, if an Amendment is put down for Committee, the Government will have to consider their position. I accordingly make that reservation. But, at any rate for the time being, my Lords, in my view the sensible course would be to let the Bill proceed in its present form. I conclude by wishing it a fair wind.

7.57 p.m.

LORD HAILSHAM OF SAINT MARYLEBONE

My Lords, I should like very much to thank the noble Lords who have taken part in this debate. If I may begin by thanking the noble and learned Lord for the words of welcome which he has uttered, I am very grateful to him for all that he has said. I, myself, will accept the Bill, provided that Clause 1 is substantially passed in any form which both Houses of Parliament think agreeable, because I am perfectly content to accept the position which I think I expressed in my original speech, that in practice there is nothing to debar a Roman Catholic from exercising the ecclesiastical patronage of the Lord Chancellor's office. But I deliberately inserted Clause 2 for two or three reasons of a practical nature, some of which I explained in opening.

In the first place, if I had just kept silent about it the patronage would automatically lapse under Section 17 of the Catholic Emancipation Act to the Archbishop of Canterbury, which no one has really supported as a rational alternative. Secondly, we have heard—and I shall come back to it—a speech from the noble Lord, Lord Ferrier. I think that if we were all rational beings Parliament would undoubtedly take the view of the noble and learned Lord, Lord Gardiner, which is also my own view. But I do not think we are rational beings about this subject. We have heard of the difficulty about the Presbyterian position, from the noble Lord, Lord Ferrier. We know that the other place contains persons who are particularly susceptible to the words, "Pope" or, "Roman Catholic", or any of their synonyms. I should have thought, on the whole, that the caution of the draftsman of this Bill—who was, modestly I declare, myself—in allowing, but not compelling, a Prime Minister to transfer the functions to somebody else was probably an emollient to that kind of opinion. That is, at any rate, one reason which led me to put in the clause. I had to put in something because of Section 17, as I have explained.

The other reason is that I do not want Prime Ministers to be inhibited from appointing Roman Catholics as Lord Chancellors. If, in fact, there were people, either in the Church of England or outside it, who thought they might misuse their ecclesiastical patronage, that might be an inhibition in the future against a Prime Minister appointing a Lord Chancellor to this office. Though I should not have been inhibited in that way had I had the opportunity of being Prime Minister earlier in my career, I can well understand that more cautious gentlemen who usually succeed to that office might be more timid. No doubt that is why they succeed.

But, my Lords, may I turn for a moment to the speech of the noble Lord, Lord Ferrier. Let me hasten to reassure him that although the Lord Chancellor is rejoicing—at least, I hope that the present one rejoices—in the title of the Lord High Chancellor of Great Britain, he has no functions whatever North of the Border, so far as I remember. Therefore, the Church of Scotland will remain in its virgin purity if the Bill is passed in its present form. Moreover, the noble Lord, Lord Brougham, when Lord Chancellor, made a triumphal procession through Scotland and was immediately deprived of his office by the insistence of William IV, because he incurred the Royal displeasure with what he did and said there. So I think that Scotland is thoroughly protected against Lord Chancellors of whatever religious persuasion.

Before I sit down I should like to get rid of the idea that the Lord Chancellor keeps anyone's conscience in actual practice. This is one of the most popular myths that is entertained about the Lord Chancellorship. The reason for the title, "The Keeper of the King's" or "Queen's Conscience" attaching to the Lord Chancellor is, I think, correctly explained in the following way. I reject the idea that the Lord Chancellor was ever the Father Confessor of the Queen or the King. This, I think, has no historic truth and, at any rate, would not explain the present use of the title. But, as all lawyers know, all the powers of the Lord Chancellor derive from his possession of the Great Seal and from his reigning in what used to be the Chancery. All Writs are still issued in his name. His function from about the reign of Henry VIII to the time of the Judicature Act largely consisted of administering a body of legal rules called Equity, as distinct from law. The reason why Equity has a relevance to this problem is that the law was considered too rigid and Equity operated in conscience, so as to mitigate the severity of the Common Law.

The reason why the Lord Chancellor is called "The Keeper of the King's" or "Queen's Conscience" is simply that he operated Equity by the exercise of his discretionary jurisdiction to mitigate the severity of the law. In any event, he never operated in that way in Scotland. I should like to dispose of the myth that there is anything in that purse or bag carried day-by-day in front of the Lord Chancellor in his Procession in the nature of conscience. In particular, it is not a Royal Conscience—it is a void in there—and the Lord Chancellor has no greater or less responsibility for the maintenance and preservation of the sanctity of the Coronation Oath than any other Minister, so far as I know.

THE LORD CHANCELLOR

My Lords, is it not the case that one of my famous predecessors—I think it was the noble Earl, Lord Birkenhead—said that he was not the Keeper of the King's Conscience and that he found it hard enough to keep his own?

LORD HAILSHAM OF SAINT MARYLEBONE

My Lords, I can well imagine that that might well be the case in that particular instance. At the Coronation of King George VI, my father had 13 sandwiches in the purse. But having said that, I think I have to some extent satisfied the noble Lord, Lord Ferrier, and I hope I have answered the various points in the debate, except for thanking the noble Lord, Lord Hacking, for whose intervention I was grateful, as I was for the support of the right reverend Prelate.

LORD FERRIER

My Lords, before the noble and learned Lord sits down, I can tell him that I am completely satisfied. The object of my intervention was to get this point absolutely clear in the light of my knowledge North of the Border.

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

LORD STRABOLGI

My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.

[The Sitting was suspended at 8.5 p.m. and resumed at 8.15 p.m.]