§ 11.52 a.m.
§ Lord Alderdice
My Lords, the Bill is a simple one. It comes, not out of any thought about the present or any previous incumbent of the noble office of Lord Chancellor, but out of my own experience in Northern Ireland. Your Lordships may sometimes find it difficult to understand how the historic religious divisions which occupied the whole of Europe and much further afield some centuries ago still provide the basis for fundamental and profound disagreement, division and even, as your Lordships are sadly aware, violence and destruction in Northern Ireland—a destruction which has extended far beyond the boundaries of our benighted province.
At this time considerable efforts are being made on all sorts of fronts to resolve the matter. I pay tribute not just to previous governments here and in Dublin but not least to the current Prime Minister, Mr. Tony Blair, for his untiring efforts to bring peace in Northern Ireland. Every day seems to bring more developments and more evidence of his commitment.
One important component of that effort to produce peace and stability in Northern Ireland is to persuade the people that this United Kingdom is a place which does not accept religious difference as an appropriate badge or distinction for public office at any level. Armed with that appreciation, and a commitment to fairness for all our people, I have brought forward a small package of measures whose purpose is to remove religious distinctions as a necessary component of any political office.
There are few such positions left, but those that are left suggest to many outside this Chamber, and perhaps even outside the bounds of the UK, that there are some elements of historic sectarianism still around in the British constitution. That does no justice to the people of the UK or, indeed, to the constitution of the UK.
There seem to be some bars in respect of the office of Lord Chancellor. The position of course goes back a long time. The Lord Chancellor was regarded as the keeper of the monarch's conscience. There are a few ecclesiastical and other occupations that remain in the Lord Chancellor's gift. There seems to me and to higher authorities than me to be a little bit of a problem here.
In the 1840s the problem arose in respect of a possible Jewish Lord Chancellor. The Religious Disabilities Act was passed to ensure that Jews, in respect of all matters, might be treated on the same basis as Protestant subjects. That continued for some time. In 1974 another religious disability was attended to—that of Roman Catholics. The Lord Chancellor (Tenure of Office and 418 Discharge of Ecclesiastical Functions) Act was passed. Its purpose was to clarify the law. There were those past and current Lord Chancellors of the time who maintained that being a Roman Catholic was not a bar to serving as Lord Chancellor.
However, there was sufficient uncertainty and confusion about the matter that it was deemed appropriate not just to bring forward a Bill but for it to pass into legislation in order to make it clear that a Roman Catholic could hold the office. Indeed, it clarified how certain religious functions might be carried out if a Roman Catholic were appointed to the office of Lord Chancellor. The mechanism was a simple one. It was that the Prime Minister or another Minister might be appointed to fulfil those necessary functions. It was a simple matter.
Further confusion entered in 1989 when the Statute Law (Repeals) Act was passed, repealing, among other things—as I understand it—the relief given to Jews in respect of the position of Lord Chancellor, so that the relief that had been offered by previous legislation was inadvertently repealed. Those are complicated constitutional matters. I profess no expertise in relation to them at all.
My concern is a much more simple one. It is to do all that I can to ensure not just that all badges of religious division are removed from our constitution as a distinction which is relevant to public office where appropriate, but to go further and to make it clear to the public that that is the case.
When this small Bill was read a first time, the editorial in one of the main nationalist newspapers in Northern Ireland hailed it as a commitment to ensure that all elements of sectarianism were removed from the British constitution. I need hardly emphasise how important such a perception is. If there are those who by reason of higher judgment than mine indicate that they are of the opinion that there is not the problem that I think and not the problem that Halsbury's Laws of England believes, because that is the authority from which I have taken my advice, I will understand that but the public will not understand it.
People in Northern Ireland who attend more acutely to these matters than people in the rest of the United Kingdom will not understand that. They will say that it is those who want to maintain the status quo, which, however under the surface, retains a degree of religious division that is inappropriate in this day and age.
Therefore for the purpose at the very least of clarification of the fact that the noble office of Lord Chancellor is not one where any form of religious test is relevant and for actual purpose in law, I beg to move that the Bill be now read a second time.
§ Lord St. John of Fawsley
My Lords, before the noble Lord sits down, he referred to a penumbra of doubt and various authorities. I applaud his Bill. Does he accept, on the highest authority, that there is no bar to a Roman Catholic being Lord Chancellor of this country? That was a popular canard.
§ Lord Alderdice
My Lords, I entirely accept that and apologise if I did not make it clear that the 1974 Act clarifies the issue referred to by the noble Lord. However, that is not the case should it be a Jew, Buddhist, a Moslem or a non-believer. It is for that purpose that I wish to make clear that there is no religious bar or test. If at some long future date there should be a Lord Chancellor of another religious faith entirely there would be no bar and the proper procedures would already be in place. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Alderdice.)
§ 12 noon
§ Lord Mishcon
My Lords, the whole House regards the noble Lord, Lord Alderdice, with respect and affection. He has a most telling way of putting his point of view which is hard to resist. Advanced age and innumerable imperfections will make it clear to your Lordships that I have no interest to declare in this matter. However, in view of the noble Lord's attractive speech, it is appropriate to pay tribute to religious tolerance and the way that religions now move together in this country. One should reflect on the fact that we in Parliament and the majority of the public can be proud of our record of religious tolerance during the past 150 years in particular.
I turn to the Bill. I respectfully suggest that the first proposed amendment to the 1974 Act is not necessary and that the second proposed amendment is inappropriate. Perhaps I might read to your Lordships what would be the 1974 Act as amended in regard to Clause 1. It would state:For the avoidance of doubt, it is hereby declared that the office of Lord Chancellor is and shall be tenable by a person who is not a member of the Church of England".On Second Reading of the 1974 Bill, the main contributors to the debate were the then Lord Chancellor, Lord Gardiner, a greatly honoured man, and the noble and learned Lord, Lord Hailsham, who brought forward the Private Member's Bill. Perhaps in parenthesis I might say how much we miss the noble and learned Lord in our deliberations and carry the happy news that soon he will be back to his old mischief.
When the Second Reading debate took place, it was made abundantly clear that the law even at that time did not bar a Roman Catholic, but—and lawyers usually use the phrase with excruciating accent, which I hope not to imitate—it was done ex abundanti cautela; it was done out of an abundance of caution so that it was made absolutely clear.
In regard to other creeds, the noble and learned Lord, Lord Hailsham, made the following contribution: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 420 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".— [Official Report, 11/6/74; col. 417.]That is why there is no other reference in the 1974 Act to any other sect, member of a religious faith or member of no sect or religious faith at all. It was completely unnecessary and it is unnecessary now.
I turn to the second proposed amendment, which I and I am sure all noble Lords recognise has been brought to the House with the utmost good faith and with a spirit which we all admire. The amendment would lead the Act to read as follows:In the event of the office of Lord Chancellor being held by a person who is not a member of the Church of England it shall be lawful for Her Majesty in Council to make provision for the exercise of any or all the visitational or the ecclesiastical functions normally performed by the Lord Chancellor, and any patronage to livings normally in the gift of the Lord Chancellor, to be performed by the Prime Minister or any other Minister of the Crown".That, too, was dealt with on Second Reading of the 1974 Bill. Lord Gardiner, the then Lord Chancellor, stated (I must read this, although it is not relevant):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".Then, more relevantly to the Bill, he stated: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".He goes on to say: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".—[Official Report, 11/6/74; col. 422.]And so one gets the point of view that even the second amendment is rather unnecessary. But I venture to submit that it is also a little difficult to interpret into law.
§ Lord St. John of Fawsley
My Lords, I am grateful to the noble Lord for giving way. However, I wished to intervene before he leaves the point about patronage. This is a point which greatly supports what he is saving. I had the honour to be Chancellor of the Duchy of Lancaster for, unfortunately, a rather short time under my noble friend Lady Thatcher. I followed exactly that practice although I was advised that I was entitled to appoint to ecclesiastical livings and indeed longed to do so. But I was told that it was wiser to leave that to stalwarts of the established Church in the office.
421 They did it very well. And I found a similar practice because I appointed them mentally and there would have been the same result.
§ Lord Mishcon
My Lords, I am most grateful to the noble Lord, Lord St. John.
I turn speedily to why I believe that it is rather difficult to interpret the amended Clause 2. In the purpose or object of this Bill, the word "appointment" of Lord Chancellor is not used. Rather, it refers to the "tenure of office" of the Lord Chancellor. I presume that would mean that, if an agnostic happened to be appointed Lord Chancellor but, sitting so near the Bishops' Bench, in the course of his tenure became converted to the beliefs of the Church of England, some notice had to be given of his change of mind and some changed procedure would evolve through the Bill.
I suppose that the alternative to that is even more unpalatable; that is somebody who, when appointed Lord Chancellor, was a member of the Church of England but, beset with the slings and arrows of outrageous fortune, decided to become an agnostic. Immediately there would arise a need to make a declaration so that something happened under the provisions of the second amendment to the Bill.
I raise those points not because I differ in any way at all from what the noble Lord who moved the Second Reading of this Bill had to say about Northern Ireland. I say only that, with the approach of the millennium, we all pray that the almost limitless efforts of the Prime Minister and the Secretary of State will achieve the very object that I know he has so much at heart; namely, a durable peace in Northern Ireland.
§ 12.12 p.m.
The Bishop of Southwell
My Lords, I intervene very briefly to say that from these Benches, we are very much in sympathy with the ideas and thoughts behind the Bill. We have no difficulties or problems with it, apart from those which the noble Lord, Lord Mishcon identified.
However, I assure the noble Lord, Lord Alderdice, of our understanding and sensitivity to his concerns. Our position within the Church of England would be to wish to work in any way to discern what is the right way ahead. We sympathise and identify with his concerns. However, I am not too sure that there is a necessity for such a Bill to be brought forward.
§ 12.13 p.m.
§ Lord Burnham
My Lords, I apologise to your Lordships for intervening in the gap and thank the House for giving me the opportunity to do so.
It was deliberate that on these Benches we did not put down anybody to speak in the debate. However, on further consideration, it was felt better that we should at least make an appearance but, according to the convention in these cases, I shall be very brief.
The noble Lord, Lord Alderdice, touched at one moment on a problem which is facing all of us who must take an interest in the constitutional matters of this 422 country. He said that this Bill was being welcomed because it removed all elements of sectarianism. That sectarianism could be otherwise described as the Established Church and removing it, could be considered to be part of the disestablishment of the established Church, although that may be a very small point.
I found the speech of the noble Lord, Lord Mishcon, absolutely fascinating. I was glad to hear many of the things that he said which I had not discovered from the 1974 Act. However the position that we take is that we are worried about this Bill. Therefore, I should prefer to listen to the noble and learned Lord the Lord Chancellor. We always listen to debates in this House before making up our minds as to how we should vote. On this occasion, we shall do that having listened to the noble and learned Lord and having found out where he stands with regard to the Bill.
§ 12.15 p.m.
§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974 was promoted by my noble and learned predecessor, the noble and learned Lord, Lord Hailsham of Saint Marylebone, in 1974 when the late Lord Elwyn-Jones, whom your Lordships' House remembers with such affection, sat on the Woolsack. In fact—I hope my noble friend Lord Mishcon will forgive me—in 1974, Lord Elwyn-Jones had assumed the Woolsack but mercifully Lord Gardiner, who had been Lord Chancellor from 1964 to 1974, remained an active Member of your Lordships' House and participated in the debate as my noble friend indicated.
§ Lord Mishcon
My Lords, may heaven, who guards all religions and sects, forgive me for interrupting my noble and learned friend, but I have the Second Reading debate in my possession and Lord Gardiner is cited in that debate as being the Lord Chancellor.
§ The Lord Chancellor
My Lords, I shall verify that but your Lordships will see from Hansard that Lord Gardiner is named as Lord Gardiner and the Lord Chancellor speaks at the end. However, I may be wrong and I shall check that.
Section 1 of that Act provided:For the avoidance of doubt, it is hereby declared that the office of Lord Chancellor is and shall be tenable by an adherent of the Roman Catholic faith".Section 2 provided:In the event of the office of Lord Chancellor being held by an adherent of the Roman Catholic faith it shall be lawful for Her Majesty in Council to make provision for the exercise of any or all the visitational or ecclesiastical functions normally performed by the Lord Chancellor, and any patronage to livings normally in the gift of the Lord Chancellor, to be performed by the Prime Minister or any other Minister of the Crown".The Act had one basic purpose: to remove a doubt whether Roman Catholics lacked the capacity to hold the office of Lord Chancellor. It did so and I agree with the noble Lord, Lord St. John of Fawsley, that it did so 423 unequivocally. I do not see how there can be any continuing doubt on the subject, whether in Northern Ireland or anywhere else.
The noble and learned Lord, Lord Hailsham, thought that apart from the Bill which he was promoting, Roman Catholics did not suffer from that incapacity. His own view, expressed at col. 416 of Hansard, was that there was nothing to bar anyone of any religious persuasion from conscientiously discharging the duties of Lord Chancellor. That is why he said that his Bill was cast in a form to remove a doubt.
Certainly, however, as the noble and learned Lord, Lord Hailsham, recognised, there was a doubt. No less an authority than Lord Simon, the Lord Chancellor in 1943, expressed the view,that the doubt was sufficiently real … to stop a Prime Minister, in practice, from recommending the appointment of an otherwise suitable candidate".There had been a diversity of views on the subject. The contrary view had apparently been expressed by Lord Haldane, a former Lord Chancellor, before he assumed the Woolsack and when he was in private practice in 1900. His opinion, quoted in Hansard at cols. 418 to 419, was that,there was no legal incapacity in a Roman Catholic from holding the office of Lord Chancellor".However, again at col. 419 of Hansard, the noble and learned Lord, Lord Hailsham, accepted that the contrary view was that,the peculiar wording of the Act of 1867 imposed a new disability which had not previously existed".I assume that he was referring to the Test Abolition Act 1867. Hence his Bill was declaratory only and to remove that doubt. On that occasion, the noble and learned Lord. Lord Hailsham, explained that the Bill did not deal with Jews, Moslems, Christian Scientists, Bhuddists or atheists because there was no doubt that persons in those categories did have the capacity to become Lord Chancellor. Lord Gardiner agreed, saying at col. 422 of Hansard:There is no disqualification except this doubt"—which he described as "substantial"—as to whether a Catholic could be Chancellor".Then, as I believe, from the Woolsack—although we will have to verify whether it was Lord Elwyn-Jones or Lord Gardiner—
§ Lord Mishcon
My Lords, perhaps I may make an apology to the noble and learned Lord. I have referred back to the Second Reading debate and have found that he is right and I am wrong.
§ Lord Chancellor
My Lords, it is, therefore, with greater confidence that I can proceed. Not only do we have a multiplicity of opinions on the subject of whether Catholics were disqualified from being Lord Chancellor from a miscellany of Lord Chancellors, but we also have confusion as to who was sitting on the Woolsack on that particular day. But, mercifully, the noble Lord, Lord Mishcon, and I are now in agreement that it was indeed Lord Elwyn-Jones.
424 As I was saying, from the Woolsack, Lord Elwyn-Jones said at col. 429 of Hansard, that everyone would regard it,as an indefensible anachronism that a person should be debarred from … this public office of Lord Chancellor … because of a doubt as to whether Parliament intended that his religious beliefs should disqualify him".I, too, am of the view that there is no doubt in relation to any other faiths and, therefore, there is no need for this Bill. But I go further. As regards standing Section 2 of the 1974 Act, I am of the view that to amend it as the Bill proposes and replace within that section the words,being held by an adherent of the Roman Catholic faith".with the words,a person who is not a member of the Church of England",would make a Moslem, a Christian Scientist, a Buddhist or an atheist liable to have removed from him,the exercise of any or all the visitational or the ecclesiastical functions normally performed by the Lord Chancellor, and any patronage to livings normally in the gift of the Lord Chancellor".The only reason for Section 2 of the 1974 Act was, as the noble and learned Lord, Lord Hailsham, explained at col. 419 of Hansard that,there is a general statutory bar to the exercise of ecclesiastical patronage by a Roman Catholic".No doubt the noble and learned Lord was referring to Section 17 of the Roman Catholic Relief Act 1829. There is no such bar on a Lord Chancellor who is a Moslem, a Christian Scientist, a Buddhist or an atheist.
In short, I am of the view that the noble Lord's Bill, although well intentioned and designed to ensure equality among those of different faiths or none in ensuring that all have capacity to become Lord Chancellor, is both not required for non-Catholics; and, if the 1974 Act were to be amended as proposed by the Bill, it would make a Lord Chancellor of the faiths to which I have referred liable to have removed from him the functions listed in Section 2 of the 1974 Act when, in law, there is no bar on him discharging those functions. Therefore, as at present advised, the Government cannot support the Bill.
§ 12.24 p.m.
§ Lord Alderdice
My Lords, I am grateful to all noble Lords who have spoken in this debate and done so in such a thoughtful, sensitive and, indeed, well-informed way. I certainly do not bring forward the Bill with any sense that I am particularly well informed on the matter. In particular, perhaps I may mention the courteous and eloquent comments made by the noble Lord, Lord Mishcon, which I deeply appreciate, especially those references to myself and my small efforts.
There are, however, a couple of issues to which I feel I must return. The first is the question of whether it was ever necessary to clarify the position with the 1974 Act. I am trying to clarify something that is apparently a little unclear. I submit that it is hardly persuasive to suggest that the 1974 Act was also unnecessary, if in truth it were the case that a Roman Catholic could perform these functions.
425 Secondly, we must look at the historical background. In truth, for a long time after the Reformation there were only two possibilities: either you were a Protestant or you were a Catholic. It is the case now in Northern Ireland that you can be a Protestant Jew or a Catholic Jew or, indeed, a Protestant Moslem or a Catholic Moslem; but the crucial issue is whether or not you are a Protestant or a Catholic. In a sense that was the case in this country for a long time, except perhaps for the long-standing and extraordinary contribution of the Jewish community.
There is an interesting question which has not been touched upon at all; namely, the notion not that someone might be barred by others from being Lord Chancellor because of his religious convictions or his conviction against any religious view, but that someone might be of sufficient conscience that he might feel himself barred. Is it extraordinary to take the view that someone who is an atheist, and one of conviction, might well say, "I think that it is entirely improper for me to take the position of Lord Chancellor if it means that I have to make decisions upon the functioning of the Church"?
Indeed, if I were a Jew, a Moslem or a Buddhist—or perhaps even a Non-Conformist—I might feel strongly enough in my conscience that I would say, "I think that this is an entirely improper way to go about things". There may be others who would be happy to say, "Well, I do not think that it is sufficiently important that I'll bother doing anything about it; I shall just go ahead and rubber-stamp the proposals that come up from civil servants below". Is it unreasonable to assume that there are those who have such real convictions on matters of conscience that they would not want to be put in such a position and that, therefore, they would resile from it?
§ Lord Burnham
My Lords, I am sorry to interrupt the noble Lord and thank him for giving way. Perhaps I may remind him of the position of my noble and learned friend Lord Mackay of Clashfern, the former Lord Chancellor—a man of deep religious principles and not a member of the Church of England about whom, in the early stages of his appointment, there was a great deal of discussion—and, I believe, in his own mind—as regards his fitness to act as Lord Chancellor. However, he ultimately decided that it was perfectly proper for him so to do.
§ Lord Alderdice
My Lords, I am grateful to the noble Lord for his intervention because, of course, he makes my point for me. The noble Lord indicated that it was a matter of great discussion and, indeed, one perhaps of great personal wrestling as to whether or not the appointment was appropriate—and this in someone who is a member of a Church which is in communion with the Church of England. However, that is not the case in respect of the Catholic Church and would not be the case in respect of someone who did not hold religious convictions or who held convictions which were opposed to the notion of the Christian faith.
As the noble Lord, Lord Mishcon, said, one of the difficulties at times is that, in this part of the world, the notion of those of religious convictions of various kinds coming together is a powerful one. But I have to tell 426 your Lordships that it is one which is wildly out of kilter with other parts of the United Kingdom where there is no indication whatever of a coming together on these matters; indeed, quite the contrary.
This is an interesting matter. It is interesting to note the strength of feeling that emerges when we begin to scratch at it. I believe that this matter needs to be addressed. I confess myself a little surprised and disappointed that the Government do not feel that this matter should be addressed in this way, despite the debate that has occurred. I trust that subsequent to this debate the Government will consider the matter and will consider some of the points that have been made. I hope that the Government will then be more agreeably disposed to the matter and, if necessary, will bring forward some amendments to this small Bill in order that the problems which they believe it contains may be resolved. I hope the message will go out that those who take the Woolsack do not have to perform religious functions for which they do not have conviction, and that someone's religious conviction is a purely personal matter which should not be tied up with the matter we are discussing.
The purpose of the second component of the Bill, to which the noble Lord, Lord Mishcon, and the noble and learned Lord the Lord Chancellor have referred, is to enable someone to be appointed—this is not obligatory—to fulfil necessary ecclesiastical and other functions, but that that requirement should not be imposed by others but could come from within the conscience of the Lord Chancellor. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.