HL Deb 27 March 1998 vol 587 cc1486-91

12.55 p.m.

Lord Alderdice

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Alderdice.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne)in the Chair.]

Clause 1 [Office of Lord Chancellor]:

Lord Alderdice moved the amendment: Page 1, line 9, at end insert— ("(3) At the end of section 2 insert— Where the Lord Chancellor is not an adherent of the Roman Catholic faith the power to make provision under this section may only be exercised with the agreement of the Lord Chancellor."").

The noble Lord said: The amendment which I put forward to the Bill is an attempt to address two concerns which were raised on Second Reading. The first was that the Lord Chancellor might be liable to have removed from him functions described in Section 2 of the 1974 Act, even though the Lord Chancellor might be quite content and legally without bar in exercising those various functions. The functions are not particularly large but they are not without significance. They are that the Lord Chancellor shall be a church commissioner and shall exercise certain patronage.

I make it clear that there was no purpose in bringing forward the Bill that there should be removed from the Lord Chancellor any of those rights or privileges which he might rightfully fulfil and might in all conscience fulfil. But as the noble Lord, Lord Burnham, pointed out on Second Reading, there was a previous Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, of whom it was public knowledge that because of his deep religious principles and the fact that he was not a member of the Church of England, he did struggle. There was some discussion whether he should properly, from the point of view of his own conscience, fulfil some of the requirements of the Lord Chancellor's office. In the event, he decided that it was perfectly proper for him to do so.

I suggest that there may be others not of a Christian faith, not of any faith at all, indeed perhaps someone who was not particularly warm towards faith, who might feel that it was not proper for him to be a church commissioner or to exercise ecclesiastical functions. As I understand it, as things stand, there is no provision in law for the functions to which I have referred to be exercised by anyone else.

In my own view, the original Bill as put forward was permissive in any case. It did not say that such functions would be removed or that they "shall be removed", but that. other arrangements "may be made". In that sense, it simply takes on from the language of the 1974 Act; namely, that Her Majesty in Council may provide for those visitational or ecclesiastical functions to be exercised by the Prime Minister or other Minister.

However, it appeared on Second Reading that there was a feeling among a number of noble Lords that the Lord Chancellor might be liable to have these functions removed. As part of the whole purpose of the Bill is to give clarification on the matter—and certainly not to give offence or difficulty—I have put forward the amendment now before the Committee to try to ensure, as can be seen in the terms of the amendment, that the matter will only be exercised, with the agreement of the Lord Chancellor".

I trust that there will be an appreciation that this is to ensure that not only is there no legal bar by nature of religious profession, or the absence of religious profession, to anyone exercising the office of Lord Chancellor, but also that there is no reasonable bar of conscience to someone exercising the office of Lord Chancellor.

The question was raised on Second Reading whether the Bill was necessary. A number of noble Lords called in aid remarks made in Hansard by the noble and learned Lord, Lord Hailsham of St Marylebone, in the 1974 debate when he brought forward the original legislation. At that time, if we take simply the condition of Jewish people, the matter was not a problem. But, perhaps I may refer to the remarks that the noble and learned Lord made. He is the editor of Halsbury's Laws of England. I am referring to the 1996 edition of that work, which is a very up-to-date volume. The noble and learned Lord makes clear in that volume that subsequent to 1974—indeed, in the Statute Law (Repeals) Act 1989—the changes made in the Religious Disabilities Act 1846, by which Her Majesty's subjects professing the Jewish religion were subject to the same laws as Protestant subjects, were removed. The provision may have been removed inadvertently; I am sure that it was not removed on purpose in order to create a problem. But what does the noble and learned Lord Lord Hailsham say about it and about some other repeals which have taken place in previous years? He says: In the light of these repeals, particularly the repeal of the Religious Disabilities Act 1846, it is unclear whether a person professing the Jewish religion would be appointed Lord Chancellor without clarifying legislation".

If the noble and learned Lord who brought legislation to this Chamber in 1974 to clarify the matter—a matter which was subsequently effected 15 years later by the Statute Law (Repeals) Act 1989—now says very clearly in Halsbury's Laws of England 1996 that there is a problem, surely it is clear that this piece of legislation is appropriate, is necessary, is permissive and, I submit, ought to be passed by this Chamber. I beg to move.

The Lord Bishop of Norwich

Perhaps I should be ashamed to say that I am not very knowledgeable about ecclesiastical law, but it is not one of my enthusiasms. However, I recognise its importance in the maintenance of good order in the Church. For that reason, I value very highly the expert advice of ecclesiastical lawyers; indeed, I depend upon it. One of the Church's senior lawyers, Miss Ingrid Slaughter, sent me a detailed briefing on the Bill explaining the issues, which are more complex than I realised. She did so in language that even the Bishop of Norwich can understand. She has helped me in the past and, knowing my frailties, stressed in her briefing that she thought there was no need for me to speak. She did not add, because she is gracious, that she feared that, if I did so, I might make a hash of it. Nevertheless, I want to make a few brief and non-technical remarks.

The Church of England sympathises—indeed, strongly supports—the motives which have led the noble Lord, Lord Alderdice, to introduce his amendment. I hardly need labour the point that we share wholeheartedly with him a commitment to the unity of all the Churches, and an abhorrence both of a sectarian spirit and discrimination on grounds of religion or lack of it. However, I have to communicate the fact that the Church's lawyers, whom I know to he personally in complete sympathy with the noble Lord's motives, believe that there are technical flaws which would make for complications in the operation of parts of the Bill.

If it was thought right ultimately to redraft the Bill, I believe that the advice of the Church of England's legal experts would be invaluable, as well as that of the Church's main committee, through which the main Christian denominations work together on matters touching relations between Church and state. So it is with regret and great reluctance that I have to say that I am unable to support the noble Lord's amendment. I say, "regret", because I strongly support everything that he is trying to do.

The Lord Chancellor (Lord Irvine of Lairg)

I am grateful to the noble Lord, Lord Alderdice, for putting down an amendment, which I acknowledge is plainly intended to deal with a point that I made on Second Reading two weeks ago. What I believe the noble Lord has explained in substance to the Committee is the fact that the amendment is designed to ensure that a Lord Chancellor who is willing to exercise ecclesiastical functions, and who is not prevented by any legal bar from doing so, should be entitled to do so. As I understand the noble Lord, he has explained to Members of the Committee that the specific reference to adherents of the Roman Catholic faith is there in recognition of the fact that the situation would be different, in any event, if the office were held by a Roman Catholic, because there would be a pre-existing legal bar. I observe that the noble Lord is nodding his head in agreement. Therefore, I believe that I have accurately summarised his intention.

As I have something of a more encouraging nature to say at the end of my few remarks, I hope that the noble Lord will not be overly disappointed to hear that, while I fully appreciate that the amendment is well meaning, in my judgment the new words would not achieve what he intends. However, they demonstrate how difficult it can be to make apparently minor modifications to an area of law as complex as this one, without creating new anomalies and uncertainties. I was heartened to hear the right reverend Prelate the Bishop of Norwich say that he regarded ecclesiastical law as a rather complex sea that he would not desire for himself to navigate. There is art enormous risk that, in tying up one loose end, other threads will be broken. That is why even a modest change demands great caution and careful examination of all the other inter-reacting legislation.

Perhaps I may expand on that. I believe that the effect of the amendment now proposed to Section 2 of the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974 would lead to four possible situations. First, if the Lord Chancellor were a Roman Catholic, there would be no change to the present law. He would still be barred by law from exercising the patronage functions. Accordingly, if nothing were done, those functions would devolve on the Archbishop of Canterbury, but they could be transferred to another Minister without the Lord Chancellor being involved. Secondly, if the Lord Chancellor were Jewish, he, too, would continue to be barred by law from exercising the functions himself. They might be transferred to another Minister, but only if the Lord Chancellor agreed. Otherwise they would devolve on the Archbishop. Thirdly, if the Lord Chancellor was a member of the Church of England, only he could exercise the functions. There would be no machinery to enable any other person to do so. I should pause here to endorse the comments made by the noble Lord, Lord Mishcon, at Second Reading about the uncertainty of what may be meant by being a member of that Church.

Finally, if the Lord Chancellor did not fall into any of those three special categories, the functions could be exercised by him, or, with his agreement, an Order in Council transferring them to another Minister could be made. Thus, for example, an atheist need not be deterred from accepting the office because his conscience made him reluctant to exercise an ecclesiastical function. On the other hand, as the initiative would not be with him, the offer might, in theory, have been made conditional on his agreeing that those functions should be carried out by someone else.

If I am right in my interpretation of what would be the effect of this amendment, the result would be far from simple and not satisfactory. Instead of there being fewer or no religious distinctions, there would be more. At the time when each appointment to the office was made, and perhaps before and at various stages afterwards, it would be necessary to investigate which of the four categories applied to the Lord Chancellor of the day, or prospective Lord Chancellor, in order to see whether the power could be exercised—let alone whether it should be exercised.

If the Lord Chancellor was a Christian, there could be uncertainty as to which of the categories applied to him. Membership or non membership of the Church of England is not statutorily defined, and in any event I understand that the Church takes the view that membership does not preclude the individual from being a member of some other religious group at the same time.

As I have explained to the noble Lord, Lord Alderdice, in correspondence—I have sent him a letter dated 26th March, which I hope he has received and considered—I have made it plain that I have considerable sympathy, as indeed has the right reverend Prelate the Bishop of Norwich, with what he is trying to achieve. Perhaps I should say that I have even more sympathy with him in the difficulty and intricacy of the task that he has courageously undertaken, in the attempt to weave a practical and simple solution into an exceptionally complex body of law with many and various sources.

I recognise that this amendment is well intentioned but for the reasons I have given I cannot commend it to the Committee. I am sure the noble Lord will permit me to say in the Chamber that I have expressed my personal sympathy for any Bill which relieved those who might be offered appointment to the office of Lord Chancellor from having to consider declining on religious grounds because of the ecclesiastical functions of that office. That is perhaps the other side of the coin from the motivation behind the 1974 Act. While it was clearly unsatisfactory that a Prime Minister should have been deterred from recommending the appointment of a Lord Chancellor of his choice because of concern that the appointment might prove to have been invalid on religious grounds, it would be equally unsatisfactory if the person chosen were deterred from accepting because he would be reluctant to exercise an ecclesiastical function which would be part of his role if he accepted.

I believe, however, that this problem could be more effectively met by a Bill confined to that particular purpose. I should make it clear that I am not saying that the Government would support such a Bill because traditionally these are matters for a free vote. However, I respectfully suggest to the noble Lord that, rather than seeking, as it were, to go it alone in truly deep and muddy legal waters, it would be better if he entered into discussions with my officials who have a deal of expertise in this recondite area. Lawyers of the Church of England to whom the right reverend Prelate referred could also join in the discussions. In the light of those discussions the noble Lord might be in a better position to consider how to proceed.

1.15 p.m.

Lord Alderdice

I am deeply grateful to the right reverend Prelate and to the noble and learned Lord the Lord Chancellor for their remarks and for their encouragement in principle for the small efforts upon which I have embarked. I am also grateful for their words of advice so graciously tendered. Unfortunately due to the vagaries of the postal system I am not yet in possession of the letter that the noble and learned Lord the Lord Chancellor has sent to me. I look forward to having an opportunity to study it and the comments that have been made in this debate.

As I said earlier, my purpose is to try to remove these anomalies, not merely for the benefit of those who might find themselves in this position but to signify how our community has developed at the highest levels in a constructive, positive and non-discriminatory fashion. Given the opportunities that have been proffered by the right reverend Prelate and particularly by the noble and learned Lord the Lord Chancellor to discuss these matters with those who have vastly greater technical expertise than I have, but who have the same commitment to achieving what is right and good, I shall withdraw the amendment as I wish to do useful business with the expert advisers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment.