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Benefices (Ecclesiastical Duties) Measure, 1926

Volume 200: debated on Thursday 2 December 1926

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Before I call on the hon. and learned Member for South-East Leeds (Sir H. Slesser) to move his Motion, I must point out that the Amendment on the Order Paper in the name of the hon. Member for Portsmouth (Sir H. Foster) is not in Order. The Act under which we proceed does not provide for any Amendment to the Motion, and the hon. Member for Portsmouth will be called upon to oppose the Motion after it has been made.

I beg to move,

"That, in accordance with the Church of England Assembly (Powers) Act, 1919, this House do direct that the Benefices (Ecclesiastical Duties) Measure, 1926, be presented to His Majesty for Royal Assent."
The House of Lords, I understand, have to-day given their assent to this Measure, and, therefore, if this House thinks fit to pass it this evening, it will become law immediately. I do not propose at this late hour to go into the details of this Measure. I would rather leave that to hon. Members who oppose it to give their reasons, and no doubt their objections will be dealt with. But I should like to say, as a certain amount of discussion has gone on in the Press and other places about this Measure, that this matter has been under the consideration of the Ecclesiastical authorities ever since 1924 when the Bishop of St. Albans moved the appointment of a Committee to consider it. This Committee was appointed, and Bishops, Archbishops and beneficed clergy, with other Members served on it. They made a recommendation. The matter was then referred to a Committee of the Church Assembly, consisting of about 90 incumbents and 23 laymen; many persons of different points of view, and they reported hack to the National Assembly. The result of all these deliberations and proposals is the present Measure.

It is important, as there has been a good deal of inaccurate talk about this proposal, that hon. Members should realise that it scarcely alters the existing law at all, and where it does it alters the law to some extent in favour of the priest, a greater part of it is a mere codification of the present law. There are three principal Acts which deal with the power of the Eccelsiastical courts to deal with clergy who do not perform their duties properly, or are inadequate, or are negligent. The principle contained in the first Statute is also contained in the present Measure—namely, the appointing of a Commission. It has been suggested, and I believe it is the chief ground of criticism against the Measure, that a man against whom something is alleged is not allowed to be represented by counsel before the Commission which is appointed to inquire into his behaviour, and that he may be prejudiced thereby. I do not think it is realised by hon. Members that Sections 57 and 77 of the Act of 1838 also provide for the appointment of a Commission, and it does not there specifically provide in terms that there shall be any right of audience on the part of the priest. The reason is that, according to the Common Law of this, country, any persons performing judicial functions, who does not hear all the parties, is acting contrary to natural justice, and their decision would be completely void if they were foolish enough to proceed in such a way. There have been a good many commissions under these Acts, and in no such case have they failed to take the views of the accused as well as the accusers.

In order that the House may not be sled, may I ask the hon. and learned Gentleman if he will kindly inform the House whether, on the appointment of a Commission, the person accused will have the right to be represented by legal advisers and counsel, and be permitted to call evidence, and to cross-examine witnesses on the other side?

I do not know what the hon. Member means by "the House being misled." I am just stating the requirements of natural justice, namely, that the accused person shall have all the necessary rights of a judicial inquiry. It is not merely my view that the requirements of natural justice are preserved, but it is the law as it has existed since 1838. There is no specific provision that accused persons may be heard by counsel before a Commission, and the law is exactly the same under this Measure. This opinion has been expressed by Lord Phillimore, Sir Lewis Dibdin, and other ecclesiastical lawyers. They have all agreed that the rights of the incumbent are fully protected under the Commission. There is an appeal from the finding of the Commission, which varies according to the finding, whether the finding is one of inadequacy in which case a curate may be substituted, the appeal being to the Archbishop; or of negligence, in which latter case there is an appeal to the tribunal, which exists already, of the Archbishop of the province and a Judge of the High Court. Rules provide for the calling of witnesses, hearing evidence on oath, and so forth.

Now I come to the only new matters. There are two important, and I think very valuable, additions made to the law in this matter. The first is that ecclesiastical duties include the duties imposed upon the incumbent by the Rules for the Representation of the Laity. The National Assembly and the Parochial Church Council have come into being since these Acts were passed. One of the duties of a priest is to call together his parochial church council. The more important matter, however, a matter which is the result of very careful ecclesiastical consideration which has been drafted by one of the highest of our lawyers, is the definition of the law of negligence—
"An obligation binding the incumbent to manifest in his acts, conduct and course of life, due respect for his sacred office, and a due solicitude for the moral and spiritual welfare of his parishioners."
I cannot believe that any Member of this House is going to object to that. That is the sole object of that provision. The only other matter is one in favour, in any construction, of the priest. It is very doubtful in law now whether, once a priest is inhibited, he can have that inhibition removed. We have provided specifically that a priest who has been inhibited may once more be restored. This is the first time such a thing has been put into a. Measure in favour of the priest. The Measure contains further safeguards; specifically provides that as certain people might desire certain ritual and other people may not desire those rituals, no commission shall be appointed under this Measure to inquire into any question of doctrine. It is a codification and adds a slight definition but an important one of negligence and enables clergy to have an inhibition removed. It embodies the whole point of law in one succinct form, avoids necessity of having to have recourse to four or five different Acts of Parliament.

I observe, and the House will observe, the time of the night or early morning, which is the first and only occasion not even to move an Amendment, but merely to vote "Aye" or "No" upon this most important proposal contained in what is euphoniously called a "measure," but which is really a Bill, which this House is only allowed to read once and for which there is no Committee stage, on which no Amendments are permissible and for which the term "verbal inspiration" can be the only justification. The fact that this House has got to meet again at 11 o'clock in the morning, and has already been sitting for a great many hours, and that most of us want to be home and in bed, precludes any possibility of this Measure—be it good or be it bad or, as I hold, good in some parts and extremely doubtful in others,—makes it clear that this House has not the opportunity of properly considering it. I would call the attention of the House to the very wise warning of a distinguished law Lord, himself a member of the Ecclesiastical Committee, which appeared recently in the "Times" in which he said that the novel system of legislation created by the Enabling Act extends beyond the scope of any particular measure and provokes reflection on the invasion upon the authority of Parliament made by such a system as that under the Enabling Act. The Noble Lord pointed out that the Church has obtained an act giving extraordinary powers in regard to legislation touching matters concerning the Church, and he said that it was of the first importance to watch jealously that the legitimate scope of its powers is not exceeded. Therefore, although the hour is untimely, in view of the fact that this is the second occasion within seven days, in the classic phrase of the Financial Secretary to the Treasury, that, such a Measure has been thrown at our heads, and that it is thrown at the heads of an exhausted House, I nevertheless conceive it to be my duty, much as I regret to have to detain Members at all, yet we feel it our duty to put in our pleas and call attention to what we consider the contemptuous treatment of Parliament.

On a point of Order. Is it in order now to criticise the method which Parliament has laid down for presenting this Measure? Parliament has laid down a certain procedure, and we are here discussing this Measure. The hon. Member is attacking us for the method of presenting the Measure. Is that in order?

I understood the hon. Member to be reflecting on the action of Parliament in passing a Measure which necessitated discussion of this kind at this hour. I do not think that so far the hon. Member is out of order.

On a point of Order. Many of us had not the advantage of being Members of this House in 1919. If the Enabling Act is as stated, some of us protest against the principle of it, and we will support the hon. Member on that ground.

Until Parliament in its wisdom amends that Enabling Act, the words of my right hon. Friend the Financial Secretary to the Treasury uttered in this House last week must hold good. He said:

"A measure is thrown at us in a form which leaves us no power to do anything except to take it or leave it as a whole. We have no right to amend it in the smallest particular. This is the outcome of the procedure laid down under the Enabling Act, a Measure which is an example of ill-considered legislation."—[OFFICIAL REPORT, 25 November, 1926; col. 703, Vol. 200.]
The following words, I think, will remain a classic in connection with this subject until that Act is amended:
"The support of many of us was gained for that Measure by the assurance that nothing we were then doing would impair in the slightest degree the control of Parliament over legislation of this sort. Therefore, in considering this matter, we may leave on one side any suggestion that Parliament will be in any way encroaching upon the autonomous powers conferred upon the Church or interfering in a matter with which Parliament is not properly concerned. "—[0FFICIAL REPORT, 25th November, 1926; col. 704, Vol. 200.]
The hon. and learned Gentleman to-night has told us something about this Measure which, as I have said, it is quite impossible, without trespassing on the physical strength of Members, for us to examine properly. I do not propose to attempt to do that. But I will make one remark in regard to the question in the form of a challenge which I offered to the hon. and learned Gentleman. I asked him a specific question, and his answer was a very guarded one. He talked about the principles of common law prevailing, and then he mentioned the great legal authority of Lord Phillimore. It so happens that, in common with other Members of the House, I have received a memorandum by Lord Phillimore on this Bill. He begins by saying:
"The distress which some of the clergy feel with regard to the Benefices (Ecclesisiastical Duties) Measure appears to have been created by two letters," and so on
There is an admission of the distress which for some cause or other the clergy feel. Then on the legal question, what rights the present clergy will have of appearing before the Commission, I call the attention of the hon. and learned Member to the following by Lord Phillimore:
"The first charge is that the incumbent will be subject to a secret Commission, or, as it is put in one letter, 'in the incumbent's absence.' This is a misconception. The principles of the common law will underlie the whole Measure. Accordingly no man can be condemned without his being heard. No evidence can be taken against him in his absence. He, and possibly his legal adviser,—
Why possibly?
"will be able to hove his say before the Commission decides."
In face of the doubt thrown on the matter by his own authority, does the hon. and learned Gentleman suggest that such a question as that of the accused person's own legal adviser being permitted to appear before the tribunal—let alone representation by Counsel, let alone calling evidence, let alone cross examination of witnesses— will be specially provided for as in Clause 7 of the Measure? When we come to the question of the man, having already been condemned, appealing to a higher tribunal, why are these safeguards not in Clause 3, under which the Commission is set up?

The answer is obvious. It is because the Measure merely repeats the existing law. This Commission is exactly the same as that of the previous enactment.

Yes, but, as the hon. and learned Gentleman himself has pointed out, it extends in a very substantial way, the causes for which an incumbent may be condemned. It creates vague and indefinite—purposely indefinite —disabilities and offences in the future, and I can understand why it does so. The only argument I have heard in favour of this extension is that at present the powers are too narrow, and that it is desired to cover every possible offence. I think the House will realise that in spreading the net as widely as it is now sought to do, grave injustice may result. It is, therefore, of the utmost importance that the accused person should have the fullest justice from the beginning. Before the Commission is entitled to cast a slur upon him and condemn him and put him in the position of an appellant, he should have the fullest opportunity of testing the case against him and of getting the best legal advice he can. Otherwise it may mean absolute ruin to a man. The hon. and learned Gentleman said he would leave it to the opponents of the Measure to state more specifically some of the objections to it. I have already called attention to the observations of Lord Phillimore about the distress caused to the clergy. I may add that the Measure is causing considerable apprehension among a large section of the rank and file of the clergy who are not adequately represented in the Church Assembly. I will read to the House a summary of the objections to the report of the Church Assembly Commission on Ecclesiastical Courts, by the Executive Committee of the National Church League:

"It continues for an indefinite period the Bishop's power to veto proceedings and thus to refuse justice in his own courts on questions of heresy and ritual."

They are only summarised in this way. This clearly relates to the present Measure:

"It permits him (the Bishop), however strong a partisan lie may have been before his consecration, to act as Judge in cases."

The hon. Member is reading comments on the report of a committee of the Church Assembly on a, totally different question, namely the Constitution of Ecclesiastical Courts which have to deal with questions of ritual. These are the opinions of the National Church League on the report of that committee. That matter is still before the Church Assembly, and the Measure has not even been drafted.

If I have made an error, I accept the correction. Another body, not popular with some Members of the House, the Church Association, by their council, state that in their opinion this is

"a grave encroachment upon the constitutional rights of the clergy, particularly of incumbents of parishes and consequently upon the people to whom they minister. At present incumbents, subject to their observance of law, are rightly secured in the tenure of their benefices, and they can be deprived only by a process at law in the existing courts, after legal proof and lawful grounds of deprivation, by sentence of trained Judges, according to the recognised rules of English justice. The measure provides that every incumbent shall in future be amenable to newly devised commissions and courts dominated by the Episcopate, and then, For not observing fresh and vaguely indicated obligations, which the very terms of the Measure stipulate are to be imposed, in addition to all existing duties that he is bound by law to perform, and he is to be debarred from appeal to the existing courts for redress of any injustice inflicted by the Commissions or courts erected under this Measure. Any incumbent who may be found guilty, by a Commission initiated by the Bishop, of inadequate discharge of not merely his present legal duties, but of the indefinite obligations, to be imposed by this Measure, may at once be inhibited by the Bishop from the discharge of all or any of the ecclesiastical duties of his benefice. This statement does not by any means exhaust the objections which may justly he urged against this Measure, which the Council understand was not considered at any adequate length by the Session of the Ecclesiastical Committee of Parliament which sanctioned its presentation to the Legislature."
I would only say on that point that I have satisfied myself by inquiry to-day that the Ecclesiastical Committee, which, as some hon. Members know and others may not know, consists of 30 Members, 15 appointed by the Lord Chancellor and 15 by Mr. Speaker, only had this once before them, namely, on the 28th July, when I believe they also had another Measure with which this House dealt a few days ago, and that less than half the members of that Committee attended, and from our experience of their Report last week in connection with the City churches, the House cannot be expected to place great confidence in the action of that Committee in the matter of safeguarding Constitutional rights, which they are specially enjoined to do under the terms of the Enabling Act.

What I submit, in conclusion, is that the Enabling Act, unless it is amended as it ought to be, alike in the interests of the Church and of the community, reduces the control of Parliament to a farce. It enables the Assembly, not only to legislate, but, be it observed, to amend or repeal existing Acts, and they can even amend the Enabling Act itself, in whole or in part. It restricts Parliam6ntary control, as I have said, to one Reading in each House, with no Committee stage and no power of Amendment., and it has to be taken late at night, unless the Government of the day provide proper time for its examination, which I suggest to those most strongly in favour of the Church Assembly is a matter that they should, in their own interests, urge on the Government to dc, because it cannot be satisfactory to such a fair-minded man as my noble Friend the Member for Oxford University (Lord H. Cecil) that the House should be precluded from discussing this Measure till after midnight, and then only once. I know it is not his fault, but I am saying that I imagine he is one of the first who would say that proper time ought to be given to this House to discuss this Measure, and that the Church's interests will suffer, and that a Measure which is a good Measure will often be rejected by the House if we have not the proper opportunity of examining it. Such a condition of things, I submit, is a scandal and a grave danger, and must bring Parliament into contempt. It is brought about by an Act passed by the Coalition Government in 1919.

I think the hon. Member is really now going beyond what is in order on this occasion. I do not think he can review, on this Motion, the whole working of the Enabling Act.

I immediately accept your ruling. I thank the House for having listened to me under the great difficulties under which I have had to speak at such an hour. I shall oppose this Measure.

I must apologise to the House for rising at this hour, but I do so in order to say a few words about the real meaning of this Measure. I sympathise with my hon. Friend who has just sat down. It is perhaps not unnatural that he should feel some irritation at having to discuss a Measure of this sort at this hour of the night or the morning. But we ought not to let any irritation prevent us discussing this Measure in accordance with the procedure approved by Parliament. If a time ever comes to amend that procedure, no doubt the House will bear in mind the objections that have been raised. The hon. Member said that he thought the measure was good in parts, although he thought it was doubtful in other parts. I noticed that he did not go so far as to say that he thought it was bad in some parts. Upon the consideration that I have given to this Measure and after, I frankly admit, not a very great acquaintance with what it proposed to do, since it came to this House, I have come to the conclusion that it is a Measure that, this House may accept without infringing the liberties of a single clergyman in the Church of England, and, on the whole, I think it will lead to a much more adequate performance of their duties by a minority—for it is only a minority—of the clergy who have hitherto been beyond the scope which such a Measure as this reaches. The Pluralities Act, 1835, contained elaborate procedure, extending to some hundred Sections or more, for dealing with negligence of duties and what was then a flagrant scandal in the Church. It provided for a Commission to deal with some of these cases, and under the Pluralities Act, 1885, the constitution of the Commission was altered. The Benefices Act, 1898, provided that when a Commission, appointed under those two Acts, reported that the ecclesiastical duties of a benefice were inadequately performed, due to the negligence of the incumbent, certain consequences should follow, such as the appointment of a curate by the Bishop. This Measure does not repeal that, but puts the enactments into a Consolidated form, as the hon. and learned Member for South-east Leeds (Sir H. Sleeser) said. The procedure will be that no clergymen can be arraigned before the Commission for negligence until he has received a notice from the Bishop requiring him to amend the negligence in some particular respect.

No; that lays it down only on two grounds. It does not cover the whole appeal.

Section 1 and Section 2 provide for the case of negligence which results in the inadequate performance of a clergyman's duties and also deals with cases where there has been inadequate performance of duties possibly not due to negligence. Section 2 provides that no incumbent shall be deemed to be negligent in his duties unless an observance of those duties has been required of him in writing by the Bishop, who shall give him opportunity of replying before issuing any commission under the provisions of Section 3 of this Measure.

The hon. and learned Gentleman should read the whole of the paragraph. It says:

"No incumbent shall be deemed to have been negligent in the observance or performance of any of his ordination promises or the duties imposed upon him by the rules for the representation of the laity unless such observance or performance has been required of him in writing by the Bishop, who shall give him opportunity of replying, before issuing any Commission under the provisions of Section 3 of this Measure."
The due notice to be given only deals with paragraph (a). It does not deal with Sub- section (1) of Section 2, and it does not deal with Sub-section (3) of Section 1. It is only partial.

The hon. and learned Member will have an opportunity of putting his case in more convenient form later. I can only say that as I understand it Section 1 provides for cases where there has been inadequate performance of duties by reason of the negligence of the incumbent. The expression "ecclesiastical duties" is defined in Section 2, but it is expressly provided that before any clergyman can be deemed to be guilty of negligence in the performance of those duties he is to receive an intimation from the Bishop as to the negligence and a requisition requiring him to amend it in some respect. There is first the fullest notice saying that the incumbent has been negligent, and, secondly, there is the notice requiring him to amend the negligence. But that does not finish the matter because the whole matter can be sent to a Commission composed of three clerical members, three lay members, in addition to one lay member whom the incumbent may have to represent him, to appear on his own behalf. The lay members are not to be appointed by the Bishop, but are to be nominated by the Chairman of the quarter sessions for the county or the Lord Lieutenant of the county. There is no colour at all for the suggestion that the Bishop not only acts as accuser but is also the judge or at least can appoint, as judges whom he pleases. When the matter goes before the Commission the incumbent will have the right to appear and, if he desires, to appear by Counsel or Solicitor. He will have the right. I do not understand why Lord Phillimore used the word "possibly," because the incumbent will at any rate have that right. Then if the Commission come to a certain conclusion affecting the incumbent and report that the inadequate performance of his duties was due to negligence, or that the inadequate performance of his duties was not due to negligence but to some other cause, then in either case he can appeal and he will have the opportunity of calling evidence and appearing by Counsel or Solicitor. If it has been found that he has been negligent, then his appeal will be solely on that question for the judge of the High Court.

It is quite true that the Archbishop will sit with the judge of the High Court, but he will have nothing to say as to the question of whether the incumbent has been negligent. That will be decided by the judge of the Supreme Court under the ordinary rules and principles. If the judge comes to the conclusion that there has been negligence, then the Archbishop decides what is the proper action. This is a procedure that would seem to most people to be adequate and to safeguard the rights of every incumbent- Notice is provided for, and a proper tribunal is offered in the first instance, with another tribunal to correct any possible miscarriage of justice. Against the second tribunal nothing, I think, can be said. It is impossible for anybody to suppose that whatever rights the clergy may nave in the parson's freehold they are to be above examination in the performance of their duty so that they can defy the bishop and the courts so long as they enjoy their benefices. Any anxiety I hope will be allayed by a further consideration of the real provisions of the Measure which has indeed received an elaborate and detailed examination and criticism in the Assembly, and I hope it will be accepted by the House as tending to a better performance by some clergy of their duties, without in the least degree impinging upon the liberties to which a clergyman is entitled just as much as a layman. I respectfully commend the Measure to the House.

The right hon. and learned Gentleman has not mentioned the question of the pension of the incumbent. That is very important to some of us. Is it possible that an incumbent can be deprived of any pension to which he has contributed?

It is not possible for any incumbent to be deprived of his pension in consequence of a finding that he has performed his duties negligently or inadequately. He can only be deprived of a pension when he has been guilty of some moral offence.

I regret to find myself again in opposition to my hon. and learned Friend the Member for South- East Leeds (Sir H. Slesser) concerning the Established Church. Everyone of us must feel now, if we also consider the discussion last week, that Parliament made a great mistake when it passed the Act which lays down this procedure. Everyone must feel the difficulties we are in. It is quite impossible to explore such an important subject at length, having regard to the lateness of the hour. I hope the result will be to-night as it was last week. No one can object if proper and adequate steps are taken to see that the clergy properly discharge their spiritual functions, and that they perform adequately for the welfare of their flocks those duties with which they are charged, but I presume the House will agree that when people are brought to trial they should be given every fair opportunity of defence, and that they should be properly and adequately represented. Here are a few of the letters I have received from the different deaneries where they have held meetings and have condemned this Measure. It is not to be presumed that they are such ignorant people that they cannot read the Measure properly. They see grave danger with which they are threatened. My hon. and learned Friend said that after going through the Assembly the matter was referred to a larger committee, but from that committee great care was taken to exclude every critic of the Measure in the Assembly. It was no wonder they had a unanimous report. My hon. and learned Friend says this is mainly a coordinating Measure. I ask Members to turn to the third Schedule and they will see a pretty long number of repeals, all making very vital alterations. My hon. and learned Friend further says that the law is safeguarded in the Measure, and he asks why we should trouble about the matter.

There are many other things in the Measure. The whole charge of vague negligence is vague and indefinite so far as this Measure is concerned, and therein the great danger lies to the incumbent. It is not unfair to remind the House that for months past there has been a correspondence going on in the pages of the "Daily Telegraph" criticising this Measure, and two or three leading articles have been written in that paper in opposition to the Measure. On no occasion has there been any detailed argument produced in answer, except evading technical argument. It has been said in the Debate that doctrine and ritual are ruled out and that this is apparent in Sub-section (4) of Clause 3. But that does not square with Sub-section (3) of Clause (2) where it is left vague and indefinite, and it is possible these things may be against the priest. The incumbent is deemed to be negligent since the Bishop accuses him. He is tried by a Commission sitting in secret. He has been prejudged to be guilty, contrary altogether to the common law of the land by which a man is not judged to be guilty until he has been tried and found so.

An official apologia in the "Turo Diocesan Gazette" for November says:
"It is only when the Bishop is satisfied that there is a grave scandal arising from either negligence or incompetence, and when he has given the incumbent opportunity of defending and clearing himself or submitting himself to the Bishop's direction (as the case may be) that as a last resort, failing this, the Commission sits and reports."
I put it to the House that directly the priest goes to the Commission after he has been before the Bishop, he goes as a partly condemned man, judged guilty before he has had an opportunity of trial. It is not much to ask that a priest or clergyman should be entitled to as fair a trial as a burglar and that is denied under this Measure. It is true that the Bishop might inhibit, and the Solicitor-General has stated that the incumbent may appeal. But the incumbent has got to pay the cost. He has got to go there at his own charge that in itself seems to me to point how the scales are weighted in this particular direction. It is open to any man to be at the mercy of cross-grained people in the diocese and he is not going to have a fair trial. On these things alone I ask the House to reject the Measure so that these people may be given a fair trial. I have scores of protests, as no doubt other Members have had, from priests, clergymen in the Church of England who see in this a very grave danger to their rights and are asking that the House will in every way defend them from this Some f these men are the most hard working and industrious clergy, doing hard and difficult work and they are seriously alarmed as to the operation of this Measure. For these reasons alone, seeing that we cannot amend, we have no power of alteration under any circumstances, we ought not to run the risk of doing an injustice to these people. The whole question of the Church Court will be difficult. It is no guarantee to this House that the thing has been well considered since the year 1922 or 1924. We were told that the question of the demofition of churches had been under consideration since 1919—a very much longer period—and the House was very definite in regard to its decision on that matter. I hope they will be equally definite in regard to this and see that no injustice is done, however unintentioNaily.

My hon. Friend who opposed this Motion quoted some remarks of mine used on a recent occasion with regard to what I consider the very unsatisfactory procedure under which we have to consider these matters. I do not retract a word of what I said, and I agree that the procedure which we have to work under is unsatisfactory. At the same time—I do not want to detain the House—but I do want to say that, so far as this particular Measure is concerned, having given it the best examination I can, I have come to the same conclusion as my hon. and learned Friend, the Solicitor-General, that I think this is a valuable Measure, and gives powers where those powers are needed. I think the language of the hon. Gentleman who has just sat down was not only very extravagant, but, so far as I have been able to judge, a complete misrepresentation of the Measure.

Notwithstanding what has been said by my right hoe. Friend who bas just sat down, I am utterly opposed to this Measure. In my view it may do a great injustice. The late Solicitor-General has told us, and I think the Solicitor-General has told us, that this is merely reproducing the Act of 1835. They seem to forget—memories are often short and want of recollection is very convenient—that clergymen of the Church of England are exposed, like all His Majesty's subjects, to the whole Criminal Law of this land and the Civil Law. May I remind him with regard to the change in practice in regard to all criminal procedure in this country. He cannot have forgotten the Summary Jurisdiction Act, 1845; surely he has not forgotten the Act of 1872, and the amending Act of 1897. What is the procedure now for a criminal in this land? As a matter of practice, he has the right to have his case heard at a preliminary inquiry before the Magistrates; he knows the names of the witnesses and the facts to which they depose and then he is committed for trial. Why have we not any such procedure in this Measure? May I remind my hon. Friends who are so pledged under Section 2. The Bishop can appoint this Commission if he thinks fit under Section 3, Sub-section (3)—

"No Commission shall be appointed under this Measure unless the Bishop appointing the same has given to the incumbent affected one month's notice of his intention to make the appointment."
1.0 A.M.

What does that mean? He is not even to make a specific charge. We are proposing under this Measure to deprive a man of the whole of his livelihood. When you are out of the Church where are you? My hon. Friend says that he will not suffer in his pension. But surely he ought to be told by the Bishop and the Bishop should be required in turn to specify the charges he makes and the witnesses who support the charge. And why not. We cannot amend this Measure and I think the constitutional right is interfered with. What I protest against is that the Bishop can cause something to be done and he has to say nothing more than that I am going to appoint a commission to inquire into the conduct of a man. That is an injustice. I appeal to the House to reject this Measure and to say whether they agree with the Solicitor-General or with me. Of course, lawyers differ, but I say distinctly that there is nothing that requires the Bishop to state the charge in writing. I suppose it relates to the thirty-nine articles, if anyone understands them. I confess I do not. That is one thing. The other thing which is required is that he shall perform the duties imposed on him by the rules for the representation of the laity. Let us look at the proviso and see if I am not right that those are the only two cases in which the Bishop is required to give notice to the clergy. The proviso is that no incumbent shall be deemed to have been negligent in the observation or performance of any of his ordination promises or the duties imposed upon him by the rules for the representation of the laity unless such observance or performance has been required of him in writing by the Bishop, who shall give him opportunity of replying, before issuing any commission under the provisions of Section 3 of this Measure. It is limited in the two ways I have indicated. Let us look at the enactment Clause. It says:
"The expression "ecclesiastical duties" shall include (but subject to the express provisions of Sub-section (4) of Section 3 of this Measure) the observance of the several promises made by every Clerk in Holy Orders upon his ordination as a deacon and as a priest and shall also include when used with reference to a benefice,
  • (1) all duties which the incumbent is bound by law to perform,
  • (2) the duties imposed upon the incumbent by the rules for the representation of the laity, and
  • (3) an obligation binding the incumbent to manifest in his acts, conduct and course of life, due respect for his sacred office, and a due solicitude for the moral and spiritual welfare of his parishioners."
  • The first two of those paragraphs are covered by the proviso, but the most important of all, the last one, is not touched at all by the proviso. It is not in the Act of 1833, and it is introduced here for the first time. Then, paragraph (b) says:
    "The expresion 'negligence' when used with reference to an incumbent of the benefice includes wilful default in the performance of the ecclesiastical duties of his benefice."
    It merely gives a definition of negligence. This Sub-section covers wholly new ground with regard to the incumbent's conduct. There is no requisition and no enactment requiring the Bishop to state what the ground of complaint is at all. Then the commission sits. They are appointed, and I have nothing to say about that. They have power to call the incumbent and others and hear them on oath, but they are not bound, until the evidence is out, to tell him what the charge is. The right hon. and learned Member (Sir T. Inskip) has said that Lord Phillimore used the word "possibly," but must have meant something else. I say there is no right given in this Measure to allow the incumbent to appear by counsel or Solicitor before the commission that has been appointed. It is only when the Commission report, that in truth and in fact he is given the right of appeal, and then it is to the Archbishop or the Bishop. Under this Measure, in the case where a man has not been negligent, the Commission can report against him, and on report being made that his omission was not due to negligence the Bishop can, notwithstanding that the man has not been negligent, but has not done his duty for some good reasons, such as the state of his health—not withstanding all this, the Commission can find that he has not done his duties. If they find that he has been negligent, then the Bishop can, notwithstanding the reasons, appoint a curate and give him two-thirds of the living. Was ever such a penalty enacted against any man? If, as is suggested, it existed under the Act of 1833, then all I have to say is, that it is high time we put an end to it.

    I want to point out what a serious thing it is, and what to me is quite unintelligible. I refer to Section 4, Subsection (2), which says:
    "Every report of a Commission under this Measure shall state whether the ecclesiastical duties of the benefice to which the inquiry relates are inadequately performed or not; and, if the question arises, whether the inadequate performance of the said duties is or is not due to the negligence of the incumbent of the said benefice."
    It is only when the question arises that this Commission can report. Suppose the question does arise, what are they to do? Are they to report that he was negligent? What are they to report? This is a most serious omission.

    The question only arises if it is found to be due to the negligence of the incumbent.

    I am very much obliged to the Noble Lord. This Measure contemplates that the duties may he inadequately performed for either of two reasons. One is that, though not adequately performed, there was no negligence on the part of the incumbent; the other is that they were inadequately performed, and there was negligence on the part of the incumbent. My point is that it is only if the question arises that the Commission can report. Under Section 1 you find that where duties are inadequately performed provision may be made for the performance of those duties, and it lays down two reasons for the inadequate performance of the duties. One is that it is without negligence on the part of the incumbent, and the other is that it is due to the negligence of the incumbent. This is very undesirable legislation, and I do say that getting rid of a scandal which we all know has existed is no ground for doing an injustice. These are men in Holy Orders, but in 99 cases out of 100 they are men whose livelihood is affected, and they ought to have protection. I say that he ought to have most careful protection in his livelihood—every protection given to a man charged with a criminal offence. In this Measure he has no right to be represented by counsel or a Solicitor. The Bishop is under no obligation to give him notice of anything except that he has appointed a Commission. I believe many of these cases would forthwith disappear if challenged in the sense that the Bishop should say to the accuser, "Will you give evidence?" Let us grant that they do exist, but I say above all let us be just, let them have this Measure back.

    Is it credible that an hon. Member like my hon. and learned Friend who has just sat down and the hon. Member for Camberwell (Mr. Ammon) should attack in infinite detail, with much work of imagination, all the provisions of this Measure, which have already been the law of the land since 1898, and of which we have experience and know that there has not been a single solitary case of injustice under it? How is this procedure by Commission, and the appeal to a Judge of the High Court a, blameworthy feature of the Measure, when all that is done is to repeat the language of the Act of Parliament 7 Can you conceive a criticism less really valuable, less worthy of this House and its responsibilities? My hon. Friend the Member for Central Portsmouth (Sir H. Foster) who opposed this Motion opposed the Benefices Act of 1898. We used to think him an obstructionist in those days. It makes me feel quite young to see him doing the same thing as he did 30 years ago. I ask the House to realise that this is a consolidating Measure. It makes no change in the law, except the important change of a new definition of negligence and the provision that after five years the living becomes vacant. These two alterations are in the interests of the parishoners. They are entitled to relief from total negligence. I suppose none of us are without experience of that great evil. I remember saying more than thirty years ago in connection with this matter that although it might be true it was hard, it was better for the incumbent to go to the workhouse than for the parishioners to go to hell.

    This Measure is intended for the spiritual efficiency of the Church. It is a dreadful scandal that people should have no remedy. Fancy having a doctor on those terms, and if he is negligent having to submit to him. The Bishops have their faults, but they are not harsh or cruel. These provisions have been administered for more than 25 years with perfect leniency. It is impossible to

    Division No. 525.]

    AYES.

    [1.16 a.m.
    Acrand-Troyte, Lieut.-ColonelGibbs, Col. Rt. Hon. George AbrahamPennefather, Sir John
    Ainsworth, Major CharlesGoff, Sir ParkPercy, Lord Eustace (Hastings)
    Albery, Irving JamesGower, Sir RobertPeto. Basil E. (Devon, Barnstaple)
    Applin, Colonel R. V. K.Greene, W. P. CrawfordPilditch, Sir Philip
    Barnett, Major Sir RichardGuest, Haden (Southwark, N.)Ruggles-Brise, Major E. A.
    Beamish, Captain T. P. H.Henderson.Capt.R.R.(Oxford, Henley)Savery, S. S.
    Blundell, F. N.Herbert, Dennis (Hertford, Watford)Slaney, Major P. Kenyon
    Bourne, Captain Robert CroftHerbert, S. (York, N.R.,Scar. & Wh'by)Smithers, Waldron
    Bowyer, Captain G. E. W.Hills, Major John WallerStanley, Hon. O. F. G.(Westm'eland)
    Brown, James (Ayr and Bute)Inskip, Sir Thomas Walker H.Templeton, W. P.
    Cadogan, Major Hon. EdwardLuce, Major-Gen. Sir Richard HarmanWheler, Major Sir Granville C. H.
    Carver, W. H.McLean, Major A.White, Lieut.-Col. Sir G. Dairymple-
    Cecil. Rt. Hon- Lord H. (Ox. Univ.)Macmillan, Captain H.Windsor-Clive, Lieut.-Colonel George
    Cockerill, Brig.-General Sir G. K.McNeill, Rt. Hon. Ronald JohnWinterton, Rt. Hon. Earl
    Craig, Ernest (Chester, Crewe)Mac Robert, Alexander M.Wise, Sir Fredric
    Davison, Sir W. H. (Kensington, S.)Moore, Lieut.-Colonel T. C. R. (Ayr)Wolmer, Viscount
    Foxcroft, Captain C. T.Nail, Colonel Sir Joseph
    Fraser, Captain IanNewman, Sir R. H. S. D. L. (Exeter)TELLERS FOR THE AYES —
    Fremantle, Lieut.-Colonel Francis E.Oman, Sir Charles William C.Sir Henry Slesser and Major Birchall.

    NOES.

    Adamson, Rt. Hon. W. (Fife, West)Ford, Sir p. J.Jones, T. I. Mardy (Pontypridd)
    Barr, J.Foster, Sir Harry SKelly, W. T.
    Crawfurd, H. E.Gadie, Lieut.-Col. AnthonyPotts, John S.
    Day, Colonel HarryHarrison, G. J. C.Williams, A. M. (Cornwall, Northern)
    Dixey, A. C.Hirst, W. (Bradford, South)
    Everard, W. LindsayHudson, J. H. (Huddersfield)

    TELLERS FOR THE NOES.—

    Sir Gerald Hohler and Mr. Ammon.

    The remaining Government Orders were read, and postponed.

    It being after half-past Eleven of the clock upon Thursday evening, Mr.

    point to a single harsh case as so administered. The danger is that they are too kind-hearted. You cannot get them to administer discipline when they ought to administer it. Is it not wise to give a larger definition in order to oil the wheels and relieve parishoners of the cases of a negligent clergyman who cannot be brought to do his duty and thus have a source of spiritual evil in a parish removed? I ask the House to act honestly and courageously and pass this Measure.

    Question put.

    "That, in accordance with the Church of England Assembly (Powers) Act, 1919, this House do direct that the Benefices (Ecclesiastical Duties) Measure, 926, be presented to His Majesty for Royal Assent."

    The House divided: Ayes, 54; Noes, 16.

    SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

    Adjourned at Twenty-four minutes after One o'Clock.