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European Parliamentary Elections Bill

11.51 a.m.

Brought from the Commons; read a first time, and to be printed.

Lord Chancellor (Tenure of Office) (Amendment) Bill [H.L.]

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

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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.

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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

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    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.

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