Orders of the Day — Church of England (National Assembly) (Measures)

– in the House of Commons at 12:00 am on 20th December 1944.

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2.42 p.m.

Photo of Major John Mills Major John Mills , New Forest and Christchurch

I beg to move, That the Emergency Legislation Measure, passed by the National Assembly of the Church of England, be presented to His Majesty for His Royal Assent in the form in which the said Measure was laid before Parliament. This Measure is neither long nor complicated. It has only 10 operative Clauses and one Schedule, which consists of three lines. At no period in its passage through the Church Assembly was it considered to be controversial and the Ecclesiastical Committee has reported fully and favourably upon the Measure, which, therefore, needs but the briefest introductory speech from me.

The first Clause is probably the most important, and, indeed, is the only one that called for any comment when the Measure was before the Ecclesiastical Committee. It deals with the date at which the Clergy (National Emergency Precautions) Measure, 1939, and Regulations will expire. That Measure was due to expire on 28th July, 1944, and would have done so but for the proviso therein contained, that if the state of emergency was still continuing at that date the Measure should also be continued until the period of emergency terminated. That period is defined as the period during which a state of war may exist between His Majesty and any—I want to emphasise the word "any"—foreign Power, plus a period of three months thereafter. That period, with its margin of three months, is rather vague. The margin may be too little if the war with Germany only is taken into consideration, and, on the other hand, it may be deemed to be excessive if we include the war with Japan. Therefore, Clause 1 provides that the Measure and Regulations should expire at the end of six months from the date fixed by a Resolution of the Church Assembly as the date on which the emergency, which was the occasion of the passing of the Measure, came to an end.

The discussion in the Ecclesiastical Committee centred on the fact that it might be inconvenient, perhaps even unconstitutional, that the Church Assembly should fix a date for the end of the war quite independently of Parliament. I am going to ask the House to agree that that is neither the intention of the Measure nor will it be the consequence if the Measure is passed at it stands. The resolution which it is contemplated that the Church Assembly will pass will not attempt to define the end of the war. It will only define the end of the period of emergency for which these powers are required, and for the purpose of the minor matters which are dealt with in this Measure itself. It will therefore be limited in its effect, because it will only be dealing with minor though very necessary matters of church administration, as to which the Church Assembly is well able to decide when it is ready to return to normal conditions. Some of those minor matters are mentioned in paragraph 3 of the Ecclesiastical Committee's Report and in addition to them the Measure will enable the Bishop of any diocese to give extended leave of absence from time to time to any incumbents or curates who are acting as chaplains to the Forces and are detained overseas.

The only other point to which attention should be called is Clause 9, the marginal note of which reads: Basis of representation to House of Laity at next election. That election would have taken place in 1940 but in the summer or autumn of 1939 it was considered most unlikely that it could be held in 1940, and therefore a Measure was passed to defer it till 1945. The number of representatives to be elected in 1945 would normally be proportionate to the numbers on the electoral rolls as revised for the annual parochial church meetings of 1944. It is obvious that those electoral rolls will be inaccurate, however much each diocese and parish has tried to keep them up-to-date, because of the movement of population owing to the war; therefore the Measure proposes that the most reliable basis would be that of the electoral rolls of 1939 and, if we take this, it will be fair to all dioceses. I need only remind the House that the Measure cannot be amended. It can only be accepted or rejected in toto. I hope the House will feel that the Report of the Ecclesiastical Committee should be accepted and the Measure allowed to proceed.

Photo of Lieut-Colonel Dennis Boles Lieut-Colonel Dennis Boles , Wells

I beg to second the Motion.

2.50 p.m.

Photo of Sir Geoffrey Mander Sir Geoffrey Mander , Wolverhampton East

I have no desire to oppose the passage of the Measure but being a member of the Ecclesiastical Committee I raised a point which led to a certain amount of discussion and sympathy and I think it is worth recording in order that it may be borne in mind on any future occasion when a similar point arises. There seems to me to be a certain danger of a constitutional conflict because we are altering the definition of the end of the war which must be laid down by Parliament, that is, the period during which a state of war may exist between His Majesty and any foreign Power, and the situation is that the decision will be made by another body—the Church Assembly. It seems to me that a decision of that kind should be made by Parliament and by no other body. It is not necessary to labour the point. My object in raising it is that it may be on record that Parliament is watching carefully the proceedings that are taking place under this procedure so that the supremacy of Parliament in all matters civil and ecclesiastical may be maintained.

2.52 p.m.

Photo of Sir Noel Goldie Sir Noel Goldie , Warrington

I desire to support the view put forward by the hon. Member who has just spoken. It is some years since he did me the great honour of nominating me for membership of the Ecclesiastical Committee. As the Church has ceased to be militant, I find myself becoming more and more bellicose with regard to Measures sent up by the Church Assembly. It is in no spirit of hostility, but only in the performance of what I believe to be my duty, that I draw attention to a most serious constitutional issue in this very short Bill. The National Assembly is arrogating to itself the right, if not of the Crown, at any rate of the House. Our predecessors, for a reason which I have never been able to appreciate, laid down that we must take or leave these Bills. On the last occasion on which a Bill came up before the National Assembly I described it as a constitutional outrage, and this Bill goes further than the last. The point is that, whereas it is of course for the High Court of Parliament to determine when the war ends, the National Assembly have decided it. If hon. Members will look at Clause 1 and then glance at the Enabling Act of 1939 they will see what I mean: Instead of expiring on the dates therein mentioned, shall expire at the expiration of six months from such date as the National Assembly of the Church of England may, by resolution, declare to be the date on which the emergency which was the occasion of the passing of the said Measure came to an end. I cannot find any definition in the Act of 1939 of "emergency." It was passed on 28th July, some six weeks before the war broke out. It lays down quite clearly what the period in the orginal Act was: This Measure shall expire at the end of Jaye years from its passing, provided that if, at the end of such five years, the period of emergency shall be in existence, this Measure shall not then expire but shall continue until the period of emergency shall be determined. Clause 1 says: The expression 'period of emergency' means the period during which a state of war may exist between His Majesty and any foreign Power. Is not that good enough for the National Assembly? The war will terminate by Orders in Council. This means that the National Assembly, if they so desire, can, for their own purposes, instead of coming back to Parliament under the 1939 Act, fix the date at which the emergency terminates. Some of us hope to be in charge of Private Bills this Session. I wonder if my hon. and gallant Friend the Member for New Forest and Christchurch (Major Mills) would dare to put into a Private Bill a Clause saying that a local authority can decide at what time a period of emergency terminates. This is an excellent Measure. I do not criticise a word or a comma in it with the single exception of this Clause, which ought never to have been inserted and which reproduces the worst features of private drafting, Every time one of these Measures comes up I shall protest with all the vigour that I have at the way in which power is taken away from this House. It reduces legislation to a farce when we are told, "Take it or leave it," and when you get an excellent Measure completely and absolutely ruined by a Clause which ought never to have been inserted.

2.58 p.m.

Photo of Commander Sir Peter Agnew Commander Sir Peter Agnew , Camborne

I ask the House to agree to the Measure. To those who have read the Report of the Ecclesiastical Committee it must cause some surprise that a Debate has arisen, because the Report says specifically that the Measure does not appear to be controversial.

Photo of Sir Noel Goldie Sir Noel Goldie , Warrington

The hon. Member for East Wolverhampton (Mr. Mander) and I reserved our right to raise the matter on the Floor of the House.

Photo of Commander Sir Peter Agnew Commander Sir Peter Agnew , Camborne

I was present when that was said but the two hon. Members did not feel so strongly about it that they felt it right to press the Committee to word its Report differently. Therefore I am not sure that it is not a certain pro forma attitude that they have adopted in their opposition to the Measure, though I do not doubt for a moment that they are absolutely sincere in the point that they have made. It all hinges on the meaning and proper interpretation to be placed on the word "emergency" in Clause 1.

My hon. and learned Friend the Member for Warrington (Mr. Goldie) stated that nowhere could there be found, either in this Measure or in the principal Measure which this amends, any definition of the word "emergency." It is true, of course, that the word "emergency," when used in legislation, is generally understood to refer to the national emergency in which we are still engaged, that is to say, the duration of the war, but I think a closer perusal of the principal Measure, and especially of this Measure, would lead any reader to suppose that here the term "emergency" has only a strictly limited use and refers to what the Church itself—the body that will have to administer the Measure—may still consider to be a period of emergency for Church purposes only, and is not, in fact, directly related to the great national emergency.

If the Church were not armed with the necessary power—it is, indeed, enjoined by the Statute of the enabling Act itself—to say when the emergency within the Church itself is going to terminate then, I think, nothing short of chaos would ensue, and I venture to say that hardship would arise in many points of detail of Church administration. There- fore, the word "emergency" is not taken to refer simply to the war. It must be taken to refer to the time which the administrators of the Church, in their wisdom, may think to be the duration of emergency for the purposes of the Church.

Photo of Mr Thomas Magnay Mr Thomas Magnay , Gateshead

This is a very serious matter, and I would like to ask the hon. and gallant Gentleman whether he does not think that this sort of thing is for Parliament alone to decide, and not for any subordinate authority to take upon itself to say when an emergency occurs.

Photo of Commander Sir Peter Agnew Commander Sir Peter Agnew , Camborne

The Church of England is not a Department of State. It derives its authority quite above and outside that of the State. Even Government Departments require to have some say, by regulation or Order, in their own spheres as to when certain emergency regulations that they have drawn up can be safely repealed. It is true that they will come to Parliament in order to seek power to terminate those regulations. That is without question, but there is no such corresponding, flexible procedure that the Church Assembly itself can adopt in its own sphere. Therefore, this method of giving power to the Church Assembly, after submitting its proposals to Parliament in the form of this Measure, in order to decide when its own particular emergency comes to an end, is quite vital if the work of the Church is to go on, and hardships and anomalies are to be avoided. I submit that no improper action has been taken by the Assembly in passing the Measure and certainly it could not be questioned, I think, in any quarter of the House, that an improper action has been taken in submitting this Measure, seeking this power, to this House for recommendation to His Majesty for Royal Assent. I hope, therefore, that without unduly prolonging the Debate, the House will consent to have this Measure passed.

Photo of Mr Herbert Williams Mr Herbert Williams , Croydon South

Before we pass from this matter, which raises an issue of very considerable constitutional importance, it might be as well to look at the Clergy (National Emergency Precautions) Measure of 1939. The expression "emergency" means a period during which a state of war may exist between His Majesty and any foreign Power, and a period of three months thereafter. When the Church Assembly passed that Measure, which was assented to by both Houses in 1939, they contemplated a period of war. The "end" of such emergency does not mean when fighting stops, but when appropriate measures are taken by Parliament to say that the war has come to an end. This Measure was to run for that period and three months afterwards. Under that Act, if any regulations were made—and my hon. and gallant Friend who has just spoken has the advantage of serving on the Ecclesiastical Committee——

Mr. Gollie:

I do not think the hon. Member for South Croydon (Sir H. Williams) has looked at Clause 5.

Photo of Mr Herbert Williams Mr Herbert Williams , Croydon South

I will do so. I am looking at Clause 2 (6), which lays it down that if the powers of the Church make a regulation, that regulation shall be forthwith laid before both Houses of Parliament. Therefore, they took the power quite properly. If under their emergency Powers Act they wanted to do things by regulation, those regulations, as I have said, had to be submitted to Parliament which meant that we were empowered to pray against them if we did not like them. They have now abandoned that procedure and done something quite fresh, and that is what I take exception to. They say the Church of England may by resolution declare something—not by regulation—and that resolution does not come before us.

Photo of Commander Sir Peter Agnew Commander Sir Peter Agnew , Camborne

Will my hon. Friend allow me to point out that until the Church Assembly sees fit to pass that Resolution, it will still be bound to come down to Parliament in order to lay any regulations it desires to operate before it?

Photo of Mr Herbert Williams Mr Herbert Williams , Croydon South

My hon. and gallant Friend, who has the advantage of serving on the Ecclesiastical Committee and, possibly, on the National Assembly, has not found out what this Measure proposes to do. It is proposing to do something, not by regulation which gives Parliament the supreme authority—not only over the Church of England but over every chapel in the country—but by resolution. It is true that the Church of England has been given this special legislative power subject to the ultimate control of Parliament, but here they are proposing to do something by resolution which cannot be checked in any way by the supreme authority. When His Majesty decides, on advice, to say that the national emergency has come to an end, it is the Emergency Powers Act of 1939 alone which is involved. It is an annual Act and is continued by resolution of both Houses. It says in Section 11 (2): Notwithstanding anything in the preceding sub-section, if His Majesty by Order in Council declares that the emergency that was the occasion of the passing of this Act has come to an end, this Act shall expire at the end of the day on which the Order is expressed to come into operation. That has to come before Parliament and if, for any reason, both Houses disagree, the Emergency Powers Act would have to go on. But here we have the Church Assembly taking a power by simple resolution to do something which does not only affect the Church. The Act of 1939 does not merely affect those people who are communicating members of the Church of England, of which I happen to be one. The Church of England has rights and obligations to every citizen, whether he is a communicating member or not. For that reason the Emergency Powers Act, 1939, is something of interest to every citizen in the land, and for that reason I do not think that a measure of that kind should be determined by a simple resolution without a Regulation in support of it which has to come before both Houses.

Question put, and agreed to.

Resolved: That the Emergency Legislation Measure, passed by the National Assembly of the Church of England, be presented to His Majesty for His Royal Assent in the form in which the said Measure was laid before Parliament.