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Lord St. John of Fawsley: My Lords, I am grateful to the noble Lord for giving way. However, I wished to intervene before he leaves the point about patronage. This is a point which greatly supports what he is saving. I had the honour to be Chancellor of the Duchy of Lancaster for, unfortunately, a rather short time under my noble friend Lady Thatcher. I followed exactly that practice although I was advised that I was entitled to appoint to ecclesiastical livings and indeed longed to do so. But I was told that it was wiser to leave that to stalwarts of the established Church in the office.

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They did it very well. And I found a similar practice because I appointed them mentally and there would have been the same result.

Lord Mishcon: My Lords, I am most grateful to the noble Lord, Lord St. John.

I turn speedily to why I believe that it is rather difficult to interpret the amended Clause 2. In the purpose or object of this Bill, the word "appointment" of Lord Chancellor is not used. Rather, it refers to the "tenure of office" of the Lord Chancellor. I presume that would mean that, if an agnostic happened to be appointed Lord Chancellor but, sitting so near the Bishops' Bench, in the course of his tenure became converted to the beliefs of the Church of England, some notice had to be given of his change of mind and some changed procedure would evolve through the Bill.

I suppose that the alternative to that is even more unpalatable; that is somebody who, when appointed Lord Chancellor, was a member of the Church of England but, beset with the slings and arrows of outrageous fortune, decided to become an agnostic. Immediately there would arise a need to make a declaration so that something happened under the provisions of the second amendment to the Bill.

I raise those points not because I differ in any way at all from what the noble Lord who moved the Second Reading of this Bill had to say about Northern Ireland. I say only that, with the approach of the millennium, we all pray that the almost limitless efforts of the Prime Minister and the Secretary of State will achieve the very object that I know he has so much at heart; namely, a durable peace in Northern Ireland.

12.12 p.m.

The Bishop of Southwell: My Lords, I intervene very briefly to say that from these Benches, we are very much in sympathy with the ideas and thoughts behind the Bill. We have no difficulties or problems with it, apart from those which the noble Lord, Lord Mishcon identified.

However, I assure the noble Lord, Lord Alderdice, of our understanding and sensitivity to his concerns. Our position within the Church of England would be to wish to work in any way to discern what is the right way ahead. We sympathise and identify with his concerns. However, I am not too sure that there is a necessity for such a Bill to be brought forward.

12.13 p.m.

Lord Burnham: My Lords, I apologise to your Lordships for intervening in the gap and thank the House for giving me the opportunity to do so.

It was deliberate that on these Benches we did not put down anybody to speak in the debate. However, on further consideration, it was felt better that we should at least make an appearance but, according to the convention in these cases, I shall be very brief.

The noble Lord, Lord Alderdice, touched at one moment on a problem which is facing all of us who must take an interest in the constitutional matters of this

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country. He said that this Bill was being welcomed because it removed all elements of sectarianism. That sectarianism could be otherwise described as the Established Church and removing it, could be considered to be part of the disestablishment of the established Church, although that may be a very small point.

I found the speech of the noble Lord, Lord Mishcon, absolutely fascinating. I was glad to hear many of the things that he said which I had not discovered from the 1974 Act. However the position that we take is that we are worried about this Bill. Therefore, I should prefer to listen to the noble and learned Lord the Lord Chancellor. We always listen to debates in this House before making up our minds as to how we should vote. On this occasion, we shall do that having listened to the noble and learned Lord and having found out where he stands with regard to the Bill.

12.15 p.m.

The Lord Chancellor (Lord Irvine of Lairg): My Lords, the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974 was promoted by my noble and learned predecessor, the noble and learned Lord, Lord Hailsham of Saint Marylebone, in 1974 when the late Lord Elwyn-Jones, whom your Lordships' House remembers with such affection, sat on the Woolsack. In fact--I hope my noble friend Lord Mishcon will forgive me--in 1974, Lord Elwyn-Jones had assumed the Woolsack but mercifully Lord Gardiner, who had been Lord Chancellor from 1964 to 1974, remained an active Member of your Lordships' House and participated in the debate as my noble friend indicated.

Lord Mishcon: My Lords, may heaven, who guards all religions and sects, forgive me for interrupting my noble and learned friend, but I have the Second Reading debate in my possession and Lord Gardiner is cited in that debate as being the Lord Chancellor.

The Lord Chancellor: My Lords, I shall verify that but your Lordships will see from Hansard that Lord Gardiner is named as Lord Gardiner and the Lord Chancellor speaks at the end. However, I may be wrong and I shall check that.

Section 1 of that Act provided:

    "For the avoidance of doubt, it is hereby declared that the office of Lord Chancellor is and shall be tenable by an adherent of the Roman Catholic faith".

Section 2 provided:

    "In the event of the office of Lord Chancellor being held by an adherent of the Roman Catholic faith it shall be lawful for Her Majesty in Council to make provision for the exercise of any or all the visitational or ecclesiastical functions normally performed by the Lord Chancellor, and any patronage to livings normally in the gift of the Lord Chancellor, to be performed by the Prime Minister or any other Minister of the Crown".

The Act had one basic purpose: to remove a doubt whether Roman Catholics lacked the capacity to hold the office of Lord Chancellor. It did so and I agree with the noble Lord, Lord St. John of Fawsley, that it did so

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unequivocally. I do not see how there can be any continuing doubt on the subject, whether in Northern Ireland or anywhere else.

The noble and learned Lord, Lord Hailsham, thought that apart from the Bill which he was promoting, Roman Catholics did not suffer from that incapacity. His own view, expressed at col. 416 of Hansard, was that there was nothing to bar anyone of any religious persuasion from conscientiously discharging the duties of Lord Chancellor. That is why he said that his Bill was cast in a form to remove a doubt.

Certainly, however, as the noble and learned Lord, Lord Hailsham, recognised, there was a doubt. No less an authority than Lord Simon, the Lord Chancellor in 1943, expressed the view,

    "that the doubt was sufficiently real ... to stop a Prime Minister, in practice, from recommending the appointment of an otherwise suitable candidate".

There had been a diversity of views on the subject. The contrary view had apparently been expressed by Lord Haldane, a former Lord Chancellor, before he assumed the Woolsack and when he was in private practice in 1900. His opinion, quoted in Hansard at cols. 418 to 419, was that,

    "there was no legal incapacity in a Roman Catholic from holding the office of Lord Chancellor".

However, again at col. 419 of Hansard, the noble and learned Lord, Lord Hailsham, accepted that the contrary view was that,

    "the peculiar wording of the Act of 1867 imposed a new disability which had not previously existed".

I assume that he was referring to the Test Abolition Act 1867. Hence his Bill was declaratory only and to remove that doubt. On that occasion, the noble and learned Lord, Lord Hailsham, explained that the Bill did not deal with Jews, Moslems, Christian Scientists, Bhuddists or atheists because there was no doubt that persons in those categories did have the capacity to become Lord Chancellor. Lord Gardiner agreed, saying at col. 422 of Hansard:

    "There is no disqualification except this doubt"--

which he described as "substantial"--

    "as to whether a Catholic could be Chancellor".

Then, as I believe, from the Woolsack--although we will have to verify whether it was Lord Elwyn-Jones or Lord Gardiner--

Lord Mishcon: My Lords, perhaps I may make an apology to the noble and learned Lord. I have referred back to the Second Reading debate and have found that he is right and I am wrong.

Lord Chancellor: My Lords, it is, therefore, with greater confidence that I can proceed. Not only do we have a multiplicity of opinions on the subject of whether Catholics were disqualified from being Lord Chancellor from a miscellany of Lord Chancellors, but we also have confusion as to who was sitting on the Woolsack on that particular day. But, mercifully, the noble Lord, Lord Mishcon, and I are now in agreement that it was indeed Lord Elwyn-Jones.

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As I was saying, from the Woolsack, Lord Elwyn-Jones said at col. 429 of Hansard, that everyone would regard it,

    "as an indefensible anachronism that a person should be debarred from ... this public office of Lord Chancellor ... because of a doubt as to whether Parliament intended that his religious beliefs should disqualify him".

I, too, am of the view that there is no doubt in relation to any other faiths and, therefore, there is no need for this Bill. But I go further. As regards standing Section 2 of the 1974 Act, I am of the view that to amend it as the Bill proposes and replace within that section the words,

    "being held by an adherent of the Roman Catholic faith",

with the words,

    "a person who is not a member of the Church of England",

would make a Moslem, a Christian Scientist, a Buddhist or an atheist liable to have removed from him,

    "the exercise of any or all the visitational or the ecclesiastical functions normally performed by the Lord Chancellor, and any patronage to livings normally in the gift of the Lord Chancellor".

The only reason for Section 2 of the 1974 Act was, as the noble and learned Lord, Lord Hailsham, explained at col. 419 of Hansard that,

    "there is a general statutory bar to the exercise of ecclesiastical patronage by a Roman Catholic".

No doubt the noble and learned Lord was referring to Section 17 of the Roman Catholic Relief Act 1829. There is no such bar on a Lord Chancellor who is a Moslem, a Christian Scientist, a Buddhist or an atheist.

In short, I am of the view that the noble Lord's Bill, although well intentioned and designed to ensure equality among those of different faiths or none in ensuring that all have capacity to become Lord Chancellor, is both not required for non-Catholics; and, if the 1974 Act were to be amended as proposed by the Bill, it would make a Lord Chancellor of the faiths to which I have referred liable to have removed from him the functions listed in Section 2 of the 1974 Act when, in law, there is no bar on him discharging those functions. Therefore, as at present advised, the Government cannot support the Bill.

12.24 p.m.

Lord Alderdice: My Lords, I am grateful to all noble Lords who have spoken in this debate and done so in such a thoughtful, sensitive and, indeed, well-informed way. I certainly do not bring forward the Bill with any sense that I am particularly well informed on the matter. In particular, perhaps I may mention the courteous and eloquent comments made by the noble Lord, Lord Mishcon, which I deeply appreciate, especially those references to myself and my small efforts.

There are, however, a couple of issues to which I feel I must return. The first is the question of whether it was ever necessary to clarify the position with the 1974 Act. I am trying to clarify something that is apparently a little unclear. I submit that it is hardly persuasive to suggest that the 1974 Act was also unnecessary, if in truth it were the case that a Roman Catholic could perform these functions.

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Secondly, we must look at the historical background. In truth, for a long time after the Reformation there were only two possibilities: either you were a Protestant or you were a Catholic. It is the case now in Northern Ireland that you can be a Protestant Jew or a Catholic Jew or, indeed, a Protestant Moslem or a Catholic Moslem; but the crucial issue is whether or not you are a Protestant or a Catholic. In a sense that was the case in this country for a long time, except perhaps for the long-standing and extraordinary contribution of the Jewish community.

There is an interesting question which has not been touched upon at all; namely, the notion not that someone might be barred by others from being Lord Chancellor because of his religious convictions or his conviction against any religious view, but that someone might be of sufficient conscience that he might feel himself barred. Is it extraordinary to take the view that someone who is an atheist, and one of conviction, might well say, "I think that it is entirely improper for me to take the position of Lord Chancellor if it means that I have to make decisions upon the functioning of the Church"?

Indeed, if I were a Jew, a Moslem or a Buddhist--or perhaps even a Non-Conformist--I might feel strongly enough in my conscience that I would say, "I think that this is an entirely improper way to go about things". There may be others who would be happy to say, "Well, I do not think that it is sufficiently important that I'll bother doing anything about it; I shall just go ahead and rubber-stamp the proposals that come up from civil servants below". Is it unreasonable to assume that there are those who have such real convictions on matters of conscience that they would not want to be put in such a position and that, therefore, they would resile from it?

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