The maintenance of denominational teaching, a note upon section 7 (1) of the Education Act, 1902

Preface

OCCASIONAL opportunities in a quiet life have led me to devote the best attention that I have at my command to the Education Act, 1902, and the two important serils of Statutes — the Education Acts and the Charitable Trusts Acts — with which it is connected. I commenced with an " open mind," without any preconception, except a vague opinion that probably the Act did not deserve either every word of Mr. Balfour's praise or every word of Dr. Clifford's condemnation. It was not long, however, before I found myself compelled to conclude that in several cardinal particulars the much -debated legislation of three years ago had been widely misunderstood, and I so far gave reins to my ambition as to form the purpose of writing a short series of notes setting forth what I conceived to be the true meaning and legal effect of the new statute. I had no political object in view — my interest was that of the interpreter, not of the partisan — and I had no intention of appearing

on either side of the confused controversy that

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1 5 31 53 iv PREFACE

accompanied the passing of the Bill and attended upon the administration of the Act. I knew, of course, that some of the questions I proposed to discuss had occasioned perduring displays of rhetoric that could not always be called moderate or helpful, but I hoped to keep myself as free from party prepossessions as from partisan irrelevance. I had, in fact, no more extravagant wish than to do some small thing that might, if Fortune favoured it, lift the discussion of those questions out of the tumult of the hustings into that serene air of academic inquiry where thought is completely practical and reasoning unimpassioned — save by love of truth.

I did not work methodically through the Act, but followed the promptings of vagrant interest and the invitation of chance opportunities. Consequently, it was some time before I found myself face to face with Section 7 and with the primary question which that part of the Act suggests. I knew the ordinary interpretation of the Section, but my own inquiries led to a result so widely different, and which seemed, if true, to be so important, that I thought it best to lose no time in submitting my conclusion to the judgment of "those who know" — whose information might supplement my knowledge or correct my inferences.

This isolated note is, therefore, published in

PREFACE v

advance of the others. I dare not hope to convince every one — indeed, it may be that the only conversion wrought will be in my own opinions, but, in the interests of clear thought and sound administration, I beg that those who read it and feel constrained to express dissent will do me this one favour — will point out precisely where the negative argument breaks down. The result that seems so urgently to invite discussion is simply this :—

Local Education Authorities are not empowered by the Act of 1902 to " maintain " religious instruction in non-provided schools.

If this be true, several interesting conclusions follow.

(1) Expenditure by a Local Education Authority, for the maintenance of religious instruction in non-provided schools, is illegal expenditure.

(2) The maintenance of religious instruction in non-provided schools is not one of the duties that can be enforced by writ of mandamus under Section 16 of the Education Act, 1902.

(3) Refusal by a Local Education Authority to "maintain" religious instruction in a non-provided school would not be a "default" within the meaning of the Act of 1904.

(4) A Local Education Authority cannot infer vi PREFACE

from Section 7 (i) (b) of the Act power to inspect the religious instruction in non-provided schools.

(5) It is not lawful for a Local Education Authority

(a) to pay the teachers in non-provided schools for their services (if any) in or towards the giving of religious instruction in those schools, or

(I) to prohibit the attendance of any of those teachers at Church whenever their children are lawfully at Church.

(6) Section 13 (i) of the Act of 1902 will not transfer to a Local Education Authority any charitable monies applicable in or towards religious instruction.

(7) Neither "Rome" or any other religious body is — in Dr. Clifford's sense — " on the rates."

(8) As the "Welsh Revolt" is primarily against the alleged obligation to spend " public money " in the maintenance of an unpopular creed, there may now — unless the "revolt" express a permanently intolerant intention — be hopeful prospect of a better peace in Wales than Mr. Lloyd George dreams of.

(9) As the Act of 1902 is, thus far, in undesigned and unconfirming coincidence with the political ideals that underlie " Passive Resistance," there should no longer be any occasion for that unedifying vindication of " law and order " which, by embittering our religious differences,

PREFACE vii

has widened the intolerable breach between those who ought to be at one.

(10) If, under Section (7) i (a) of the Act of 1902, Local Education Authorities can fix the hours for secular instruction in non-provided schools, that is the one remaining point of dangerous contact between those Authorities and denominational teaching.1

One word more, I am a Conservative, and differ as widely as possible from the practical policy of Mr. Lloyd George and from the political philosophy of Dr. Clifford. In Utopia these particulars would be irrelevant to the note which these lines preface, but we are not in Utopia, and, in the world wherein we have actually to live, party allegiance so often depraves thought — even upon matters which are not what is ordinarily called political, — that I assume permission to mention them, lest silence should invite the conjecture that I have been illogically helped to my conclusions by sympathy with administrative injustice, or by symbolism with those scrupulous consciences that prove their loyalty to a perversion of the Gospel by eloquently submitting to the gratifying pleasures of a trivial martyrdom.

Yet another word as to the method of

1 Fortunately, however, another interpretation of Section 71 (a) seems to be not improbable. See Appendix.

viii PREFACE

interpretation I have followed. I have presupposed

(1) that the primary provisions of a Statute are ordinarily to be construed according to their plain grammatical sense ;

(2) that accidental expressions in subordinate sections cannot affect the meaning of primary sections, if that meaning be clear, although they may help us to resolve a doubt ;

(3) that the intention of individual legislators is not the same thing as the " intention of Parliament," and can never override the plain utterance of Parliament ;

(4) that the general structure of an Act is often a valuable guide to the meaning of a particular Section ;

(5) that no Act which affects a complex legal and administrative system can safely be interpreted as though it stood alone ;

(6) that, ordinarily, we may not infer an important change from words incidental to another purpose ;

(7) that a Statute ordinarily means no more than it says, and accomplishes no more than the work it defines.

These presuppositions, however, seem necessarily constituent in the very basis of scientific interpretation.

THE MAINTENANCE OF

DENOMINATIONAL

TEACHING

A NOTE UPON SECTION 7 (i) OF THE EDUCATION ACT, 1902

Does the Education Act 0/1902 enable or compel a Local Education Authority to " maintain " religious instruction in a non-provided public elementary school?

The opening words of Section 7 direct that "the local education authority shall maintain and keep efficient all public elementary schools within their area which are necessary, and have the control of all expenditure required for that purpose, other than expenditure for which, under this Act, provision is to be made by the managers; . . ."

What is the effect of this enactment ? Does it place " Rome" on the rates? Does it charge the new Local Authorities with the cost of denominational teaching ?

These questions have usually been answered in io DENOMINATIONAL TEACHING UNDER

the affirmative — sometimes with what seems to be authority ; but, before examining the grounds of this reply, I will set forth the arguments that point towards a contradictory conclusion.

A. The negative answer rests ultimately upon the contention that the words " public elementary schools" in Section 7 not only indicate the schools that are to be maintained, but also define the range of "maintenance."

a. According to the still subsisting definition in Section 7 of the Elementary Education Act, 1870, a public elementary school is an elementary school "which is conducted in accordance with the following regulations . . . namely,"

"(i) It shall not be required, as a condition of any child being admitted into or continuing in the school, that he shall attend or abstain from attending any Sunday school, or any place of religious worship, or that he shall attend any religious observance or any instruction in religious subjects in the school or elsewhere, from which observance or instruction he may be withdrawn by his parent, or that he shall, if withdrawn by his parent, attend the school on any day exclusively set apart for religious observance by the religious body to which his parent belongs :

" (2) The time or times during which any religious observance is practised or instruction in religious subjects is given at any meeting of the school shall be either at the beginning or at the end or at the beginning and the end of such meeting, and shall be inserted in a time-table to be approved by the Education Department, and to be kept permanently and

THE EDUCATION ACT OF 1902 n

conspicuously affixed in every schoolroom ; and any scholar may be withdrawn by his parent from such observance or instruction without forfeiting any of the other benefits of the school :

" (3) The school shall be open at all times to the inspection of any of Her Majesty's inspectors, so, however, that it shall be no part of the duties of such inspector to inquire into any instruction in religious subjects given at such school, or to examine any scholar therein in religious knowledge or in any religious subject or book :

"(4) The school shall be conducted in accordance with the conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant." (Education Act, 1870, Section 7.)

Therefore, under Section 7 of the Act of 1902, every elementary school which is " conducted in accordance with " these regulations is entitled to " maintenance/' but, obviously, only because it is so conducted, and, one may argue, only as so conducted. The Statute uses the words " regulations " and " conditions," but, if — for the sake of simplicity — we use the one word " conditions " to cover also " regulations," we may say that, according to the Act of 1870, a public elementary school is a school which fulfils certain prescribed conditions, and that, under the Act of 1902, such a school is entitled to " maintenance," but, we may argue, it is entitled to " maintenance " only because it fulfils those conditions, and only in fulfilling those conditions. In other words, it is the public elementary school as suck, and only as suck, that the Local Education Authority is directed to maintain. This does not mean that the Authority cannot lawfully maintain a school which, besides conforming to the regulations which are normative for public elementary schools, also does something more, but only that the "something more" in such a school cannot lawfully be "maintained" by the Authority. An Act which directs a Local Education Authority to maintain a public elementary school will, of course, warrant the maintenance of everything which, as an essential, is constituent in, or contributory to, either the being or character of the school as a public elementary school, but the warrant will carry no farther. It will not cover the maintenance of anything which is not, in one or other of these ways, essential.

The public elementary school is a certain complexus of regulated and, as we shall presently see, defined activities.1 If Parliament direct that

1 The appelative " public elementary school " is an indication of status, not of nature. When a Church school becomes a public elementary school, we have no ground for assuming that all its functions are, henceforth, functions of a public elementary school, or that it has no other functions than those of a public elementary school.

The word " barrister " is also a mark of status, but a man who is a barrister is, and must inevitably be, more than a barrister. He may be husband or brother, he is probably an elector, and certainly he is an ethical personality, and, as such, has a vocation which not even the most praiseworthy zeal in the courts can entirely fulfil.

it be " maintained " by the Local Authority, that Authority is authorised to maintain that cornplexus, but nothing more, unless the " something more" be contributory, as an essential, to the being or character of the complexus — a conditio sine qua non.

Now, it is quite clear that, prior to the Act of 1902, religious instruction was not one of the necessary services of a public elementary school. Indeed, in one large class of schools — the Board Schools, all of which were public elementary schools — it might lawfully be omitted altogether.1

It is certain that, until the Act of 1902 came into force, a non-provided school might give only secular instruction, and yet fully satisfy the parliamentary definition of a public elementary school. It may be said that most non-provided schools are subject to trusts which require religious instruction to be given. True, but nothing in the regulations that defined the character of a public elementary school required those trusts to be executed.

If a school subject to such trusts provided no religious instruction, there would, indeed, have

1 The defining words in the Act of 1870 lay down certain regulations which must be observed in a school that is a public elementary school if religious instruction be therein given, but do not make the giving of religious instruction constituent in the character of a school as a public elementary school, nor did anything in the Minutes of the Education Department make that instruction obligatory.

i4 DENOMINATIONAL TEACHING UNDER

been a breach of trust, but that breach would not have affected the standing of the school as a public elementary school, and the remedy and the penalty (if any) had to be sought under the Charitable Trusts Acts, not under the Education Acts.

The inference seems plain and inevitable. Religious instruction was not among the ends which Parliament proposed to compass by means of public elementary schools. Had it been, Parliament would certainly have made the proper execution of the religious trusts affecting a denominational school constituent in the character of that school as a public elementary school.

Nor is it sufficient to reply that, as the Charitable Trusts Acts and the practice of the Court already adequately safeguarded the execution of those trusts, there was no. need to extend the encouragement of a parliamentary grant to this part of school work. This may explain why religious instruction is not grant - earning. It does not explain why the religious instruction given in a school which is a public elementary school is not constituent in the character of that school as a public elementary school.

Had religious instruction been among the ends which Parliament hoped to achieve by means of public elementary schools, it would certainly have made the execution of the " religious-educational " trusts impressed upon a denominational school

" constituent in the character of that school as a public elementary school," even though it had still proceeded to enact, concerning the annual parliamentary grant —

"Such grant shall not be made in respect of any instruction in religious subjects " (Elementary Education Act, 1870, Section 97).

From the indubitable fact that Parliament did not do this, we may, and indeed must, infer that, according to the definition of 1870 (Sections 7 and 97 Elementary Education Act, 1870), religious instruction was not one of the ends of a public elementary school.

ft The Act of 1902, however, makes the receipt of a parliamentary grant dependent upon conditions not previously imposed.

" One of the conditions required to be fulfilled by an elementary school in order to obtain a parliamentary grant shall be that it is maintained under and complies with the provisions of this section " (Education Act, 1902, Section 7 (4)).

Now among the provisions of Section 7 is the following : —

" (6) Religious instruction given in a public elementary school not provided by the local education authority shall, as regards its character, be in accordance with the provisions (if any) of the trust-deed relating thereto, and shall be under the control of the managers."

Does this affect the administrative definition of a public elementary school ? l

I. Clearly, the new condition of 1902 does not directly and in virtue of its own words alter the definition, and we could not a priori hold him unreasonable who would argue that the definition of 1870 subsists until Parliament formulates a new definition, or enacts something that is manifestly intended to change the definition, or that necessarily infers a change in it.

Section 7 (4) of the Act, 1870, provides, as we have already seen, that a public elementary school

" shall be conducted in accordance with the conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant."

Those conditions, in their most general form, are set out in Section 97 of the same Act —

" 97. The conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant shall be those contained in the minutes of the Education Department in force for the time being and shall amongst other matters provide that . . .

"(i) Such grant shall not be made in respect of any instruction in religious subjects :

but such conditions shall not require that the school shall be in connection with a religious

1 By " administrative definition," I mean the whole body of particulars—including the articles of the Code— that, at a given moment, constitute and define our conception of a public elementary school.

denomination, or that religious instruction shall be given in the school, and shall not give any preference or advantage to any school on the ground that it is or is not provided by a school board.

"Provided that no such minute of the Education Department

• ••••••

shall be deemed to be in force until it has lain for not less than one month on the table of both Houses of Parliament."

These two sections taken together constitute the 1870 definition of a public elementary school. Does Section 7 (4) of the recent Act change that definition ?

The affirmative answer seems an easy inference from the legislation of 1870; but it has no adequate statutory ground, and, if adopted, would lead to at least one result contrary to the clear intention of Parliament.

II. A statutory definition perdures until it be ended or mended by Parliament, and the intention of Parliament to end or mend is ordinarily expressed in some enactment which either

(a) formulates a new definition, or

(b) makes or infers some alteration in, or addition to, the subsisting definition.

Less frequently

(c) we read an amending meaning into an obscure enactment by gathering from other enactments a correspondent intention to amend, or

B

(d) extend the grammatical meaning of an enactment by constructively interpreting it as amending.

Now, it is clear that the Act of 1902 does not formulate a new definition of a public elementary school. Nor does Section 7 (4) of that Act directly and in virtue of its own words alter the definition. Its immediate effect is only to add certain new particulars to the conditions that must " be fulfilled by an elementary school in order to obtain an annual parliamentary grant."

But does it infer an alteration ?

A public elementary school must " be conducted in accordance with the conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant " (Elementary Education Act, 1870, Section 7 (4)).

Does this compel us to infer that Section 7 (4) of the later Act — which, in so many words, requires a new condition to be fulfilled, — now forms part of the administrative definition of a public elementary school ? Must we perforce conclude that a school, in order to be recognised as a public elementary school, must now fulfil this new condition— must be maintained under and comply with the provisions enacted by Section 7 of the Act of 1902 ?

Let us look once more at the primary definition of 1870: —

" 7. Every elementary school which is conducted in accordance with the following regulations shall be a public elementary school within the meaning of this Act.

"(4) The school shall be conducted in accordance with the conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant."

If we substitute "conditions from time to time required" for "conditions required," the suggested inference would, I think, be clear and necessary.

But have we any warrant for making the substitution? We cannot pretend that the two phrases are equivalent, or that the absence of reference to the future in the actual text of the Statute is, primd facie, insignificant.

The plain, grammatical sense of this Sub-section does not compel us to infer that conditions later than those of 1870 necessarily furnish new particulars to the administrative definition of a public elementary school. We may, indeed, by a study of some later condition, be led to believe that it does, in fact, furnish new particulars to the definition ; but, if we reach this conclusion, it is not by inference from Sub-section 4, but from the nature of the given condition and from its context, — from its context, that is, as determined, not merely by its place in the statute which enacts it, but by its place in the general body of the law. We then say either that

Sub-section 4 is patient of the change, or that it has been constructively amended ; but the change itself we infer, not from Sub-section 4, but from the meaning and effect of the new legislation.

Section 7 (4) of the Act of 1870 enacts that a public elementary school " shall be conducted in accordance with the conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant.

In Section 97 of the same Act we have those conditions stated in their most general form.

"The conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant shall be those contained in the minutes of the Education Department in force for the time being, . . . '

It seems reasonable to hold that Section 97 is explanatory of Section 7 (4) — to read it, indeed, as continuing the definition commenced in Section 7. That section speaks of " conditions required to be fulfilled," and Section 97 tells us what those conditions are — says that the "conditions required to be fulfilled " shall be those that it immediately proceeds to indicate.

It is clear, then, that we have in Section 97 the conditions referred to in Section 7 (4).

Look yet again at the wording of Section 97. 11 Minutes of the Education Department in force for the time being." These words make Section

97 not only definitive, but also regulative. Not only does it express the then present mind of Parliament as to the conditions then to be fulfilled by the then existing schools : it legislates also for the future. It is, as its grammatical structure plainly shows, a general regulation — general, not only for all public elementary schools, but for all present and future time. Indeed, it is only a general regulation, and the administrators of thirty years ago could infer its then present effect only from words that covered the future as well. It contains precisely that provision for future change which is absent from Section 7 (4), but the provision is made by the very same words that regulate the present. The Section is temporally universal over everything but the past, and legislates for a particular time — be that time present or future — only by one general rule.

Just, then, as Section 7 (4) of the 1870 Act is the primary definition of a public elementary school, so Section 97 is the primary determinant of the conditions which a public elementary school must fulfil "in order to obtain an annual parliamentary grant." They are primary, not only in time, but also in law.

It seems, then, perfectly reasonable to read Sections 7 and 97 as constituting one definition — the 1870 definition of a public elementary school. In the text of the Act they are, it is true, widely separate, but this results from the structure of the Act, and probably subserves nothing more important than now a draughtsman's and now an administrator's convenience.

The definition of a public elementary school given in Section 7 is, clearly, an incomplete definition, for its last sub-section leaves unanswered a question of the first importance. It says that a public elementary school " shall be conducted in accordance with the conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant." But what are those conditions? Until we know them we can do nothing. Section 7 is ineffectual unless and until supplemented by Section 97. l It is difficult to see how this relation between the two sections could be more accurately expressed than by describing them as co-efficient in one statutory definition.

Now, in Section 97, Parliament legislates " by reference." The conditions it thereby prescribes are " those contained in the minutes of the Education Department for the time being." In this way it makes provision for future change. The Minutes referred to constitute what has been ordinarily called "The Day-School Code." But that Code is not a finally-completed corpus of regulations, — any permissible change can at any

1 And, of course, unless and until Section 7 be thus supplemented, other parts of the Act also must remain ineffectual.

time be brought about by means of the Minutemaking power.1

The omission of such a provision for the future from Section 7 (4) now becomes clearly intelligible. Parliament did not enact a rigid definition ; it provided for change, but it made the Minutes of the Education Department the instruments of change.

The omission also becomes significant. According to Section 7 (4), not every change in the " conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant " affects the administrative definition of a public elementary school, but only changes made by Minute. It may well be that other changes — statutory changes — also affect the definition ; but, if they do, the result follows, not by inference

1 Suppose Parliament to enact a new condition, and that to be afterwards embodied in a Minute. It will then be one of the conditions " contained in the Minutes of the Education Department in force for the time being" (Section 97). Will this new condition, when thus embodied, add new particulars to the administrative definition of a public elementary school ? Apparently not. The last clause of Section 97 provides that

"no such Minute of the Education Department . . . shall be deemed to be in force until it has lain for not less than one month on the table of both Houses of Parliament."

Evidently, when Parliament made provision for a change in the definition of a public elementary school by departmental Minute, it had in view only Minutes of a merely departmental authority, not those that repeat its own enactments. Therefore, Article 77 of the Code — which virtually repeats Section 7 (4) of the Act of 1902— does not add new particulars to the administrative definition of a public elementary school.

from Section 7 (4), but by inference, in each case, from the principiant change.

We have already seen that Section 7 (4) of the Education Act, 1902, does not itself directly add new particulars to the administrative definition of a public elementary school. We now conclude that the numerically correspondent section of the Elementary Education Act, 1870, affords no ground for inferring such an addition from the new condition of 1902.

III. But can we discover any other ground for this inference, or can we discover any sufficient and compelling reason for a constructive extension of the 1902 enactment?

(i) We must, in the first place, call attention to an important distinction.

An inference of change grounded upon Section 7 (4) of the Act of 1870 would, in virtue of its ground in the primary definition of a public elementary school, be immediately legislative — would establish the change — unless we could somewhere discover clear evidence that the change, if made, would be contrary to the legislating intention of Parliament. But an inference of change grounded elsewhere would, ordinarily, not be authoritative unless supported by a manifest or reasonably presumed intention. An amendment of a primary enactment may not be inferred from a secondary enactment or from an incidental expression, unless the inference be thus supported.

Now, in the present case, no such support exists. On the contrary, Parliament has given a clear indication that it did not intend the new condition of 1902 (Section 7 (4), Education Act, 1902) to infer a change in the definition of a public elementary school.