Clause 20 — Judicial oath or affirmation

Orders of the Day — Justice (Northern Ireland) Bill – in the House of Commons at 7:00 pm on 4th March 2002.

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Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland 7:00 pm, 4th March 2002

I beg to move amendment No. 45, in page 13, line 22, leave out from "either" to end of line 34 and insert—

'take the oath of allegiance and the judicial oath or make the appropriate affirmation.'.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following amendments: No. 81, in page 13, line 28, leave out "according to" and insert "upholding".

No. 82, in page 13, line 34, leave out "according to" and insert "upholding".

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

This is an important amendment but the issues at stake are straightforward and can be simply put. We wish to restore, by means of the amendment, the normal oath of allegiance as it is taken by judges elsewhere in the United Kingdom. There are three arguments that the Government have to address with regard to clause 20. I continue to hope that the Government will accept our view that this is a concession too far and will take the opportunity of accepting amendment No. 45 to restore the position. If they do not, they will have clearly defined the differences that separate us. Those are not nuances of differences of emphasis but differences of fundamental principle. Let me set out those three arguments as simply as I can.

The first argument, which I hope the Government will not take issue with, is that oaths are important. They mean something; they are not symbols. Oaths create obligations—that is their purpose. In this case, the oath of allegiance enshrines the fact that justice in this country flows from the Crown. If the Minister does not think that justice flows from the Crown, the onus is on him to tell us where it does flow from. If he wishes to create an ambiguity so that although the position is not as clear as it is today, justice is not deemed to flow from any other source, he must justify that. Ambiguity in legal matters is always problematic and generally undesirable. We positively believe in the principle that justice flows from the Crown and that judges should undertake an oath of allegiance to the Crown.

The second major issue between us and the Government is that if that principle is right—and it can be right or wrong—it should, by definition, be extended to the whole kingdom. If a principle of justice is right, it is, by definition, right for everybody. What concerns us is not the suggestion that that principle should be set aside, with republicanism introduced into our legal system and the oath of allegiance abolished. That would be a dramatic move by the Government although they have not done that. Instead, they have decided that in most of the country the principle on which our justice is based should continue while in one part of the country that principle should be changed. That is a dubious procedure; it is a discriminatory and partial approach to a fundamental issue.

This is, by definition, a republican measure. The Government do not want, or do not have the courage—I do not know which it is—to make such a change for the country as a whole, but intend to limit it to one part of the country. That position cannot be sustained—one cannot have a principle that is valid in one part of the country and not elsewhere because a principle, by its nature, is universal and should be applied equally and fairly everywhere.

Why are the Government doing this? There is no doubt that it is part of an agenda to erode, by stealth, the position of the Province of Northern Ireland in the United Kingdom, and that is extremely worrying.

The Opposition are committed to the Belfast agreement, as are, notionally, the Government. The agreement says clearly that there should be no change in the status of Northern Ireland except by the vote of the people of Northern Ireland. We endorse that utterly. It is wrong and inconsistent with the principle of the Belfast agreement that a change should be effected by stealth in this piecemeal fashion. It is death by a thousand cuts; that is the approach of the Government and it is one that we reject.

Thirdly, we must look at this move in the context of the Government's general policy towards Northern Ireland, particularly over the last few months. I have characterised that policy—rightly, I am convinced, because the Government have never quarrelled with my definition—as an endless series of one-way concessions, almost all of them simply designed to appease Sinn Fein-IRA, which is just one of the parties to the Belfast agreement and to the peace process.

I have said over and over again that we believe that is a disastrous approach to implementing the Belfast agreement. If we are to have peace in Northern Ireland, it must be based on a sense of balance and fairness. For the first time ever at the weekend, the Secretary of State—in an "On the Record" interview that I did not see but of which I have seen a transcript—actually recognised that the perception in Northern Ireland is that all of the concessions have been one way, against Unionism. He said:

"I am aware of the perception that on balance there has been more taken away from Unionists and from those who feel British and given to those who are of an Irish background."

The Secretary of State is entirely endorsing the analysis that we have made and which we have put before him over the last few months. The balance has been broken in Northern Ireland and there is no sense of fairness. There is simply the sense of a one-way street.

Photo of John Reid John Reid Secretary of State, Northern Ireland Office, The Secretary of State for Northern Ireland 7:15 pm, 4th March 2002

First, I should thank the hon. Gentleman for telling me what I said; I know, since I am the person who said it. As he will see if he reads further on in the transcript—I had to correct the interviewer in the same way as I am having to correct the hon. Gentleman—I was careful to distinguish between the reality and the perception. I fully acknowledged the perception that the process was imbalanced. Quite wrongly, the hon. Gentleman is using that to justify that it is in fact imbalanced.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

The Secretary of State is perfectly right. Anyone reading the transcript can see that, subsequently, the Secretary of State fought desperately to retrieve what he appeared to have given away. I do not doubt that at all. I dare say that, within seconds of mouthing those words, the Secretary of State began to regret them. There is evidence in the interview that that is what he wanted to do.

The Secretary of State is an experienced politician and he knows that when one is interviewed, one uses terms advisedly. Perhaps he should have thought more carefully about what he was saying. If it was a slip, clearly it was a Freudian slip. It was not a deliberate attempt to mislead anyone; I do not suppose that for a moment. If it was a slip, it was because he was too frank or candid. The Secretary of State is simply acknowledging the position that we have put to him for a long time. It is great progress that even if the Secretary of State has done so by a slip of the tongue or inadvertently, he has acknowledged that position, even in his own mind. Later this evening, we will discuss an instance where it appears that, for once, the Secretary of State responded in deed as well as in word to the worrying situation that the Government's tactics have created in Northern Ireland.

Photo of John Reid John Reid Secretary of State, Northern Ireland Office, The Secretary of State for Northern Ireland

I want to help the hon. Gentleman and prevent him from being unintentionally disingenuous with the House. Let me quote my words exactly before and after the interviewer:

"Secondly, I am aware of the perception that on balance there has been more taken away from Unionists."

The interviewer says later:

"Ah, well let's look at the reality."

There was no slip of the tongue. That is something that I acknowledged not only yesterday, but in a speech six months ago. The hon. Gentleman may not have heard it, but he has often quoted it.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

It is obvious that I have touched the Secretary of State on a raw nerve. He is obviously concerned about this quotation, and any hon. Member who wishes to read the whole transcript will see that it is amusing to see how the Secretary of State rowed back from what he said, which was very revealing.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Given the sensitivity surrounding politics in Northern Ireland, does the hon. Gentleman think that it is appropriate for a Conservative Front-Bench spokesman on Northern Ireland to define the success or otherwise of any policy in Northern Ireland by a points system for and against any particular community? Is that really a progressive and sophisticated way to define policy in Northern Ireland?

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. May I say gently to the House that we are not discussing politics in Northern Ireland as a whole, but a particular amendment concerning the judicial oath? I would like to hear further remarks in this debate confined to that.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

Indeed, Mr. Deputy Speaker, but this concession fits into a general pattern. We care about the implementation of the Belfast agreement, and it is important that if the Opposition are convinced—as, sadly, we are—that the Government's tactics are leading in the wrong direction and away from the aim that we all share, we should draw that to everyone's attention and use our influence to try to redress the position. We are not afraid of saying what we believe should be done. I have never run away from that.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

May I draw the hon. Gentleman's attention to the actual wording of the oath, as set out in clause 20? It says:

"I . . . do solemnly and sincerely and truly affirm and declare that I will well and faithfully serve in the office . . . and that I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm."

"This realm"—those words are in the Bill. Clearly that is a reference to the United Kingdom. I cannot see how this can be described accurately as, in the hon. Gentleman's language, "a concession".

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

I am not sure whether the hon. Lady listened to my remarks at the beginning, when I said that there were two ways of interpreting this Government initiative. The first is that it reflects a republican agenda and a desire to introduce an element of republicanism and to get rid of the mention of the Crown in our judicial system in parts of the kingdom. That is a bad thing for the reasons that I have set out, and we reject it on principle. The second possible explanation is that the Government have decided to introduce an element of ambiguity and they do not want to be clear.

Both of those things are wrong and damaging. Ambiguity is extremely bad in judicial matters, and I would have expected the hon. Lady—a distinguished professor of law—in any other context to go along with me on this matter. Difference is bad, because the Government are gratuitously introducing a distinction between the position in the rest of the UK and the position in Northern Ireland. I have rightly described that as an attempt by stealth to indicate that the status of Northern Ireland is different and an attempt by stealth to change it.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

If the hon. Lady will forgive me, I will not give way to her because of the lack of time. It is not my fault; it is the fault of the Government and the timetable in the House. Time is limited and she would not thank me were I to prevent her from speaking either in this debate or in debates on the many clauses that we ought to get through before we end our proceedings.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

I have given way to Members of the other Unionist party, so I shall be fair to the hon. Gentleman.

Photo of Ian Paisley Ian Paisley Leader of the Democratic Unionist Party 7:30 pm, 4th March 2002

Does the hon. Gentleman think it strange that Lady Hermon should quote from the Bill a passage that she wishes to change? She has tabled an amendment to change the very thing that she has argued for.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

I felt wry amusement and surprise when I heard the intervention of the hon. Member for North Down, but I shall leave her to defend her own comments to the other Northern Ireland parties.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

The hon. Lady feels unfairly embattled. To allow her to defend her honour and consistency, I shall give way to her, and, because I wish to be courteous to representatives of every Northern Ireland party, I shall give way to Mr. Mallon later.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I appreciate the hon. Gentleman's generosity. He said that the clause introduced ambiguity. How, for goodness' sake, can it be ambiguous to specify "this realm"?

Rev. Ian Paisley has doubtless made a careful reading of my amendment, which will have drawn to his attention the fact that I wish to change "according to" to "upholding". I should not have thought that he would object to anyone being required to uphold the law of this realm.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

The second part of that intervention was addressed to Rev. Ian Paisley, and I shall leave it to him to respond.

The first part was directed at me, and I can only say that I do not believe that when the hon. Lady teaches law in more sober and considered circumstances at the distinguished Queen's university, Belfast, she tells her students that changing a statute from saying one thing to saying something else does not create ambiguity. Any counsel pleading a case will draw the court's attention to the fact that the wording has been changed by Parliament. He will certainly argue that if Parliament had not intended to change matters, Parliament would not have changed the wording. I know perfectly well that that is what the hon. Lady would teach me if I were in her class in Belfast. I am sorry that she thinks that lower standards of intellectual rigour are appropriate in the House of Commons.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

I shall not give way again to the hon. Lady, but will give way to the hon. Gentleman.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

This is an interesting family squabble, but may I broaden the debate slightly? The hon. Member for Grantham and Stamford says that his party is in favour of the Good Friday agreement. In the context of this and other amendments, does he fully agree that

"parity of esteem and . . . just and equal treatment for the identity, ethos, and aspirations" of the two communities in Northern Ireland is essential? Does he fully support that principle, clearly enunciated in the Good Friday agreement?

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

Yes, I do, wholeheartedly, sincerely and without ambiguity. I do not believe that that principle is in conflict with a system in which we are all equal subjects of Her Majesty and equally subject to the justice of the realm. On the contrary, I believe that it would be strengthened by it. We should all be equally liable to be judged by judges who have taken the same oath of allegiance throughout the United Kingdom.

We have far too little time to debate these matters. The point before us is one of the most crucial and our amendment would restore the position in a way with which everyone in Northern Ireland can feel comfortable. Unless the House wishes to signal that the concessions being made to one side in Northern Ireland are to go even further, and if the balance is not to be even further destroyed and the sense of fairness further undermined, it is absolutely necessary that there should be nothing ambiguous about the source of justice in Northern Ireland or, unless the people of Northern Ireland decide otherwise under the Belfast agreement, the status of Northern Ireland as a part of the United Kingdom.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

I spoke on Second Reading in January but was unfortunately unavailable to serve on the Standing Committee because of other commitments. I hope that hon. Members who served on the Committee will bear with me as I catch up with the latest moves.

Given your earlier ruling, Mr. Deputy Speaker, I shall not deviate from the amendments. I had intended to comment on the fact that the consensual approach to Northern Ireland that was evident early in the debate had ended when Mr. Davies stood up, but I shall refrain from doing so.

It is a pity, and it is somewhat amazing, that the hon. Gentleman believes that his amendment is the best way to secure the trust of all the people of Northern Ireland. In spite of the history of Northern Ireland, he believes that retaining the royal oath in preference to the words in the Bill will somehow generate trust and security among all the people of Northern Ireland. That is incredible. It would be interesting to know what definition of republicanism the hon. Gentleman would offer. The oath contained in the Bill reads:

"I . . . do swear that I will well and faithfully serve in the office of . . . and that I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm."

That, according to the modern Conservative party, is a statement of republicanism.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

The hon. Gentleman quotes the passage quoted by Lady Hermon, and with exactly the same emphasis. Let me repeat what I said to the hon. Lady, since the hon. Gentleman obviously did not hear it. There are only two possibilities facing us. First, the Government intend to change something, in which case they are introducing an element of republicanism to the legal system in Northern Ireland. Alternatively, they do not intend to change anything but the wording, in which case they are creating uncertainty and ambiguity. I do not think that the hon. Gentleman can get away from that analysis.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

It ill serves the Conservative Front-Bench spokesman to talk in terms of introducing republicanism or caving in to republicanism when we are discussing such a sensitive and important Bill.

I was not a Member of the House when the legislation that set up the Northern Ireland Assembly was enacted. I do not know what the Conservative party's position was when the clauses concerning the oath to be taken by parliamentarians in Northern Ireland were debated. I understand that, unlike Members of this House, Members of the Northern Ireland Assembly do not have to swear the royal oath. That may provide the hon. Member for Grantham and Stamford with a good example of how rules can be different for Northern Ireland and the rest of the United Kingdom.

Governments of both shades have legislated over the years for different provision in Northern Ireland. It would be madness to say that because members of the judiciary in mainland Britain swear a royal oath, the same must apply throughout the United Kingdom. Surely the Conservative party has realised by now that Northern Ireland is different: that is why we are discussing the Bill. Circumstances and politics are different, and the oath should be different too. We must apply ourselves to the different culture and history of Northern Ireland, and we can surely do so without saying that something is a concession to republicanism.

In principle, the royal oath is right for judges in Great Britain, but it would be immature to say that we must extend that principle throughout the United Kingdom, including Northern Ireland, and that if we do not do so we are betraying the royal family and the Crown and giving in to republicanism. That is not the reality; it is not a mature attitude and the hon. Member for Grantham and Stamford does Northern Ireland and his party grave disservice by conducting the debate in the terms that he has used tonight.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am not concerned with the argument put at the beginning of the debate as to who has gained or who has lost—either in perception or in fact; but I am concerned with the integrity of the judicial system and the administration of justice in Northern Ireland.

I hope that I do not undermine anything said by my hon. Friend Mr. Davies when I say that I am reasonably sure that judges in Northern Ireland, and indeed any other part of the United Kingdom, will do their duty as judges irrespective of whether they take an oath. If they were simply to be sent a letter by the Lord Chancellor, or in Northern Ireland—following the devolution of justice—by the First Minister and the Deputy First Minister or the Lord Chief Justice of Northern Ireland, which stated, "Dear Bloggs, As from Monday 1 May you will hold the following appointment," I am reasonably confident that all those who were up to the job would do it to the best of their ability and fully in line with both the current oath and the one proposed in the Bill.

I cannot speak with 100 per cent. confidence, but I am fairly sure that at the moment I am the only person in the Chamber who has taken an oath of allegiance on appointment as a recorder. I took an oath of allegiance when I took silk, and I take such an oath every time I am returned to this place after a general election. I have managed to do that three times and hope that I may be allowed to do so a few more times.

I understand and value the oath of allegiance for several reasons, and I regret—to put it mildly—the fact that the Government have seen the need to make a change. I regret it because—as my hon. Friend the Member for Grantham and Stamford said—justice flows from the Crown. I apologise for paraphrasing my remarks in the Standing Committee, but there is misunderstanding both about the word "Crown" and about the institution to which people swear allegiance when they take the current judicial oath.

It is often thought by people who disagree with me—those who are embarrassed that in the 21st century we have a hereditary head of state—that we take the oath of allegiance only to a particular human being. We do not: we take an oath of allegiance to the structure of the state—if I may diffidently say that. It just so happens that in our country the monarch—the sovereign—is the human representation of the integrity of the state. That reminds us that we are democrats accountable to something bigger than ourselves, and that the Government are smaller than the state.

Over the past few years, the Government have sometimes tended to forget that. It is a truism to say so, but none the less the Government are here at the request of the majority of the voting public. Despite the Government's huge power, they are smaller than, and subordinate to, the Crown—not the Queen herself, but the state and the constitution.

Although we do not have a written constitution unlike some modern republics or the United States, that does not mean that our constitution is not worth remembering and upholding. It is written down, but not in a single document—it is to be found in several places. One of our most important sets of constitutional instruments are unwritten conventions whereby officers of the state—be they Cabinet Ministers or members of Departments—recognise their place in the constellation that is our constitution. I am fearful—perhaps too fearful—that the way in which the change to the oath is being approached is an indication that the Government misunderstand our constitution and do not want to preserve, or are careless of, the integrity of our United Kingdom and the constitution that rules it.

Despite the comments of the hon. Members for Glasgow, Cathcart (Mr. Harris) and for North Down (Lady Hermon), I can see a distinction between the use of the word "realm" in the proposed oath and in the oath of allegiance. I agree that realms normally have a monarch, but the word "realm" is, by and large, a geographical description, whereas the oath of allegiance to the Crown demonstrates a commitment to something beyond geographical definition.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart 7:45 pm, 4th March 2002

I rise to clarify a point about my contribution. The hon. and learned Gentleman suggested that I had emphasised the word "realm", but I am not aware that I did so. I expressed support for the wording in the Bill, but not especially for the word "realm". The rest of the oath is perfectly acceptable, reasonable and sensible—regardless of the inclusion of the word "realm".

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Perhaps when the hon. Gentleman took the oath, when he became a Member in 2001, he faced an intellectual or emotional difficulty, but I am delighted to see him here. Should he be fortunate enough to be re-elected, I trust that he will find no difficulty in taking the oath as he did recently—but I digress. I was making the short point that there is a difference between the word "realm" and what is implied by, and lies behind, the oath of allegiance to the Crown.

In essence, we take an oath to that non-political institution—the state—which is the provider and protector of laws and protects the citizens who live within the realm. There are any number of obvious connections between the Crown and the administration of justice. For example, criminal cases are brought in the name of the Crown, as in the case of Regina v. Smith or Bloggs. In this part of the United Kingdom, we have the Crown Prosecution Service. I agree with the amendments proposed by the Ulster Unionists: Public Prosecution Service is a desperately dull name, as well as demonstrating a misunderstanding of the nature of our constitution.

The police are servants of the Crown. Judges are servants of the Crown. Prison officers are servants of the Crown. The armed forces are servants of the Crown. Members of the civil service—I used to believe—were servants of the Crown. To return to my own self-important existence, the expression "Queen's Counsel" connotes some connection with the Crown.

The quality of our justice system has not been adversely affected by that connection with the Crown. I am concerned that by diluting the connection with the Crown that the oath of allegiance represents, the Government are saying that they are happy to see what is good and ought to be respected replaced by something less good.

This discussion reminds me of the debates that we had just before Christmas that led to the Sinn Fein Members being admitted to the precincts and offices of this place, and given access to the financial advantages of being Members of Parliament. One of my complaints then was that the Government motion to admit those four Members from Northern Ireland to this place created two classes of Member of Parliament, which is constitutionally abhorrent.

I fear that in addition to that, we are now creating two classes of judicial officer within the United Kingdom. I dare say there are all sorts of politically convenient reasons for doing that. However, although I see why the Government have devised the scheme, I am not sure that I wholly understand or respect those reasons, even though the Government rightly claim to be following the recommendations of the criminal justice review.

The mere fact that a review says something does not of itself mean that we as thinking Members of Parliament should necessarily accept it. There is a recent example of the Government, after consideration, deciding not to accept one of the recommendations of the review. That was about the designation of resident magistrates, as opposed to whatever the other name is; I have forgotten it.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Yes, DJs—dinner jackets—the hon. Gentleman is right. We were discussing them earlier.

One of the Government Whips, who was being unusually voluble, once accused me of being the Member for Pompous, North.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

It was Mr. McNulty, a Government Whip who felt it appropriate to absent himself from the Front Bench and go to the Back Benches to encourage his otherwise feeble colleagues to support the Secretary of State for Transport, Local Government and the Regions

I willingly accept that I am pompous and out of date, and that I am seen as a hugely inconvenient lawyer who is concerned with justice, our judicial system and the integrity of the administration of justice. So be it. I am happy to take that on the chin. What I am not happy about is the diminution in the apparent regard of the Government and those who support them for the justice system in Northern Ireland. That system seems to me to be under great strain, and in need of all the support that it can get—if not from the Government, at least from the Opposition.

Photo of Ian Paisley Ian Paisley Leader of the Democratic Unionist Party

The people of Northern Ireland take this matter most seriously, as the Secretary of State well knows. We have heard some talk about perceptions, but the right hon. Gentleman himself has perceived—if we can use that word—that Northern Ireland is getting cold for Unionists; I believe that I am quoting what he said.

Why does the Secretary of State perceive that? Why do the people of Northern Ireland perceive it? Because the facts are crying out to them. Every day when they go out they can see with their own eyes what is happening to their country. The situation in terms of ordinary law and order is very serious.

I am not talking about fighting terrorism. We have a rising crime rate: young ladies studying at Queen's have been savagely sexually attacked, older people are being robbed, and we have a burglary rate that we have not had for a very long time, if ever, in Northern Ireland. Those facts stand.

Amazingly, because of what runs from the agreement, we must now do something about the people in our police force who are not full-time—the reserve men. If we lose the reserve, and if we look at the figures that have been issued for every area of Northern Ireland and see how low our police numbers are—

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I am having difficulty relating what the hon. Gentleman is saying to the amendment under discussion.

Photo of Ian Paisley Ian Paisley Leader of the Democratic Unionist Party

I was simply commenting on what has been said by others about perceptions. I was trying to say that the law and order situation in Northern Ireland is a reality. However, rather than disturbing the quiet of the Chair, Mr. Deputy Speaker, I will come to the question before the House.

Mr. Harris talked about why we should introduce the change, but this is not an introduction; it is taking away something that has always been there. The judiciary in Northern Ireland have always taken the oath of allegiance. People who were promoted, on both sides of the religious and political divide, took the oath of allegiance.

The oath of allegiance is to the Queen in Parliament, because the Queen as an individual is not the source of justice; the Queen in Parliament as a constitutional monarch is the source of justice. When someone takes the oath of allegiance they are taking it to what the state is and what it stands for. Because we have a constitutional monarchy, we take the oath to the Queen in Parliament. When people take an oath of allegiance they are acknowledging the state and their allegiance to it, and their loyalty to the laws of the state.

It is a very big thing to propose—as is proposed in the Bill, although we may not reach that part of it tonight—that changes should be made to the coat of arms outside or inside the law courts, which is displayed in connection with the judiciary. I know that you will be getting a bit restless with me now, Mr. Deputy Speaker, but I am simply using that as an illustration. The changed oath of allegiance that we are now discussing is an attempt to do away with the reality that the law that rules Northern Ireland is not Northern Ireland law, but United Kingdom law.

The hon. Member for Glasgow, Cathcart was right to say what he did about the first Assembly, and other Assemblies. For example, the law commanded people who were elected to the old Stormont Parliament to take an oath of allegiance to the Queen. It was this House that decided—against the will of the majority of Northern Ireland Members here—that that should happen. It was not our doing.

It is interesting that when someone comes from Northern Ireland to this House, they have to take the oath of allegiance. People in Northern Ireland saw that when many people who violently opposed taking an oath of allegiance in Northern Ireland were elected to this House, they still took the oath when they came here.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

The hon. Gentleman makes a powerful case for democratic accountability in this House, and points out that the legislation for the Northern Ireland Assembly was voted on by the whole House—against the wishes, on some occasions, of the majority of Northern Ireland Members. Does he not agree that that is simply a case of the writ of the United Kingdom Parliament running in Northern Ireland? Is that not what he stands for in the first place?

Photo of Ian Paisley Ian Paisley Leader of the Democratic Unionist Party 8:00 pm, 4th March 2002

I have no objection to that, but I do object to the statement that Northern Ireland should not have United Kingdom laws. There is a proposal to alter part of the coat of arms in courthouses—

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. The hon. Gentleman is a very experienced Member of the House and he knows that he is treading outside the terms of the amendment. As time is limited, I appeal to him to keep within the bounds of the amendment.

Photo of Ian Paisley Ian Paisley Leader of the Democratic Unionist Party

In that case, I cannot answer the question of the hon. Member for Glasgow, Cathcart. Perhaps I will see him, although not in the bar, and discuss the matter with him then. The point needs to be made that not only is there a proposal to delete from the oath any reference to the Queen but the real oath of allegiance would be destroyed. The people from Northern Ireland who represent the majority Unionist view are told that we should not come to the House and express our concern because these matters are so sensitive, but I believe that the Assembly and this House are the place to talk about these matters. We are democratic representatives. I know that people do not like what other people say, but as we say in Northern Ireland, they have to thole it. We have to thole one another.

This is the place where these matters need to be debated, but when people in Northern Ireland look at this House, they say, "You hardly have time to enter into a proper debate." Today, we are having the complete Report stage and Third Reading of the Bill. We will not get to some of the matters that you, Mr. Deputy Speaker, have told me I dare not mention, yet those matters go to the heart of the conviction of the majority people in Northern Ireland. It is unfair to those people that their representatives cannot fully discuss matters in this Parliament, where they are being settled and voted on.

The oath of allegiance sworn by the judiciary of Northern Ireland is a very serious issue because the Queen in Parliament is the source of justice. We feel that we should be like every other part of the United Kingdom, and if we are under United Kingdom law, the judiciary should take the oath that is taken everywhere else in the United Kingdom.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

As Mr. Davies was not generous enough to allow me to intervene on him again, I should take this opportunity to correct the suggestion that I regularly return to teaching as a law professor. I have one job and one job only, and that is as a Member of the House. I took early retirement from the law faculty at Queen's in 1988. It is always worth stating the facts correctly.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

I stand corrected if the hon. Lady is no longer a professor, but I hope that she does not think that I have to apologise for insulting her. It does not seem to me to be insulting to refer to someone as a professor of law at a very distinguished university.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I appreciate the hon. Gentleman's remark, but that is not the point that I was correcting. In his earlier remarks he said that he hoped that I would teach my students with more clarity than was contained in the points that I was making, which I thought was unfair and worth correcting.

I want to respond to the curious point made by Mr. Mallon. He quoted the Belfast agreement and asked Unionist parties whether there was respect for principles such as parity of esteem and for the sensitivity of those who do not feel themselves to be British. I can speak only for the Ulster Unionist party and not for all those on the Unionist Benches—I would not attempt to do that. The hon. Gentleman is right to say that parity of esteem and the other terms that he mentioned appear in the agreement.

The question of whether those principles are compatible with the agreement when one recognises the constitutional position of Northern Ireland has already been tested in court. The judgment of the High Court in Belfast in the Conor Murphy case was handed down on 4 October 2001. In that case the judge had to interpret the regulations on flag flying and test whether they were consistent with the agreement. He made the valid observation that the Government are duty bound to strike the right balance between the constitutional guarantee in the agreement and elements such as parity of esteem and recognition of the identity of communities other than those who feel themselves to be British.

The question is one of balance, and in clause 20 Northern Ireland's constitutional position is recognised in the words "of this realm". That is clearly a reference to the United Kingdom and a recognition of Northern Ireland's status as being within the United Kingdom, and is therefore compatible with the agreement. I would not like the Opposition to press amendment No. 45 to a vote because, if passed, it would remove the words "of this realm".

The amendments in my name would substitute the words "according to" with "upholding". It makes no sense at all to say that

"I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm."

Will the Minister explain which laws and usages the Government had in mind when the Bill was drafted? It makes much more sense to me to replace "according to" with "upholding".

Turning again to the comments of the hon. Member for Newry and Armagh, I draw his attention to the judgment in the case of two young members of the legal profession who had been called to become Queen's Counsel. In that judgment and in their arguments the point was made that they felt discriminated against on grounds of religion, which was an infringement of their human rights.

The Human Rights Act 1998, which incorporates the European convention on human rights and stands outside the agreement, provides a very strong argument. It makes it clear that everyone within the jurisdiction of Northern Ireland is entitled to manifest their religion. Article 14 of the convention makes it clear that everyone should be able to manifest their religion without any discrimination on grounds of, among other things, political belief or opinion. The two barristers raised valid arguments, and serious issues had to be taken into account. Regrettably, the decision turned on a technicality so we did not get to the core of their arguments, but those points have to be taken into account when people are required to swear an oath of allegiance.

Replacing "according to" with "upholding" would recognise the constitutional position and it would retain the words "of this realm", which would be removed by the Opposition amendment.

Photo of David Burnside David Burnside UUP, South Antrim

Unlike most members of my party, including its leader and my hon. Friend Lady Hermon, I did not go to the law faculty at Queen's university; I just struggled through a general degree on the arts side.

The real problem is the totally confused exchange between the Secretary of State and the Opposition Front-Bench spokesman about perception and reality—that lies at the very core of this issue—and the fundamental debate that relates to the clauses on the oath and to the later amendments on arms and symbols, to which I shall not refer now. Those issues are interconnected and interrelated.

There is a lack of confidence. The Secretary of State talked clearly and accurately in his interview during the weekend and in his earlier Cold House speech, but he does seem to think that, in our misty red, white and blue eyes of Ulster Unionism, it is our perception that he is dealing with the reality. As a non-lawyer, I can only consider the reality clearly and clinically in the Bill. As a Unionist, my bottom-line belief is that I will not support or vote for anything in the House that weakens the United Kingdom or the fundamental oath of allegiance for me, as an individual subject or citizen, and for the font of the judiciary which is the Crown.

By making us different, we would weaken the Britishness of the people of Northern Ireland and the oath. I am not really disagreeing with my hon. Friend Lady Hermon, but the reality now in Northern Ireland involves judging whether the Bill will weaken or strengthen us as British citizens and subjects. By any judgment, clearly and clinically, it will weaken us. That does not mean that I and other hon. Member across the Unionist Bench might not approve of some improvements to the much worse earlier proposal in the legislation. I would support the Conservative party in its amendment—the leader of my party shakes his head—as I could support the two amendments tabled by my hon. Friend the Member for North Down. All three amendments deal with the problem that the Bill will weaken our position as full British subjects and citizen. Later clauses will weaken the symbolic personification of the Crown inside and outside the courts in Northern Ireland.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

Is the hon. Gentleman suggesting that this or any other Parliament should draft a criminal justice Bill to reinforce the political beliefs of any section of any community? In effect, that is what he is saying. He is not judging the merits of the Bill itself, but dealing with his perception of what Unionism should involve and demand.

Photo of David Burnside David Burnside UUP, South Antrim

The hon. Gentleman is completely wrong on that point. I want legislation to be drafted that affects all affairs related to Northern Ireland, including those reserved to this Parliament and those devolved to the Stormont Executive and Assembly, to involve uniform, full and equal British rights and citizenship as subjects of the Crown—equality right across the board. That is not party political.

The hon. Gentleman makes a major mistake in the pursuance of his views—a Member of the Executive made this point in debating with me on the radio this morning—because he believes that the Belfast agreement somehow gives equal treatment to the head of state, but it does not. The Belfast agreement enshrines the principle of consent. By common consent, we are part of the United Kingdom and we want equal rights. That may not be fashionable any longer and there is a debate within Unionism, but we want equality of treatment so far as we can throughout the United Kingdom.

I have tried to combine the oath of allegiance and the debate that will take place either this evening or in the future on the symbols of the Crown in Northern Ireland. I can only consider the reality, and the reality is that our fundamental citizenship as part of the United Kingdom will be weakened, rather than strengthened.

Photo of Gregory Campbell Gregory Campbell DUP, East Londonderry

In dealing with the oath of allegiance in Northern Ireland, as the Conservative Front-Bench spokesman and the Secretary of State for Northern Ireland suggested, it is important to refer to whether it is one person's reality or another person's perception, but the Conservative amendment would at least have the advantage of being much more concise without yielding anything in terms of the integrity of the nation state to which anyone affirms the oath of allegiance.

Hon. Members who are not from Northern Ireland sometimes have to grapple with the sensitivities of wordings. Only an hour or so ago during the debate, there was a reference to the term "resident magistrate", which most people would consider innocuous. The lineage back to the famine was immediately drawn, so I can imagine that some people would begin to despair if even the apparently innocuous term "resident magistrate" were almost given the standing of a swear word.

I shall not detail all the concessions that have flowed from the Belfast agreement, but when considering Northern Ireland and the oath, the reality for many people, especially in the Unionist community, is that the maintenance of the Bill's wording, as opposed to the concise used in the Conservative amendment, involves the replacement of the original oath of allegiance with something that is somewhat less precise. The Conservative Front-Bench spokesman referred to that as a concession to republicanism, but I shall not use those words. For that reason, I shall support the Conservative amendment.

The amendment tabled by hon. Friend Lady Hermon deals with the distinction between the terms "according to" and "upholding" the laws and usages of this realm. There may be a slight distinction, but I would not imagine that it would cause the House to divide on the two wordings.

Photo of John Reid John Reid Secretary of State, Northern Ireland Office, The Secretary of State for Northern Ireland 8:15 pm, 4th March 2002

I have obviously listened to the views expressed by hon. Members in this debate and read the views that they expressed during the consultation process and on Second Reading. It is worth saying that the oath in clause 20 replicates exactly the words recommended by the review and that the review spent a considerable amount of time discussing that matter. Of course, that is not to say that there can be no deviation from any recommendation—by definition, they are recommendations. In recommending this oath, the review group recognised the need to take account of the independence of the judiciary, as well as Northern Ireland's wider constitutional status.

The Opposition spokesman made a point about ambiguity, but there is no ambiguity at all. Nothing in the clause casts the slightest shadow of doubt on Northern Ireland's constitutional status. As Lady Hermon said, the word "realm" reflects the United Kingdom's position as a constitutional monarchy. That word is important on two counts. To dismiss the inclusion of the word "realm", as was done earlier, as somehow being a concession to republicanism—as if people rarely spoke of anything in the pubs of west Belfast besides the welfare of the realm—is to misunderstand the word's importance. The clause brings in a more modern oath that focuses on the impartiality of the judiciary and its independence.

The review group also sought to remove any blockages that might inhibit people from applying for judicial appointment—a key part of ensuring a reflective judiciary. I am sure that we can all agree on the importance of those principles, especially in the devolution scenario. Amendment No. 45 seeks to disregard the rationale that lay behind the recommendation for the special circumstances in Northern Ireland, choosing instead to caricature it as a republican manifesto and template. I can only say again that there will be no change to the judiciary's relationship with Her Majesty the Queen. The clause is not about republicanism, but about protecting independence, impartiality and inclusiveness, and modernising where it is useful to do so. Given all the argument that we have had on the matter, I doubt that my request that we agree on it and that the amendment be withdrawn will get a positive response. None the less, I ask again for that agreement.

Amendments Nos. 81 and 82 seek to amend the new oath and declaration, requiring office holders to uphold the laws and usages of the realm, rather than to act in accordance with them. I listened carefully to what the hon. Member for North Down said. I agree with much of the burden of her analysis of the oath itself. Indeed, she analysed it more perceptively than many others—especially those on the Opposition Front Bench. However, I am not clear what difference her amendments seek to make by substituting the word "upholding" for the term "according to". It is clear that the wording of the oath already achieves the desired effect. Incidentally, she asked which laws and usages the provision referred to. The word "all" is already implied. Interestingly, the Scottish oath uses the words

"after the laws and usages of this realm".

The clause merely uses the words "according to" rather than "after".

Although I do not object to the word "upholding" in principle, I point out that there are dozens of ways of expressing the same thing. We have stuck pretty closely to both the English and Scottish usage, as well as replicating exactly the recommendations of the review. As there are dozens of ways of expressing the meaning, if we are agreed on the underlying aim—I think that we are—there does not seem to be any point in accepting drafting changes for the sake of it.

I would prefer, therefore, to stick to the current wording, which reflects the review recommendations, and urge the hon. Member for North Down not to press her amendments. Of course, we will vote against them if she does so, but I say to her that I shall reflect further on what she said. Although I cannot discern any important difference in the meaning that is conveyed, having listened carefully to what she has said, I shall reflect further on the matter. None the less, I cannot discern any such difference this evening, so I shall have to oppose her amendments, because we have followed not only the recommendations, but the usage in Scotland and elsewhere.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

We have had a very interesting debate. For the sake of brevity, I will say nothing about the support for my amendment expressed by the hon. Members for South Antrim (David Burnside) and for East Londonderry (Mr. Campbell), for which I am grateful. Instead, I shall address the remarks of Lady Hermon and of the Secretary of State, both of whom are unhappy with the amendment.

It may be entirely my fault and my inability to understand the remarks of the hon. Member for North Down, but even though I have been wrestling with the matter for the past half hour, I am at a loss to understand her agenda. She seems to want a modification that, as the Secretary of State said, is not essential in any way. Indeed, he said that he had some difficulty in discovering the substantive difference between the Bill as it stands and what her amendment proposes. I think that the word "upholding" is slightly stronger than "according to". If the clause in its current form were included at all, I would be very happy to change the wording to include the word "upholding", but surely, at very best, it is a secondary or tertiary issue.

The real issue is whether we should have a regime in Northern Ireland that is different from that which applies in the rest of the United Kingdom: one regime in Northern Ireland, and a different one the other side of the water. We must ask whether we want to send a signal saying that the same degree of allegiance to the Crown does not apply, and that justice does not appear to flow directly from the Crown or in exactly the same way on both sides of the water.

That is the minimal effect of accepting the Bill in its current form, but the maximum effect is that of a republican agenda. I hope that the hon. Member for North Down will now concede that, as a change of wording is being made, this question is opened up: why does it have no substantive purpose? Is it merely to waste the time of Parliament? Is it to bamboozle somebody or to pretend there has been a change when one has not been made? That is what I call ambiguity and uncertainty, and a lack of clarity, frankness and candour. The Government are expert in all those things, and no doubt that hypothesis is close to the truth. The alternative hypothesis is worse, as it is that they have an overtly republican agenda. I do not think that there is any third, fourth or fifth possibility. I am very surprised that the hon. Lady appears to place herself in the same camp as the Government on this matter.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Will my hon. Friend admit to the possibility that there is another reason for making the change? It could be suggested that, where there are long-standing difficulties that are unconnected with the proper carrying out of impartial judicial activities, it is as well to be as soft with them as possible. Is it not more difficult to see the provision in that moderate way when one insists that there must be something much more extreme going on? On this occasion, I wonder whether it would be better to say that some problems are of such long standing that we have to find a mechanism that is soft enough to handle them, and that the suggestion that we are not doing that merely makes things more difficult for those who are looking for a moderate way forward.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

I am grateful to my right hon. Friend. I set out two possible explanations for what is going on: an intention either to introduce ambiguity or to make a substantive change. I said what I thought of both approaches. If he thinks about what he said, he will see that he suggested that there is some virtue in ambiguity. In other words, he chose deliberately and willingly—or would like us to do so—one of the two hypotheses that I advanced, and thinks that there is virtue in ambiguity in certain circumstances. However, he is still accepting that there is ambiguity in what the Government propose. I do not think it right that ambiguity should exist, especially in matters affecting the law of the land. I am sorry to disagree with him on that point, but at least he had the candour—other contributors have not shared it—to say, "Yes, there is ambiguity and that is what I want." That is a respectable point of view and I commend such frankness to the Secretary of State.

The Secretary of State's first defence of the wording in the Bill was that it replicates the wording in the review. We covered that on Second Reading. I explained to the House—the point was well taken and nobody could contradict it—that as he appointed the chairman of the review body, who, like several of its members, is on the Government payroll, there is something more than a little incestuous in the Secretary of State's saying, "I have to do this because that's what the review decided." He packed the body in the first place and was in a position to influence the shape in which it turned out. There was nothing at all independent about the review. It therefore has no status, validity or legitimacy separate from the will of the Government, which it merely represents in a different form. Parliament will not be taken in by that. We must, as always, consider the actual substance of the Government's proposals and take a view on the merits of changing the oath of allegiance.

The points that I made in response to the hon. Member for North Down are equally valid in response to the Secretary of State. In changing the law in this way, the Secretary of State must address the dilemma of whether he is trying to change something substantively—he implied that he was not when he said that nothing in the Bill casts doubt on the status of Northern Ireland—or merely wilfully creating uncertainty. If the latter, he is doing a bad day's work for the law, for the Province of Northern Ireland and for the peace process. He will fuel precisely the kind of suspicion and concern in Northern Ireland that, as he acknowledged yesterday in his BBC interview, is in danger of upsetting and destabilising the peace process.

In the light of the debate, I have no doubt that we should press the amendment to a vote.

Question put, That the amendment be made:—

The House divided: Ayes 137, Noes 311.

Division number 177 Orders of the Day — Justice (Northern Ireland) Bill — Clause 20 — Judicial oath or affirmation

Aye: 137 MPs

No: 311 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.