Clause 14 — Lord Chancellor's Oath

Orders of the Day — Constitutional Reform Bill [Lords] — [3rd Allotted Day] – in the House of Commons at 3:00 pm on 1st March 2005.

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Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs) 3:00 pm, 1st March 2005

I beg to move amendment No. 355, in page 6, line 9, leave out from 'that' to end of line 14 and insert

'I will well and truly serve our Sovereign . . . . . . . . . .in the office of Lord High Chancellor of Great Britain and that I will faithfully and at all times uphold the continued independence of the judiciary and the rule of law, in accordance with the laws and usages of this Realm.".'.

Clause 14 sets out a new oath to be sworn by incoming Lord Chancellors. Perhaps I should apologise at this point to you, Mr. Gale, because I am about to start a lot of swearing. The proposed oath reads:

"I . . . do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible . . . So help me God."

The new oath will be brought into force by inserting proposed new section 6A into the Promissory Oaths Act 1868.

The current oath taken by the Lord Chancellor is governed by the existing provisions of the 1868 Act. Section 5 of the Act, in conjunction with the first part of its schedule, requires the Lord Chancellor to take both the oath of allegiance and the official oath. The oath of allegiance reads:

"I . . . do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law", and the official oath reads:

"I . . . do swear that I will well and truly serve Her Majesty Queen Elizabeth II in the office of"—

Lord Chancellor, for example—"So help me God."

Those oaths are the same as those taken by other Ministers of State.

Clause 14(1) makes it clear that that position will not change under the Bill, because it says that the new Lord Chancellor's oath will be taken

"in the same manner as the official oath".

However, up to now, section 6 and the second part of the schedule to the Promissory Oaths Act provided that the Lord Chancellor had to swear the same judicial oath as judges in England and Wales, namely:

"I . . . do swear that I will well and truly serve our Sovereign Lady Queen Elizabeth II in the office of"—

Lord Chancellor, for example—

"and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God."

The swearing of that judicial oath is one of the key things that marks the Lord Chancellor as different from other Ministers. It reflects his occasional judicial function in the Appellate Committee of the House of Lords.

In line with general consensus, the Lord Chancellor's judicial function will not exist in the future. As a consequence, the view seems to be, as Lord Woolf said in Committee in another place, that it would be inappropriate for the Lord Chancellor to take the judicial oath. Paragraph 2 of schedule 14 will thus amend the schedule to the Promissory Oaths Act 1868 so that future Lord Chancellors will not have to swear the judicial oath.

The Lord Chancellor's judicial function was not the only reason why it was right for him to swear the judicial oath. By swearing that oath, he became inextricably linked to the judiciary, the independence of which he was charged with upholding in Cabinet. His requirement to

"do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will" reflects the unique constitutional position of the Lord Chancellor in upholding the rule of law in our country.

Photo of Bill Cash Bill Cash Conservative, Stone

My hon. Friend understandably referred to the rule of law in our country. However, we discussed clause 4 of the Bill some weeks ago, and he might recall that I drew attention to subsections (7) and (8) of it. Those provisions make it clear that the definition of "the judiciary" will extend far beyond this country into a realm of other judiciaries, such as those of the International Court of Justice, the European Court of Justice—by implication and necessity—the European Court of Human Rights, the International Criminal Court and even the General Assembly of the United Nations. Thus the oath will apparently relate to an extraordinary range of matters. The situation is bizarre and we need to get to the bottom of it. The definition of "judiciary" needs to be clarified.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

My hon. Friend makes a good point. I could add the Privy Council to his list because other Commonwealth countries could be included.

As Lady Justice Arden told the House of Lords Select Committee that considered the Bill, a possibility has arisen of replacing the judicial oath with a new oath, although the Committee was divided on the merits of that proposal. In any case, the Government have pursued that option by drafting clause 14. With amendment No. 355, my hon. Friends and I are attempting to suggest a more appropriate replacement for the judicial oath than that proposed by the Government. We suggest that the oath should read:

"I . . . do swear that I will well and truly serve our Sovereign . . . in the office of Lord High Chancellor of Great Britain and that I will faithfully and at all times uphold the continued independence of the judiciary and the rule of law, in accordance with the laws and usages of this Realm."

The first purpose of our amendment would be to bring strength and focus to the new oath. Both versions of the oath rightly refer to the Lord Chancellor's duty to uphold the independence of the judiciary and the rule of law. However, our version would remove an unusual requirement for which the Government have provided. Their version means that the person taking the oath would effectively, and somewhat bizarrely, swear to uphold administrative efficiency. However, pursuing such an aim could prove to be at odds with protecting the overriding principles of judicial independence and the maintenance of the rule of law.

Our version of the oath focuses on the key constitutional issues that should, above all else, remain the driving force behind the Lord Chancellor's actions. Our oath sets out clearly that whatever the pressures faced by a Lord Chancellor—be they political or otherwise—it is at all times his or her duty to uphold such vital constitutional principles. Underlining that duty becomes even more important in the wake of the Government's decision to override the clear view of the other place that the Lord Chancellor should remain a Member of that House and a person who has held judicial office or has senior legal experience.

We have added the words

"in accordance with the laws and usages of this Realm" to the oath. They mirror the wording of the judicial oath and highlight the need for the Lord Chancellor to respect both the laws of the country and, perhaps even more significantly in practice, all the traditional conventions that have been so important in shaping our constitution.

The Committee is well aware of the cavalier manner with which the Government treat those important protections offered by custom and convention. It was very nearly the case that we were not able to have this debate on the Floor of the Chamber, as a result of the Government's disregard for convention.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

Why does the hon. Gentleman persist in saying that nonsense? Does he not realise that the Government have given many days on the Floor of the Chamber? Judging from the number of Opposition right hon. and hon. Members present, it seems that they do not want to participate. The only thing on which we have voted so far is the name of a court.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

The hon. Gentleman was here when we debated these matters before. He knows full well the official Opposition's position and that we stated that not enough time was given to discuss this important constitutional Bill. I maintain that that is our position.

Photo of John Bercow John Bercow Conservative, Buckingham

I know that my hon. Friend does not need my protection, but he must not be deflected from his legitimate purpose by the synthetic indignation of Keith Vaz. I encourage my hon. Friend to focus on the weaker part of the Government's proposed oath. Personally, I do not object to the removal of the reference to the sovereign and the way in which they have phrased the first part of the oath, although it is a legitimate point to debate. Does he accept that it is ridiculous for the Government to include the reference to

"efficient and effective support of the courts", resources for which will be provided, unless they choose to include the word "adequate"? The oath says nothing about the adequacy of resources, over which the Lord High Chancellor will have no influence in any case, so this is just pompous windbaggery. It adds nothing.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

I thank my hon. Friend for his input and agree with him. It is highly debatable as to whether administrative efficiency should be included in the oath. I do not think that it should be.

In this context, it should be clear why it is necessary to point out specifically the importance of abiding by the law and usages of this realm. As the noble and learned Lord Howe of Aberavon put it in the other place, our suggested wording would also provide a "desirable sense of continuity". We do not believe that a difficulty arises if the Lord Chancellor's oath in some way mirrors the judicial oath.

The noble Baroness Ashton of Upholland raised that point for the Government on Report when faced with similar amendments tabled by Lord Howe. We do not accept that the wording of our amendment would result in ambiguity in relation to the reformed status of the office of Lord Chancellor, simply because the Lord Chancellor's oath bears some similarity to the existing judicial oath. On the contrary, we would welcome it if the Lord Chancellor were still to be reminded of his continuing duty with respect to the rule of law.

Our amendment contains a specific reference to well and truly serving our sovereign. That again reflects words previously sworn by Lord Chancellors as part of the judicial oath. It would serve as an important reminder of the principle that justice in the United Kingdom flows directly from the Crown. I dare say that it would provide a much more fitting and British tone to the oath, by contrast with the Euro-friendly Government version. Perhaps the Government are ensuring that the oath is European constitution-compliant, although I am sure that they need not worry themselves about that becoming necessary.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

I am not persuaded by the hon. Gentleman. Let me make three brief points. The rule of law subsumes the notion of the laws and usages of the realm. The elimination of those words does not subtract from the importance of the principle of the rule of law. In retrospect, I realise that I went on at inordinate length on Second Reading about what the rule of law entails. I went back to Dicey—

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

I will on this occasion.

I also talked about modern definitions, but there is no suggestion that we are excluding the notion of the laws and usages of the realm. Both oaths take into account defending the independence of the judiciary, which is fundamental. The objection seems to be to the words in relation to ensuring the provision of adequate resources. If there is one thing that we have learned from history, and by examining the judicial systems of other countries, it is that courts cannot function effectively without adequate resources.

Photo of John Bercow John Bercow Conservative, Buckingham 3:15 pm, 1st March 2005

I am appreciative of the fact that the hon. and learned Gentleman has purloined—I emphasise "purloined"—my word "adequate" without permission. I do not begrudge him the use of that word, but the trouble is that the Government, in their proposed formulation for the oath, say nothing about the adequacy of resources. That adjective is not used at all. The oath simply says:

"provision of resources for the efficient and effective support of the courts".

Unless they are adequate, what is the point of including that subordinate clause? If the Government want to include the word "adequate", we should hear that from the Minister pretty quickly.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

I did borrow the word, but I did not purloin it. The words

"the duty to ensure the provision of resources for the efficient and effective support of the courts" require the provision of adequate resources. There is no difference between us on the need for there to be adequate resources.

Photo of Bill Cash Bill Cash Conservative, Stone

The hon. and learned Gentleman might reflect on the earlier part of the Bill, which prescribes the functions of the Lord Chancellor. It says that he

"must have regard to the need for the judiciary to have the support necessary to enable them to exercise their functions", which imposes a statutory duty. It is extraordinary that that phrase should be used, because it requires him to swear an oath to provide for something that is within not his competence, but the competence of Parliament to provide, which itself is constrained by the golden rule and various other things. Without making too much of this, the Lord Chancellor might even get into a situation in which he seriously perjures himself.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

I do not accept that analysis. Obviously, resources ultimately have to be voted for by Parliament, but the function of the Lord Chancellor, or the Secretary of State for Constitutional Affairs, will be to press the Government for adequate resources. The Department has a range of responsibilities. There are many functions for it to perform. In terms of the allocation of resources within those functions, the Lord Chancellor is simply acknowledging—this reflects the earlier stipulation, as the hon. Gentleman rightly said—the obligation to ensure that the courts are adequately funded. I have no difficulty with the oath as it stands. In fact, it is a helpful reminder that we cannot simply wish that the courts are working properly. We have instead to provide sufficient resources so that they work effectively in practice.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

This is an important matter, on which other hon. Members have done more research than I have. However, I want to deal with two issues, one of which has not been touched on.

First, when we take our seats in this place, we are given the option of swearing or affirming, as people are in courts up and down the land. In this modern age, in which people may not wish to swear, either from reasons of belief or faith or from conviction, they should have the option of affirming, no matter whether it is the Lord Chancellor or someone becoming a Member of the House of Commons. Personally, although I have a faith, I have never taken an oath by swearing, because I think that it is wrong. I have always affirmed here and in other places such as courts where I have given evidence, and I do not see why the Lord Chancellor of the future should not have the same option.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I think that I can assure the hon. Gentleman that there is nothing to prevent the Lord Chancellor from doing just that. As I understand it, any oath can be turned into an affirmation.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

If the Minister can assure me of that, I shall be encouraged.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

When we discussed this in another era, we mentioned that the Promissory Oaths Act 1868 allows for affirmation to apply to such oaths.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

I am reassured and need not pursue that. I am satisfied with the consensual view that there is an option available.

Photo of John Bercow John Bercow Conservative, Buckingham

I do not want to break the consensus, but I want it to be worthy of support, and I am not absolutely sure that it is. It is all very well to be told that that is what the 1868 Act says, but it seems to me—Simon Hughes may think that I am being pedantic, but so be it—that if the alternative of an affirmation is to exist, it would be sensible to say so in the Bill.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

That would certainly be my preference. As I read it, other parts of the Bill expressly give the option of oath or affirmation, but not this one. That led me to believe that affirmation might not be possible, despite the Minister's assurance, which I accept. I am conscious that we are at a late-ish stage of the Bill, but it would be better if it were included for the avoidance of doubt.

Secondly, of the two options before us, I prefer the amendment tabled by Mr. Djanogly and his hon. Friends to what the Government set out in the Bill, not least because it keeps the two fundamental jobs in question—upholding the independence of the judiciary and the rule of law, and the historical rights and duties that go with that—and does not add the novel obligation to do with being a good housekeeper. I can see potential merit in Ministers swearing, by oath or affirmation, to be good housekeepers. I assume that if we pass the Bill unamended, all future Lord Chancellors will have to swear to

"discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."

I agree that it would be better still if it said, "adequate resources", because that would add an extra protection that "efficient and effective support" does not have.

It strikes me that this will be a unique, governmental, ministerial obligation. Is it the start of a trend? Will the Minister and all his colleagues, when they take office, have to make some affirmation or public declaration that they will be responsible for the efficient and effective support for, in the case of the Home Secretary, the prisons or the police service, or, in the case of the Deputy Prime Minister, local government? In that sense, I would much enjoy going back to my old job of administrative lawyer, because many challenges could be made in court that Ministers were not doing their jobs properly. This will be the first time that we have this modernist oath saying, in effect, "I am going to look after the buildings as well". If that is really what it means, it makes one's great moment a bit banal. One arrives at the end of one's career, with the Lord Chancellor of Great Britain[Interruption.] Well, under this new system someone might then be transferred to be something like the Under-Secretary of State for Northern Ireland as the next job. I would hope that we could have a slightly less banal oath than "Here I am, I will look after the rule of law, defend the independence of the judiciary, and make sure all the courts have enough curtains, cleaners and cleaning materials to do the job." If it really means that, there is a huge amount more work to do.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

Does the hon. Gentleman concede that if the Government do not appoint enough judges, build courts and provide staff for judges, the rule of law and the independence of the judiciary will not be protected?

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

The hon. and learned Gentleman, in his previous role as Solicitor-General, would have dealt with such matters much more regularly than most of us. If this is just words—dressing—it should not be in the Bill. If it gives me—the citizen—or my constituents in Southwark and Bermondsey a remedy allowing them to say, "Look, I do not want to wait six months for my court hearing, or to go across the country to a court because the court that used to be here has been closed", it will be worth something. If it is all about saying, "I'm going to do my best to make sure there are enough resources", that is great, but we could have a lot of argument about the amount of resources and why all Ministers should not be subject to the same oath of affirmation.

Photo of Bill Cash Bill Cash Conservative, Stone

Would the hon. Gentleman like to extend that thought to the question of why the Prime Minister, for example, should not swear such an oath to provide all the public resources that people want and apparently need? Why not the Chancellor of the Exchequer? Why does the poor Lord Chancellor have to be required to carry out these duties, when the real responsibility lies even further up the chain than him?

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

That is a proper question, and I would be grateful for an answer from the Minister as to whether it is intended to oblige the officeholder to carry something out, and whether there is a remedy if they do not.

All I would say to Mr. Cash is that if this does get written into the Bill, and if the Tories were ever to return to government, although some of us hope that that will not happen, it may act as a Tory Government's brake on starting a tax-cutting, public-expenditure-reducing agenda that some of his hon. Friends might be keen on. For my part, I am keen to ensure that we hold Ministers to account, but if it is just to be the poor Lord Chancellor who is to be in the firing line, I did not know that he had access to resources other than by going to ask the Chancellor of the Exchequer, who is not governed by the same proposals.

Photo of Peter Atkinson Peter Atkinson Assistant Chief Whip, Whips

I am delighted to support amendment No. 355, which gives a few traditionalists on this side of the Committee the opportunity to form a square against the horde of modernisers led by the Minister and ably supported by Ross Cranston and Keith Vaz, who want to destroy the last vestiges of tradition that surround the law. I am not a lawyer—[Interruption.] I apologise to my north-east neighbour, Vera Baird. She has not spoken, so I was not about to blame her for this.

It is important for people of this country who believe in the importance of the law that there should be some dignity and respect attached to it, because that gives it something additional to the normal run of life. It makes judges stand out; people talk about the majesty of the law. That is very important if one is to engender the respect of the population for the legal system and the judiciary. They need some traditions, and over the years we have been wiping those out. We wiped out the assizes, quarter sessions and all sorts of aspects of the tradition of the law and replaced it with things such as this rather dull and banal version of the oath that we see today.

I remember the introduction of new rules and regulations about juvenile courts. The idea was to make them far more user-friendly for those who were brought before them. Judges and magistrates were made to sit informally in small rooms, and that was meant to help young offenders. Of course, it did not. The respect of young offenders for the system of the courts and justice declined, as we have seen. It is ironic that the Government are now so fond of reversing that process by introducing naming-and-shaming antisocial behaviour orders.

I agree with Simon Hughes that the oath is banal and nonsensical. It is interesting to look at a copy of the Promissory Oaths Act 1868—one can get it online, believe it or not—and the original words. It says that the Lord Chancellor will swear that he or she

"will do right to all Manner of People after the Laws and Usages of this Realm without Fear or Favour, Affection or ill will. So help me GOD."

Those are ringing words—words of tradition—to be replaced by this banal oath whereby he promises to ensure the adequacy of curtains, drains or other things, as the hon. Member for Southwark, North and Bermondsey said. I believe that we should resist this change, and I hope that my hon. Friends will push the amendment to a Division.

Photo of Bill Cash Bill Cash Conservative, Stone 3:30 pm, 1st March 2005

Buried in this debate are some pretty important questions, as my hon. Friend Mr. Atkinson has just pointed out. It is about the abolition of the traditional quality of the office of Lord Chancellor. In deliberations in Cabinet, certainly until the present Cabinet, the Lord Chancellor by any standards carried weight and authority second only to and possibly exceeding that of the Prime Minister when it came to matters of constitution including constitutional reform, which is the subject of this Bill. After all, the role of the Lord Chancellor, excluding his judicial functions, is to maintain the security of the constitution of this country, which is what this Bill is meant to be all about.

So, having regard to the exchanges that we have just had on the Lord Chancellor's oath, it is something of a surprise that the proposed oath does not emphasise the responsibility to maintain the constitution of this land, including the supremacy of Parliament, and to protect it against invasions from international treaties—European treaties and the like. Article 1.6 of the European constitutional treaty—I do not know whether the Lord Chancellor had anything to say on the subject—makes it clear that the constitution has primacy over the laws of the member states in relation to the competences conferred upon it. That brings us straight to the function of the Lord Chancellor in relation to the European Court of Justice. The Court has increased competences. Article 1.20 makes that clear. The role of the Lord Chancellor in Cabinet ought to be to give advice to the Prime Minister on the impact of the European constitutional treaty on the constitution of this country, including the impact on the making of laws in this country. I do not know whether the present Lord Chancellor has done so; I know that Lord Kilmuir did.

If there is inconsistency between the laws prescribed by this Parliament and the laws that emanate from the European Union, the rule of primacy under section 2 of the European Communities Act means that our laws would be overridden. In the context of the constitution, which ought to be a central question for this Constitutional Reform Bill, I would have expected the Lord Chancellor to point out that the European constitution in relation to the declaration made in respect of article 1.6 on the role of the European Court of Justice says that the case law relating to primacy shall be in accordance with the decisions of the Court of Justice. The European Court asserted in the Costa v. Enel case and the Simmenthal case and others that the constitution and the laws of the European Union override our constitution and all treaties and obligations.

So we have a serious problem on our hands. I do not know why the oath does not include a reference to maintenance of the constitution as a prime function of the Lord Chancellor. It could be said that all this is wrapped up in the expression "the rule of law". We debated that earlier. I am glad to say that the Opposition and the Conservative party as a whole supported my Back-Bench amendment on what the rule of law meant. The amendment to clause 1 sought to include our Parliament and asserted that the rule of law included ensuring that the supremacy of Parliament was maintained. I wonder whether that is understood by the Minister, and whether he is prepared to concede that point in respect of the words "the rule of law".

The Minister wrote to me the other day on the subject and said that he did not think that in the context of the Bill it was necessary to go into all these questions. Well, I am going into them now, and I would like an answer from the Minister. He does not think that it matters. Other people in the Committee and in the country at large are extremely concerned to know whether the rule of law includes maintaining the supremacy of Parliament.

If the Minister considers the body of law that relates to the legislative supremacy of Parliament, which I do not need to go into in detail, thank heavens, today, it is abundantly clear that this Parliament has to be maintained as the legislative body for the nation, over and above prerogative and international treaties. That is what the rule of law means. That is what the Lord Chancellor is being required to swear he will maintain. I want to hear the Minister, in the light of his letter to me, assert that, and confirm that when the Lord Chancellor swears that oath regarding the rule of law, he is also swearing to maintain the supremacy of Parliament. It is an extremely simple point and I want to hear it from the Minister's lips. If he is not prepared to put it in writing, perhaps he will be a little more forthcoming on the Floor of the Committee. It is a central issue. It came up today in Foreign Office questions. It is a new primacy, a new treaty and a new doctrine that is being applied under the aegis of the European Communities Act 1972. I want a simple answer. Will the Lord Chancellor, when swearing the oath, be swearing as a matter of duty and perjury that he will uphold the supremacy of Parliament?

Some people may say that this is just meandering round words, words, words. In the exchange with Alice in "Through the Looking Glass", we read that a word

"means just what I choose it to mean . . . The question is . . . which is to be master—that's all."

This is not just a jokey matter to be discussed flippantly in Committee. Over and over again we have tried to get a clear statement from the Government with respect to where we are going under the European Union Bill. We know that they are not disposed to tell us when the next stage will take place, but it is incumbent—

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

Order. I am beginning to think that I have heard this before in another context. I am therefore bound, after 10 minutes, to remind the hon. Gentleman that we are choosing between the words proposed in the amendment and those that are in the Bill. His remarks should be confined to that, and not cover the wider issue, about which I know he feels the most enormous concern. We must concentrate on the words before us.

Photo of Bill Cash Bill Cash Conservative, Stone

Indeed, I entirely agree, Sir Alan, that we should concentrate on the words contained in the oath. With respect to the rule of law, I have made my point on that and I do not need to repeat it. But I want an answer. That is why I insist relentlessly on pressing the matter on the Minister.

I move on to the next question—the wording that the Government have chosen to defend the independence of the judiciary. Before you came into the Chamber, Sir Alan, you may have observed that I raised the question in the context of clause 4, because the oath cannot be separated from the functions that are being conferred on the Lord Chancellor in part 1. The expression "the judiciary" is defined. We all thought we knew what the judiciary was, but now we find that it relates to a range of jurisdictional functions set out in clause 4(7). That cannot be separated from the oath because the Bill defines what the judiciary is.

Subsection (7) states that

"'the judiciary' includes the judiciary of any of the following—

(a) the Supreme Court;"

Of course it should—

"(b) any other court established under the law of any part of the United Kingdom;—

I agree entirely—

"(c) any international court."

That includes the International Criminal Court and the International Court of Justice, which is specifically mentioned in subsection (8), which states that

"'international court' means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—

(a) an agreement"—

The Chairman:

Order. The hon. Gentleman does not need to read out the whole clause. The Committee has already considered clause 4. It now stands part of the Bill, so a mere reference would be adequate.

Photo of Bill Cash Bill Cash Conservative, Stone

I understand, Sir Alan, although we have a fair amount of time to consider these matters, which we were denied yesterday. The definition of "international court" also includes functions in pursuance of

"a resolution of the Security Council or General Assembly of the United Nations", which anyone would regard as rather curious in the context of a judiciary whose independence, as a matter of duty and of oath, must be sustained by the Lord Chancellor.

Let us put that in the context of what judicial independence means. I have set the framework and I am now leading up to that crucial question. In 1950 Lord Denning, no less, stated in a seminal lecture:

"No member of the Government, no member of Parliament, and no official of any Government department has any right whatever to direct or influence or to interfere with the decisions of any of the judges."

That is what is meant by the definition in the Bill. The oath refers to the upholding of the independence of the judiciary.

3.45 pm

This is not a light matter. Apparently, in 1994, a serious problem is supposed to have arisen when the president of the Employment Appeal Tribunal and the then Lord Chancellor fell out over the question of judicial independence.

The Chairman:

Order. The hon. Gentleman forces me to say again that the definition of the independence of the judiciary was dealt with in clause 4. That now stands part of the Bill. The matter before us now is entirely to do with the content of the oath. It is not a redefinition of what we have already dealt with in clause 4.

Photo of Bill Cash Bill Cash Conservative, Stone

I just say that the issue that arose in that instance involved a dispute between Lord Mackay of Clashfern and others. A debate took place on the relationship between the Executive and judges in the House of Lords. As Lord Lester of Herne Hill pointed out, the Lord Chancellor will command the confidence of his judicial colleagues only if he "will protect the judges" and that included independence from any improper interference. I do not need to go into the details of that case but its significance is that, in relation to the swearing of an oath to maintain judicial independence—as you have indicated, Sir Alan, we do not need to go into what that would involve because we have already discussed it on clause 4—the question of what the consequences would be if the Lord Chancellor were to behave in a manner that involved improper interference with the judiciary remains important. That would also apply to the category of activity in relation to the judiciary within the general remit of the definition of international court, which again I do not need to go into because we have covered that already.

The Chairman:

Order. What I want the hon. Gentleman to go into is the wording of the oath and little else besides. To employ again words that Lewis Carroll may have used, the significance of this matter is what I think it is, not what the hon. Gentleman thinks it is.

Photo of Bill Cash Bill Cash Conservative, Stone

That is very interesting. I can only say that I am now at liberty, therefore, to move on to the next question, which relates to the provision of resources.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

Before my hon. Friend moves on, can he assist me with regard to the wording in the oath? Reference is made to the independence of the judiciary. Does he take that to mean the judiciary in Britain, or would it mean the judiciary worldwide? Would it encompass judges of the European Court, whom some of us do not think are judges in the proper sense at all?

Photo of Bill Cash Bill Cash Conservative, Stone

I thought that the cavalry would come to my aid in an intervention at some point. Sir Alan has made it abundantly clear that he does not care for me to go down the route of discussing those international courts. We have had over the past 15 years or so a considerable amount of discussion on the subject and there are differences of opinion, but, in a nutshell, the fact is that the provision goes far too far. That is where the problems lies. I have no idea how it would be possible to discharge an oath to defend the independence of the judiciary which is not confined to the United Kingdom. That is relevant to the definition that we have here. How on earth could the Lord Chancellor be put in a position in which he is under an obligation to give effect to an oath relating to the activities of judiciaries elsewhere in the world? That is impossible and absurd.

I move to the next question, which concerns the discharge of

"my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

My hon. Friend has not covered the important point of how the wording of the oath relates to the duties of the Privy Council in relation to our colonies. Could he say something about that?

The Chairman:

Order. Certainly not.

Photo of Bill Cash Bill Cash Conservative, Stone

I sense that you are not concerned to hear more on that subject, Sir Alan—you have made it clear that you do not particularly like my hon. Friends' line of inquiry. I happen to find it interesting and others may do so as well. At the risk of continuing to move down that path, I shall eschew the opportunity of considering the Commonwealth, about which I could expound at length.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

Reading the wording of the oath, I am at a loss to understand what the position would be if the Lord Chancellor was an atheist. Does the Lord Chancellor have the option of affirming rather than swearing an oath if he happens not to believe in God?

Photo of Bill Cash Bill Cash Conservative, Stone

That important point is not covered as far I can judge, other than to say that that requirement— indeed, duty—is in place and that, irrespective of our interesting discussion on the Promissory Oaths Act 1868, the option would be available to the Lord Chancellor to affirm. I suppose that if he had a problem of conscience with regard to the swearing of the oath, he could experience the same problem as Bradlaugh, in 1868 I think, when he was required to swear an oath, but, being a Quaker—I look to Simon Hughes for guidance on this—and a contemporary of John Bright, was allowed to affirm. Hence, I think, the hon. Gentleman's remarks. If the Lord Chancellor was an atheist, he could be in difficulties if he was required to swear the oath in question.

Leaving aside that important point—for which I am grateful to my right hon. Friend Mr. Knight and which goes to show how many unpleasant man traps there are in the oath—I turn to the

"duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."

I may add that the following sentence is:

"So help me God."

The Lord Chancellor will certainly need divine assistance if he is to fulfil that obligation. I made the point in an intervention that it would be extraordinary to single out the Lord Chancellor to swear an oath to maintain public expenditure, whereas the Chancellor of the Exchequer and the Prime Minister, who ultimately decide whether the Lord Chancellor gets his money, are not placed under the same requirement.

That seems a little odd, but I could also mention the issue of court closures, for example. It is not impossible that somebody might not only pursue the Lord Chancellor for failure to carry out the administrative functions regarding the provision of resources that are laid down in clause 4, but tackle him on whether he is in breach of his oath. That would be an extraordinary state of affairs.

The Chairman:

Order. The hon. Gentleman—I will say it one more time—should be talking about the content of the oath and not diverting into areas that are not relevant to the amendment. If he cannot accept my rulings, I have other powers.

Photo of Bill Cash Bill Cash Conservative, Stone

I have to say, Sir Alan, that if the words are to be

"discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible",

I cannot see why it should be out of order for me to talk about what those words mean.

In that context, I conclude with the words "So help me God".

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

That applies to us all following the hon. Gentleman's speech, thorough and comprehensive though it was.

Amendment No. 355 suggests an alternative to the oath proposed in the Bill. While I understand some of the sentiments expressed by Members, I hope to explain briefly why I do not think it is the right alternative and why I think it would be best to retain the version in the Bill.

The oath set out in clause 14 covers the three principal areas of the Lord Chancellor's role. It covers the rule of law and judicial independence, but it also covers the running of the courts. There has been some pooh-poohing of the notion of the efficacy and efficiency of resourcing of the courts—I shall explain why it is important in a moment—but those duties are key to the Lord Chancellor's Office in its reformed state, and also distinct from those of any other Minister.

The Lord Chancellor's oath as contained in the Bill outlines the fundamental responsibilities of the office holder in a form that avoids the problem of overlap with the judicial oath. That, too, is key. My hon. and learned Friend Ross Cranston had his own rationale for why the phrase

"in accordance with the laws and usages of this Realm" in the existing oath need not remain—he felt that it was already encompassed in the concept of the rule of law—but it is also crucial to note that that is currently integral to the judicial oath.

An oath whose purpose is to declare the Lord Chancellor's essential functions should clearly now reflect the fact that that Lord Chancellor will no longer sit as a judge. We will no longer have a judicial Lord Chancellor, which is why we need a new oath distinct from the judicial oath. By rejecting that phrase we are not, of course, implying that the Lord Chancellor should not be bound by the law when exercising his functions—he or she will be bound by it—but there is no need to specify that in the oath, especially if terms are borrowed from the judicial oath.

Let me now deal with the crux of the matter. I think that most of the objections are a result of a feeling that the new oath is not phrased in as romantic and flowing a way as the existing one. It is important for us to mention the Lord Chancellor's responsibilities in relation to the provision of effective support for the court system. Some Members may consider that very concrete and pedestrian, but it is important none the less.

I do not know whether those who are present were involved in scrutiny of the Courts Act 2003, but part 1 imposes a new statutory duty on the Lord Chancellor to ensure the provision of resources for the "efficient and effective" support of the courts. The Act was debated and approved in a specific context of concern from Members in all parts of the House who felt that we needed to be more certain that resources would be provided for the efficient and effective administration of the courts. It is because that duty was imposed then that we need it to be mentioned in the new oath. If the purpose of the Lord Chancellor's oath is to set out the essential responsibilities of the office, this vital area of duty ought not to be overlooked.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

First, will the Minister tell us what power the Lord Chancellor has, other than influence, to ensure that he or she has the money with which to do the job? I presume that it will have to be obtained from the Chancellor of the Exchequer: there are no own revenues, or very few. Secondly, what does this mean in practice? What can anyone do if the Lord Chancellor of the day does not fulfil his or her obligation? What right have I to take the Lord Chancellor to court in those circumstances?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 4:00 pm, 1st March 2005

As I was implying, we debated this during the passage of the Courts Act 2003. The reason that we explicitly put this duty into that Act was to provide a justiciable provision on the duty to provide resources for the efficient and effective running of the courts that was more firmly enshrined in our constitutional framework. Not many people, including those in the media, commented on that at the time, but the measure represented an important step forward.

Photo of Angus Robertson Angus Robertson Shadow SNP Spokesperson (Defence), Shadow SNP Spokesperson (Foreign Affairs)

If the measure is already enshrined in law, why is it necessary for it to form part of the oath?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

The oath does not stand on its own as a piece of legislation. It is a formal expression by which the prospective post holder reaffirms their commitment to the important principles set out in our constitution and in statute. It supplements what is already in statute. Some might say that it is not a necessity, but we feel that the oath adds the extra virtue of underlining to every new post holder the responsibilities and duties that they will have. That is why we want to continue to have an oath, albeit in a different form.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

Will the Minister answer the question that I asked earlier? Will it be possible for a Lord Chancellor to affirm instead of taking the oath, if that is what he or she wishes to do?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

Yes. I addressed that point before the right hon. Gentleman came into the Chamber, in response to a question from Simon Hughes. Mr. Cash asked about the rule of law and whether the measure encompassed the supremacy of Parliament in the oath. We have already debated that matter in other parts of the Bill and I do not want to go into it again. We have now agreed a definition of the rule of law. Some people certainly feel that the supremacy of Parliament should be included in it, but we have deliberately not included a formal definition of the rule of law in the Bill. We feel that the oath is better and more comprehensive in the proposed new form and I hope that the House will reject amendment No. 355.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

We have had a full and interesting debate on the Lord Chancellor's oath. We heard persuasive arguments from my hon. Friend Mr. Cash on the implications of oaths in the context of the rule of law, the supremacy of Parliament and the independence of the judiciary. The Minister said that there could possibly be an overlap with the judicial oath. Indeed, he stated that that was the key problem. We disagree with him, not least because of the Lord Chancellor's interest in protecting the interests of the judiciary. There is therefore no need to break the historic link with the judicial oath.

We find the Minister's remarks unpersuasive and wish to stand by amendment No. 355 to show that justice in the UK flows from the Crown, to remind the Lord Chancellor of his continuing duty with respect to the rule of law, to oppose the idea that an oath should be tied into adequate resources and to some kind of judicial efficiency, to remind the Lord Chancellor of his unique role as a Minister in protecting judicial independence, and to preserve the sense of continuity that exists with this historic role.

Question put, That the amendment be made:—

The Committee divided: Ayes 167, Noes 272.

Division number 106

See full list of votes (From The Public Whip)

Question accordingly negatived.

Clause 14 ordered to stand part of the Bill.