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Mr. Leslie: Schedule 4, though dense, is vital to the Bill. It establishes the appropriate responsibilities of the Executive and the judiciary. It ends the judicial role of the Lord Chancellor and gives effect to the principles set out in the concordat. It sets out the bulk of the amendments to existing legislation, including the example cited by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), dealing with the current functions of the Lord Chancellor that relate to the judiciary, his role as judge and the organisation of the courts. It also transfers functions to the Lord Chief Justice, requiring the concurrence of, or consultation with, the Lord Chancellor as appropriate. Some functions remain with the Lord Chancellor, requiring the concurrence of, or consultation with, the Lord Chief Justice as appropriate.
The schedule also enables the Lord Chief Justice to delegate functions conferred on him by the Bill to other judicial office holders, and that is essential to ensure sufficient flexibility and to ensure that the Lord Chief Justice can continue to fulfil his primary role as a judge. It is important to mention that by virtue of schedule 6, the functions conferred on the Lord Chancellor cannot be transferred to another Minister by an order of the Ministers of the Crown Act 1975. That is essential, given clause 4 and the Lord Chancellor's particular duties in relation to judicial independence.
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I am not a lawyer, nor do I have the well thumbed textbook of statutes before me that the hon. Gentleman has.
Simon Hughes: The Minister can have it.
3 pm
Mr. Leslie: I would rather the hon. Gentleman did not pass it across to me. I will try my best to answer some of his questions about the Habeas Corpus Act 1679. We do not propose to make any substantive changes to that Act. However, it will no longer need to refer to the Lord Chancellor because he will no longer be a judge or have a judicial role. That is the only change that we are making, so all the other references to judges in the Act will remain. The hon. Gentleman asked about different kinds of judges, and my understanding—with the caveat of my lack of legal qualifications—is that the provisions apply to High Court judges and above. No jurisdictional changes are proposed to the Act as it applies throughout the country. I think that the reference to barons of the High Court is another way of describing judges of the High Court.
The hon. Gentleman asked about access to justice and the 20 and 100 miles provisions. We do not propose to change those provisions in this Bill. However, other Acts might well have repealed or amended them, although I cannot say that for certain.
I hope that I have answered the hon. Gentleman's questions. Nothing in the schedule will undermine the principles of habeas corpus, which will remain strong. However, as the Lord Chancellor will no longer be a judge, we need to change references to him in myriad Acts of Parliament, just one of which is the Habeas Corpus Act 1679. I hope that my explanation has been helpful and has elucidated a little more why schedule 4 should stand part of the Bill.
Simon Hughes: I thank the Minister for his reply. If he comes across other useful information, I am sure that he will be able to share it with Opposition Front Benchers and other hon. Members. I am reassured that the Government stand by habeas corpus. If the access to justice provisions regarding distance have not already been amended, I suspect that a habeas corpus amendment Bill will come down the tracks from somewhere in the House before too long.
Schedule 4, as amended, agreed to.
Mr. Djanogly: 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.".'.
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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",
"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
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"—
"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"
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reflects the unique constitutional position of the Lord Chancellor in upholding the rule of law in our country.
Mr. Cash: 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.
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