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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 Chancellorbe they political or otherwiseit 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.
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
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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.
Keith Vaz: 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.
Mr. Djanogly: 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.
Mr. Bercow: 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 the hon. Member for Leicester, East (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
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.
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.
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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.
Ross Cranston: 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
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.
Mr. Bercow: I am appreciative of the fact that the hon. and learned Gentleman has purloinedI 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:
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.
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