|Previous Section||Index||Home Page|
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.
Mr. Cash: 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 independenceas you have indicated, Sir Alan, we do not need to go into what that would involve because we have already discussed it on clause 4the 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.
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
1 Mar 2005 : Column 871
Carroll may have used, the significance of this matter is what I think it is, not what the hon. Gentleman thinks it is.
Mr. Greg Knight (East Yorkshire) (Con): 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?
Mr. Cash: 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.
Mr. Geoffrey Clifton-Brown (Cotswold) (Con): 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?
Mr. Cash: I sense that you are not concerned to hear more on that subject, Sir Alanyou 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.
Mr. Greg Knight: 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?
That important point is not covered as far I can judge, other than to say that that requirement
1 Mar 2005 : Column 872
indeed, dutyis 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 QuakerI look to the hon. Member for Southwark, North and Bermondsey (Simon Hughes) for guidance on thisand 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 pointfor which I am grateful to my right hon. Friend the Member for East Yorkshire (Mr. Knight) and which goes to show how many unpleasant man traps there are in the oathI turn to the
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. GentlemanI will say it one more timeshould 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.
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.
1 Mar 2005 : Column 873
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 courtsI shall explain why it is important in a momentbut 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 the Member for Dudley, North (Ross Cranston) had his own rationale for why the phrase
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 functionshe or she will be bound by itbut 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.
|Next Section||Index||Home Page|