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Baroness Scotland of Asthal: As so often, I agree with the sagacious remarks of the noble Baroness, Lady Park of Monmouth. It is right that the Lord Chief Justice is able to consult with whomsoever he considers most appropriate. In the ordinary way, one would anticipate that, as my noble friend Lord Dubs said, he would consult with all or any of those groups and many more. It would be wrong to specify in the Bill a limit on the number of people that he should consult.
I listened with great care to everything that was said by the noble Lord, Lord Fitt, and all other noble Lords about the sensitivity of the issue in Northern Ireland; I understand that. I also understand that the Human Rights Commission, whose members have done sterling work all over the world, appears to have caused a degree of consternation on the part of some in Northern Ireland. This may not be the most appropriate time or place to bandy words about the commission's merits—or demerits, as others would put it.
It would not be appropriate to put such matters in the Bill. We should leave it to the Lord Chief Justice's good judgment as to whom he may from time to time consult.
Lord Smith of Clifton: Having heard the Minister's explanation, I shall withdraw the amendment. Before I do so, I must endorse what the noble Lord, Lord Dubs, said. The concerted and concentrated attack by the Ulster Unionists on the Human Rights Commission is out of all proportion. There are some very distinguished people on the commission, including Professor Brice Dickson, who was a colleague of mine at the University of Ulster. I have put it on record before and I do so again now that he is a man of tremendous expertise in the field of civil rights and a man of complete integrity. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 109 not moved.]
Clause 17 [Secretaries to Lord Chief Justice]:
[Amendment No. 110 not moved.]
[Amendment No. 111 not moved.]
Clause 19 [Judicial oath or affirmation]:
Lord Glentoran moved Amendment No. 112:
- Page 13, leave out lines 11 to 22 and insert "take the oath of allegiance and the judicial oath or make the appropriate affirmation"
The noble Lord said: Amendment No. 112 is grouped with Amendments Nos. 113 to 116, which I do not believe it should be.
Lord Glentoran: I apologise to the Committee—my list is out of date. I am delighted that it is not.
The main thrust of my argument is that oaths, affirmations and all sorts of other things are very emotional, very sensitive, and, when tinkered with in Northern Ireland, almost invariably cause trouble and give reason for trouble.
The Belfast agreement clearly states that it is not necessary to interfere or change sensitive symbols and that each of the parties is entitled to its own, as is the nation. By devolution, we are not sanitising Northern Ireland from the United Kingdom. We are not, as the noble Baroness said earlier, divorcing ourselves completely and utterly from the rest of the United Kingdom. Quite the reverse—we are, and I hope we will remain for many years to come, very much an integral part of the United Kingdom.
The criminal justice system that we are devolving and setting up for Northern Ireland is very much a part of the Queen's realm and the Queen's justice system. It is unnecessary to change the oath or affirmation in the Bill. I see no reason why it needs to be changed. Given all the sensitivities that are attached to the issue, to mess about is not in any way helpful. I beg to move.
The Principal Deputy Chairman of Committees (Lord Brabazon of Tara): If this amendment is agreed to, I cannot call Amendments Nos. 113 to 116 inclusive.
5. p.m.
Lord Mayhew of Twysden: I have one or two reflections to offer, beginning with an apology for coming late to the Committee—which was necessitated by various transport difficulties.
I support the amendment. There is a great deal of symbolism involved in this issue. If anyone had any doubt about the importance of symbolism and its capacity for being abused in Northern Ireland, they would only have to travel down the Cregagh Road in Belfast, as I did last night, to have those doubts allayed.
Symbols are important. There is hardly any part of the world where they are more important than in Northern Ireland. Sometimes they are of value and sometimes they can be abused. In this case, I believe
there is both valuable symbolism and more than symbolism in the present judicial oath and the arrangements attached to it.If one can try to identify some common ground in this difficult and fraught issue, then it might be this: it cannot be right in principle for serving judges in the High Court to have taken different oaths or made different affirmations. Some would have taken the existing one while others—if this proposal is carried—exercising the same jurisdiction, will have taken another. That cannot be desirable.
Therefore, one looks to see whether principle lies behind the proposal. I do not believe there is principle, but there may well be expedience. I believe that principle points very firmly to staying with what we have. After all, in our system of law it is beyond question that justice flows from the Crown.
Let us take a parallel illustration using our position as Members of this House, or the position of our colleagues as Members of the other place. We owe our jurisdiction and ability to serve to the command of the Sovereign; to attend and to advise her. In those circumstances it has always been insisted upon that those who wish to become Members of the legislature should swear an oath of allegiance. That seems to be absolutely right in principle, as well as being necessary. Both Houses have always insisted on that and continue to do so.
Should it be different in the case of judges? I do not see how it can be different. First, the would-be judges are seeking employment under the Crown from the Crown. The employment they seek is the jurisdiction to dispense justice which flows from the Crown. Therefore, principle must point firmly in the direction of retaining the present arrangements.
What is the argument for change? One finds it in the review report at paragraph 6.142. For a change, a proposal so fraught with emotion and consequences and symbolic significance as this, it seems to have been only faintly argued. The group states that it accepts that it is one of our tasks to identify and, where possible, to deal with any blockages which might inhibit people from applying for judicial appointments.
It has been represented to us by some that the judicial oath and oath of allegiance, or the equivalent affirmation, required to be taken by judges, magistrates, JPs and lay panellists on appointment could constitute such a blockage.
At paragraph 6.125 is a recital of the various sides of the argument: on the one hand, on the other and so forth. Then at the end, the group declares that, on balance and in all the circumstances, it comes down in favour of the recommendation which is sought to be implemented in the Bill. Why should that be justified? Of course, it derives from sensitivity towards nationalist candidates or potential candidates who have a political aspiration. There is nothing wrong in that aspiration; it is one which they are perfectly entitled to hold. There may come a day when the
majority of people living in Northern Ireland will share that aspiration, in which case democracy will take its effect and that will be that.Why should it be seen as in some way dishonouring that aspiration that they should take the oath or make the affirmation—something which must be done at the moment—to uphold the Sovereign from whom their jurisdiction will flow? I do not think it can be argued that in any way would there be a dishonouring of their political aspiration were they should do that. I say that particularly when the constitutional status of Northern Ireland, as part of this kingdom—ruled over in constitutional theory by the sovereign—is guaranteed by statute in the very law that judges will have to administer. I can see nothing there, in a democracy that has declared time and again that the democratic process, now and henceforward, will determine the constitutional status of Northern Ireland.
There is no principle that can provide a foundation for the undesirable situation of some judges having taken one oath and some another. On the other hand, as we well know, what is suggested, what is envisaged and what will ensue from this proposal being implemented will be the cause of very profound affront to those who hold Unionist principles in Northern Ireland. It is important not to add to the causes of affront, actual or perceived, that abound in Northern Ireland, unless it is absolutely necessary in principle as well as in practice and expediency. I do not believe that either of those tests is fulfilled here.
Lord Maginnis of Drumglass: I am reticent to rise to my feet after listening to the noble and learned Lord, Lord Mayhew, but I do so in order to agree wholeheartedly with the sentiments that he has expressed and the good common sense that he has enunciated. We have just come through a situation in which we had the challenge of dealing with people who have already taken an oath and then suggesting that that oath is inadequate and they should take a new one. That happened with the police in Northern Ireland. We have the anomaly of a police service in which one group has taken one oath and another group has taken a different oath. As the noble and learned Lord, Lord Mayhew, intimated, that was done to please republicans—not necessarily constitutional republicans, but the less desirable element of that persuasion—who have very clearly responded by saying that it does not matter what oath the police have taken, because they going to treat them exactly as they have always treated them. They are not going to recognise the police. The police are going to be the enemy. These people intend not just to try to dissuade the young members of the nationalist community from joining the police, but actively to persuade them—and I think we understand what that means—not to join. This pandering to that element in our society has not done any good for society as a whole and has been deemed to be a sign of weakness.
I therefore support the noble Lord, Lord Glentoran, and those who have brought forward the amendment. I ask for guidance on Amendments Nos. 113 to 116, which were grouped with Amendment No. 112 on my list.
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