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Noble Lords: They are not.

Lord Maginnis of Drumglass: I am grateful.

I simply implore noble Lords—because this is an important issue—not to tinker with the obligation of members of the legal profession, as the noble and learned Lord, Lord Mayhew of Twysden put it, to the Sovereign from whom they are given their authority. It did not work with the police. In fact it has had to be changed and tinkered with to such an extent that the whole thing, which was meant to have a certain dignity about it, has been brought into disrepute.

The Deputy Chairman of Committees (Lord Burnham): Perhaps I may assist the noble Lord. I shall repeat the remarks made by my predecessor as Deputy Chairman of Committees. If Amendment 112 is agreed to, I shall be unable to call Amendment Nos. 113 to 116.

Lord Fitt: I believe we may be in danger of trying to bolt the stable door from which the horse has already escaped. In Northern Ireland a few months ago this issue had a great deal of publicity when two senior barristers refused to take the oath on being elevated to Queen's Counsel. They actively refused to do so. The case went to the High Court in Northern Ireland. That court came back with a decision in their favour. It said that they were not going to be compelled to take the oath of loyalty to Her Majesty, which they had refused to take. So those are two people who have already changed the law.

Oaths have been laden with symbolism in Northern Ireland throughout its long history. They were used by the Northern Ireland Unionist Party to debar people from taking up positions where they would have had to take the oath of allegiance.

I remember well when I was elected as a councillor to the Belfast Corporation as it then was. You had to sign a declaration of loyalty to Her Majesty—this was three or four years after she had become Her Majesty—before you could become a Belfast City councillor. Furthermore, in those days you were not paid for being a member of the local authority.

The same was true even for the most menial of jobs, such as a refuse collector. People taking jobs of that kind with the local authority of the City of Belfast had to take the oath of allegiance. That meant that, even though there was severe unemployment and many people wanted to take a job, they certainly were not going to be forced into the position of swearing an oath of allegiance just to get such a menial position. As I say, this issue has been laden with symbolism in Northern Ireland.

I do not take offence at the oath which is now in the Bill. I do not believe that it would be possible to return to the oath as it was previously because, as I have said,

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two senior barristers refused to take that oath. The matter went to the High Court in Northern Ireland and the High Court decided on it. We already have a fait accompli and we have to accept it.

Lord Desai: The Minister may clarify this problem when she comes to reply. It is not possible to pretend that Northern Ireland has not been a divided society and that we have not made a tremendous effort to make it as united as we can by recognising that differences exist. Those differences have to be accommodated. We cannot go on pretending that things are just as they were for a long time and that all we are doing is making a few minor changes. We are not. In effect, the Belfast agreement is an international treaty. We have taken on board certain obligations to change the culture and nature of that society.

It is as a part of that effort that the oath has to be rethought. I do not believe we can escape the difficulties by saying that we can do exactly the same in Northern Ireland as was done in Wales and Scotland. If that were the case, then we would not have been through the past 32 years of history. In that sense, as well as through historical circumstances, we have—apart from the noble Lord, Lord Fitt—no representation of the nationalist community in your Lordships' house. Therefore those views are not expressed with anything like the authority that they should be. That is because we are, as it were, pale substitutes for what should be said.

In the 19th century, a man was thrown out of Parliament several times because he did not want to swear allegiance. He had to run for office again and again. That was silly. It was said that it was not possible to make an affirmation because that would be a denial of the Sovereign's connection with God. Today we have no problem with affirmation. Things have to change and we have to recognise that if something offends a substantial minority in a society, then it cannot be sustained. We cannot pretend that it is possible simply to go back to square one and pretend that nothing has happened.

5.15 p.m.

Baroness Park of Monmouth: The noble Lord, Lord Desai, cited the Belfast agreement. After all, that agreement states that,

    "while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland, the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union".

A little further on in the agreement, on page 20, it states:

    "All participants acknowledge the sensitivity of the use of symbols and emblems for public purposes, and the need in particular in creating the new institutions to ensure that such symbols and emblems are used in a manner which promotes mutual respect rather than division".

I would submit that we have become used to the tyranny of the minorities. In this case we are looking at what the majority wants and what that majority has voted for so far. When the day comes that that majority changes, then perhaps it would be

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appropriate to consider a change of oath; that is, a different appreciation of the position of the Sovereign. However, at the moment the majority wishes to stay in the United Kingdom. Therefore the majority, by inference, wishes to remain the same as other members of the United Kingdom.

Perhaps I may also point out that the SDLP and the Catholics who form an important part of that minority do not seem to have had any problem about joining the Army and taking the oath or in joining the police, where they would probably have been prepared to take it. Those Catholics who were brave enough to join in the days before the Belfast agreement took the oath. We are in danger of committing ourselves perpetually to pleasing the minority and forgetting the rights of the majority; those are legitimate rights.

Lord Rogan: I wish to echo the words of the noble Baroness, Lady Park of Monmouth. The noble Lord, Lord Desai, is correct. I agree with him completely when he says that one should not offend, annoy or disenfranchise the minority. However, in setting out to achieve that aim, noble Lords should be careful that we do not offend, annoy or disenfranchise the majority.

Lord Shutt of Greetland: I too should like to quote the Belfast agreement of 10th April 1998. The first words of the "Declaration of Support" state that:

    "We, the participants in the multi-party negotiations, believe that the agreement we have negotiated offers a truly historic opportunity for a new beginning".

That means a fresh start in many areas. The work we are doing on the Bill is a part of that fresh start.

Lord Smith of Clifton: When we talk about minorities and majorities, with reference to the contribution of the noble Baroness, Lady Park of Monmouth, I believe I am right in saying that among the younger elements in both branches of the legal profession, there is now a majority of Catholics. Thus, ahead of any demographic change that may take place, we shall certainly encounter among the up and coming young barristers and solicitors an increasing number of Catholics. That will highlight the problem referred to by the noble Lord, Lord Fitt. Many of them will feel unable to take the existing oath. Hence, the Bill's provisions. I entirely support what was said by the noble Lords, Lord Desai and Lord Fitt.

Baroness O'Cathain: The noble Lord, Lord Smith, said by implication that Roman Catholics would not wish to take the oath, that they would not wish to be members of the judiciary where they have to take the oath, that they may take the oath in any case and that they are not necessarily Unionists. That is not true.

Lord Hylton: I record my support for the remarks made by the noble Lords, Lord Desai and Lord Smith of Clifton. I venture to disagree with the noble Baroness, Lady Park of Monmouth, on the grounds that what has been described as the current minority is in fact a local majority in a considerable number of

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cities, towns and districts. I suggest that those provisions in the Bill that one may think might protect the present minority may become useful safeguards for any future minority.

Baroness Scotland of Asthal: If the debate in relation to oaths has demonstrated anything, it has demonstrated the acute sensitivity that surrounds this issue in relation to the divide. The noble Lord was right when he said that we are looking for a new beginning. I listened with great sympathy to what the noble Baroness, Lady Park, said about the right of the majority and what she described as the tyranny of the minority. However, one has to recognise that minorities and majorities have much to give one another if they are to live in harmony.

What we therefore seek to do in this Bill—indeed, this was attempted in the Good Friday agreement—is to chart a new path along which majority and minority communities can walk in harmony and in unison together. We therefore have to look with a very jealous eye at all those provisions that may cause a stumbling block on the joint journey that both parts of the community must travel along.

Members of the Committee know that the whole purpose of the review in relation to criminal justice and the system in Northern Ireland was to try to chart a road through such that, at the end—if devolution were possible—there would be a degree of comfort for the majority community and the minority community. We are therefore all obliged to consider the provisions in an holistic way as opposed to a piecemeal way. Once we start to pull at a thread, we may find that much else will be unravelled. There are parts that cause discomfort on one side, and other parts which doubtless cause discomfort on the other side. We are of course aware of that.

The noble Lord, Lord Fitt, raised the case of QCs. That case is in fact slightly different because it concerns the change in the declaration taken by Queen's Counsel, not an oath, although the similarity should certainly be considered. The Lord Chancellor decided to change the form of the declaration to that recommended by the Northern Ireland Bar Council. However, he made that decision himself and it was not the result of a High Court order. Perhaps it demonstrates, as my noble friend suggested, that there can be a blockage of the sort that I am sure no one in this Room would seek to make. I invite Members of the Committee to look with care at the oath that is proposed. The essential elements of the oath remain the same. If Members of the Committee troubled to look at it with me, they may find in those words some of the reassurance that Members of the Committee seek. The review, which took, if I am not mistaken, about two years, would have looked carefully at the very delicate question of oaths before making its recommendation. The oath that all judges are invited to take is to swear that they,

    "will well and faithfully serve in the office",

and that they,

    "will do right to all manner of people without fear or favour, affection or ill-will, according to the laws and usages of this realm".

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That oath recognises the reality that is Northern Ireland. Northern Ireland is a realm—it is part of the United Kingdom and Her Majesty the Queen is the Sovereign of that realm. In that oath there is a recognition and acknowledgement of the reality that is Northern Ireland.

The affirmation, which appears in Clause 19(3), reiterates the same thing in very similar terms. It is important for us to build a future in which both sides of the community feel a degree of comfort and will swear to, and that all judges who undertake to swear the oath and thereafter do so. They will be bound by the laws and usages of this realm known as the United Kingdom, which includes England, Scotland, Wales and Northern Ireland—nothing has changed.

One needs to have a degree of moderation as we are not just dealing with yesterday or today; we are dealing with our tomorrow, and we wish Northern Ireland to have the joy and felicity of having a union of people who have the capacity to live in harmony. It is our job, if I may most humbly and respectfully suggest, to chart a path that will enable each individual citizen in Northern Ireland to walk along the same road in security and to honour the reality that is Northern Ireland.

Departure from the wording in this regard would have much greater resonance than perhaps in almost any other area, because it is—and I say so plainly—a compromise. Some might feel that the compromise one way or the other has gone too far. I suggest that the balance is about right. It allows the Unionists—be they Catholic or Protestant—the reassurance they need; that is, that the unity of this Kingdom is recognised in the oath. It does not impose on those who are republicans, be they Protestant or Catholic, the imposition of the direct, as opposed to the indirect and implicit reference to Her Majesty. We have a way which allows people a state in comity and that is what we are striving for.

I would suggest that we seek to do nothing in the clause that would cast the slightest shadow of doubt on Northern Ireland's constitutional status As I have said, the word "realm" reflects the United Kingdom's position as a constitutional monarchy. I hope that that will assure the noble and learned Lord, Lord Mayhew, and the noble Lord who moved the amendment and others who have spoken in relation to this matter.

Amendment No. 112, which seeks to reinstate the judicial oath and the oath of allegiance, would undermine that aim. For the reasons that I hope I have explored fully, I ask Members of the Committee not to go down that path. We have an opportunity to do something quite extraordinary in this Bill and I invite noble Lords to seize the opportunity, to have the courage that many have demonstrated on both sides of the divide—which was needed to make the Good Friday agreement possible, as it was needed to undertake this review—and say that, albeit that this may be a compromise, it is a fair and honourable compromise with which the noble Lord can properly be content.

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5.30 p.m.

Lord Glentoran: The noble and learned Baroness has been no less eloquent than I would have expected. Her speech was very special. However, I feel that she has not necessarily argued successfully against the eloquence of my noble and learned friend Lord Mayhew. In fact, she has hardly tackled his objective arguments. She has appealed to emotions and to reason, but not to objectivity. I shall not say what I was about to say because it would be not right.

The points made by my noble friend Lady Park and my noble and learned friend Lord Mayhew, and those from noble Lords on the Unionist Benches are still very real. I am not convinced that there is a reason to change the oath at all.

I shall touch on the basic point. The only people in Northern Ireland who will not take the oath or join the judicial system are members of Sinn Fein/IRA. Members of the SDLP sit at the other end; they operate within Her Majesty's realm—as do others—and do not ask for special favours or treatment. As my noble friend Lady Park pointed out, they have bravely joined the police force and our Army bravely for years, and still continue to do so. Only one very small minority group in Northern Ireland wishes on every occasion to attempt to persuade and bully—they do both; they still have their guns in their pockets and their hands out for the ballot box—the Government of this country to give them special favours. Creepingly and slowly they seek to sanitise Northern Ireland of any tinges of royalty, of the United Kingdom and so forth.

It is neither right nor necessary in this Bill to compromise the judicial system of Northern Ireland in this way for such a small minority of the population. There might be one, two or three people—there might even be 10—but still it will be a small minority. Furthermore, they will certainly belong to only one party, which at the moment is not one of the largest parties in the kingdom. However, today is not the day for divisions and decisiveness. We shall almost certainly return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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