OATHS ACT, 1888 (AMENDMENT) BILL (Hansard, 9 May 1961)

§ LORD CHORLEY

My Lords, I beg to move that this Bill be read a second time. Its objects are to provide for an extension of the making of an affirmation, instead of taking an oath, in proceedings in a court of law, and other proceedings which come within that category, to cases where it would not be reasonably practicable to administer an oath to the witness concerned in a manner appropriate to his religious beliefs.

I think that this Bill will perform a very useful purpose, and will fill a gap in the law which, while not a very serious one, has from time to time given rise to difficulty, and is obviously tending to do so increasingly as more people come to live among us in this country whose religious beliefs entail their taking oaths, when called as witnesses or when required so to take an oath for one reason or another, which are, from the point of view of citizens in this country, rather strange and peculiar. One might say that "they are full of strange oaths", to use a quotation from Shakespeare. Therefore, it is necessary to provide for this situation. I think that in bringing forward this Bill in another place, Mr. Arthur Lewis has done a very considerable service to the administration of justice in this country. I should also like to thank the Home Office and 117 the noble Earl for their help and courtesy in this matter, and particularly for providing me substantially with the speech I propose to address to your Lordships on this particular problem.

As the Title of the Bill suggests, it is technically a Bill to amend the Oaths Act, 1888. Perhaps I should remind your Lordships that that Statute, which was passed as a result of a very bitter controversy which went on in the House of Commons over the case of Bradlaugh, the famous radical politician of the nineteenth century, provided that a Member of Parliament, or indeed a person becoming a witness in a court of law and in certain other proceedings, might make an affirmation instead of taking an oath in a case where the person had no religious belief at all (which, of course, was the case of Bradlaugh) or in cases where it was contrary to the person's religious belief that he should take an oath.

The first part was obviously directed at people like Bradlaugh, who was an atheist or an agnostic, and to a growing section of the community. The other part was put into the Bill because, although Quakers and Moravians had been allowed to make affirmations, there was considerable doubt whether that w as proper according to the law; and cases which were decided afterwards in connection with other religious faiths rather suggested that those doubts were justified. So I think it was sensible and reasonable to put the second limb into this Statute. But what the Act did not do was to provide for the possibility that, although it might be perfectly right and proper for the witness to take an oath according to his religious belief, his method of taking the oath might be such that it would be quite impracticable to carry it out in any ordinarily organised court of law; or, at any rate, would lead to such delay as to hold up the whole proceedings for an appreciable period of time. It is this sort of case at which this Bill is aimed, and which has given rise to a good deal of difficulty from time to time in the courts.

Indeed, my Lords, not long after the Oaths Act was passed, there was in 1892 a case in which two Indians, one of whom was a Sikh and the other an interpreter, I think, called to interpret for him, indicated that their method of taking the oath would be a rather complicated one, 118 whereupon the Judge said, "Well, let them affirm"; and that was done. Then the case was taken on appeal to the Court of Appeal, on the ground that the oath was not within the Oaths Act because the men had a religious belief which allowed them to make an oath. The Court of Appeal said that that was so, that it was not within the Oaths Act, and it was held that the evidence had been wrongly admitted on the basis of affirmation when an oath was, in fact, possible, although not very practicable in the circumstances of that case. There was in the same year another case, in which the Aly Khan of that time was involved. In that case it was held that if a witness, while not in any way objecting to taking an oath, considered that the form in which it was offered to be administered to him did not comply with the ceremonial requirements of his religion, and therefore would not be binding on him, he could not be permitted to affirm.

From time to time in other cases, a similar position has arisen. Many of them have been cases in which Sikhs have been involved, because their method of taking an oath is a complicated and unusual one. In one of these cases, which came before a magistrates' court only two or three years ago, a prisoner, when called upon to give evidence as a witness, said that he was willing to take an oath upon the Sikh sacred book, the Granth; but as there was not a copy available he was allowed to affirm. This is rather surprising, in view of the decision in the earlier case, but I suppose that the magistrates were not aware of it. He was allowed to affirm, but the evidence which he gave was regarded as being perjured evidence. On this he was indicted for perjury, but it was held that he was not properly indicted, because the evidence which he had given ought to have been given on the Sikh oath and not by affirmation as he was not within the liberty of making an affirmation, which was conferred by the Act of 1888.

My Lords, those cases are not isolated. There was another case at Manchester Assizes in 1940, to which I need not refer in detail; and fairly recently there was a case referred to in legal journals. That again involved a Sikh, who gave evidence by placing the Granth on a cushion in court, with two 119 cows' tails, one on each side of the Granth, which in his view was the correct way of taking an oath according to the Sikh religion. To put a court into the state of having to provide a copy of the Granth, a cushion and two cowtails, would almost invariably lead to considerable delay, and obviously the procedural requirements of English courts could not be conducted on the basis that the authorities at the courts should be required to make provision for all possible varieties of the taking of oaths which must exit, not only in the countries of the British Commonwealth of Nations but all over the world. So it will obviously be a great convenience, in this type of case, to enable an affirmation to be made instead of insisting that an oath be taken.

But the matter goes further than that. Obviously, the law as it stands at present provides the possibility of a man evading the need to give evidence by saying that the particular ceremonial which the court is providing for him is not one which his sect of religion requires, and that if he takes an oath in this form it will not be binding on him. In that way a man may escape altogether from giving evidence in a case in which his evidence might be materially vital. Therefore, it has been felt not only that it is necessary to enable an affirmation to be made in a case of this kind but also that the law should go further and require of a witness that he should make an affirmation in this type of case. The Bill which is before your Lordships this afternoon takes that further step.

That, in substance, is what is in the Bill. Perhaps I ought to draw your Lordships' attention shortly to the two clauses which it contains. The main operative provisions of the Bill are contained in subsections (1) and (2) of Clause 1. Subsection (1) provides that a person to whom it is not reasonably practicable to administer an oath in the manner appropriate to his own religious belief may be allowed to make an affirmation instead. The expression "reasonably practicable" is defined later on in subsection (2). The Oaths Act, 1888, and consequently the amendments to it made by this Bill, apply to the taking of an oath or to the making of an affirmation in all places and for all purposes where an oath is or shall be 120 required by the law. Consequently, the effect of this Bill is not restricted to oaths taken in courts of law but is, as I indicated earlier on, wider in its application.

Subsection (2) provides that a person may be permitted to affirm instead of to take an oath, if it is not reasonably practicable for him to be sworn in accordance with his own religious beliefs. This is necessary, as I have explained for otherwise a reluctant witness might evade giving evidence by claiming that some ceremonial, which is essential to the oath which he was proposing to take, could not be complied with in the circumstances of that particular day and occasion. The term "reasonably practicable" is defined here as meaning "reasonably practicable without inconvenience or delay." There is a subsection (3), which brings in the Army and Air Force Acts, 1955, and the Naval Discipline Act, 1957. These Acts, in fact, permit affirmation, but do not go on to give the courts power to insist on affirmation in the sort of cases I have explained, and it is felt that it would be valuable to extend that power to cases falling under these Acts.

Clause 2 contains the Short Title and citation. The Bill applies to Scotland, and while it does not, in terms, extend to Northern Ireland generally (because it deals with a matter which is within the power of the Parliament of Northern Ireland), it deals with two points in which the powers of the Parliament of Northern Ireland are restricted—that is, in relation to courts-martial and to matters provided by Section 18 (2) of the Government of Ireland Act, 1920, which relates to oaths taken by Members of Parliament—Members of the Senate and of the House of Commons of Northern Ireland. It has been felt that these two points ought to be brought within the present Bill. Naturally, the consent of the Government of Northern Ireland has been obtained to this course being taken. I hope that I have said enough to enable your Lordships to feel that this is a very useful measure, and I beg to move that the Bill be now read a second time.