Please can we stop religious oaths in the legal process?
Do we really have to have religious oaths as a formal part of the legal process? And why are solicitors obliged to go through some quasi-religious ceremony when administering these oaths, regardless of the solicitor’s own beliefs or lack of beliefs? Why can’t we now just have affirmations as a universal standard?
Now that the High Court has sensibly ruled that it is not within the power of a town council to have prayers as an agenda item at business meetings (judgment), the time has surely come to remove the religious aspects of being a lawyer. Unless one is dealing with canon or ecclesiastical law, the starting point should be that both the practice of law and the litigation process are entirely secular activities. There should be no element of religious ceremony in any part of the general business of law, either for client or practitioner.
But oaths remain. Those giving evidence at court, or merely signing certain formal documents, are presumed to have to swear a religious oath on a religious text unless they go out of their way to ask not to do so.
Here it is perhaps significant that there is no one form of giving an oath at common law. It is a relatively modern statute, the Oaths Act 1978, which insists on the current elaborate gesture of swearing oaths. Section 1(1) even starts off by telling us that “the person taking the oath shall hold the New Testament, or, in the case of a Jew, the Old Testament, in his uplifted hand”.
(So anyone using a Bible is not being strictly correct; it has to be one Testament or the other; and it has to be in the person’s hand, which definitely has to be uplifted.)
The oath-taker has to say something. If they do not know what to say, the solicitor is legally required to say it for them first. The oath-taker “shall say or repeat after the officer administering the oath the words “I swear by Almighty God that … …”, followed by the words of the oath prescribed by law”. So this is not a thereby personal matter for the person taking the oath; the solicitor is obliged to say all these religious words too, regardless of the solicitor’s own beliefs.
Section 1(2) then places a further imposition on the solicitor. He or she has to endure this without any quibble if the person taking the oath wants to do all this ceremonial mumbo-jumbo. The solicitor “shall (unless the person about to take the oath voluntarily objects thereto, or is physically incapable of so taking the oath) administer the oath in the form and manner aforesaid without question”.
And what the Oaths Act giveth, it then taketh away. Having first insisted on this quasi-religious exercise for the oath-taker and the solicitor, it then ensures none of it has any real legal meaning. Section 4 of the Act provides that in “any case in which an oath may lawfully be and has been administered to any person, if it has been administered in a form and manner other than that prescribed by law, he is bound by it if it has been administered in such form and with such ceremonies as he may have declared to be binding”. So the religious texts and the hand raising is a legal requirement but one with no legal effect.
What happens if the person is not actually religious? The Act tells us that “where an oath has been duly administered and taken, the fact that the person to whom it was administered had, at the time of taking it, no religious belief, shall not for any purpose affect the validity of the oath”. So it makes no difference if the the words have any meaning for the oath-maker.
So there is no point - no point whatsoever - in the exercise. It does not matter if it is done or not, and it does not matter if the person taking the oath is religious or not. It is mere symbolism, but it is symbolism set as a legal requirement for oath-taker and solicitor alike.
Section 5 of the Act provides that any person who “objects” to being sworn shall be “permitted” to make a solemn affirmation instead of taking an oath. That’s rather kind of the law. But there is actually no good reason why affirmations cannot be a universal standard for hearings and formal documents alike. And it should not require an “objection” and “permission”.
If a client or a citizen really wants to swear an oath on some religious text as well as formally affirm, then they can do so. No one should stop them supplementing their affirmation with whatever they want. But there is no basis for requiring legal professionals to participate in a quasi-religious exercise just so that we can do their jobs. It should not be a case of swear or affirm; in a modern society with a secular state, a solemn affirmation is enough. Just as there should not be formal prayers in town halls, there should now not be formal oaths in the courtrooms or the offices of solicitors.
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Readers' comments (20)
patrick graham | 10-Feb-2012 5:18 pm
As a Quaker I have affirmed - and am aware that many of my predecessors went to jail for contempt for doing the same.
It is due to the double standard of truth that Quakers objected - deciding that all honorable Friends should tell the truth all the time, so implying that they did not was wrong, just as making the oath was - IS - wrong.
As it happens I am a Quaker atheist now, some would have a problem with that, but the law should be 100% secular, that all my Friends agree - and it is especially important in an era where religious groups are trying to get their religious laws enshrined in state law for the most ridiculous of ends.
I commend this proposal to the house.
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John Storer | 10-Feb-2012 5:20 pm
Totally agree with the sentiments expressed. Reminds me of my days as a magistrates' legal advisor (or "court clerk" as we were then known). Unfortunately, the memory fails with increasing years so I cannot remember exactly where this occurred, but it was either Lewes or Oldham Magistrates' Court where I had been sent to assist.
Whilst the magistrates' were out considering a sentence, I was talking to the prosecutor and defence lawyer and was stood by the witness box. I then noticed that the New Testament placed by the oath book was not the New Testament at all .... it was a Collins pocket English Dictionary
Who knows how long it had been there. I asked the usher in court and he said the book had been there for ages. He was as surprised as me when I showed him what the book was.
We kept quiet .... did not want a whole parcel of appeals arriving on the Justices' Clerk's desk ... but did ask the usher to make sure it was replaced asap
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Simon Carne | 10-Feb-2012 5:40 pm
Let us assume for a moment that there are people who might be comfortable perjuring themselves in the eyes of the law, but who would not lie having sworn a religious oath.
It follows from that assumption that justice is better served if those people swear a religious oath. Giving them the option of a religious oath on top of an affirmation doesn’t achieve the desired goal, because those who are about to lie will choose not to swear the additional religious oath. The same is true if there were to be a choice between affirmation or religious oath. The desired effect is achieved only if the oath is required for all except those who “object” to such a ritual (in effect, renouncing/denying their belief).
I am sure that the opening assumption has some validity. I suspect it is less far-reaching than it once was, but I doubt that its reach has diminished sufficiently to make it worthless.
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Anonymous | 10-Feb-2012 11:13 pm
The angry ranting and campaigning suggests you have some doubts? Difficult to see why a genuine atheist at ease with himself would waste so much time attacking "mumbo jumbo".
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Anonymous | 11-Feb-2012 9:28 am
If the text of the affirmation set out the maximum penalties for perjury, we might find far fewer people who are prepared to do it.
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Anonymous | 11-Feb-2012 9:32 am
This statement:
"Let us assume for a moment that there are people who might be comfortable perjuring themselves in the eyes of the law, but who would not lie having sworn a religious oath. "
Is bizarre.
If you are so religious you would not lie having sworn an oath, would you also be so irreligious as to lie when not under oath (which is what I understand perjury to be?)
Obviously it is not unknown for religious folk to be hypocrites, but even so, this seems very strange reasoning.
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Vaughan Jones | 11-Feb-2012 10:13 am
Simplifying this process is key and it should be based on a secular principles in not promoting one religion over and above another. It's a neutral position and leaves no room for ambiguity over the intentions of the person giving the oath.
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Legal Weasel | 11-Feb-2012 11:44 am
Scotland manages fine without oaths; it did away with all forms of oaths, other than in court, by section 11 of the Requirements of Writing (Scotland) Act 1995.
http://www.legislation.gov.uk/ukpga/1995/7/section/11
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marek | 12-Feb-2012 4:14 pm
Let us assume - with equal evidence, or lack of it - that there are people who do not take religious flummery seriously and find religious oath taking more ridiculous than awe inspiring.
It follows from that assumption that justice is better served if those people are not pushed to swear a religious oath which has no meaning for them, is not required or particularly expected to have any meaning for them and which serves only to distance them from their own responsibility to give honest evidence.
Or in other words, some actual evidence that oath taking leads to an increase in honesty would be helpful to see at this point in the debate.
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Norn Iron | 14-Feb-2012 1:06 pm
Few things more amusing than the 'secular' idea that folk are allowed an opinion on Man United/trash tv/the financial crisis, but that no one dare express their faith at work or in the public square. That said, I agree with our learned journo on this one-oaths are a slightly random practice, given Jesus' line to his followers: "Do not swear an oath at all....simply let your 'yes' be 'yes', and your 'no', 'no'."
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