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.