Ensuring due formality

Gerard Rothschild offers guidance on the administering of oaths in an increasingly secular society.

Authorisation to administer oaths is a privilege expressly conferred by a barrister’s practicing certificate which is often overlooked. How to administer oaths features neither in the BPTC syllabus nor in the Bar Council’s Handbook. In an increasingly secular society, yet one whose legislation appears still to attach special importance to the taking of oaths, it is incumbent on those of us entrusted to administer them to ensure due formality so that their significance is respected. This article seeks to redress the lack of guidance.


A reserved legal activity

The administration of oaths is a “reserved legal activity” for the purposes of the Legal Services Act 2007, so it is an offence to carry on the activity unless entitled. A person authorised to administer oaths by a relevant regulator (the BSB in the case of barristers) may use the title “Commissioner for Oaths”.

 Method and form for oaths

 Section 1 of the Oaths Act 1978 prescribes one of the valid methods for taking an oath:

 “The person taking the oath shall hold the New Testament, or, in the case of a Jew, the Old Testament, in his uplifted hand, and 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.”

 Unless the person about to take the oath objects voluntarily, or is physically incapable of so taking the oath, the statute says that the officer “shall” administer the oath in the above form and manner “without question”.

 In the case of a person who is neither a Christian nor a Jew, “the oath shall be administered in any lawful manner”. If the person desires to “swear with uplifted hand, in the form and manner in which an oath is usually administered in Scotland, he shall be permitted to do so ... without further question.”

 Beyond this, the legislation leaves the important topic of the procedure for taking an oath remarkably vague, perhaps because Parliament considered it appropriate to leave the formalities to religious authorities and customs. The usual customs for some other religions are:

  • For a Hindu: on the Gita using the words “I swear by the Gita that ...”.
  • For a Muslim: on the Koran using the words “I swear by Allah that ...”.
  • For a Sikh: on the Adi Granth using the words “I swear by Guru Nanak that ...”.

Validity of oaths

 

To what extent does the procedure followed affect the validity of the oath? Section 4 of the 1978 Act provides that, where 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”. Therefore, helpfully, a barrister does not need an encyclopaedic knowledge of the variety of oath-taking ceremonies. Nor, in case there were any doubt, need any inquiry be made as to religious belief. Section 4 also provides 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”.

Form for affirmations

By section 5 of the 1978 Act, any person who objects to being sworn (or in relation to whom it is not reasonably practicable to administer an oath in the manner appropriate to his religious belief) shall be permitted to make a solemn affirmation instead.

A solemn affirmation has the same force and effect as an oath. The prescribed form is in section 6: “I, ... do solemnly, sincerely and truly declare and affirm ...” followed by the words of the oath prescribed by law, but omitting any “words of imprecation or calling to witness”.

Alternatively, when the affirmation is in writing, it should commence: “I, ... of ..., do solemnly and sincerely affirm ...”.

Your task

Other than observe that these formalities have been satisfied, the only other important task stipulated in the legislation for an authorised person before whom an oath or affidavit is taken or made is to state in the jurat or attestation the place and date. This should then be signed by the authorised person who should state his name, qualification and address.

Affidavits

Despite the phrasing of section 1 of the Oaths Act 1978, there would appear to be no words prescribed by law for the oath relating to an affidavit. The customary wording is: “... that this is my name and handwriting and that the contents of this my affidavit are true [and that these are the exhibits referred to therein].”

In the case of affidavits, as will be familiar to those readers well versed in Practice Direction 32 of the Civil Procedure Rules, amendments should be initialled in the margin by the authorized person (as well as the deponent) and he should also sign any exhibits. Alterations should be made before the affidavit is sworn.

An error discovered afterwards cannot be corrected other than by re-swearing the affidavit. Where an affidavit is sworn by a person who is unable to read or sign it, the authorised person should certify in the jurat that he read the affidavit to the deponent, the deponent appeared to understand it and the deponent signed or made his mark in his presence. A jurat should follow immediately from the body of the affidavit and not be placed on a separate page. Where the deponent has affirmed, an affidavit is instead called an ‘affirmation’.

Good practice

Even though not expressly stipulated in legislation, it is suggested that ascertaining the following represents good practice for barristers asked to administer oaths, and indeed is reflected in the requirements of the Institute of Legal Executives (ILEX) and Costs Lawyer Standards Board in their published guidance on the topic to persons they authorise:

  • that the person before you is the deponent (by enquiring where applicable whether the signature to the document before him is his name and handwriting)
  • that he is apparently competent
  • that he knows in advance that he is about to be sworn
  • that, in the case of swearing an affidavit, the exhibits are the documents referred to.

In the case of an affidavit, it would also be prudent to check that the document is complete and without gaps which would make it easy subsequently to amend.

Interestingly, ILEX’s guidance (mirroring guidance formerly found in the Guide to the Professional Conduct of Solicitors) states that, “although a Fellow is under no duty to read through the oath or declaration, if a Fellow has good reason to believe that the oath or declaration is false (even if that was unknown to the deponent), the Fellow must refuse to administer it”. Although the reason for this is understandable, it would be a strange case where the person administering the oath knew something of relevance that the person taking the oath did not.

Other notable restrictions

The authorisation to administer oaths does not extend to any proceedings in which one represents any of the parties or is interested. The Civil Procedure Rules provide for a greater restriction in the case of affidavits, which must be sworn before a person “independent of the parties or their representatives”.

Not a profitable activity

There is power in the Legal Services Act 2007 for the Lord Chancellor to prescribe a fee to be charged for administering oaths. Whilst that power has not yet been exercised expressly, commencement provisions for the 2007 Act (article 9 of SI 2009/3250) have the effect of resuscitating provisions in SI 1993/2298 (made under the pre-existing law) which provided that the following fees (inclusive of VAT) “shall be charged” by Commissioners for Oaths:

  • For taking an affidavit, declaration or affirmation, for each person making the same: £5.00.
  • For each exhibit therein referred to and required to be marked, or for each schedule required to be marked: £2.00.

 

Conclusion

The rules on this subject may seem archaic but they still exist. It is respectfully suggested that the BSB gives consideration to ensuring that BPTC students receive proper instruction in them so that they know what to do when they receive their full practising certificates and are called upon to fulfil the public duty of assisting in the administration of oaths.

 

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Gerard Rothschild

Gerard (Call 2005) practises Commercial, Competition and Public Law from Brick Court Chambers in London. He was a Lecturer in Constitutional Law at Magdalen College, Oxford for 5 years.