House of Commons Procedure Committee The Sub Judice Rule of the House of Commons First Report of Session 2004–05 Report, together with formal minutes, oral and written evidence Ordered by The House of Commons to be printed 16 March 2005 HC 125 Published on 4 April 2005 by authority of the House of Commons London: The Stationery Office Limited £14.50 The Procedure Committee The Procedure Committee is appointed by the House of Commons to consider the practice and procedure of the House in the conduct of public business, and to make recommendations. Current membership Sir Nicholas Winterton MP (Conservative, Macclesfield) (Chairman) Mr John Bercow MP (Conservative, Buckingham) Mr John Burnett MP (Liberal Democrat, Torridge and West Devon) David Hamilton MP (Labour, Midlothian) Mr Eric Illsley MP (Labour, Barnsley Central) Huw Irranca-Davies MP (Labour, Ogmore) Eric Joyce MP (Labour, Falkirk West) Mr Iain Luke MP (Labour, Dundee East) Rosemary McKenna MP (Labour, Cumbernauld and Kilsyth) Mr Tony McWalter MP (Labour, Hemel Hempstead) Sir Robert Smith MP (Liberal Democrat, West Aberdeenshire and Kincardine) Mr Desmond Swayne MP (Conservative, New Forest West) David Wright MP (Labour, Telford) Powers The powers of the committee are set out in House of Commons Standing Orders, principally in SO No 147. These are available on the Internet via www.parliament.uk. Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at http://www.parliament.uk/proccom and a list of Reports of the Committee in the present Parliament is at the back of this volume. Committee staff The current staff of the Committee are Simon Patrick and Libby Preston (Clerks) and Susan Morrison (Committee Assistant). Contacts All correspondence should be addressed to the Clerks of the Procedure Committee, Journal Office, House of Commons, London SW1A 0AA. The telephone number for general enquiries is 020 7219 3318; the Committee’s email address is [email protected] The Sub Judice Rule of the House of Commons 1 Contents Report Page Summary 3 1 Introduction 5 Our inquiry 5 The history of the rule 5 2 The justification for the rule 7 Prejudice of cases 7 Comity 8 3 Problems with the rule 10 Level of disquiet 10 Related cases 10 Delay 11 Reference to cases not impinging on the merits 11 Inquests 12 Tribunals 14 4 The Chair’s discretion 14 5 Select committees 15 6 Conclusions 16 Conclusions and recommendations 17 Annex: Sub Judice Resolution, 2001 19 Formal minutes 20 Witnesses 21 List of written evidence 21 The Sub Judice Rule of the House of Commons 3 Summary The House of Commons adopted its current sub judice rule (see p 19) by resolution in 2001 following the Report of the Joint Committee on Parliamentary Privilege in 1999. The House of Lords has a parallel resolution. The rule prevents reference being made in proceedings in the Chamber or in committees to cases which are active in the courts (as defined in the resolution). The rule does not apply when the House is considering primary or secondary legislation, and the Chair has discretion to disapply it on other occasions. Two reasons are put forward for the rule: the need not to prejudice court proceedings (which applies also outside Parliament, where it is enforced by the contempt of court rules), and the principle of “comity”, whereby it is considered undesirable for Parliament to act as an alternative forum to decide court cases. Few cases are referred to the Speaker for the exercise of his discretion, and even fewer are disputed on the floor of the House. However, the Committee received details of two cases (which are still active), one of which affected the consideration of a closely related case in a select committee, and the other of which inhibited questioning about the arrangements in force in an institution where a death had taken place. Although the rule delays Parliamentary activity rather than prohibiting it altogether, the delay can run for several years. This delay can be particularly marked in coroners’ court proceedings; the Committee recommends that the Speaker should be willing to disapply the rule where the desirability of the House discussing a matter of public concern outweighs the likelihood of prejudicing the inquest. The resolution applies the provisions for criminal cases to coroners’ court proceedings, and the Committee recommends that both Houses should consider how the points at which such proceedings are treated as being active can be more suitably defined. The Committee does not recommend that the rule be extended to tribunals (except those under the 1921 Act), even though the Contempt of Court Act 1981 applies to some of them. The Speaker can exercise his discretion to disapply the rule only if a Member refers a case to him: the Committee encourages Members to do this whenever they consider that the rule is unreasonably impeding the work of Parliament. Select Committee chairmen should consult the Speaker in advance, if practicable, if a sub judice issue arises; otherwise, the evidence concerned should be taken in private. The Committee concludes that, with appropriate use of the Speaker’s discretion, it does not recommend changes to the sub judice rule at the moment (except for the clarification relating to coroners’ courts mentioned above), but may wish to return to the matter in the light of experience. It reminds Members of their responsibility not to say anything which would influence the outcome of a court case. The Sub Judice Rule of the House of Commons 5 1 Introduction Our inquiry 1. The sub judice rule of the House of Commons, which is set out on p 19, prevents reference being made in proceedings in the Chamber or in committees to cases which are active in the courts. There are two main exceptions: a) the rule does not apply when the House is considering primary or secondary legislation; b) the Speaker1 may relax the rule at his discretion. The rule relates only to the courts of the United Kingdom, and does not, in general, extend to tribunals, a matter to which we return in paragraph 29. 2. In the last few months we have received two representations about the operation of the rule: Donald Anderson MP, Chairman of the Foreign Affairs Committee, wrote to us about a case which had arisen there,2 and the Leader of the House sent us a letter from Ms Sally Keeble MP, who had written to him about restrictions brought about by the application of the rule to coroners’ courts.3 3. We decided to undertake an inquiry into the rule, not restricted to the two cases raised with us, but into the operation of the rule more generally. We have taken oral evidence from Mr Roger Sands, the Clerk of the House, Ms Helen Irwin, the Principal Clerk of the Table Office, Lord Goldsmith, the Attorney General, Lord Nicholls of Birkenhead, a Law Lord who chaired the most recent inquiry into the subject (see paragraph 7), and Ms Sally Keeble. We have also received some valuable written evidence, and our attention has been drawn to material relating to other Commonwealth countries (see paragraph 9). To everyone who helped with our inquiry, we express our thanks. 4. An inquiry into the sub judice rule will inevitably receive information about individual cases; the cases referred to by Mr Anderson and Ms Keeble are still active in the courts and we have had to be guarded in the way in which we have referred to them. The history of the rule 5. The first codification of the sub judice rule in the House of Commons was a resolution of 23 July 1963, following a report by our predecessor committee.4 That report traces the development of the rule as a convention dependent on Speakers’ rulings since 1889.5 A 1 For the position of committee chairmen, see paragraph 36. 2 Ev 35 3 Evidence not reported: later letters by Ms Keeble are at Ev 24, 25. 4 For the text of this resolution, see Ev 39. See Select Committee on Procedure, First Report, Session 1962–63, The Rule Relating to Reference in the House of Commons to Matters Considered as Sub Judice, HC 156. The matter was referred to the committee on 21 November 1962 following an instance of the rule being applied to a civil case in December 1961 (para 1). 5 The 1844 case mentioned in that report did not relate to a Speaker’s ruling but to a case before the courts which was for that reason not referred to in the Queen’s Speech nor by two Members in the debate on it: HC (1962–63) 156 pp 48, 56; Parl Deb (1844) 72, cc 5, 85–6, 98. 6 Procedure Committee further resolution was made on 28 June 1972, following a further report from the committee, which exempted civil cases to some extent if the matter to be raised related to ministerial decisions or issues of national importance; at that time national industrial disputes might be brought before the National Industrial Relations Court.6 The application of the rule developed through individual rulings; for example, a ruling of 12 May 19927 said that it applied to coroners’ courts, which were not specifically mentioned in the 1963 resolution. Similarly, although the resolutions did not mention select committees, committees were advised that they should apply it, at least to proceedings taking place in public. 6. Meanwhile, the House of Lords had made no corresponding resolution, but guidance was inserted in the Companion to the Standing Orders following reports of their Procedure Committee.