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 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 1992[7]
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.
7. The Joint Committee on Parliamentary Privilege,
which was established in 1997 and reported in 1999, considered
the sub judice rule.[8]
It recommended that the rule should be updated, and should be
adopted as a resolution by both Houses. This was done on 11 May
2000 (Lords) and 15 November 2001 (Commons). The resolutions are
identical except that the discretion given to the Speaker of the
House of Commons is given to the Leader of the House of Lords.
8. The Scotland Act 1998 required the Scottish Parliament,
when established, to have a sub judice rule, and that Parliament
has made a Standing Order[9]
which defines cases as "active" if they are active for
the purposes of section 2 of the Contempt of Court Act 1981.[10]
This is a somewhat wider definition than in the Westminster sub
judice resolutions: in particular, it means that criminal cases
are active from the time an arrest is made (or a warrant for arrest
is issued), rather than from when someone is charged. The Joint
Committee considered that the practical difficulties of ascertaining
whether someone had been arrested (or released without charge)
could be insuperable, and recommended that the existing starting
point for the sub judice rule should be retained.[11]
9. A report in 1997 by the Members' Ethics and Parliamentary
Privileges Committee of the Legislative Assembly of Queensland
contains a useful survey of the conventions in other legislatures
in Australia, New Zealand and Canada. That Committee recommended
that the rule should apply to civil cases only if a jury were
involved, and then only starting four weeks before the date fixed
for the trial, and the Legislative Assembly has adopted this recommendation.[12]
1 
