Examination of Witness (Questions 48-59)
19 JANUARY 2005
RT HON
LORD GOLDSMITH
QC
Q48 Chairman: Attorney General, may I
welcome you most warmly to the Procedure Committee? We were very
grateful to you for your letter, going back to November, and also
for the fact that you were very willing to come and speak to us
on this important subject of the sub judice rule. It is
a pleasure to have the Rt Hon the Lord Goldsmith, the Attorney
General, with us this afternoon. May I put the first general question
to you? In your view, as Attorney General, how well is the House's
current sub judice rule working?
Lord Goldsmith: May I first of
all thank you for the welcome? I am pleased to be here. I am obviously
here not so much on behalf of the Government as wearing my particular
hat of concern for administration of justice. From that point
of view, it appears to me that in general the rule is working
well. That is to say, the concerns which underlie the existence
of the rule are not being defeated.
Q49 Chairman: Do you feel some concern
about the criticism that has been levelled at the sub judice
rule by experienced, leading, long-serving Members of the House
of Commons?
Lord Goldsmith: There is plainly
a tension between the constitutional right of Parliament to debate
those things that it thinks right to debate. That is a very important
principle. However, there is also a principle of separation of
powers, of respect for the courts, as the courts must respect
Parliament, and also the issue of the prejudice to proceedings.
It seems to me there are three important considerations which
mitigate what otherwise might be the effect of the rule. The first
is the discretion which the Speaker has in the Commons, and indeed
in the House of Lords. Secondly, that it does not preclude debate
on general issues which may be thrown up by cases, although I
recognise that sometimes that can be a bit of a slippery slope
on both sides. Thirdly, and ultimately, that the rule is temporal
rather than absolute. It does not prevent parliamentarians from
debating particular issues, but it may delay their ability to
debate those issues. Those seem to me to be three important palliatives
to what otherwise the rule would appear to be.
Q50 Chairman: Before I pass on to Sir
Robert Smith—and I am not sure whether I am entirely in
order myself in asking this question—there was a question
raised on a point of order in the House today by a very senior
Member, in fact the Father of the House, on the sub judice
rule in respect of the court martial which is currently taking
place in Osnabrück. Mr Speaker was entirely right to indicate
that, as far as he was concerned, this was not a matter for him.
Would you have any observation to make on that matter?
Lord Goldsmith: I would respectfully
agree with Mr Speaker that the question, as I understood it—and
I have not seen the text, but it has been reported to me—was
more a question of whether or not comments ought to have been
made relating to the court martial while it was taking place.
It is therefore not so much a question of the application of the
sub judice rule which relates to the debate of matters
in Parliament, but more an application of the rules relating to
contempt of court, and contempt of court rules do apply to courts
martial. It is a matter which could be of relevance to me, if
I took the view that public comments made by anybody, other than
in Parliament because of the immunity of Parliament, in relation
to a pending court martial had the effect of risking substantial
prejudice to that court martial. I could take steps in relation
to it, as I can in relation to, for example, media comments on
regular trials.
Chairman: For clarification, just so
that nobody is in any doubt, it is my understanding that the point
of order was raised because of the remarks made by the Chief of
the Defence Staff about the behaviour of British troops, without
direct reference necessarily to the particular court martial in
Osnabrück. However, I may not be entirely up to date with
other matters that may have been said publicly about this particular
issue. I do not want to pursue it, but I was interested because
sub judice was raised in the House and this clearly is
relevant to our inquiry.
Q51 Sir Robert Smith: We are wanting
to get some background on the current operation of the rules and
how people deal with it practically. We wondered to what extent
you were consulted by government departments about issues which
may arise in Parliament as to whether they might or might not
be sub judice.
Lord Goldsmith: I think the answer
to that must be very rarely, if it happens. It obviously does
affect, as it were, my own activities; particularly Harriet Harman,
Solicitor General, my deputy, when she is answering questions,
those could quite easily relate to pending cases. I know that
the Speaker and officers of the House will from time to time rule
questions out, or advise Members that questions would be inappropriate
to put to her because of the sub judice rule. However,
I cannot particularly recall questions being put to me by other
departments about whether the sub judice rule prevented
a debate. I should indicate for the record that Ms Carmen Dowd
is with me, and perhaps I may ask her whether she can recall any
examples. No. It may happen but—
Q52 Sir Robert Smith: So they make their
own judgments and obviously the House authorities make theirs.
Lord Goldsmith: Yes.
Q53 Sir Robert Smith: As you mentioned
earlier, this rule does not apply to debates on legislation, and
can be left to the discretion of the Chair or, in the Lords, the
Leader of the House. Does this cause any potential difficulties
from the point of view of the courts—that obviously matters
can be discussed in those exceptions?
Lord Goldsmith: I am not aware
that it has, and that may be because of—if I may put it
this way—the very responsible way in which those discretions
have been exercised. I think it is recognised that it is important
to protect the court process. I suspect it is also recognised
that it is often very difficult to tell, for example in the hurly-burly
of debate or when something comes up very quickly, whether there
may be a problem which really could affect an ongoing trial. I
suspect that the House authorities would therefore probably err
on the side of caution in those circumstances and not permit that
discussion to take place, at least at that stage.
Q54 Sir Robert Smith: The other area
we are interested in is not the actual issues in a case but maybe
the conduct of a case, the cost or duration of a case that is
live. Would you have any concerns if those issues were raised?
Lord Goldsmith: Those can also
be issues in the case. Take, for example, the time it takes. I
can well understand—and I see correspondence to this effect,
with which I am very sympathetic—that colleagues and Members
of this House raise the question of why it is taking so long for
a particular legal proceeding to be determined. As I say, I am
very sympathetic to that. However, if there were a discussion
about that particular issue, a debate about it, views expressed
about it, that could end up potentially influencing the outcome
of applications taking place in the case. There might be, for
all we know, an application for an adjournment the following week.
If the adjournment were refused, it might be said, "The court
has only refused it because it saw that Parliament was unhappy
about the time that is being taken", or somebody might try
and stop the proceedings on the grounds that they have gone on
too long. It also illustrates the point I was making a moment
ago: it is quite difficult to know, at that moment, whether there
may be an issue proceeding in court which could be affected by
what is said. At a later stage, when that particular case has
come to a conclusion, there is no reason at all why there should
not be a debate about the length that the case took, and there
may be very good reasons why that should happen. It may be very
helpful that that should happen. Equally, there is no reason why
there may not be a general discussion about delay, without getting
into the details of the particular case.
Q55 Chairman: Before I pass on to Rosemary
McKenna, while I note what you have said—that you cannot
recall any actual cases which have been prejudiced by anything
said in the House of Commons—if your office or your assistant
is able to do a little bit of research for us, if that is possible—
Lord Goldsmith: Certainly.
Q56 Chairman: It would be very helpful
to us to have, if you can find any, details of any cases where
that case has been prejudiced by something that was said in the
House of Commons.
Lord Goldsmith: Certainly, I will.
I was thinking of recent years, but we will have a look. I suspect
that there may be cases where the courts have been concerned about
comments made, but I cannot recall them at the moment.
Chairman: That is most helpful. Thank
you very much.
Q57 Rosemary McKenna: I think that we
need to look next at the justification for the rule. One of the
areas we want to explore is that the reason the rule is applied
is to preserve comity between the courts and Parliament. What
harm do you think would be done if Parliament discussed an issue
which was also before the courts?
Lord Goldsmith: I think that there
are two overlapping justifications for the rule. One of those
is the importance of not prejudicing court proceedings. That is
clear and, in this context, what is said in Parliament has potentially
a particularly powerful impact: a powerful impact because it is
well publicised; likely to be picked up and reported in many places;
and a powerful impact because what is said in Parliament by the
people's elected representatives has a particular authority. If
a minister is induced to say something, I suppose it can even
be said that this is the Government's view, and that may carry
some authority as well. There is the other side, however, which,
as you say, we put under the rubric of comity. I would describe
it this way. It is important that the courts are left to get on
with their work. Parliament should not be seen as an alternative
forum for deciding upon rights and wrongs. It is better that they
should be seen to be determined in what is the more controlled—perhaps
some might say the more balanced—atmosphere of a court of
law, with both sides being able to present their point of view
more fully. I think that there is a real risk that, even if actually
the proceedings are not prejudiced by what is said, a party who
loses the debate, if there has been a debate in Parliament, may
always feel aggrieved that it has happened; that he has lost the
case because Parliament, in one way or another, expressed a view
on what the outcome should be. That may be entirely unjustified
and quite unfair on the tribunal that is deciding it, but I think
that there is a real risk that that may happen. Put in constitutional
terms, it is a part of the separation of powers that we leave
the resolution of individual disputes to the courts, as the courts
should leave to Parliament the business of legislating.
Q58 Rosemary McKenna: Is there a distinction
between a matter which is raised in the House and the House coming
to a view on it?
Lord Goldsmith: I think that it
is a very difficult dividing line, because raising a matter is
unlikely not to involve some judgment being expressed, at least
implicitly, about the matter. Whilst if Parliament were to reach
a conclusion and there were a formal vote on a particular case,
that would obviously be the most serious of all, for views to
be expressed, to be reported and to be supported, as they might
well be, by other Members, that could still carry quite a weight
with it in any event. I would therefore not regard it as a satisfactory
distinction and a line that one could easily and safely draw.
Q59 Mr Luke: What are the common criteria
for assessing whether the coverage of active cases in newspapers
constitute contempt of court? Are the courts becoming more relaxed
about coverage of cases in newspapers? If that is so, should Parliament
follow suit?
Lord Goldsmith: Can I take it
in two parts? Are the courts becoming more relaxed about what
is said in newspapers about pending cases? I do not think that
they are becoming more relaxed about it. I think that they remain
very concerned about the potential prejudice to court proceedings
by what is said in newspapers. It is also fair to say that, in
some people's view, newspapers have been pushing at the boundaries
of what is acceptable. However, what the courts will recognise
is that if there is a substantial period of time between the report
and the date of the trial, then they will operate what the courts
call the fade factor, and they will say, "It is likely that
the jury will have forgotten these remarks, or at least their
power will have diminished". That, combined with clear directions
from the judge—"You shall only take into account what
has been said in court. You shall not have regard to something
that has been said outside"—may mean that the courts
will not actually regard a particular statement in a newspaper
as being contempt of court, and may therefore not punish the newspaper
with a fine or imprison the editor, which is what they can do.
I would not describe it as relaxation, therefore. I would recognise
that the courts are realistic about what does and does not constitute
criminal conduct on the part of newspapers. As to whether that
means there should be a relaxation of the approach in Parliament,
I think that there are these differences. First, that what Parliament
says is more powerful. Second, that there is this additional justification
for the rule as far as Parliament is concerned, which we put under
the comity rubric, which does not really apply to the newspapers.
Third—and this is an important practical consideration—when
it comes to considering whether a newspaper is guilty of contempt
of court, we look at it after the event. We are able, after the
event, to examine very closely what were the issues in the case.
Was the very thing that was said likely to have caused a prejudice?
We have long affidavits and substantial argument in relation to
it. These are things which it simply is not possible to have at
the time one is advising whether or not a particular question
should be put or can be answered in Parliament, because there
is not the time at that stage to investigate all of those circumstances.
So I think that is a practical reason why, to be workable, one
ends up with a different rule.
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