Examination of Witness (Questions 140-151)
Wednesday 23 February 2005
Rt Hon Lord Nicholls
Q140 Chairman: I am not sure we ignore
the law or even the convention, but we seek perhaps to raise the
matter and represent our constituents. How would you respond,
firstly to my question and then to Mr McWalter's?
Lord Nicholls of Birkenhead: Forgive
me, I am not actually sure what your question was now.
Q141 Chairman: Do you not think that
perhaps inquests do take an abnormal length of time to reach a
decision and therefore there is pressure for things to be said
and actions to be taken, not least in the case that Mr McWalter
highlighted because public safety for instance might be at stake
or at risk?
Lord Nicholls of Birkenhead: Yes,
and the safety valve is the Speaker.
Q142 Sir Robert Smith: One thing Lord
Goldsmith did suggest in his evidence was whether there should
be some exploration of exactly when the rule should apply in terms
of the time of the proceedings of the coroner's court, in the
sense of when they start. Re-reading what he said, he suggested
maybe there should be an alternative but he was not that clear
on what the alternative might be. Have you considered any thoughts
about when the start time would be?
Lord Nicholls of Birkenhead: No,
I have not. I am sorry, I was not aware I was expected to.
Q143 Sir Robert Smith: No, no, I just
wondered.
Lord Nicholls of Birkenhead: I
quite agree, it is desirable, probably, there should be a similar
provision in the sub judice legislation, if I can call
it that, dealing with coroners.
Chairman: That is very helpful.
Q144 Huw Irranca-Davies: I apologise
for testing at the margins but I think it is the margins which
are of most interest. If you have a situation, and again it is
helpful for me if I deal in particulars and these are past cases,
where there is a specific case which raises other issues because
of it, such as crown immunity from prosecution, corporate manslaughter,
and you want to raise that but you want to raise it using the
specifics of the case which is in process, maybe to higher courts,
would it be appropriate on the floor of the Commons or in Questions
to raise this issue with regard to a specific instance which is
proceeding through court, when what you are trying to do is amend
the legislation in terms of crown immunity or corporate manslaughter?
Lord Nicholls of Birkenhead: In
principle, I would say in that sort of case you should wait until
the trial has taken place.
Chairman: We are grateful for that frankness.
Q145 Mr Luke: When talking about coroners'
courts, my colleague mentioned tribunals, and in some of the evidence
we have received, specifically from the Law Society of Scotland,
they made the point it may be appropriate for the rule to apply
to tribunals as well as courts. I wonder what your views would
be on this. There has been some difficulty about deciding which
tribunals it would cover. Could I have your views on that as well?
Lord Nicholls of Birkenhead: I
have not given any thought to widening the scope of the sub
judice rule.
Q146 Chairman: But from your experience,
do you believe it would be appropriate and beneficial to all parties
concerned for the sub judice rule to be extended to tribunals?
Lord Nicholls of Birkenhead: I
think I would need to know rather more about the circumstances
where it has been said a problem has arisen. I am not sure when
the Joint Committee considered this there was any evidence given
there were problems in relation to tribunals. That is the area
which would need more investigation before one decided whether
or not it was desirable to extend the sub judice rule.
David Hamilton: In answer to an earlier
point in relation to coroners, you seemed to think that because
the coroner holds a legal position he should be, or she should
be, treated similar to that of a court. In a tribunal, it is a
solicitor or, in Scotland's case, a sheriff who sits as chair
of an industrial tribunal and therefore holds the weight of the
law or the statute the same as I would have thought the other
people we are talking about. Therefore, the point which has been
raised by the Law Society of Scotland is that the same rules should
apply as happens in a court because, after all, when you go to
industrial tribunal it is about unfair dismissal normally and
if it is about unfair dismissal there should be nothing which
could prejudice the case before the industrial relations court.
I think that is what the Law Society of Scotland is aiming for.
I can give you examples of where this might lead to discussion
before a case goes to court, especially if more than one person
is sacked, which happens on a not infrequent basis. There were
a thousand miners sacked in 1984, 400 ended up in tribunals, and
it was the most debated thing which happened in Parliament and
outside Parliament. The Law Society seem to be saying that the
law about sub judice should apply in tribunals as it does
here or indeed in a coroner's court.
Q147 Mr Luke: The point was also made
by an Adjudicating Panel in England, that they thought as well
it might be appropriate to extend that.
Lord Nicholls of Birkenhead: I
see that in principle the reasoning underlying the sub judice
rule could be regarded as equally applicable to employment tribunals
and the like. Whether in practice it has been shown the sub
judice rule's non-application in those cases gives rise to
difficulties, I do not know.
Q148 Sir Robert Smith: Is there any constraint
on the media in those kind of tribunals?
Lord Nicholls of Birkenhead: Constraint?
Q149 Sir Robert Smith: In the reporting
of tribunals? There is no procedure for saying that the public
reporting of tribunals is prejudiced in any way?
Lord Nicholls of Birkenhead: They
are subject to the usual restraints, it must be fair, et cetera,
et cetera, et cetera, yes.
Q150 Chairman: We have come to the end
of our questioning. Is there any final message or observation
which you would like to leave with us? This is a complicated matter.
We think it is important, as you think it is important, there
should be this proper separation of the judiciary and the legislature,
is there any final advice you would like to leave with us?
Lord Nicholls of Birkenhead: I
think only to suggest, if I might, that unless there is some good
reason for thinking a change is needed, so that the present system
is not working satisfactorily, there may be merit in leaving matters
substantially as they are.
Mr Bercow: Chairman, you will recall
it was Lord Falkland who said, "That which it is not necessary
to change, it is necessary not to change". A very good Conservative
doctrine.
Q151 Chairman: From the chair, I could
not possibly comment. On behalf of the Committee, can I very much
thank Lord Nicholls of Birkenhead for coming and giving his advice
and responding with clarity and directness to the questions which
have been put to him. My Lord, your answers to our questions will
be very helpful to the report which we will be drawing up shortly.
On behalf of the Committee, I would like to thank you very much
for giving us an hour of your very valuable time this afternoon.
Thank you very much.
Lord Nicholls of Birkenhead: Thank
you very much, Chairman.
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