Supplementary submission from Ms Sally
Keeble MP
BACKGROUND NOTE
There are four basic functions that MPs fulfil
in Parliament:
(ii) holding the executive to account
(iii) advocacy for constituents
(iv) sounding board on general issues
The issue which I am seeking to raise relates
to (ii), as I am seeking to hold the executive, in particular
to hold the Home Office, and the Department for Education and
Skills, which has the lead responsibility for children's services,
(and to a lesser extent the Department of Health and the Office
of the Deputy Prime Minister) to account for standards in residential
establishments for children and young people serving my constituency.
Contrary to what seems to have been assumed,
I am not seeking to raise a case of a constituent.
My particular concern, as set out in my previous
letter, is that the sub judice rule as it is being applied
to matters before coroners' courts, is preventing me carrying
out my functions as an MP to question the standards of care being
provided for children and young people in establishments that
serve my constituency. There may be a need for the establishments,
both Home Office and local authority, to be fully investigated,
as I fear that there may be something of a culture of violence
against children and young people in them. However, it would not
be fair on the institutions or the staff to press for such an
investigation without at first at least getting some further information.
This is what I have been trying to get.
Constitutional position of parliament, and the
sub judice rule
In the evidence before the committee, much has
been made of the separation of powers as being the basis of the
sub judice rule. However, the doctrine of the separation
of powers is one which is more relevant to the written constitution
of the United States, with the clear separation between the executive,
the legislature and the judiciary. In the UK, our constitution
is not written, but is an amalgam of history, convention, precedence
and various pieces of legislation. Thus "Statements about
the existence and importance of the separation of powers in the
United Kingdom must be treated with caution . . . In the United
Kingdom the separation of powers plays a secondary role, the lead
being taken by the legislative supremacy of parliament."
(John Marston and Richard Ward Constitutional and Administrative
Law).
The overwhelming argument for a sub judice
rule is the right of our constituents to a fair trial, and for
this it is worth Parliament fettering its right to the freedom
of speech. However, this fettering of the freedom of speech should
not go further than is required to ensure that a trial is fair.
Previous versions of the sub judice rule
applied to the Commons did not refer to coroners' courts, and
it was not until 1992 that the Speaker ruled that cases before
coroners' courts were covered by the House's sub judice
rule. In the speech by Stephen Twigg in December 2002 when the
new sub judice rule was agreed, no justification or explanation
was given to extending the rule to coroners' courts.
The use of the sub judice rule as it
applies to the media is instructive. Broadly, the rule is applied
to cases where there are trials, either pending or in process,
which are heard by juries. It is not applied to proceedings that
are heard by judges, because it is assumed that a judge is immune
from influence by external pressures of this type. In addition,
while the media will take cognisance of the sub judice
rule when deciding whether to publish an article, the legality
of a decision to publish will be tested after the event in the
court.
In effect then, the rule applied to Parliament
is very much more stringent than that which applies to the media.
In addition, although we have the right to appeal to the Speaker,
he is advised by the officers of the House who also apply the
rule to members. There is no testing after the event as to whether
the sub judice rule has been broken.
Therefore our right to free speech, much less
our ability to hold the executive to account, is very much less
than that of the media in these circumstances.
Looking at international comparisons, it appears
that Canada, New Zealand, Australia and India do not have such
restrictive rules. The report of the inquiry in Queensland, Australia,
which has been submitted to the committee, sets out very well
the tension between the sub judice rule and free speech.
Effectiveness of the sub judice rule
The impracticality of the sub judice
rule is well demonstrated in the case that I have been seeking
to raise. It concerns the death of a boy in a residential institution
in April 2004 following an incident when restraint was used. The
inquest was opened and adjourned on 28 April 2004, and there it
remains.
However, the case has been raised publicly in
the following ways:
(i) the Home Office issued a news release
on the subject.
(ii) Rudi Vis put down a question which
was answered on the wider issue of use of restraint in youth training
centres.
(iii) 28 April 2004 Lord Elton specifically
named the case and asked about the disciplinary measures being
taken in a question in the House of Lords that was followed by
a number of other questions from other peers.
(iv) Lord Listoval named the boy and
the institution during the debate in the Lords on the Children
Bill in May 2004.
(v) 29 November 2004 Baroness Vivien
Stern specifically named the boy and the institution during the
debate on the Gracious Speech in the House of Lords.
(vi) 9 February 2005 Paul Goggins, prisons
minister, specifically named the boy and the institution during
a debate in Westminster Hall.
Present situation in relation to the Northamptonshire
case
At present the coroner's court is still waiting
for a decision from the Crown Prosecution Service as to whether
there will be any prosecutions in the case of ****. There has
been no indication as to when a decision will be forthcoming.
The Home Office has been looking into the situation, but it has
not been possible to get full information about what it is doing—because
no statement was made to the House about any investigations after
the boy's death, and it is now not possible to get information
because the matter is said to be sub judice.
My concern remains that during the time that
the coroner's court has been adjourned—almost a year—progress
could have been made in calling the executive to account for the
management of youth training centres and in particular the use
of restraint techniques in them. Progress could also have been
made in holding the executive to account for standards of staff
training, disciplining of children and young people and checking
of records during the year.
One of the arguments that has been put is that
the sub judice rule does not prevent debate, it only delays
it. Meanwhile, MPs cannot hold the executive to account on the
use of restraint in youth training centres, the checking of records
of staff moving from institutions which have had incidents of
child abuse, or the training of staff in these centres or related
institutions. That seems to me to be a completely intolerable
restraint on the proper role of an MP, and something of a dereliction
of duty towards those of our constituents' children who are in
these institutions.
March 2005
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