Supplementary note by the Clerk of the
House
1. I am submitting this note in response
to the Chairman's letter of 4 November inviting me to supply a
more comprehensive note following the Procedure Committee's decision
to widen the scope of its inquiry since my earlier note of 9 July.
2. As the Committee is aware, the sub
judice rule arose from rulings from the Chair since the middle
of the 19th century and was first codified in the form of a resolution
of the House of Commons in July 1963 following a report of the
Select Committee on Procedure in that year.[7]
The current resolution was adopted on 15 November 2001 following
detailed consideration by the Joint Committee on Parliamentary
Privilege in 1999. The relevant passage of their report (paragraphs
189-202) is appended to this note, and I quoted from paragraph
192, on the purpose of the rule, in paragraph 8 of my earlier
paper.
3. Given the nature of the Joint Committee's
membership, this passage has been taken to be an extremely authoritative
statement of the current position, and the resolution of 15 November
2001 was adopted by the House after a half-hour debate and without
controversy. The House of Lords adopted a very similar resolution
on 11 May 2000, the difference being that the discretion to waive
the rule is granted to the Leader of the House instead of the
Chair. Apart from that, the Joint Committee recommended (paragraph
201) that the rule should be identical and it is obviously desirable
that this should continue to be the case.
4. Although commonly referred to as a rule,
the sub judice resolution, like the less formally stated
convention that preceded it, is applied less strictly than a standing
order. Its use is subject to the discretion of the Chair, and
proceedings on legislation (including delegated legislation) are
expressly exempted.
5. The last occasion of which I am aware
when the rule gave rise to significant frustration on the floor
of the House was during the protracted proceedings relating to
the extradition of General Pinochet in 1998-99. I am not aware
of any serious problem since the resolution was agreed to in its
present form, although of course I should be happy to comment
in more detail on any problems that are brought to the Committee's
attention if the Committee wishes me to do so.
6. As the Joint Committee said (paragraph
200), "No rule can anticipate every situation that may arise,
and there will be times when the Chair has to strike a balance
between the public interest in the unimpeded progress of judicial
proceedings and other aspects of the public interest." It
is impossible to give detailed or explicit guidance as to the
circumstances in which it might be appropriate for the Chair to
exercise discretion to waive the rule; but if a matter of public
policy is genuinely at issue, it is normally possible to find
ways of addressing it in general terms without going into the
details of the particular case before the courts in a way that
might be prejudicial. I suggest that it would be highly undesirable
to make the rule more complicated than it is by adding qualifications
and detailed guidance.
7. The Chairman's letter listed some topics
which might be raised during the Committee's inquiry, and it may
be helpful if I deal with them in turn.
8. What is the purpose of the rule:
preventing prejudicing of court proceedings, or comity between
courts and Parliament (keeping out of each other's areas of responsibility)?
The rule has both purposes, and it is implicit in the Joint
Committee's report that the latter purpose is at least as important
as the former: it is as much in the interests of Parliament that
the courts should respect its territory as it is that Parliament
should respect the territory of the courts.
9. If the rule is to prevent prejudice:
is there a distinction between jury and non-jury proceedings?
Should the rule be stricter than that applying elsewhere,
eg to newspapers? It follows from my previous answer that, to
preserve comity, the rule should continue to apply to non-jury
trials. The Joint Committee said, in paragraph 192:
"Although the risk of actual prejudice
is greater in a jury trial, it would not be right to remove appeal
cases or other cases tried without a jury from the operation of
the rule. Restrictions on media comment are limited to not prejudicing
the trial, but Parliament needs to be especially careful: it is
important constitutionally, and essential for public confidence,
that the judiciary should be seen to be independent of political
pressures. Thus, restrictions on parliamentary debate should sometimes
exceed those on media comment."
10. How closely does the matter have
to relate to a case to fall within the rule? As I mentioned
above, it is usually possible to address a genuine issue of public
policy without going into the details of (or even mentioning)
a particular case before the courts. The case raised by the Chairman
of the Foreign Affairs Committee, dealt with in my earlier paper,
was extremely unusual in involving allegations very similar to
those already made against the defendants in an existing civil
case.
11. Is the "cases . . . shall not
be referred to" provision too restrictive? Would it be justifiable
to refer to a case in terms of how long it is taking, rather than
on its merits? It might be possible to add words such as "Matters
at issue in" to the beginning of paragraph (1) of the resolution;
but I doubt whether anyone would in fact be pulled up by the Chair
simply for referring to the length of time a case is taking. Difficulties
would be more likely to occur if references to length of time
widened into references to the conduct of the trial or the possibility
of discontinuing it.
12. Should coroners' courts be excluded,
on the basis of nobody being on trial, and proceedings often being
protracted? I understand that the Committee is approaching
the Coroners for their views. Although nobody is on trial at an
inquest, the consequence for individuals can be serious, as the
recent inquest involving police firearms officers has demonstrated.
13. As the Committee will see from the above,
I would advise against altering the sub judice rule unless
its current operation raises significant difficulties. I would
of course be willing to expand on anything mentioned in this note,
or to comment on any problems brought before the Committee during
the course of its inquiry.
November 2004
7 HC 156 (1962-63). Back
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