Examination of Witnesses (Questions 90-99)
RT HON
LORD NICHOLLS
OF BIRKENHEAD
23 FEBRUARY 2005
Q90 Chairman: On behalf of the Procedure
Committee of the House of Commons, can I welcome the Rt Hon Lord
Nicholls of Birkenhead to give evidence to us and help us with
our inquiry into the Sub Judice Rule. Can I say that Lord
Nicholls has been a Law Lord since 1994 and of course we all know
chaired with distinction the Joint Committee on Parliamentary
Privilege which sat between 1997 and 1999, and of course we are
aware of the relevant passages of that report. Can I welcome you,
Lord Nicholls, and ask if you would like to make an opening statement
before I put the first question from the chair?
Lord Nicholls of Birkenhead: Only
to say thank you for your welcome and to say I am very pleased
to help you in any way I can.
Q91 Chairman: We are very grateful for
that. The current sub judice rules in both Houses were
adopted following the report of the Joint Committee which you
chaired. In your view and from your experience, how well is the
current rule working?
Lord Nicholls of Birkenhead: I
am not really in a position to express a view on how well it is
working in the House of Commons; I have no idea. But I have heard
nothing, either in relation to what is happening in the Commons
or seen or heard anything myself in relation to what is happening
in the Lords, to think that the rule is not working satisfactorily.
Q92 Chairman: So you have no example
to quote to us from which you could say the rule is working very
well or that the rule is not working?
Lord Nicholls of Birkenhead: The
rule is working well, as far as I am aware, in the sense that
no particular problems have emerged from the operation of the
rule.
Chairman: I cannot ask for a more direct
and succinct answer to my question.
Q93 Mr Bercow: As we are Members of the
House of Commons, and the Procedure Committee is a Committee of
the House of Commons, we are necessarily and I think overwhelmingly
pre-occupied with the relevance of the House of Commons to the
rule, the impact of the rule on the Commons and the way in which
the behaviour of the Commons might impact upon or have implications
for the credibility of the rule. So my follow-up question is fairly
predictable, are you aware of any cases which may have been prejudiced
by something said in the House of Commons?
Lord Nicholls of Birkenhead: The
answer to that is no, but as far as I am aware that would be on
the basis that by and large the rule is being applied.
Q94 Mr Bercow: You think there is a familiarity
with it and there is a self-denying ordinance exercised?
Lord Nicholls of Birkenhead: As
I have said, I have no experience of what has been happening in
the Commons, but I would have assumed that the House authorities
indeed are very much aware of the rule. So I would have assumed,
but I may be wrong.
Q95 Mr Bercow: Can I ask as an adjunct
to that, my Lord, whether you think that the courts are becoming
more relaxed about what is said in newspapers about pending cases?
Lord Nicholls of Birkenhead: In
some ways it is a question perhaps better addressed to somebody
who has perhaps more immediate experience at the coalface, like
the Lord Chief Justice, but my feeling is that over the last 30
years or so the press generally, the media generally but perhaps
particularly the press, have become more aggressive in pressing
out, seeing how far they can go. At the same time, I think the
courts have become very conscious of the need to be realistic,
and so I would not say they are more relaxed but I would have
thought they are tending to take a more pragmatic view of what
might give rise to a risk of prejudice to a trial.
Mr Bercow: I will leave it there but
I have a suspicion others will not. Thank you very much.
Q96 Huw Irranca-Davies: Just to tease
it out a little further, from what you are saying it seems you
have no evidence it is not working, you seem content with the
way it is working. Is that because there may have been examples
where people have skated very close to, not deliberately, abusing
the system of sub judice, have gone pretty close to it
but it has not become an issue? Would you think there are examples
in the Lords or in the Commons where there has been potential
for abuse of the sub judice rule but it has not blown up
into any great shenanigans?
Lord Nicholls of Birkenhead: My
impression is that in the Lords people are very conscious of the
existence of the rule and would be careful not to overstep the
boundary.
Huw Irranca-Davies: Right.
Q97 Sir Robert Smith: If I could expand
on the attitude of the courts as it has developed towards newspapers
and their likely influence in contempt of court, the Attorney
General said that as well as maybe becoming more realistic they
started to operate a fade factor, that if the report was far enough
away from the actual trial they would assume the impact on the
trial would be reduced.
Lord Nicholls of Birkenhead: Yes,
that is part of what I meant by being realistic.
Q98 Sir Robert Smith: Also in a recent
case, in Scotland, because human rights applies directly to Scottish
cases, they have had to interpret Article 10 in a way which means
they have to be more favourably disposed towards allowing reporting?
Lord Nicholls of Birkenhead: Yes.
Q99 Sir Robert Smith: What we were wondering
therefore was, is there any argument to say that as the fade factor
applies to the media it could be applied to the House's procedure,
that if it were far enough removed from the time of the trial
it would be less prejudicial and therefore more could be said?
Lord Nicholls of Birkenhead: Yes,
but I would want to emphasise that there is a difference between
the media and Parliament, and the fact something may or may not
prejudice the trial is the relevant criterion, put loosely, for
the media, but that is only part of the reason for the existence
of the sub judice rule.
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