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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 125-iii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE PROCEDURE COMMITTEE
SUB JUDICE RULE OF THE HOUSE OF COMMONS
Wednesday 23 February 2005 RT HON LORD NICHOLLS OF BIRKENHEAD Evidence heard in Public Questions 90 - 151
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Procedure Committee on Wednesday 23 February 2005 Members present Sir Nicholas Winterton, in the Chair Mr John Bercow David Hamilton Huw Irranca-Davies Mr Iain Luke Rosemary McKenna Mr Tony McWalter Sir Robert Smith Mr Desmond Swayne David Wright ________________ Witness: Rt Hon Lord Nicholls of Birkenhead, examined. 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 criteria, put loosely, for the media, but that is only part of the reason for the existence of the sub judice rule. Q100 Chairman: Can I ask from the chair, my Lord, that there are certain Members of Parliament who believe their ability to represent their constituents and perhaps a constituency case is impeded by the sub judice rule, particularly in relation to the point that Sir Robert has raised, where a matter may be taking a great deal of time to come to court. Do you accept in that situation there is criticism of the sub judice rule, although you have indicated to us quite clearly you see no problem with the current sub judice rule from your point of view? Lord Nicholls of Birkenhead: The sub judice rule is all about striking a balance. It is striking a balance between the right and obligation of Members of Parliament to discuss anything they choose freely, so that is the discharge by Members of both Houses of their responsibilities as members of the legislature. On the other side, with our separation of powers, one has to take into account the proper discharge by the judiciary of their constitutional functions as the judicial arm of the state. It is essential, if that role of the judiciary is to be discharged properly, that they should not only be, but also be seen to be, the only constitutional body for determining issues which come before the courts. The second reason for having the sub judice rule is that it is intended by the Members - because of course it is a self-imposed rule, it is not a rule imposed by the judges - to ensure that Parliament is not seen to be an alternative constitutional forum for canvassing the rights and wrongs of issues which are coming before the judiciary; matters to be discharged by the courts in discharging their constitutional function. The Attorney General I think in his evidence to you labelled that function comity, and I think I am right in saying a member of this Committee described it as inter-institutional courtesy. Those labels are right and that function is important because good neighbourliness and politeness oil the wheels, but this function goes much deeper than that because it is inherent in the proper discharge by the courts and Parliament of their separate constitutional roles. If it is going to work, the courts and Parliament too need to be astute to recognise their own roles and to recognise the limits of their roles. As I understand the sub judice rule, it is an effort to achieve a practical way of balancing those two separate constitutional functions. Q101 Rosemary McKenna: That leads very nicely into my question. Where prejudicing of court proceedings is not an issue, the only reason the rule is applied is to preserve comity between the courts and Parliament. In your opinion, what harm would actually be done if Parliament discussed an issue which was also before the courts; just discuss the issue? Lord Nicholls of Birkenhead: Because it would then be seen by members of the public that these issues are not just going to be decided by the courts, they are going to be canvassed, discussed, first by Parliament. That is to negate the role the judges are meant to discharge under our constitution. Q102 Rosemary McKenna: One of our colleagues who has raised this issue says the implication is that members are not able to represent their constituents in that kind of area, without coming to a view on it but simply raising the issue. Do you still feel that? Lord Nicholls of Birkenhead: Yes, I do. If I may say so, I quite understand the position in which members can be put by their constituents, but I think the answer has to be that this is a matter at this stage for the courts, because of course the sub judice rule does not preclude discussion, it simply postpones discussion. I know that can be very important but that is the effect of it only. Coupled with this, of course, there is always the safeguard of the Speaker's discretion. As a general rule the idea you will have headlines in the newspapers, "MPs discuss ..." and then there is a reference to a case which is just about to come on in the courts, I would suggest is undesirable. Of course the ordinary man in the street can say what he wants, subject to not prejudicing the trial, so can the newspapers but --- Q103 Rosemary McKenna: Yes, but that of course is a problem for MPs because they say, "But the newspapers are really pushing the boundaries on this". Lord Nicholls of Birkenhead: I wholly understand that, and for that recent terrorist case all the newspapers, or certainly some of the newspapers, delighted in having editorials telling us what we should decide, but that is the prerogative of newspapers. Q104 Chairman: But it is not just the editors, Lord Nicholls, of tabloid or other newspapers, it is, as Rosemary McKenna has said, our constituents who can discuss this matter with what appears to be total freedom, and yet their representative in Parliament, who does have duties of representation and seeking to obtain justice, is not able to raise the matter within Parliament. Do you see any conflict? Lord Nicholls of Birkenhead: No, I do not, because I think there is a reason, which I have sought to express, why, for the period just before the trial and during the trial, when it is not desirable - Members can say what they want outside Parliament - for Members to use the legislature to discuss matters which our constitution has given to the judges. Chairman: Thank you, my Lord. Q105 Mr Bercow: I am keen to push this a bit further, my Lord, because I am interested to try to isolate which is your objection, or indeed if there are two which is the greater of your two objections, to parliamentary representation in circumstances of this kind. Is your grump the pure constitutional objection to the idea that a Member of Parliament might raise such a matter, thereby breaching the spirit of the separation of powers and the proper role as you see it of the judiciary on the one hand and Parliament on the other, or is it the likelihood that in raising such a matter in Parliament it will spawn press coverage? Lord Nicholls of Birkenhead: No. The difficulty I feel is the two-fold one I mentioned earlier, and I would not like to put them in order. If it is raised and there is then press coverage, they might prejudice the trial; that is one objection. But even in cases where it would not prejudice the trial of an individual case, for the general reason I have sought to give I still think it is undesirable that the message should get around that constituents can raise these questions with a Member, the Member can raise it in Parliament and then there will be a discussion on the very matters which are going to come up in front of the courts for decision. Q106 Mr Bercow: Can I follow that up. I am genuinely not being pedantic, but I am intrigued by this. You said a moment ago towards the end of one of your answers that Members of Parliament discussing it elsewhere, rather as our constituents might discuss it in a public house, is one thing but raising it in Parliament is another matter. Let us suppose a Member of Parliament decided, because of the rule, to pursue the matter in the form of interviews, discussions over the radio or on television. That, as far as you are concerned, would be acceptable, even though it might in fact generate greater coverage than for example raising the issue in Parliament in a late night Adjournment Debate? You would not object to the matter being raised on the radio or on television, but you would object to the idea of the matter being raised very late at night in the House of Commons. Lord Nicholls of Birkenhead: What you suggest is not objectionable so long as it does not prejudice the individual case. Obviously, if it does, then the Member might be liable for contempt of court just as much as anybody else. The reason why that is not objectionable is of course that the sub judice rule is aimed at what goes on in Parliament, because the Member speaking in Parliament has, and has still, a particular caché, and that is the problem. Parliament, the Chamber downstairs, can become to be regarded as an appropriate place, and it ain't, if I might say so. Q107 Huw Irranca-Davies: Could I throw a very specific case at you which is no longer sub judice, you will be pleased to know. If there were an incident where, for example, the rules of legal aid were being re-written and yet there was a case before the courts which was a particular exemplar of the very need to re-write the rules on a certain sub-set for the grant of legal aid, and yet the Member was unable to raise that in the House of Commons because of fear that it might prejudice the substance of the case as opposed to the process of granting legal aid, would it be reasonable for that Member to raise it in the Commons, or should he on the basis of the principle of sub judice keep well away from it? What I am asking you in effect is, if a Member has problems, for example, with the way in which legal aid is granted, or perhaps even something different such as an inordinate delay in a particular case as it is proceeding through court, is it fair for them to raise that, the process, the procedural point, in the House of Commons and their frustration, or their constituent's frustration, or should they keep well away from that as well? Lord Nicholls of Birkenhead: You are getting very near the border line. As I understand it, what is being raised is that a general discussion is taking place in Parliament, for example on the administration of legal aid, and the Member wishes to make a point by reference to a specific case which is currently before the courts. I would have thought that might be on the okay side of the line. Huw Irranca-Davies: Thank you. Chairman: That is very good advice, I say to my colleague on the Committee. Q108 David Hamilton: I have to say that I think sub judice sometimes acts as a favour for Members of Parliament. Lord Nicholls of Birkenhead: Yes. Q109 David Hamilton: They can say, "I am sorry, I cannot discuss that"! Lord Nicholls of Birkenhead: Yes, I have heard that! Q110 David Hamilton: You indicated there was a sort of understanding, a gentleman's agreement, for want of a better word, between the legal system and indeed Parliament. In Scotland, however, it is a different position. Evidence has been submitted to us by Colin Boyd, from the Lord Advocate's Office, stating, "As far as the Parliamentary sub judice rule is concerned, the proceedings in the Scottish Parliament, unlike those in Westminster, are subject to the law of contempt of court." If the system ever broke down, would you be in favour of that position being imposed on the Westminster Parliament? Lord Nicholls of Birkenhead: This was canvassed, I remember, I think, in the Joint Committee. One of the problems which I think I remember with the ordinary contempt rules was that the boundary marked out for contempt was not a satisfactory boundary for application in the House. I have not got the detail in mind but my recollection is that it involved knowing when somebody had been charged, or whatever it was, and in practice that is not workable in the House, where the House authorities may have to make decisions at very short notice as to whether or not an issue can or cannot be raised. So, for purely practical reasons, I am not sure it would work satisfactorily. Q111 David Hamilton: If that is the case, recognising within the Scottish Parliament they also pass legislation, how is it they are able to deal with that under the legislation which exists up there? Are you saying there is not a comparable down here? Lord Nicholls of Birkenhead: I do not know how they are coping. Q112 Sir Robert Smith: It is not the difference but what happens, in answer to Mr Bercow's point, outside Parliament when you speak to a newspaper is that the courts can get hold of the Member and control them in any way that they can control any other member of the public. But inside Parliament, because they have that privilege, we have to have our own internal self-disciplines. Lord Nicholls of Birkenhead: Absolutely. Q113 Sir Robert Smith: The Scottish Parliament, of course, is a creature of statute and therefore subject to the courts, I think. Lord Nicholls of Birkenhead: I am not sure about that. Sir Robert Smith: It makes legislation but it is also a creature of statute; it is created by Parliament. Chairman: What I hope we are not doing, my Lord, is putting you in an unfair position, seeking to get you to rule on matters relating to matters north of Hadrian's Wall. Mr Bercow: I do not think he will allow us! Q114 Sir Robert Smith: The second point I wanted to raise on the issue, going back to Rosemary McKenna's question of not just a prejudicing issue, is there not also an issue as far as comity goes that in the end courts make decisions and people are happy or unhappy with those decisions. In a way, if Parliament is also involved, then the unhappy person is going to feel that, whether it did or not, Parliament influenced the result? Lord Nicholls of Birkenhead: Yes. Chairman: That is a very succinct reply. We come on to another Scottish member, Iain Luke. Mr Luke: My Lord, I will not take you north of Hadrian's Wall but I will take you to the other side of the Irish Sea. I have served on the Northern Ireland Affairs Select Committee and members have raised it with me, that they feel there are many times when Irish Members will name names and link them to possible cases of ---- Mr McWalter: Bank robberies! Q115 Mr Luke: Not bank robberies but things like smuggling diesel across the border, and name specific names, frequently in the House or in Committees, and they were wondering, testing the boundaries again, could that be treated as being sub judice, given that it may prejudice a case which comes up in front of the Irish courts? Lord Nicholls of Birkenhead: If it may prejudice the case, then, yes, it will be within the rule. But the rule here - I do not know the position in Ireland - seeks to keep its limits within bounds by setting out a date from which the rule applies and a date at which it ceases to apply, and that does not mean that before proceedings have reached the stage where the rule applies there cannot be discussion in Parliament. Q116 Chairman: What are these dates, my Lord, can you indicate? Lord Nicholls of Birkenhead: I have a copy of the current rule in the Lords, and I understand it is the same as in the Commons. The relevant provision in the Lords is that proceedings have to be active before they are the subject of the sub judice rule, and then the resolution which has been passed I think in the Commons as well as in the Lords makes provision as to when proceedings become active and when they cease to be active. For example, in criminal matters, "When a charge has been brought or a summons to appear has been issued." Until then, the sub judice rule does not apply. Q117 Chairman: Thank you, my Lord, it is extremely helpful to have that on the record. Lord Nicholls of Birkenhead: Equally, the proceedings cease to be active when they are concluded by verdict and sentence and so forth. So it is that period of time, which I do appreciate may be quite extended sometimes, for which Members have chosen, by virtue of their resolution, to exercise self-restraint and not discuss matters which are before the courts. Q118 Mr McWalter: One of the reasons why this came up at all is because a member of a Select Committee was seeking to pursue a line of inquiry and was told it was sub judice, hence that line of inquiry was not going to be permitted, and the ruling was made by the Select Committee chairman who probably did not have the training or necessarily the expertise perhaps that the Speaker of the House or the Deputy Speakers might have. So it has come to us as Members of Parliament to some extent as, "People are trying to stop us from pursuing lines of inquiry" and (a) the rule might be being widened and (b) it seemed in the particular case we are looking at that it was not directly relevant to the case but it was what you might call a related case or possibly a closely related case. So that is a concern of this Committee, which is a sort of custodian of the rights of Members to be able to represent the interests of their constituents and to have a framework in terms of which they can do that effectively. Would you at least sympathise with our concern that that be done? Lord Nicholls of Birkenhead: I have every sympathy with your wish to represent your constituents properly. Q119 Mr McWalter: Would you have sympathy with the view that if this principle goes over to related cases, or is interpreted by those chairing committees who may have a rather more strict view or a more repressive view on freedom of speech than others, that that is a legitimate cause for concern and clear instructions perhaps might be made by this Committee, both to such chairpersons and to Members to remind them of their rights? Lord Nicholls of Birkenhead: Certainly, yes, anything which can be done to clarify the position must be very welcome. Q120 Mr McWalter: How does it go with related cases? I am on the Science & Technology Committee and one of the issues I have been very interested in is the analysis of the rib cages of children. That sounds rather technical but it is to do with the fact some people claim children who are born prematurely can be bruised and have ribs broken very easily, other people claim this cannot happen very easily and would require very significant pressure or force to be exerted before such fractures occur. If as a Select Committee we are investigating that and meanwhile somewhere else there is a case going on in which this is highly relevant, are you suggesting that perhaps we should not be permitted to conduct that inquiry for fear it might - your word is - prejudice a case, although we might say that our inquiry might inform a case? Is your view that that should not be permitted or that it should be? Lord Nicholls of Birkenhead: At the end of the day, as so often, these questions come down to, if I may say so, exercising commonsense. If the Committee is embarked on a general inquiry of the nature you have described, I do not foresee in principle that Committee should be inhibited from discharging its role because there is somewhere going on in the country a case which involves a similar issue. Q121 Mr McWalter: Okay, so you view it as permissive. That is welcome but the issue then is, one of the reasons why we often conduct inquiries is precisely because there is some great brouhaha going on about, to give you another example of an inquiry in which I have been involved, whether forensic scientists are reliable or whether they agree or disagree or whatever. So this is a matter which the country gets agitated about, Select Committees begin to make inquiries and then the case that generated all the brouhaha comes before trial, so these things cannot always be kept apart as conveniently or as nicely as one might wish. Lord Nicholls of Birkenhead: Yes. Q122 Mr McWalter: Your view, even under those circumstances, would still be to favour permissiveness and freedom of speech for Members of Parliament rather than to have people suggesting they shut their traps? Lord Nicholls of Birkenhead: The two purposes of the rule I mentioned at the outset. At the end of the day, it is always going to be a question of judgment and applying those principles in a particular case. Q123 Mr McWalter: But the judgment here is exercised by a Speaker or by a Select Committee chairman or someone in equivalent position. Lord Nicholls of Birkenhead: Yes. Q124 Mr McWalter: This Committee is responsible for giving them effectively some kind of guidance in these matters, so we are trying to come up with a formula, with your help, which will somehow allow us to give fairly clear instructions as to which parameters they should be using in order to exercise their judgment. Lord Nicholls of Birkenhead: We thought on the Joint Committee that we had done what we could in that regard. Q125 Chairman: Would you not accept, my Lord, that of course the Speaker of the House is advised by an experienced and generally distinguished lawyer? Lord Nicholls of Birkenhead: Yes. Q126 Chairman: So to an extent we are getting a legal input in the decision that the Speaker may well announce to the House in relation to a particular case which he or she considers to be sub judice. Lord Nicholls of Birkenhead: Of course defining the boundaries in a way which is going to work satisfactorily in every case is really impossible, and it is partly for that reason that built into the system is of course the sub judice rule is always subject to the discretion of the Speaker, and it is that safety valve which I would hope will in practice cope with the difficult case. Q127 Mr Swayne: Would one potential way of defining the boundaries be to say that it is the proper role of the courts to determine what the law is, and it is the proper role of Parliament to establish what the law ought to be, and it would be perfectly proper therefore for discussion in Parliament to revolve around a case which is yet to be determined by the courts as to what the law is and perfectly possible for Members of Parliament to discuss with reference to that case what ought to be the case, where justice truly lies? Lord Nicholls of Birkenhead: I myself would have thought it would be very undesirable that in a case which is yet to be heard Parliament should be expressing a view as to what the law should be. Mr Swayne: Let me give you an example. I do not know whether I breached the sub judice rule or whether the clerks were asleep and had not spotted what I was up to, and I will give you the specifics --- Chairman: Not so much the clerks but the chairman, Mr Swayne! Q128 Mr Swayne: It was not you, Sir Nicholas! I explored in Adjournment a constituency case where a constituent of mine had suffered medical negligence overseas whilst in the Armed Forces, and the question revolved around the issue of whether the Secretary of State of Defence was able to sub-contract his duty of care in the same way that the Secretary of State for Health cannot. For example, if you are treated overseas under the National Health Service and it goes wrong you still sue your local primary care trust and not the overseas hospital. If, however, you are treated overseas by a foreign hospital, sub-contracted by the Defence Medical Services, the Secretary of State for Defence has in effect sub-contracted that duty of care and you are up against your hospital in Cyprus or in Germany with all the disadvantages that may entail. It seems to me perfectly proper for a Member of Parliament to discuss that issue in an Adjournment Debate and hold the Secretary of State to account on what ought to be the case, whether it is right that members of the Armed Forces should be disadvantaged by comparison with a civilian, even if it revolves around, in terms of the example, a particular case, given the House of Lords has yet to establish whether the Secretary of State for Defence has such a right to sub-contract his duty of care in a way the Secretary of State for Health does not. I do not see we are treading on each other's patch at all. We are discussing in the House of Commons what ought to be the case. It is for the lawyers and for the courts to determine what actually is the case. Lord Nicholls of Birkenhead: I would have thought myself that discussing what the position should be is something which should take place after the courts have decided what the position is, not the other way around. Q129 Mr Bercow: But could it not take place after one case and before another? Lord Nicholls of Birkenhead: Yes, certainly. Chairman: Do you wish to pursue that, Mr Swayne? Q130 Mr Swayne: I just want it on the record that "the laws delays". Lord Nicholls of Birkenhead: I am taking it, Chairman, that that was not a question! Chairman: We now move to coroners' courts and Huw Irranca-Davies. Q131 Huw Irranca-Davies: This is an issue which has been raised by Sally Keeble, MP, but I might illustrate it for you by an example from my own constituency. There was a blast furnace explosion in Port Talbot Steelworks in which a number of people died, the cause of death was fairly self-evident - the blast furnace cracked, not only were there gases and fumes but also the lava which came out of the equipment itself - but despite it being self-evident the coroner's court had to be involved, clearly, and we awaited the coroner's investigation and statement. In a situation like that you could be waiting on the disposal of the estate of the individual, insurance, et cetera, et cetera, and if it goes on for an unduly long time this could cause great problems to the family and dependents. In that sort of situation, when we are talking about the sub judice rule, if something is within a coroner's court as opposed to some other court, would it not be reasonable to raise this issue, if an MP thought there was an undue delay, undue complications, when clearly there was a self-evident reason for the death and it was simply that we were awaiting a decision, in order that we can move ahead so the family could come to decisions about the disposal of assets and disposal of the estate? My question to you really is, should there be a difference in the application of the sub judice rule between other courts and something like a coroner's court? Lord Nicholls of Birkenhead: I do not think in principle there should be. I sympathise with the example you have given, but the basic purpose underlying the sub judice rule in the two Houses as I understand it is to assist in the demarcation of the boundary in practice between the legislature on the one hand and the judiciary on the other in discharge of their own functions. Q132 Huw Irranca-Davies: As it happens in this particular example I gave we found other ways round it and I have to say the coroner was of great assistance in coming to a rapid conclusion. However, if I can put to you the point Sally Keeble MP made, she stated there is a difference from some other courts and tribunals, nobody is on trial, the court does not make decisions on the guilt of any individual person, and that is the bone of her contention, that because that is not the issue we should be freer to be able to comment on proceedings in a coroner's court. Lord Nicholls of Birkenhead: I am not sure I see the distinction you have mentioned will lead to it being appropriate to adopt a completely different approach. Q133 Huw Irranca-Davies: Because there is not somebody's guilt or the sentence of an individual necessarily hanging in the balance here. Lord Nicholls of Birkenhead: But the coroner is discharging a judicial function, and that function should retain its integrity and not be seen to be possibly influenced by a discussion in Parliament in relation to the same subject before he has given his decision. Q134 Huw Irranca-Davies: That is helpful because you are quite categorical about it, that the same principles should apply regardless of the nature of the court. Lord Nicholls of Birkenhead: Yes. It is just an inherent part of our constitutional system with its separation of powers, and we have to try and deal with points where the two run together in a practical and satisfactory way, and the sub judice rule seeks to do that. Q135 Chairman: So you do not think the fact that somebody in a coroner's court is not being found guilty or innocent puts the coroner's court in a slightly different category from other courts? Lord Nicholls of Birkenhead: Not relevantly for the present purpose, no. Q136 Mr Bercow: To be absolutely clear: questions of guilt and innocence in this instance would not be involved, therefore there is no question of justice being frustrated or flouted. The issue is professional integrity, and perhaps pride, of the coroner. Lord Nicholls of Birkenhead: The coroner is discharging a statutory function, or perhaps a common law function, and what one is concerned to do is for it to be seen that he is discharging that independently, and it is undesirable that at the same time the House of Commons should be covering the same ground and perhaps expressing its view. Q137 Mr Bercow: That is not because you really think any coroner of any weight or standing, worth his or her salt, will be influenced by a pronouncement of a Member of Parliament in the House of Commons but that the appearance might be given? Lord Nicholls of Birkenhead: Well, the appearance also. What is desirable is that the role that the coroner is intended to discharge should be dischargeable without there being any sort of cloud around it, but that Parliament has expressed views and then after he has expressed his views certainly discussion can take place, because the whole of this sub judice rule is concerned with postponing discussion, not preventing discussion. Q138 Mr Bercow: You talk about a cloud, am I not right in thinking, my Lord, that is your very polite way of saying, "Well, the coroner is making an important decision, and he should not be subject to background noise"? Lord Nicholls of Birkenhead: No, I was not trying to say "subject to background noise" and I would hope we could be quite confident that any coroner worth his salt would reach his own independent conclusion. Public impression matters and what needs to be seen is that the coroner has reached his own independent conclusion and has not had, as it were, Parliament leaning on him from the side. Chairman: Would you comment, my Lord - and Huw Irranca-Davies did draw this into his question earlier - on cases where some inquests do appear to last for a very, very, significant length of time and there is frustration, not only with those involved but perhaps those who take an interest in these matters who are the laymen and lay women, ie the general public, about what they see as a failure of the system because of the time that an inquest is taking to reach a decision? Q139 Mr McWalter: Could I add a rider to your question, Chairman? Clearly, sometimes that time gap is of crucial importance for Members of Parliament to be seen to be carrying out their duties. For instance, if you take the fire at Bradford Football Stadium, where the inquest took a very long time, Members of Parliament became apprised very quickly that there were issues about the safety of people at football matches - and I do not know how many people go to see football matches every Saturday, 8 million, 10 million, whatever it is. So Parliament becomes apprised quite quickly that there is something at fault in the way these matters are staged, and wishes to take action and wishes to debate the actions they are hoping to take, and if none of that happened you would get MPs actually in dereliction of their duty while they hang on, waiting for this interminable process to grind to its conclusion. We do not, we carrying on doing it actually. Lord Nicholls of Birkenhead: You carry on doing ---? Mr McWalter: We ignore the sub judice role and represent our constituents. 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 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. |