Examination of Witnesses (Questions 20-36)
RT HON
JOHN DENHAM
MP AND DR
ROBIN JAMES
29 NOVEMBER 2005
Q20 Rosemary McKenna: A single form of
publicised guidance to select committee chairs would be of particular
help?
Mr Denham: Yes, and we could anticipate
the sorts of issues that arose over these three events and say
that these were the sorts of questions that would have been permissible
and those would not have been.
Q21 Sir Robert Smith: Do you think you
can really prepare generic guidance without looking at the individual
case?
Mr Denham: It ought to be possible
to look at a range of individual cases and lay down some principles
that the clerks could then interpret for chairmen in giving us
advice. At the moment, I agree you cannot have an exhaustive list
of all the things you can and cannot ask but it ought to be possible
to identify some principles that the clerks could rely on.
Q22 Ms Clark: Would you feel confident
handling a sub judice matter that was raised without warning
during a committee meeting?
Mr Denham: Yes. I do not think
that is too difficult. That does come up from time to time on
the Home Affairs Select Committee. We had a hearing just last
week about the UK/US Extradition Treaty where there are a number
of live and highly publicised cases. It is not too difficult for
the chair to simply stop a line of questioning on the spot.
Q23 Ms Clark: How can the House ensure
that committee chairmen have access to the advice they need in
order to apply the sub judice rule appropriately?
Mr Denham: The main way the House
could do that is by, hopefully, this Committee giving further
guidance to the clerks about how committees could approach the
sub judice rule when there is a matter of national importance.
That seems to me to be the missing element at the moment. I feel
strongly that the advice I received—I make no criticism
of the clerks—would not have been any different had the
2001 resolution not been in place. The 2001 resolution clearly
implied that things should be different in cases of national importance.
Q24 Rosemary McKenna: Even in private?
You did not feel you could have gone into private session?
Mr Denham: I did not feel we could
go into private session in the circumstances of this one-off hearing.
Given that the committee's intention was to show that Parliament
was considering these matters of national importance—we
were meeting in September; the House was not sitting—it
made no sense to go into private session. Had we been carrying
out an inquiry over a series of six or seven sessions, I would
have felt quite comfortable going into private session. It would
not necessarily have been entirely satisfactory from a public
point of view but I would have been more relaxed about doing it.
To have met in September for a one-off hearing and then to have
held half of it in private would have undermined the point of
the exercise.
Q25 Rosemary McKenna: The problem was
exacerbated by the fact that it was a one-off hearing?
Mr Denham: It certainly was.
Q26 Rosemary McKenna: There was not going
to be a report?
Mr Denham: That is right.
Q27 Mr Gauke: You mentioned earlier the
coroners' courts and the implications for the 7 July and 22 July
matters. At a practical level, would there have been a substantial
difference to your committee's hearings if the coroner's court
proceedings had fallen outside the sub judice rule?
Mr Denham: There would have been.
For example, there were questions like what was the nature of
the officers who were on duty on 22 July. It was widely reported
in the media that there were Army officers patrolling London on
that particular day who may or may not, depending on which press
report you read, have been involved in the events of that day.
That was the sort of question which does not seem to me to directly
relate to the responsibility of anybody who might subsequently
be prosecuted but which would have been useful for us to air in
a select committee. Had there been less of a blanket ban on asking
questions about the specific events of 22 July we would have been
able to raise those types of issues.
Q28 Mr Gauke: You talked about guidance
being available to chairmen of select committees. Would there
be an argument for specific guidance that related to coroners'
courts, particularly tailored to that area rather than court proceedings
as a whole?
Mr Denham: I think that certainly
would be helpful because the issues that arise in the coroners'
courts are slightly different. The implication of this is that
the interpretation of sub judice would be a lot narrower
on issues of national importance. It is really giving guidance
on where and when you can narrow it.
Q29 Mr Gauke: Would there be an argument
for not applying the sub judice rule other than, say, a
month before a hearing because one of the difficulties with coroners'
courts is that proceedings can last years. I do not know whether
you would favour some flexibility on that so that you only have
to apply it in a very limited period?
Mr Denham: I have not considered
a strict time limit of that sort but the position we were in was
certainly unsatisfactory. We were meeting in September. We already
knew that the earliest that the coroner's court would reconvene
would be February or March, depending on the time of the IPCC
inquiry, so something that allowed for a period of grace would
be very useful indeed.
Q30 Chairman: Would it be fair to say
that the concerns you have expressed to us today are shared by
all members of your committee?
Mr Denham: Yes. I have raised
this with the committee on two occasions, once when I first wrote
to the Liaison Committee and again when I reported that I was
giving evidence today. I have support from the committee. No committee
member has raised any concerns about this.
Q31 Chairman: Do you think there is fairly
wide dissatisfaction amongst Members generally over this matter?
Mr Denham: Yes, I am sure there
is.
Q32 Chairman: You mentioned in your evidence
that you had a note prepared for your committee which you are
happy to let us see. Could I make a plea that we have that fairly
speedily, please? Could you send a note attached to it identifying
who put the note together if that is not obvious from the document
itself?
Mr Denham: Yes. It was Dr James.
It was the first two pages of the normal committee brief but we
will send you the documents.[2]
Q33 Chairman: Is there anything you
wish to add, Dr James?
Dr James: There were two pages
in the committee brief with a very prominent warning on the front
page of the brief asking all Members to read these pages as a
matter of urgency. I compiled the advice on the basis of my consultation
within the Clerk's Department and on the basis of the discussions
that Mr Denham and I had with the Attorney General.
Q34 Sir Robert Smith: One of the suggestions
from some is that maybe the coroners' courts are something we
do not have to worry about prejudicing. Would you accept that
we should still be careful in terms of Parliament and even the
coroners' courts that we are not seen to prejudice?
Mr Denham: I do not think we should
dismiss all of the concerns in this area. There are quite legitimate
concerns that we should not prejudice the courts in a wilful way,
for very good reasons that were set out in your report. There
are cases though when an issue is of great national importance,
if Parliament cannot be seen to ask obvious, basic questions about
what is going on and questions are being asked every day on the
television and in the newspapers, we are taking the rule too far.
Our response needs to be proportionate. If it is a major, national
event, we should perhaps give a somewhat lower priority than we
have done historically to the sub judice rule in the coroners'
courts. I would not for one moment say that it does not matter
or we should not have respect for the procedures. It is a matter
of approaching it sensibly and in a proportionate way.
Q35 Chairman: Is there anything you want
to add which has not been covered by the questions?
Mr Denham: I think we have covered
all the substantial points I wanted to raise. It may be helpful
to the Committee if, when we submit the note of our meeting, perhaps
I could expand that with a further list of some of the questions
that I think the committee might have liked to raise which we
felt unable to.
Q36 Chairman: Please feel free to do
so. Is there anything you want to add in private today?
Mr Denham: I do not think so,
no, thank you.
Chairman: Can I thank you both for coming?
We share your concerns on this matter. It is a question to which
there is no easy answer but we are going to see if we can find
some way of perhaps refining the situation which would be of help
to the House. Thank you for contributing.
2 Not printed. Back
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