Examination of Witness (Questions 40-59)
MS SALLY
KEEBLE MP
29 NOVEMBER 2005
Q40 Sir Robert Smith: The outcome of
the coroner's case can have an impact, obviously.
Ms Keeble: No, because the findings
cannot be of anybody's guilt.
Q41 Sir Robert Smith: No, but they can
have an impact. If someone's insurance policy says that suicide
means they cannot be paid out on their life insurance, if the
coroner's court decides they committed suicide—?
Ms Keeble: In terms of what influences
an insurance policy, I do not think there is any argument at all
for saying that we cannot talk about things that might at some
time or another influence an insurance policy. We might as well
say that there is no point talking in the Commons about anything
that influences anything.
Q42 Sir Robert Smith: It is the separation
between the court's decision being seen by the person affected
by the decision and the confidence that the court made the decision
on its own merits and not because Parliament chose to interfere.
Ms Keeble: There are several issues
involved there. One is about who you influence. Part of the thinking
that informs the contempt rules that journalists have to abide
by—I cannot remember the detail; I am a bit fuzzy on it
now—is that a jury is open to being influenced but a judge,
for example, is not so there is much more freedom, as I understand
it, about reporting matters where it is a judge or a single person
sitting on their own. The real issue is about influencing juries.
That influences a person's right to a trial. That is not about
what happens to the institution; that is purely about the individual's
right to a fair trial. By extension, if nobody is on trial, contempt
does not arise and that is a big bit of my argument about the
coroners' courts. Nobody is on trial because that is not what
coroners' courts do. They have a variety of findings. It might
imply that a death was not wholly accidental but it is not finding
anyone guilty of anything.
Q43 Chairman: Although what you say is
correct, what do you say to the Attorney General's comments when
interviewed by this Committee when he accepted the point you have
made but he went on to say, in effect, that although the coroner's
court itself was not a trial, the coroner's court conclusion may
determine whether criminal or civil proceedings then take place?
Ms Keeble: That still is not influencing
somebody's right to a fair trial which seems to me to be one of
the fundamental principles which we, as elected Members, have
to accept. If you then say that what happens in a coroner's court
can affect something that happens elsewhere, then yes, but this
comes back to the fact that there is not a jury involved. If you
have a single judicial figure or a judge sitting on their own,
are they open to influence? That is where, as I understand it,
the principles that affect the rules as they apply to journalists
would say no, they do not, in the same way as we would say that
if the courts say something about Parliament are we influenced
by it.
Q44 Sir Robert Smith: North of the border
in Scotland there is quite a protection on interfering with judges.
If an appeal is on, there is no way politicians would start discussing
it.
Ms Keeble: There is a third point
which is about the principle of comity, the equality between institutions.
It would seem to me that that is given away completely by the
fact that the Lords are quite entitled to discuss the particular
case which I have been barred from mentioning and they have discussed
it in quite some detail. The ministers in the Lords have also
mentioned it. They have referred to it by name.
Q45 Sir Robert Smith: We need to look
at that relationship between the Lords and the Commons.
Ms Keeble: I do not see that the
discussion in the Lords has had any influence at all on the coroners'
courts and nor will it. It has had no influence on the CPS. Nothing
has speeded up the Crown Prosecution's decision. I cannot see
that things that have happened here have had any influence in
terms of prejudicing the coroner's court.
Q46 Sir Robert Smith: It is not a question
whether it has influence but whether someone could reasonably
believe it could have had an influence. That is one of the worries.
For justice to be seen to be done and for people to have confidence
in the system, we may think we have not had an influence but if
the aggrieved parties feel the process is no longer fair because—?
Ms Keeble: Who is the aggrieved
party in a coroner's court?
Q47 Sir Robert Smith: Presumably, if
you were the relatives of someone who was found to have committed
suicide and you did not receive any insurance payment you would
be fairly aggrieved when you thought it had not been a suicide
and someone in Parliament had been—
Ms Keeble: It seems to me that
insurance pay-outs are a whole different issue and you cannot
limit Parliament's right to free speech because of what insurance
companies might do.
Q48 Sir Robert Smith: No, what courts
might do that impacts on people.
Ms Keeble: The issue at stake
is not whether or not people get paid out; it is whether or not
people have a fair trial. In some instances it might be whether
or not somebody who is vested with a great deal of authority and
respect is capable of making a decision without being influenced
by an adjournment debate in Westminster Hall.
Q49 Mr Gauke: To give another example
rather than an insurance pay-out, say you have a hypothetical
case of a coroner's report on a death of somebody in custody.
If there is a finding of unlawful death, that may relate specifically
to, for example, a police officer, an individual who will be potentially
adversely affected by any coroner's report because it will lead
directly to criminal proceedings and there is, if you like, a
better relationship there than with an insurance pay-out. Is there
not a danger there that discussion in Parliament may prejudice
or be seen to prejudice a coroner's hearing and in turn that would
have quite an impact upon a criminal case?
Ms Keeble: You obviously get these
sequential events and you have to work out at what point it is
appropriate to discuss them in Parliament and at what point it
is not. As you pick your way through that, you have to, first
of all, respect a person's right to a fair trial. The trial might
come quite some way down the line. There are decisions further
on as to whether charges are brought against somebody. There are
also issues about in-house disciplinaries. In the instances you
are talking about, those would come somewhere down the line. To
limit Parliament's right to free speech to protect someone's right
to a fair trial is absolutely proper. I would not criticise that.
To limit Parliament's free speech because of somebody's disciplinary
at work I think is not appropriate because that is an internal
mechanism to the employer. To limit Parliament's right to free
speech pending a decision by the Crown Prosecution Service I also
think is wrong because the Crown Prosecution Service is well shielded
and protected. That would be key to the issue that you have raised
because somebody might have been killed in particular circumstances
and, hard though it might be for the relatives, it might not be
possible to bring a prosecution. I have been in that situation
myself when my own sister died so I understand from the inside
how it feels when that happens. To stifle debate around the process
of the CPS making a decision would be wrong. When it comes to
a coroner's court, I think it is right that for the duration of
the court hearing the matter should not be discussed in Parliament.
Obviously this idea that you cannot even refer to it is very hard
to police but it is right that something should not be discussed
where there is a jury sitting and where it is a death in custody.
What is happening might well influence a jury but the hearing
itself can be quite short. If it is a decision without a jury,
in which case it is a different set of circumstances from the
ones you are talking about, or if the inquest is simply opened
and adjourned and remains adjourned, it seems a nonsense to limit
Parliament's free speech for the whole of that period of time,
particularly when the issues at stake are of key concern to the
public. We should as MPs be able to raise our issues in a general
sense and also in a direct sense hold the executive to account
for what has happened.
Q50 Rosemary McKenna: In your letter
you say, "The area in which the Speaker can use his discretion
is so slight that it does not provide a remedy when there is a
matter of real public concern that is caught by the sub judice
rule." Is it simply a wider use of the chair's discretion
that you would look for or a more generously defined rule on the
chair's discretion? You say there is a difference between how
it applies in the Lords and the Commons. Are the Lords given different
advice? Is the Leader?
Ms Keeble: The Leader serves a
different function. The Lords do not have anyone organising them
so they organise themselves. They chat about what they want.
Q51 Rosemary McKenna: The guidance to
the Speaker is far too narrowly defined?
Ms Keeble: I could not get to
the Speaker. I do not want to criticise the Speaker for this because
I think he behaved absolutely properly. There is no procedure.
There is no clear route. I have had no indication at any stage
that there is any possibility for discretion or how a discretion
might be operated. The people who advise the Speaker are the same
people who rule us out of order. You are stuck. I do not think
it is any fault at all of the Speaker. If the Speaker is told
that a coroner's court is open, that a case has been opened and
adjourned and the matter is sub judice until it is concluded,
that is pretty straightforward. If a Member tries to raise something
before a coroner's court where it has been opened and adjourned,
then they are bang to rights; it is sub judice. I tried
the discretion route but I could not even get to the Speaker so
I could never discuss this. I do not see how it works.
Q52 Rosemary McKenna: Do you think that
should apply to chairs of select committees who also have a very
narrowly defined discretion, it would appear, given the advice
from the clerks?
Ms Keeble: I think the sub
judice rule needs rewriting. I do not think it should be a
matter for discretion. I believe that very strongly. I think what
has happened in this instance is an absolute outrage.
Q53 Rosemary McKenna: It is not the operation
of guidance that is the problem; it is the actual sub judice
rule?
Ms Keeble: That is right.
Q54 Rosemary McKenna: Looking at the
procedures of the House in terms of the application of the sub
judice rule would not really resolve the problem?
Ms Keeble: I suppose you could
draw up some guidance as to how you think the discretion might
operate so that everybody knows. I think the more important thing
is to look at what the sub judice rule means because if
the Committee wants to continue to apply the sub judice
rule to matters before coroners' courts—I personally disagree
with that—and if that is the conclusion the Committee reaches,
I think it should be much more precise about when matters are
before a coroner's court. I would argue that opening and adjourning
a case and leaving it there for 18 months should not stifle debate
on the issue at hand for 18 months. I think that is a nonsense.
Q55 Rosemary McKenna: I think that is
a different issue. That is to do with the length of time it can
take the Crown Prosecution service to bring it to trial.
Ms Keeble: It is not unusual.
If you think of the Marchioness disaster on the river, that coroner's
court was adjourned for several years.
Q56 Chairman: In your view, the scope
of the sub judice rule should be looked at. You would like
to see guidance given to the Speaker and to chairmen of committees
and the contents of that guidance should be made known to Members.
Ms Keeble: Yes. If the sub
judice rule is going to continue to apply to coroners' courts,
this is not a matter of guidance. That section of the sub judice
rule should be more narrowly defined so that it should only apply
to coroners' courts when proceedings are active, ie when the hearing
is taking place. You then do not prejudice the hearing and that
is absolutely clear. Further, if there are issues which are felt
to be so outstanding that there still needs to be discretion,
it must be clear how that should be applied and how Members are
to go about asking for discretion, because it was unclear to me
and simply writing to the Speaker was not the way to do it.
Q57 Chairman: In the light of the questions
you have had today, are you still maintaining that, in your view,
the sub judice rule should not apply at all to coroners'
courts whatever the case and the circumstance?
Ms Keeble: I personally think
it should not.
Q58 Ms Clark: If the Committee decides
that the sub judice rule should still apply in coroners'
courts, do you think it would be of assistance to have formal
guidelines outlining the Speaker's power of discretion and defining
what counts as a matter of national security?
Ms Keeble: I do not think my case
was a matter of national security. It was much more a matter of
public interest. I still think there should be definition about
when a case is active. That is a bit of a compromise between not
having it apply to coroners' courts at all and having the application
that we have now. The guidance should include cases where it might
be thought that discretion should be allowed and something about
how they should go about doing that. It may well be that you would
not just say national security but perhaps also outstanding public
interest or public concern, something like that.
Q59 Annette Brooke: We are greatly concerned
about the inconsistency. I do not recall the exact events. Once
it had been raised in the Lords, did you then make further inquiries
in the Commons as to whether you could raise it?
Ms Keeble: It had been raised
in the Lords before I gave evidence at the Committee last time.
The Committee then said, "Try to see if you can get the Speaker's
discretion" so I tried to do that. After that, about a couple
of weeks ago, the Lords discussed it again in much more detail
after I had done some media coverage of it. I was able to speak
about it outside here and everybody was able to cover it. There
is no issue about journalists and the sub judice rule;
it is just in here. I have not been back to the Speaker again.
I have tried to chase up the CPS through questions to the Solicitor
General but I have not gone back to the Speaker to ask to raise
it in the Commons, no.
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