Examination of Witness (Questions 80-99)
RT HON
LORD GOLDSMITH
QC
21 JUNE 2006
Q80 John Hemming: You have indicated
that the sub judice rule is stricter than the provisions
of the Contempt of Court Act. You have also indicated that there
are practical reasons in terms of managing debate but would you
say there are also reasons of principle in terms of respect for
the courts? Where would the main source of the reasoning be for
the rule to be more strict than the Contempt of Court Act?
Lord Goldsmith: I think it is
both of those points. It is difficult to police. You need a clearer
rule because of the constitutional position of Parliament and
the courts. It is perfectly legitimate for newspapers or others
to comment on what is happening in courts. If Parliament does
it, that really does potentially interfere with the balance between
what are the two arms of the state.
Q81 Mr Wilson: The 2001 sub judice
resolution by the House of Commons states that the sub judice
rule can be waived where "in the opinion of the chair a case
concerns issues of national importance." Firstly, do you
accept the need for a national importance provision?
Lord Goldsmith: I would not have
thought that the waiver has to be restricted to that instance,
no. I would not have thought it needs to be only in that example.
Q82 Chairman: You are saying there
ought to be a wider discretion with the chair?
Lord Goldsmith: Yes.
Q83 Mr Wilson: We have had witnesses
who have argued that there would be little prospect of prejudice
if discussions in Parliament were confined to general issues of
policy rather than the facts of a case. Rather than having a national
importance exemption, would it be better to go along that route?
Lord Goldsmith: There is force
in that. I think there is a difficulty in spelling out too clearly
just what the cases are and what they are not. That is the point,
I suppose, about having a discretion. There is a problem with
inquests that there can be a substantial delay between the moment
that they become active and therefore the rule starts and when
the actual proceedings take place. The greater the distance in
time, the less force there is in being concerned about at least
prejudice.
Q84 Mr Wilson: Could you have a general
discussion of the policy areas on a case by case basis as long
as you did not go into the detail of the facts of an individual
case?
Lord Goldsmith: I think in many
cases you could. It is a bit of a slippery slope and you would
have to leave the authority, the Speaker to have a strong ability
to control. I can speak about colleagues in my House, if not in
this House, who would have no difficulty at all in dressing up
what is in fact a debate about a specific case by making it look
as if it is a debate about general principle. One would want to
watch that taking place so that the rule was not abused. In principle,
that is the sort of area where you would want to allow something
to take place whilst being very careful not to allow it to descend
into a debate about the individual case.
Q85 Chairman: In practice, how do
you get involved and how regularly do you get involved in advising
Members of either House or indeed select committees on issues
of sub judice?
Lord Goldsmith: I can only think
of one example which is where John Denham came to see me.
Q86 Chairman: Your door is open to
any Member or select committee who wishes to seek your advice?
Lord Goldsmith: I see myself as
more an adviser to Parliament than perhaps to individual Members
but I would certainly consider any question of an individual Member,
although the Member might in any event want to go to the Speaker
or to the Table for advice rather than me.
Q87 Chairman: Are you able to provide
advice on specific cases where, for example, there may be some
information you have which would not be available to the Speaker?
Lord Goldsmith: I would be very
happy certainly to communicate with the Speaker on issues of that
sort, absolutely, in case I had information that it may be helpful
for the Speaker to have. I did want to make one other suggestion,
if I may, in that area. I think it would be perhaps helpful if
you have not already done so to talk to the Coroners' Association
because it seems to me one possible source of information which
might help the Speaker reach decisions on his discretion might
be getting information from the relevant coroner, who might be
able to give some factual information which might show where there
is a real area of concern or there is not an area of concern or
it is going to be a long time and he does not have much concern
about it.
Q88 Chairman: In due course maybe a system
could be in operation where there was a direct link between this
case and the chief coroner?
Lord Goldsmith: Yes.
Q89 Chairman: Do you agree with what
I think is a fairly widely held perception that advice given to
the Speaker and to the chair of a select committee tends to be,
in the main, overly cautious?
Lord Goldsmith: I do not know
if it is overly cautious. I am not privy to the advice that is
given to them so I could not say whether it is. I would understand
that one should err on the side of caution because the damage
could be very great and because debate is being delayed, not prevented.
Q90 Chairman: Would it give you a
difficulty if we formed the view that there ought to be a greater
consultation with your office before rulings are made?
Lord Goldsmith: I would try and
do everything I could to make that work. We would have to discuss
with the Table and with the Speaker just what we wanted. There
have been occasions where I have had communications with the Speaker
about particular issues which have arisen. Sometimes there is
quite a lot of pressure of time which makes it a bit difficult
but I always respond in the best way I can.
Q91 Mr Chope: One suggestion is that
there should be published guidance for the chair setting out when
it would be appropriate to waive the sub judice rule and
under what conditions the waiver would operate. Do you think that
would be practical? Is it something you would support?
Lord Goldsmith: I am concerned
as to whether it would be practical. It is difficult to envisage
all the circumstances in which it would be right to waive and
all the circumstances where there may be dangers which are not
foreseen. I think it would be right to leave it to the Speaker.
One can indicate perhaps that one would expect the Speaker to
look more favourably on cases where it is clear that it is a debate
about a matter of public importance which does not touch on the
case, where it is a case where there is likely to be a very substantial
delay between the debate and the inquest itself. For my own part,
I would not want to tie the Speaker down. The interest I have
particularly in trying to assist the House is that I have a responsibility
to deal with contempt if it happens and of course what happens
in Parliament cannot be contempt so there cannot be a prosecution
for something that is said in the House or a report of it, but
it could have the damage on proceedings which I am concerned to
avoid in the interests of the administration of justice.
Q92 Mr Chope: You are saying that,
because there is no effective sanction, it means you have to be
extra cautious?
Lord Goldsmith: No, I am not saying
that at all. I think you should be as cautious as the circumstances
require, no more and no less. I am just indicating that I have
an interest in not seeing proceedings damaged but I rightly do
not have in relation to Parliament the sanction of the criminal
law.
Q93 Rosemary McKenna: You referred
earlier on to the fact that the sub judice rule delays
discussion but does not prevent discussion. However, a lot of
the frustration of Members is that very fact. Sometimes a coroner's
inquest can be opened and immediately closed and stay closed for
something like 18 months. How do you think that issue could be
addressed? What is the best solution to that problem? Is it greater
use of the Speaker's discretion or maybe redefining the period
for which inquest proceedings are considered active?
Lord Goldsmith: I think it is
the former. It would be attractive to have a sort of bright line
rule which we defined when proceedings were active. It is quite
difficult to find one which really meets the objective from the
analysis I have seen. I know one suggestion is that you say only
when a hearing has been set down, but it is not uncommon for an
inquest to be opened and a date to be given which is a long way
off but still the date is given. I am not sure that would meet
the concern. That is why I think the discretion route is the better
one.
Q94 Rosemary McKenna: You are saying
there is not a clear trigger point when an adjourned inquest could
be reclassified as active?
Lord Goldsmith: It is difficult
to find one which would meet the concerns that Members have expressed.
Q95 Rosemary McKenna: You are coming
down on the side of clearly saying that there should be greater
use of the Speaker's discretion and the chair's discretion?
Lord Goldsmith: Yes.
Q96 Rosemary McKenna: I think the
John Denham one is interesting because he has chaired a select
committee. We were asking him why he could not use his discretion
and I think he had obviously discussed it with you. Somewhere
around that we have to find a solution to this issue because I
think they are afraid to use their discretion. Would you agree
with that?
Lord Goldsmith: I think they may
be. I do think there is a good reason. Take John Denham's work.
It is terribly important. On the other hand, at the time that
he was doing this potentially there were some criminal proceedings
taking place. Nobody here or in the House would want to see criminal
proceedings prejudiced by something that had been said because
it is people's liberty; or still—and this is what happens—the
judge saying, "These people cannot have a fair trial any
more." It is commonplace now. People will say, "Look
at the degree of press comment. I cannot have a fair trial. You
should stop this." It is not in the public interest that
these things should not ultimately be decided in court. I am sure
it is frustrating for Members but I think there are very good
reasons for us not to overstep the bounds.
Sir Robert Smith: On the issue of delay,
do you think the reforms in the draft Coroners Bill will do anything
to speed up the process and maybe in a sense take away some of
this frustration?
Q97 Chairman: Or make it worse with
appeals?
Lord Goldsmith: I do not know
about making it worse because we have appeals in a sense but through
a different route. Another of my responsibilities is to filter
applications to reopen inquests. The question as to whether it
is going to make things better is one that you might want put
to DCA ministers because they are responsible for resources which
coroners will have and the way that procedures will operate. They
will have a view as to how much that will speed up inquests. There
will though always be some inquests which are opened and take
a long time because they will stop whilst criminal proceedings
take place.
Q98 Sir Robert Smith: Whilst criminal
proceedings are taking place that is another reason for it to
be sub judice.
Lord Goldsmith: Yes.
Q99 Ms Clark: Are you aware of the
recent cases in the Lords where incidents subject to coroners'
inquests have been mentioned and discussed? Do these apparent
breaches of the sub judice rule give you any cause for
concern?
Lord Goldsmith: I am only aware
of it because I have been provided with the memorandum which has
come from the Clerk of the Parliaments to you.[2]
I am not responsible for regulation and how the Lords regulate
their affairs. I think it is unsatisfactory if breaches of the
rule have taken place because, as he says in his memorandum, the
rule ought to be the same in both Houses. I am sure that is right
because I am sure that the Members of both Houses should have
the same opportunities to debate maters which otherwise are sub
judice and perhaps the same restraints on debating them.
2 Written Ev 44. Back
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