Examination of Witnesses (Questions 120-139)
SIR ROGER
SANDS KCB AND
MR ROBERT
ROGERS
21 JUNE 2006
Q120 Rosemary McKenna: What about
select committees? How do they face sub judice issues in
their inquiries? Is it possible these could be dealt with by taking
evidence in private?
Mr Rogers: Certainly. That was
one option in the Home Affairs Committee's dealings with the sub
judice issue. Select committees may be very much closer to
the subject and to sources of information. They would, in particular
circumstances such as the difficult circumstances the Clerk has
outlined, perhaps take advice from the Clerk or his senior colleagues,
but those are judgments as to whether to proceed in public in
a more limited way, or in private with greater freedom, that are
up to an individual committee to take.
Q121 Rosemary McKenna: If they had
come to you for advice on any issue, you would give them what
you consider is your advice. Why then would John Denham go to
Lord Goldsmith?
Sir Roger Sands: I can perhaps
throw some light on that. As Robert has described in relation
to routine items that come up in the Table Office, we went to
both the Home Office and the Law Office to try and establish the
facts and what cases there were or might be and what the state
of play was. Mr Denham did not query that advice but he did query
the whole issue of prejudice and whether this would seriously
interfere with investigations. He wanted to talk to the Law Office's
department and he made quite clear to his Clerk that he wanted
to go right to the top and Lord Goldsmith agreed to see him.
Q122 Rosemary McKenna: What I am
hearing is that there are lots of avenues open to Members and
chairs of select committees to explore how they can go forward.
Sir Roger Sands: I do not think
Lord Goldsmith would be very keen if select committee chairmen
were knocking on his door every week but, yes, there are. I think
it is also fair to say that the advice Mr Denham got from Lord
Goldsmith was stronger than the advice we gave him.
Q123 Ms Clark: Some Members, I think
as you are aware, have complained that the rule prevents discussion
of issues relating to a case even where specific matters before
a coroner are not being brought up by the Member. In your opinion,
how closely does an issue have to relate to a case before a coroner
to fall within the scope of this rule?
Sir Roger Sands: It is very difficult
to give a generalised answer to that. I have said in my paper
that, if you were genuinely raising an issue of public policy—in
the case which Sally Keeble has brought to your attention the
public policy issue I suppose would be the use of restraining
techniques in young offenders' institutions—that is a subject
that has been raised in the House in a variety of ways while this
case has been pending. I have no doubt that if the Member just
referred in passing to it being an issue in this particular case,
the chair would not intervene, but it is only just a short step
away from doing that to referring by name to the people involved
and possibly referring to what the Member thinks actually happened
in this case. That immediately gets onto delicate ground and the
chair starts to feel uncomfortable. It is not an easy line to
draw but I think, when one is sitting there listening, one instinctively
knows when somebody has gone over the line. I think probably in
their heart of hearts the Member knows too.
Q124 Ms Clark: So far as the House
Authorities are concerned, do you think there is a culture of
caution that the rule has been interpreted too strictly and in
a way that is far wider than the strict letter of it would require?
Sir Roger Sands: No, I do not
believe that. We have to react fairly instantaneously to a great
number of cases. If a considered argument is put and the Member
indicates what exactly they want to raise then we can either facilitate
it or take it to the Speaker and say, "We are not entirely
happy about this, Mr Speaker, but if you wish to exercise your
discretion, then that is up to you to do so".
Mr Rogers: I draw a distinction
between an application for an adjournment debate where there is
an umbrella title, and one has got to explore a little bit what
lies behind it, and questions, where there have been considerable
increases in the numbers of questions in recent months, and, indeed,
the number of examples that I gave to you earlier on is considerably
greater than the number of examples my predecessor gave you in
2004. I would say in practical terms it is the strict interpretation
rather than a cautiously wider interpretation of the resolution
which we regard as very helpful, because our discussions in the
Table Office are sometimes vigorous with the Member concerned.
We must be absolutely certain in the advice we are giving and
that we are on absolutely firm ground. It is a precise application
of the rule to see whether the circumstances that the Member wishes
to raise in a question which will help us, let us say, perhaps
not arrive at an absolutely satisfactory outcome for the Member,
but one that the Member recognises as absolutely in accordance
with the rules of the House as they stand and that he or she is
not being a victim of an over-zealous Table Office.
Q125 Chairman: In a case like that,
if you are indicating to a Member, you are minded to say what
he wants to do is not going to be allowed because it will breach
the rule, and if the Member has what appears on the face of it
a valid point of argument as to why he believes you should not
take that view, would you in a case like that merely refer him
to the Speaker or would you make further inquiries with your contacts
and then reassess your decision?
Mr Rogers: Certainly the latter.
Very often if it is a constituency case the Member will know a
lot about it and my concern is to come to a situation where we
are in agreement about the facts. If the advice that we have is
not in accordance with what the Member thinks is the case, that
is not a situation I would allow to continue. We obviously have
to be absolutely certain of the ground on which we are standing
and if the Member wishes to take it further, as I said earlier,
as with any question that we think may offend against a rule of
order, that is never something that we discourage a Member from
doing.
Q126 Sir Robert Smith: You touched
before on the chairman's discretion and the previous Committee's
report talked about encouraging Members to seek the Speaker's
discretion to waive the sub judice rule on issues of national
importance. How often has the chairman exercised that waiver?
Mr Rogers: There are some examples
set out in the latest edition of Erskine May from which
you will see immediately that it is not very frequent. Less logged,
so to speak, are the examples of the sort that I quoted earlier
on, where something does not really get above the parapet because
the problem or the exercise of the discretion is slightly at the
margins. In the House, it is a rather different matter, I would
say, because it is a matter of degree rather than an explicit
decision announced to exercise the waiver; but I defer to the
Clerk on that.
Sir Roger Sands: I cannot answer
the question, Sir Robert, in any precise terms. It is comparatively
rare that a single criminal case raises issues of national importance.
What is more common is that an issue of national importance may
have exemplars in one or two individual cases; Members may refer
to them in passing and, generally speaking, that is perfectly
allowable. The other point I would just draw to your attention
is that there is a general waiver in the sub judice resolution
for proceedings on legislation. If the House is legislating, sub
judice rules do not apply, it is changing the law. In the
past Lord Campbell-Savours, as he now is, was a master of this.
He would sometimes take that waiver to extremes and try and use
the excuse that the House was on legislation to raise details
of a pending case but it is usually possible to rule that out
on the grounds of relevance.
Q127 Chairman: Would that waiver
in your judgment apply to a ten-minute rule bill which is proposed
legislation?
Sir Roger Sands: There have been
arguments about this but again I think the motion has to be there
on the paper and discussion of a particular case would almost
certainly fall foul of the rule of relevance if a Member tried
to do that.
Mr Rogers: There is a saving in
paragraph three of the resolution, a motion for leave to bring
in a bill. If I could add a practical point on the question of
exercise of discretion, I think if you have got the national importance
provision in the resolution, instances of that sort are likely
to come up quite rarely and they will raise issues which, as it
were, can be dealt with in a compartment. On the other hand, if
you are going to have an area-type of proceeding which is consistently
going to concern Members and their constituents then the accretion
of case law may produce something of a difficulty for the chair.
If we are talking, for example, about deaths in custody and the
particular circumstances of the case lead the chair to think that
in this instance there should be an exercise of discretion, the
question is automatically asked in any other set of circumstances
when that comes forward, that the discretion should be exercised
again. You may get a situation, and I do not suggest whether it
is good or bad, a bit like Gulliver being tied down with a whole
series of ropes where case law, or at least a succession of decisions,
has removed quite a bit of the latitude of discretion from the
chair.
Q128 Sir Robert Smith: National importance
exemption does not distinguish between different kinds of cases
where prejudice is more or less likely and you have already touched
on your concerns about what Members may do once discretion has
been allowed. Would it be better to have a general discussion
of policy issues raised by a case but prohibit specific mention
of the facts of the case, or do you come back to your fear that,
having got through the hurdle, people will bring the facts in
anyway?
Sir Roger Sands: I think that
is the danger; but that is a distinction which I certainly try
to make and it is the distinction I have made in my paper—it
is a distinction I try to make when giving advice myself, to encourage
a member to raise a general underlying policy issue. And going
back to the point which I was discussing with Mr Wilson earlier,
that is what is specifically allowed under the Contempt of Court
Act. I think possibly guidance from this Committee that that provision
might specifically be taken into account by the Speaker when deciding
how to exercise his discretion would be helpful.
Q129 Chairman: Presumably if the
Speaker does exercise his discretion and allows the debate, the
rules having been clearly set out to the Member by you privately,
the Member then goes over that line, presumably the sanction is
he is ordered to resume his seat?
Sir Roger Sands: The chair will
pull him up, yes. That does create a very difficult situation
for the chair particularly if it is at the end of a sitting when
people want to go home, and so we try to avoid that. The key phrase
in the Contempt of Court Act is bona fide discussion of
public policy issues. If the Member is bona fide no problem
is likely to arise.
Q130 Rosemary McKenna: The previous
Procedure Committee report stated that the power to exercise discretion
in select committee proceedings rested with the chairman of the
Committee, do you agree with that statement?
Sir Roger Sands: Yes, that is
the case. It has to be because things come up at a moment's notice
and the chairman has to decide. But I think it also said, and
if it did not then certainly my memorandum to it did, that chairmen
in those circumstances were well advised to clear their lines
with the Speaker, particularly when launching a new inquiry or
something like that, because obviously any decision that a select
committee takes to allow something to be aired is likely to have
repercussions on the floor of the House.
Mr Rogers: In the Home Affairs
Committee example, which was referred to earlier, with which I
was involved in in my previous job, one of the things that we
had very much in mind was that the exercise of discretion in terms
of the hearing of evidence would have an immediate knock-on effect,
very likely, into the range of questions which Members would then
want to table as a result of discretion having been exercised
in a rather different forum. Obviously that will be a matter of
concern for the Speaker.
Q131 Rosemary McKenna: That is right
and that is the follow-on question I want to ask. What if we had
a rogue select committee chairman who decided that they were going
to wing it, there are implications there. Are there any recommendations
that we could make to say, "You must have regard to the Speaker
or to yourself?"
Sir Roger Sands: The previous
report which you mentioned did say: "We believe that there
are circumstances involving sub judice issues in which
select committee chairmen may wish to consult the Speaker in advance
if time allows, otherwise the right course would be to take the
evidence concerned in private so that consideration can be given
to how much of it could properly be published." They did
refer to that possibility, I would have wished them to refer to
it in slightly stronger terms, but the idea is there.
Q132 John Hemming: Would published
guidance on the interpretation of the rule be helpful to clerks
and Members?
Sir Roger Sands: I think I give
the same answer that Lord Goldsmith did that it would be very,
very difficult to come up with published guidance of any detail
that would usefully cover every sort of circumstance. I have made
one suggestion that specific reference to the wording of the Contempt
of Court Act, in relation to the bona fide discussion of
issues of public affairs, might be helpful. But I think more detailed
guidance would be very, very difficult to draw up.
Q133 Chairman: Before I call on Rob
Wilson to ask a question, it looks like we are going to be subject
to a division in the House in two minutes' time. I think it is
fair to say we are three quarters of the way through this session.
Are you both available to resume in 10 minutes time if there is
a division at four o'clock?
Sir Roger Sands: Yes.
Q134 Mr Wilson: I will quote you
some of the things that Sally Keeble said when we took oral evidence
from her, "The implication of the 2001 resolution is that
if it is of national importance you can in some way vary, waive
or ignore the sub judice rule, but it does not tell you
how". Then she went on to say, "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 that discretion
might be operated". Does the Table Office inform Members
affected by the sub judice rule that they can ask the Speaker
to exercise discretion?
Sir Roger Sands: I think there
have been lengthy negotiations with Sally Keeble over the months
and years.
Mr Rogers: There have indeed,
and Ms Keeble has been absolutely punctilious in the way that
she has approached this, I should say that for the avoidance of
any doubt, and entirely open with us about the case that she wished
to raise. We certainly do tell Members of the opportunity, but
nine times out of 10 a Member will say, "it is a matter for
the courts no, I do not want to go there" and will immediately
say, if asking a question is going to cause a problem or might
cause prejudice to the proceedings, "that is fine, it is
going to be over in a month's time, I will pursue it then".
For Members who want to pursue the matter more vigorously, yes,
I hope we do on every occasion give that advice.
Chairman: The Committee will be suspended
until 10 minutes past four.
The Committee suspended from 4.01 pm to
4.10 pm for a division in the House.
Q135 Chairman: The previous Committee's
report has not yet been considered by the House. Do you think
it would make a difference if the House endorsed the recommendation
that Members should seek the Speaker's discretion more readily
in this area?
Sir Roger Sands: We would have
no problem with that. The Speaker might not entirely welcome it
quite in those terms but if by that is meant seeking to persuade
us that this is an area where the Speaker's discretion might be
exercised—
Q136 Chairman: Do you regard that
as an arm's length process or are you anxious for the Speaker
to follow your advice? For example, if you had a case where you
thought a Member had an arguable point but on balance you were
minded to advise against there being a debate, would you then
encourage the Member to rely on what you saw were his strong points
in his argument in his representations to the Speaker? Do you
give him assistance to that extent?
Mr Rogers: In the particular case
I quoted, Chairman?
Q137 Chairman: No, in any case. I
will tell you what my thinking is. You did indicate earlier that
there may be cases where your office is split, you referred to
heated discussions where it may be that some of your colleagues
take a different view. I do not know whether I was right to read
that into that.
Mr Rogers: I think I did not express
myself clearly enough. I have never known the Table Office to
be split on any matter. The vigorous discussions take place between
one plenipotentiary and the Member concerned.
Q138 Chairman: If a Member asks for
help in setting out the grounds upon which he relied, would you
offer that help to him?
Mr Rogers: Of course, yes. I should
say I gave a rather light hearted answer to your previous question,
but we do discuss these matters in a great deal of depth in the
office. There is a discussion involving the whole office every
day where, for example, if we were in doubt or if we wanted to
explore and indeed test and challenge the advice that one of us
was minded to give, that is a very good opportunity for doing
it. If a Member came to us and said, "On each side, what
is the essence of my case, what are the strong points", we
would certainly help to the best degree that we could. At the
same time, of course, we have got to have in mind what the practicalities
might be if that adjournment debate, or whatever it might be,
actually came on, the position that the chair might be in if,
in the circumstances which the Clerk described earlier on, the
trade description of what was intended to happen was not quite
realised in practice.
Sir Roger Sands: It is the same
when we advise the Speaker on anything. If we feel that this is
an area where it is ultimately down to the Speaker, whether it
is an urgent question or the selection of an amendment or anything
of that sort, we do put both sides of the argument to him as fairly
as we can.
Q139 Mr Chope: Can I come on to this
issue of delay. We think the delay in the coroners' courts is
one of the reasons for the frustration. When you did your memorandum
you recited correspondence or information you received from the
honorary executive of the Coroners' Society saying that the delay
was caused largely by a lack of investigative resources and court
accommodation. We have now got a draft Coroners Bill, in the light
of your discussions with the Coroners' Society, do you think that
Bill, if implemented, would result in a reduction in the delays
to the coroners' court system?
Sir Roger Sands: I have had no
specific exchanges with the Coroners' Association about this,
I was simply quoting from written evidence given to the Committee
in the previous inquiry which is published at the back of that
report. I seem to recall that when Harriet Harman made a statement
to the House about this draft Bill, delay was one of the issues
that was mentioned as being something that was going wrong, something
that was dysfunctional, in the coroners' system. The implication,
therefore, is that that problem will be addressed by the changes
that this Bill will introduce, but I would not like to reach a
judgment about that myself. Obviously, there is a distinction
between a framework—and this Bill is intended to set up
a new framework—and the resources which are provided to
make that framework work smoothly.
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