Examination of Witnesses (Questions 140-150)
SIR ROGER
SANDS KCB AND
MR ROBERT
ROGERS
21 JUNE 2006
Q140 Rosemary McKenna: Your memorandum
suggests that guidance could be issued to the Speaker encouraging
him to use his discretion more readily in cases where an inquest
is adjourned for a long time. What are the advantages of a system
based on the Speaker's discretion rather than a clear rule?
Sir Roger Sands: I was not intending
to suggest that the Speaker's discretion should extend to allowing
discussion of the details of the individual case, I should make
that absolutely clear. But where there is an issue of policy raised
by a case and that is being delayed for a long time then I would
have thought that the delay was one factor among others that the
Speaker might take into account, but that is something which I
think it would be very difficult to write into the resolution.
In general, I am always opposed to over-prescriptive resolutions,
because you always find they then bite you in ways that you did
not expect when you wrote in the additional detail.
Q141 Chairman: The Attorney General
accepted that where there was a long delay between, let us say,
a debate and a hearing this was something which ought to be taken
into account, although not necessarily the deciding factor. If
the House decided to amend the rules so that inquests were only
sub judice when arrangements for the substantive hearing had
been set, how would you be able to gather the information necessary,
both speedily and reliably, so that quick decisions could be made.
You say you did not make use of the Coroners' Association which
the Attorney General referred to but you used other means. If,
as part of your decision-making process, you wanted to know what
the time lag was in a particular case, how would you go about
it?
Mr Rogers: One of the things that
we have done fairly recently, with the help of the Law Officers'
Department, is to change the way in which we find out factual
information about sub judice cases generally. Whereas before
we had to rely on individual government departments, this was
often not a very satisfactory way because it might have been that
the parliamentary branch did not have the clout to get the quick
reply or perhaps it was because the department did not understand
the importance to the House of Commons of having swift factually
accurate information. It was not the ideal method. Thanks to the
Legal Secretary to the Law Officers, we now have a single point
of contact in the Legal Secretariat, so we would certainly use
that. You have mentioned the draft Coroners Bill. If the streamlining
and the structure of the Coroners' Service, which is dealt with
in part four of the Bill, were to come about, one would expect
that there would be a single point of contact there for authoritative
factual information and, of course, we would use whatever point
of contact and source of information was quickest and best.
Q142 Chairman: I agree very much
with what you just said and I think it is important that someone,
whether it is this Committee or yourself, feeds in to the department
whilst the Bill is in draft form that it would be helpful to have
a central point of contact which may be someone in the Chief Coroner's
Office on issues such as this.
Mr Rogers: I think the authority
of your Committee will be a very good way of ensuring that that
is taken full account of.
Chairman: We take the point. The Attorney,
in his letter to us, has said that he feels it would be helpful
to consider whether there would be ways of enabling the Speaker
to have access to information about ongoing inquiries. I think
this is something that subject to deciding this at a later point,
we would want to pursue.
Q143 Ms Clark: Are you aware of the
cases in the Lords this session where incidents subject to the
coroners' inquests have been mentioned and discussed? On the basis
that you are well aware of these cases, do you believe that these
apparent breaches of the sub judice rule are cause for
concern?
Sir Roger Sands: Yes, I do. The
whole purpose of the exercise in 2001, not the whole purpose but
a very useful side benefit of it, was that both Houses ended up
with the same sub judice rule and if they are being interpreted
in totally different ways at each end of the building, then all
that benefit goes down the drain. Yes, it was a matter of concern
and I think in effect in his paper to you the Clerk of the Parliaments
has held his hand up and said it is a matter of concern to him
too. We have subsequently had another case of an attempt to raise
an issue before the coroner's court where we noticed it appeared
on their paper and I believe you made strong representations?
Mr Rogers: Yes. It had not got
as far as the order paper of the House of Lords but it was a case
in which the waiver was sought and we were able to say to our
colleagues in the Lords that this was a case which we knew very
well and which had been the subject of decisions as to the approach
to be taken in this House. So far as our colleagues in the Lords
are concerned, they have been re-examining the way in which they
organise the tabling of questions and they are, indeed, establishing
a Table Office rather similar to our own, although there is less
of a throughput of questions than there is in this House. I think
the examples which are quoted in paragraphs three to nine of the
Clerk of the Parliaments' memorandum have raised awareness of
the issues, and our colleagues in the Lords do from time to time
consult us on the line that is being taken in this House for information,
although obviously the two Houses are separate and independent.
The other thing is that the grid which I referred to earlier on
about the current status of the cases, not just the coroners'
courts but right across the board, we email to them every Monday
morning, I have got an example here which I am happy to let the
Committee have if that would be helpful [not printed].
Q144 Ms Clark: Are you aware that
any prejudice has resulted to any inquest as a result of anything
that has happened in the Lords?
Mr Rogers: I would not be in a
position to know that.
Sir Roger Sands: In some cases
the inquests have not been held yet, but it is potential prejudice
to the position of individuals who would be concerned in those
cases, it is not just prejudice to the outcome.
Q145 Sir Robert Smith: You have touched
on this already about the communication improving and the Clerk
of the Parliaments in the House of Lords suggested that the Leader
of the House of Lords and the Speaker of the House of Commons
could confer before issuing the rulings on matters of sub judice.
Does what you are talking about make this more practical?
Mr Rogers: I think that it would
rather depend on the circumstances in which, perhaps after the
report of this Committee, considerations of sub judice
were handled. If there were, let us say, an increased expectation
that discretion would be exercised, then clearly it would be very
important for the ambit of that discretion to be at least comparable
in the two Houses, otherwise we have a situation again rather
similar to that referred to in the Clerk of the Parliaments' paper.
Certainly any increase in shared understanding as to the way we
approach these matters would make the sort of consultation that
you referred to much easier.
Q146 Mr Chope: Do you think it would
be a fair thing to say that now there have been some different
rulings in their Lordships' House which have resulted in the
sub judice rule being breached in our terms that we should
look and see whether any prejudice did result? If prejudice did
not result then that might be the argument for saying are we not
being altogether far too cautious about this.
Sir Roger Sands: I think I come
back to the point I raised that prejudice is not the only reason
for the sub judice rule. I would not regard the fact that
a rule has been breached from time to time—and there is
no doubt that it has been breached inadvertently occasionally
at our end of the building too—as a reason for a wholesale
rewriting of it simply because I think it would expose the House
to an increased number of issues being raised which are appropriate
to a judicial court and not Parliament. That is really it. The
other point that I made, I do not know whether it is at all attractive
to the current members of the Committee but I did make to your
predecessors, is that in a way the sub judice rule can
be a protection to Members of Parliament. We know that constituents
become agitated about cases in which they are involved and they
want then to involve a lot of other people and I would imagine—I
would find this if I were in your position—that it would
be a help to be able to say, "Well, I am afraid, Mr Smith,
I am very sympathetic to your position but the rules of the House
just simply do not allow me to pursue this". I feel that
a wholesale rewriting of the rule might leave Members open to
much greater pressures than they are already subject to.
Q147 John Hemming: Coming back to
the issue of judicial review, the Public Administration Select
Committee expressed concern about issues relating to judicial
review, particularly about the Ombudsman. Having looked at the
papers there I am wondering if you think there is perhaps merit
in expanding the exemption from ministerial decisions to cover
other public authorities. The point about PASC is that they do
not want to concern themselves with the lawfulness of the decision.
The Attorney General made the point earlier that actually there
was not such a challenge in terms of prejudice because almost
all the time judicial review does not involve witnesses and a
single judge is judging on the lawfulness of the decision, whereas
the Public Administration Select Committee wish to look at the
merits of the case. Is there perhaps a case to be made to expand
on the areas in which there can be an exemption from the sub
judice rule to include other public authorities, including
the Ombudsman and maybe other ones?
Sir Roger Sands: I have to admit
that I am rather blind-sided on this issue, I do not think I am
aware of the particular case that has caused difficulty here.
John Hemming: Shall I expand on those?
Q148 Chairman: Would it be helpful
if we were to send you the details and you then respond to this
question in writing?
Sir Roger Sands: Yes, certainly.
On the surface of it I would agree that there may well be a case
for expanding the expression "a ministerial decision"
because of the proliferation of public bodies and types of public
body. There are now many decisions that are made not by a minister
but on behalf of a minister and if this is one such, I do not
know, then there might well be a case for saying—
Chairman: I think it relates to a particular
parliamentary Ombudsman.
Q149 John Hemming: I will give you
this paper for the written response but I think we could spend
about half an hour on the issue now and I am not sure everybody
wants to do that.
Sir Roger Sands: This is the Ombudsman?
John Hemming: Yes.
Q150 Chairman: Is there anything
else you want to say to us before we close the session?
Sir Roger Sands: No, I think we
have covered all the ground that I had envisaged.
Chairman: Can I, on behalf of the Committee,
thank you both for coming along and giving such comprehensive
evidence. Thank you very much indeed.
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