Supplementary Note from the Clerk of the
House (P 80)
THE OMBUDSMAN AND THE SUB JUDICE RULE
1. Towards the end of the Committee's evidence
session on 21 June, when the Principal Clerk of the Table Office
and I were appearing in connection with the Committee's inquiry
into the Sub Judice Rule and Inquests, Mr John Hemming
asked me about application of the Rule in cases where the Ombudsman
is taken to judicial review. Not at that stage having seen the
representations from the Chairman of the Public Administration
Committee on which Mr Hemming's question was based, I was unable
to answer off the cuff; but I promised to provide a note when
I had read them.
2. Many judicial review cases on matters
likely to be of interest to the House of Commons are exempted
from the Sub Judice Rule by virtue of a proviso at the
end of paragraph (1) of the resolution of 15 November 2001, which
reads as follows:
"But where a ministerial decision is in
question, or in the opinion of the Chair a case concerns issues
of national importance such as the economy, public order or the
essential services, reference to the issues or the case may be
made in motions, debates or questions."
3. Where a ministerial decision is taken
to judicial review, therefore, there is no bar on the House continuing
to discuss the decision or the underlying issues. The same principle
would apply if a Government decision not to accept the findings
or recommendations of the Ombudsman were to be taken to judicial
review; and, if a generous interpretation of the Sub Judice
Rule proviso were adopted by the Chair, it could also apply to
a case where the Ombudsman's findings on a complaint which involved
a ministerial decision were challenged by recourse to judicial
review. But the exemption does not apply if a decision of the
Ombudsman herself, for example not to entertain or continue an
investigation on a particular complaint, is taken to judicial
review. I understand that this has caused some difficulty for
the Public Administration Committee, for instance in relation
to the Equitable Life case.
4. The Ombudsman, or Parliamentary Commissioner
for Administration as she is formally titled, has a close relationship
to Parliament. She can deal with complaints only if they are referred
to her by Members of the House of Commons; she is accorded the
privileges of an officer of the House (Erskine May, 23rd
edition, p 247), and the Public Administration Committee has the
specific remit to examine her reports and "matters in connection
therewith" (Standing Order No 146). The three-way relationship
between the Commissioner, the Government and the House is always
a potentially delicate one when issues of political sensitivity
become the subject of a complaint; and the involvement of the
courts may add a further complicating factor.
5. I can, therefore, understand the concern
that has been expressed by the Chairman of the Public Administration
Committee. It would not be appropriate if the Committee, or the
House more widely, were to be inhibited by a rash of judicial
review cases from reviewing the work and findings of the Parliamentary
Commissioner for Administration. If that point were to be reached,
there would be a case for the House to consider an extension of
the proviso in the Sub Judice Rule to cover her decisions
and reports. On the evidence available to me it is not yet apparent
that this point has been reached; but the Public Administration
Committee and the Procedure Committee will no doubt wish to keep
the matter under review.
Sir Roger Sands KCB
July 2006
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