Cases brought to the attention
of the Committee
14. We were prompted to return to the sub judice
rule by representations from Members who claimed to have experienced
serious difficulty in discharging their parliamentary duties due
to the interpretation of the rule. Two cases in particular were
brought to our attention. The details of these cases are set out
below.
15. The first case concerned an oral evidence session
held by the Home Affairs Committee on the subject of 'Counter-terrorism
and community relations in the aftermath of the London bombings'.
Rt Hon John Denham MP, Chairman of the Home Affairs Committee,
submitted a note on this session to the Liaison Committee, describing
the difficulties his Committee had experienced with the sub
judice rule, which he believed had acted to prevent discussion
of many of the topics his Committee wished to explore with witnesses.
Mr Denham's paper noted that:
the sub judice rule forbids references in
proceedings in the House or its committees to cases which are
active before the courts (including coroners' courts). Charges
had been brought in relation to the 21 July attempted bombings,
and inquests had been opened (and adjourned) on Mr Jean Charles
de Menezes and on those killed in the 7 July attacks. There was
a possibility of charges being brought against the police officers
involved in the Menezes shooting.[6]
He went on to say that his Committee had been advised
to steer clear of explicit reference to any of these cases, a
decision he accepted at the time but later felt had severely limited
the scope and value of the session:
I have to report that I and my colleagues felt that
the effect of this strict application of the rule was to impose
severe restrictions on questioning on a topic which was of real
and legitimate public concern. It is possible that the circumstances
of Mr Menezes' death may remain sub judice for up to 12
months, which will undoubtedly impede Parliament in its ability
to discuss the question of a police 'shoot to kill' policy.[7]
16. Mr Denham added that he had considered whether,
as Chairman of the Committee, he had power under the 2001 resolution
to waive the sub judice rule: 'I considered whether it
would be appropriate for me, at the hearing on 13 September, to
exercise the "Chair's discretion" to allow questioning
on some sub judice topics'. Mr Denham later gave oral evidence
to the inquiry, expanding on the reasons why he had not ultimately
felt able to exercise this discretion:
the practical problem that we found was that there
was no guidance available to myself as chairman or to the clerks
who were advising me on how exactly we should act once we had
decided it was of national importance. In effect, I think we came
back to doing no more than we would have done if there had not
been a 2001 resolution.[8]
17. Mr Denham's oral evidence also raised the subject
of 'national importance'. The 2001 resolution includes an exemption
for issues of 'national importance', which we consider in more
detail later in this report (paragraphs 49-53). Mr Denham argued
that the London bombings were certainly a matter of national importance
and, as such, deserved to be aired in Parliament at a time when
discussion in the media and amongst the public was rife. The evidence
session in question had been held in September, a period when
the House had not been sitting. The Home Affairs Committee had
thought it necessary to meet notwithstanding the recess due to
the importance of the subject matter and the need for a timely
Parliamentary response:
My particular concern is that when something of this
importance happens, if the House of Commons becomes the one place
where the issues cannot be aired because they are being widely
discussed in the media, it seems to me that it damages the credibility
of the House of Commons. That is really why I wrote on behalf
of the committee to the Liaison Committee in the first instance
and said could this matter be looked at again.[9]
18. In October 2005, the Procedure Committee received
a letter from the Chairman of the Liaison Committee, Rt Hon Alan
Williams MP, drawing this matter to our attention and asking us
to look again at the operation of the sub judice rule in
the light of this recent example.
19. Later that month, Ms Sally Keeble MP wrote to
the Chairman of the Committee, noting the experience of the Home
Affairs Committee and adding her own concerns about an ongoing
case which she had originally raised with the previous Procedure
Committee in their earlier inquiry. Ms Keeble had given evidence
to the previous inquiry in regard to a case of a death in custody
in her constituency in April 2004. The coroner's inquest relating
to this case had been opened and adjourned for many months pending
police investigations and a Crown Prosecution Service decision
whether or not to prosecute. At the time of writing, the coroner's
inquest still has not been concluded and the case is still therefore
caught under the sub judice rule. Ms Keeble had attempted
to secure an adjournment debate on the case and to put down Parliamentary
Questions, but had been unable to make specific reference to the
case. In her letter, Ms Keeble explained that she had been encouraged
by the previous Committee's report to refer the matter to the
Speaker and to ask him to exercise discretion so that the case
could be brought up and discussed. This had not proved successful.
20. In a written memorandum, Ms Keeble described
the damage that she thought had resulted from the application
of the sub judice rule in this case:
Given the continuing unwarranted injustices suffered
by young people in secure training centres, I would argue that
the application of the sub judice rule has been unwarranted,
disproportionate and damaging. It has taken over 18 months to
extract information that would have been available much more quickly,
and still 18 months on, there is no indication as to when there
will be proper action taken to prevent a repeat death.[10]
In oral evidence to the Committee, Ms Keeble repeated
her view, given to the previous Committee's inquiry, that coroners'
courts should not fall within the scope of the rule at all because
the likelihood of causing prejudice to an inquest was minimal.
She acknowledged that the previous Committee had not recommended
this course of action and therefore argued that at the least,
the period for which proceedings in coroners' courts were considered
'active' should be redefined:
Personally, I do not think the sub judice
rule should apply to coroners' courts but I certainly think there
has to be an issue about when proceedings are active. It is a
nonsense that, just because a coroner's court meets and says,
"We have opened and adjourned" it then stays adjourned
for 18 months with no prospect in sight for when it is going to
resume when it is an issue of major concern affecting young people.
I really think there has to be some clearer thinking about what
we are doing.[11]
The sub judice resolution
in the House of Lords
21. Another factor that led us to begin this inquiry
was a number of apparent breaches of the rule in the House of
Lords. These breaches related particularly to cases where coroners'
inquests were active and included references to the shooting of
Jean Charles de Menezes and the death in custody in Ms Keeble's
constituency.[12]
22. In oral evidence, Ms Keeble expressed disquiet
that the case she had been pursuing for some time had been brought
up and discussed in the Lords, whereas she was prevented from
discussing it in the Commons:
The other issue which has concerned me greatly which
was not covered last time was the fact that there has been considerable
discussion in particular in the Lords on a case that I was particularly
concerned about. It seems to me that, particularly given that
one of the issues that weighed very strongly with the Committee
last time was that of comity between the different institutions,
that has to apply between the Commons and the Lords. What was
particularly galling was, given that the evidence that was provided
to the Committee from the relevant minister was from a Lords minister,
for a Lords minister to come and effectively silence the Commons
and meanwhile for the Lords to be able to discuss the case in
question, it seemed to me that that was completely unacceptable.
The rule either has to apply equally across the board or, as I
think very strongly, it should be relaxed.[13]
23. As we have noted, the sub judice rule
in the House of Lords is identical in all material respects to
that of the Commons. The only difference is that the discretion
given to the Speaker of the House of Commons was given to the
Leader of the House of Lords. This power has now been transferred
to the Lord Speaker. In
its report, the previous Committee strongly supported the existence
of an identical resolution in both Houses and recommended that
the two Houses should consider jointly any proposal for change.
We agree with this recommendation and were therefore concerned
that in practice the rule appeared to have been implemented differently
in the two Houses.
24. In his memorandum, the Clerk of the Parliaments
acknowledged the breaches and outlined the steps that had been
taken to ensure that cases were identified more readily:
We have taken steps to ensure that staff in the Minute
Room (the Lords "Table Office") identify potential breaches
in future. When in doubt as to how to apply the rule, we have
always consulted the relevant government department, and sometimes
the Commons Table Office, who are always helpful. The Minute Room
and the Table Office are now sharing information in a more systematic
way. […] I will do what I can to ensure that the Lords observe
the sub judice rule strictly, whatever form it may take
in future. In particular, I have written to all front benches,
and to the members involved in the incidents to which I have referred.[14]
25. We
welcome the efforts made by the House of Lords authorities to
ensure that the rule is implemented in the same way in both Houses.
We are not currently aware of any prejudice that has been caused
to a case due to its discussion in the Lords, however, prejudice
to inquests may only be evident in retrospect. This is an issue
we return to below.
1 Joint Committee on Parliamentary Privilege, Report
HC (1998-99) 214-I to -III, HL Paper (1998-99) 43-I to -III. The
Committee was established in 1997 and reported in 1999. Back
2
But not motions for leave to bring in a Bill. Back
3
Q73 Back
4
Q117 Back
5
The Sub Judice Rule of the House of Commons, First Report
of Session 2004-05, HC 125. Back
6
Unprinted letter to the Liaison Committee. Back
7
Ibid. Back
8
Q1 Back
9
Q1 Back
10
Ev 8 Back
11
Q38 Back
12
HL Deb (2005-06) 675, c274 (Metropolitan Police Shoot to Kill
Policy); c506 (Prisoners: Use of Restraint); WA13 (Death of Jean
Charles de Menezes); 676, c6-7 (Deepcut Army Barracks). Back
13
Q37 Back
14
Ev 45 Back
