The role of the Speaker
77. Under the 2001 resolution (as well as in preceding
resolutions in the House of Commons), the sub judice rule
is 'subject to the discretion of the Chair'. This gives the Speaker
absolute discretion to waive the rule in the Chamber as he sees
fit. Over the years, this power has been used sparingly and the
rule has been relaxed only in exceptional circumstances.[62]
Whilst we would not expect the rule to be waived habitually, our
inquiry has highlighted some areas of concern where cases which
merit consideration for the Speaker's discretion are perhaps not
always brought to his attention.
78. If the case does not fall into one of the exemptions
within the resolution, a Member may bring the case to the Speaker's
attention and ask him to consider waiving the rule and allowing
debate. It may be helpful to Members and perhaps also to the Speaker
to have some guidance as to the principles upon which any decision
to exercise discretion should be based. The evidence and argument
submitted to our inquiry has led us to conclude that certain criteria
may make a case more suitable for discretion. These include cases
where:
- a discussion of relevant policy
matters is sought, rather than an exposition of the facts of the
case themselves;
- the inquest has already been subject to a significant
delay and proceedings are not expected to commence for a further
lengthy period;
- it is thought important that the matters be debated
in Parliament, due to the need to influence current events (other
than the case itself) or to press for Government action (perhaps
to prevent another death in similar circumstances);
- the likelihood of prejudice to a current inquest
is very low (the view of the coroner may be sought in these cases);
- the Speaker is satisfied that a debate would
not violate the principle of comity, or interfere or be thought
to interfere with the role of the judiciary.
79. We would stress that it is not possible to set
out hard and fast rules to determine which cases will be suitable
for the Speaker to exercise his discretion. The list above is
intended as a guide to the factors which might weigh in favour
of allowing a debate or question, however, the exercise of the
Speaker's discretion must remain a matter for him alone, and must
be based on a consideration of the specific circumstances of each
case.
80. In the course of our inquiry, our attention has
been drawn to a number of individuals who might be able to offer
assistance and advice to the Speaker. Mr Denham told us that his
Committee had sought advice about the status of cases from the
Attorney General, and that this information had been extremely
useful.[63] In oral evidence,
the Attorney General expressed his willingness to be consulted,
not in his role as a Government Minister, but rather as Chief
Legal Advisor and head of the Crown Prosecution Service.
I see myself as more an adviser to Parliament than
perhaps to individual Members but I would certainly consider any
question of an individual Members, although the Members might
in any event want to go to the Speaker or to the Table for advice
rather than me. […] 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.[64]
We concur with the Attorney General's suggestion
that coroners might also provide useful information and repeat
our hope that communications between the House and coroners will
be improved if the Government's proposals to establish a Chief
Coroner's Office are realised.
81. We also note the suggestion made by the Clerk
of the Parliaments in the House of Lords that 'Where waiver is
requested, it is perhaps to be hoped that the Leader [now Lord
Speaker] and the Speaker would confer before either issued a ruling,
if the circumstances made this practical, or would at any rate
keep each other informed of rulings given'.[65]
We agree that it is desirable to keep the communication channels
between the Houses as open as practicable, while recognising that
neither House can be bound by a decision made in the other House.
82. We share
the conclusion of our predecessors that no change is needed to
the status or wording of the 2001 sub judice resolution.
In some respects, the provisions of the resolution are restrictive,
but we believe that this can be balanced by the appropriate use
of the Speaker's discretion. We endorse the previous Committee's
call for a greater use of the Speaker's discretion in the small
number of cases where a discussion in Parliament is desirable
despite the existence of an 'active' inquest.
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