Annex 2: Draft Guidance Note
The sub judice resolution
The leaflet would be intended to explain the House's
sub judice resolution and outline the courses of action
available to Members who find that a matter they wish to pursue
is before the courts.
It should also give contact information for Offices
that can provide more detailed information and advice.
What is sub judice?
This first section should set out the reasons for
the sub judice rule and the broad terms of the resolution
agreed in 2001.
It should cover prejudice and comity, noting that
the resolution aims to protect an individual's right to a fair
trial and to make sure that the constitutional separation between
Parliament and the Courts is preserved.
Which courts are covered by the rule?
This section should explain that the rule applies
to UK courts only and emphasise that cases at the European Court
of Justice and the European Court of Human Rights are not affected.
Other information about the scope of the rule should
also be set out here, including its application to both civil
and criminal courts, including inquests held in coroners' courts.
This section should also indicate when proceedings
are considered 'active' for the purpose of the rule (in criminal
cases, from the moment when a person is charged or leave to appeal
is granted and in civil cases, from the time when arrangements
for the hearing have been made until the proceedings are ended
by judgment or discontinuance).
The leaflet should also note that in coroners' courts,
the rule applies from the time when the inquest is opened, even
if it is adjourned immediately.
This section should also set out those proceedings
which are not subject to the rule. For example, the rule does
not apply to Royal Commissions or non-statutory or departmental
inquiries set up by the Government, even if conducted by judges,
or to other tribunals set up by statute or to any judicial review
of a Ministerial decision.
Which proceedings are exempt?
This section should indicate which Parliamentary
proceedings are exempted from the rule (i.e. proceedings on legislation
in the Chamber or Standing Committee as well as Standing Committees
on Delegated Legislation, but not motions to introduce Ten Minute
Rule bills).
Information from the Table Office
In this section, the leaflet should explain the role
of the Table Office in informing Members who wish to table Questions
or submit applications for an adjournment debate whether they
will be caught by the sub judice rule.
It should note that the Table Office maintains a
record of matters known to be sub judice and can check
on the status of a case.
The leaflet should explain that, if a case is sub
judice, Members may either wait until the court case has been
resolved before raising the matter in the House, or they may ask
the Speaker to exercise the discretion given to him by the Resolution
on their behalf.
Seeking the Speaker's Discretion
Here, the leaflet should set out the Speaker's powers
to exercise discretion and waive the sub judice rule; the
procedure for approaching the Speaker to ask for discretion; and
the considerations he may take into account when making his decision.
It should make clear the distinct roles of the Table
Office and the Speaker's Office.
This section should include an indication that discretion
may be granted to discuss policy matters relating to an ongoing
court case without going into the details of the case itself,
but that on such occasions the Speaker expects Members to respect
any conditions attached to the granting of his discretion.
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, but an indicative list based on the recommendations
of our report could be included. The following list is based on
the recommendations in paragraph 78:
- it is important that the matters be debated in
Parliament, due to the need to influence current events (apart
from the case itself) or to press for Government action;
- a debate on general policy matters in the context
of an ongoing case is requested, rather than the details of the
case itself;
- the likelihood of causing damage or prejudice
to a case is demonstrably very low (for example, in some civil
cases where there is no jury);
- there has been significant delay, and a further
long delay is expected in bringing the case to court (for example,
in an inquest).
- the Speaker is satisfied that a debate would
not violate the principle of comity, or interfere or be perceived
to interfere with the role of the judiciary.
The leaflet should stress that the Speaker's discretion
in these cases is absolute and will be exercised according to
the merits of the individual case.
Sub judice in select committees
This section should explain that, like the Speaker
in the Chamber, the chairman of a select committee has the power
to waive the sub judice rule.
Select committee chairmen should be strongly advised
to consult the Speaker in advance if they consider that it might
be necessary to waive the sub judice rule during an evidence
session; both to ensure that they have correctly understood their
responsibilities, and so that consistency between the implementation
of the rule in the House and in its committees can be maintained.
The leaflet should remind Members that select committees
have the power to take evidence in private and many committees
have found this a useful and productive way of pursuing their
inquiries.
The 2001 sub judice resolution
Finally, the leaflet should include the text of the
2001 resolution for reference.
Contact details
For information and advice relating to the sub
judice resolution, contact the Table Office:
Phone: 0207 219 3302, 3303, 3305
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