Memorandum from the Clerk of the Parliaments,
House of Lords (P 38)
Comity between the Houses
1. The sub judice rule is and ought to
be the same in both Houses, as far as possible. Both Houses adopted
in almost identical terms the resolution on sub judice
recommended by the Joint Committee on Parliamentary Privilege
(the Lords on 11 May 2000, the Commons on 15 November 2001). And
the House of Lords Companion to Standing Orders says,
"4.53 The House has agreed that
the practice governing motions and questions relating to matters
sub judice should be similar in both Houses of Parliament.
It is desirable that each House should be in the same position
to debate a sub judice matter when the circumstances warrant
it."
2. The bicameral Resolution explicitly applied
the rule to coroners' courts. The question of coroners' courts
was not discussed in the report of the Joint Committee on Parliamentary
Privilege. It was not raised in the Lords Procedure Committee
when it discussed the bicameral Resolution in April 2000, nor
in the House when the matter was debated on 19 April and 11 May
that year. But if the Commons were to revise the rule in this
respect, in the light of your inquiry, I would expect the Lords
to follow suit. If your Committee were minded to call for change,
I suggest that officials in both Houses should consult to ensure
that any changes can readily be applied in both Houses.
Recent breaches of the rule in the Lords
3. Your Committee's inquiry has highlighted some
recent breaches of the rule in respect of coroners' courts in
the House of Lords. Two of these were on the Order Paper. The
first was a Starred (Oral) Question by Lord Elton on 28 April
2004—the case, I believe, which first gave rise to concern
in your House. I understand the coroner's inquest opened that
day; so, while the Question was properly tabled, it should not
have been proceeded with.
4. The second was a Question for Written Answer
by Lord Dykes on Jean Charles de Menezes, the Brazilian man shot
dead by police at Stockwell in July 2005, tabled on 11 October
2005 and answered on 1 November (HL1627). In that case I gather
the inquest opened on 23 August 2005. Therefore this Question
undoubtedly breached the rule, and was accepted in error. The
Minister's reply did not mention the opening of the inquest, though
it was somewhat guarded.
5. 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.
6. The other breaches of which I am aware arose,
in the course of proceedings and without warning. On 9 June 2005,
during a debate on the general issue of deaths in custody, Baroness
Neuberger referred to the case. Her remarks breached the rule
but went unchallenged. The Government Whip on the front bench
at the time might have been briefed to interrupt Baroness Neuberger.
7. On a Starred (Oral) Question on police shootings
on 3 November 2005, Lord Berkeley referred to Mr Menezes (col
274). The Minister properly declined to comment. On 22 November
the Menezes case was again referred to at Question Time, by Viscount
Bridgeman (col 1501); the topic was broader, so the infringement
less foreseeable.
8. I have traced two further references of a
death in custody. On 29 November 2004, Baroness Stern referred
to it in her speech in the Debate on the Address, as one in a
list of cases. And on 8 November 2005, on a Starred Question on
the restraint of teenage prisoners, the Minister referred to the
non-completion of proceedings on the death in custody case as
the reason for the postponement of a visit. Although it is hard
to see how either reference could in fact have prejudiced proceedings,
they were nonetheless breaches of the rule.
9. 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.
When are proceedings active?
10. The bicameral Resolution as drafted says
that matters before coroners' courts shall be treated like criminal
proceedings for the purpose of determining whether they are active.
I can see that this could cause a difficulty, since the course
of a coroner's inquest and a criminal trial are different, at
least in terminology. I note that your predecessor Committee,
in its First Report 2004-05 on sub judice, recommended
that "the two Houses should consider jointly how the points
at which cases before coroners' courts are to be treated as active
can be more suitably defined" (paragraph 28). No such joint
consideration has taken place; but we are ready to take part,
if invited to do so.
Discretion to waive
11. As in the Commons, there is in Lords procedure
a discretion to waive the sub judice rule. Since the House
gives no powers to the Speaker, the discretion is vested in the
Leader of the House. The relevant sections of the rules are set
out below.
12. Your predecessor Committee's Report of April
2005 recommended relying on discretionary waiver to deal with
difficult cases involving coroners' courts. It may be that some
of the cases which have given rise to concern about the rule could,
with hindsight, have been dealt with in this way. I would observe
however that the discretionary approach involves the risk (albeit
small) of different decisions in the two Houses; or of Mr Speaker
feeling obliged by comity to have regard to a previous ruling
of the Leader of the Lords about which he had doubts, or vice
versa. I suggest therefore that the rule for coroners' courts
should be framed in a way which is accepted as satisfactory in
most situations, with discretionary waiver as the back-stop for
exceptional cases.
13. Where waiver is requested, it is perhaps
to be hoped that the Leader 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.
14. As you will be aware, the House is currently
considering changes to the nature of its Speakership, and it is
possible that this might affect the position. The Select Committee
on the Speakership of the House, which reported in December, has
recommended that the Leader's discretion over sub judice
should transfer to the new Speaker (HL Paper 92, paragraph 33).
15. I have consulted Lord Brabazon of Tara, Chairman
of Committees and Chairman of the Lords Procedure Committee. He
endorses these remarks.
DISCRETION TO
WAIVE
The Companion says,
4.52 The sub judice rule is
not absolute. In the Commons it may be waived at the discretion
of the Chair. In the Lords the Leader of the House exercises a
general power of waiver and also a power of waiver in specific
circumstances such as ministerial decisions and issues of national
importance (see below and Appendix N [ie the bicameral Resolution]).
. . .
4.58 This [ie the general rule] is
subject to the proviso that, where a ministerial decision is in
question, or a case concerns issues of national importance such
as the economy, public order or the essential services, reference
to the ministerial decision or to the case may be made at the
discretion of the Leader of the House who must be satisfied that
there is no real danger of prejudice to the court proceedings.
4.59 The Leader must be given at least
24 hours' notice of any proposal to refer to a matter which is
sub judice. The exercise of the Leader's discretion may
not be challenged in the House.
And the Lords version of the Resolution confers discretion
on the Leader in two places:
Subject to the discretion of the Leader
of the House, and to the right of the House to legislate on any
matter or to discuss any delegated legislation, the House in all
its proceedings (including proceedings of committees of the House)
shall apply the following rules on matters sub judice:
. . .
But where a ministerial decision is in
question, or in the opinion of the Leader of the House 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.
Paul Hayter
January 2006
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