Memorandum from Dr Tony Wright MP, Chairman
of the Public Administration Committee (P 48)
1. Thank you for inviting me to comment
on matters relating to your current inquiry into the operation
of the sub judice rule. I note that the focus of your inquiry
is on the rule as it is applied to proceedings in coroners' courts.
This is not a matter which, as far as I am aware, has arisen in
connection with the work of the Public Administration Select Committee,
but it does raise wider questions about the effect of the sub
judice rule on the timeliness of Committee proceedings, and
on the relationship between Parliamentary accountability and legal
accountability which have arisen in context of our work on the
Parliamentary Commissioner for Administration (the "Ombudsman").
2. Judicial review can affect our proceedings
in a variety of ways:
— the Ombudsman's decisions can be challenged
through Judicial Review;
— a Ministerial decision may be simultaneously
the grounds for complaint to the Ombudsman and for Judicial Review
proceedings;
— Judicial Review proceedings may be
brought about an aspect of a ministerial decision which is closely
related to an Ombudsman's finding.
3. It may be worth noting that although
the presumption is that the sub judice resolutions will
not automatically bite when "a ministerial decision"
is in question, this does not, of course, apply to review of the
Ombudsman, since she is not a Minister. The Speaker and Chairman
retain also discretion to limit reference to judicial review proceedings,
if they consider it is appropriate to do so.
4. Since 2003 our work has been affected by all
these measures. I will sketch the particular cases before drawing
more general conclusions.
EQUITABLE LIFE
5. In June 2003, the Ombudsman issued a special
Report to Parliament saying that, as a result of the investigation
of a particular case:
I did not find evidence to suggest
that FSA acting as a prudential regulator had failed in their
regulatory responsibilities during the period under investigation.
Nor did I find that the decisions which the prudential regulator
had taken in relation to Equitable were outside the bounds of
reasonableness and that she saw nothing to be gained from investigations
into further complaints about the regulation of Equitable.[35]
6. This decision was challenged through
judicial review and I expressed my frustration about the inevitable
restriction on our work when we took evidence from the Ombudsman
in November 2003.[36]
However, we were able to discuss many of the general principles
with the Ombudsman at the hearing, and were reassured by her announcement
that she would be reconsidering her decision after the Penrose
Report had been published. The Ombudsman is now conducting a further
inquiry, and we will obviously await its findings before deciding
how to proceed.
7. The Procedure Committee may like to know that
the Petitions Committee of the European Parliament is currently
itself conducting an inquiry into the regulation of Equitable
Life.
DEBT OF
HONOUR
8. While Equitable Life demonstrated the difficulties
involved when the Ombudsman's decisions are themselves reviewed,
we are currently involved in a case in which Judicial Review of
ministerial decisions has affected our work.
9. Briefly, the case concerns civilians who had
been interned in the far east during the Second World War. In
November 2000, the Government announced that there would be an
ex gratia scheme for former prisoners of war in the far east,
and "British civilian internees". It was only after
the scheme had begun that the Government came to a full definition
of "British civilian internees". That definition excluded
many British passport holders, some of whom had spent their entire
adult lives in the United Kingdom.
10. The Government's actions were the subject
both of Judicial Review, and of a complaint to the Ombudsman.
The Ombudsman deferred a decision on whether to conduct an investigation
until the Judicial Review proceedings, which held that the Government
had acted lawfully, were concluded. That meant that the first
complaint was received in December 2001, while the decision to
investigate was taken in June 2003.
11. Although this first judicial review delayed
the Ombudsman's investigation, and hence our intervention, it
did not directly affect it. However, the Government was also challenged
on the grounds that its decisions had been unlawfully racially
discriminatory by a Mrs Elias. The decision partially upheld Mrs
Elias's case. The Government is appealing, and Mrs Elias is cross
appealing. At the time we arranged our hearing, which was to take
place in December, the case was expected to return to court in
January.
12. In the course of arranging a hearing with
the Ministry of Defence, committee staff were asked by the Ministry
to consider whether the sub judice rule did not mean that
the hearing should be postponed, since the Minister would not
be able to comment on issues relating to the Elias case. They
replied robustly, pointing out that the presumption was the rule
did not apply "where a ministerial decision was in question",
and that there was no reason to delay the hearing, especially
given the age of those affected.
13. After correspondence between the Chairman
and the Speaker we decided that the court hearing and the committee
proceedings were so close in time that we should not go into the
issues raised by the Elias case, although we might make incidental
reference to it. In the event, this hardly arose, since the Minister
announced that in preparing for our evidence session officials
had discovered that they might well have decided cases inconsistently,
something which had been denied throughout judicial review proceedings
and the Ombudsman's investigation. Naturally, our questioning
focused on this.
14. In fact, the hearing in the Elias case has
been deferred until April.
15. The Committee has reported on this case,
recommending that the Government reconsider its refusal to accept
all the Ombudsman's findings. It is possible that if the Government
does not accept this recommendation we may wish to return to the
issue. It is quite possible that the Elias case will not be concluded
by then. Although the Ombudsman is precluded from considering
illegality rather than maladministration, we are able in principle
to look at a department's actions more broadly. It would be a
source of frustration for us if we could not assess the full impact
of the Government's actions because judicial review proceedings
were continuing.
16. The sub judice rule also had an effect
on the evidence we printed with our report. The Committee received
evidence from Mr Halford, a solicitor at Bindmans, who acted for
Mrs Elias. On 12 August he wrote to each Member of the Committee,
urging us to examine the Ombudsman's report; his letter contained
extensive discussion of the Elias case. Later on, he sent a note
on sub judice issues and shortly before the Committee hearing
on 1 December Mr Halford sent an extensive briefing to each member.
17. We decided that the first submission should
not be printed, since it contained so much material directly relating
to the Elias case, but did decide to print the other two documents,
including the note on sub judice, although they contained
references to the case. Our decision was taken on the following
grounds:
— The document did not advance the Elias
case, but discussed matters of principle about the scope of committee
investigations;
— this was not a document that the Committee
discussed or endorsed and it was a matter of record that the Elias
case was continuing;
— if the case had been decided, we
would have wanted to publish the note; the proceedings in question
were Judicial Review which is normally exempt from the rule, so
there seemed no compelling reasons for artificial delay; and
— the Committee has decided that witnesses
should normally have the right to publish the evidence they submit,
so Mr Halford could have published in any event.
BROADER ISSUES
The relationship between Parliamentary and legal
accountability
18. The Parliamentary Commissioner Act 1967
is based on the idea that there can be injustice which is not
susceptible to legal redress. Indeed, the Ombudsman is precluded
from investigating if it would be reasonable for the complainant
to seek redress through legal proceedings. Since 1967, Judicial
Review has increased enormously. It is now more likely that some
people will bring complaints to the Ombudsman, at the same time
as others launch legal proceedings on the same matter, either
on the same grounds as the complaint, or on related grounds.
19. There may be cases in which political and
judicial accountability have to run along side one another. Committees,
and the House as a whole, have to respect the fact that it is
for the courts to decide whether a particular action is legal
or illegal. It would be most unfortunate if we ever appeared to
usurp that function, and the sub judice rule must be applied
if necessary to prevent it.
20. However, to say something is legal is not
to say that something is just. In those cases, parliamentary accountability
is more effective than legal accountability. A significant delay
in Parliamentary proceedings may entrench the Government in its
position, as well as delaying justice.
21. It seems to me that the issues raised by
this delay are similar to those raised by the effect of the sub
judice rule when coroners' courts have opened and adjourned
an inquest. It is certainly not for the House or its Committees
to attempt to usurp the functions of an inquest; on the other
hand there may well be questions of wider public interest which
it is appropriate for us to deal with, and to consider speedily.
22. Decisions on these matters can obviously
only be made in the light of the circumstances of the particular
case. But I believe it is important that when those decisions
are made proper account is taken not just of the fear that Parliament
may improperly interfere in judicial proceedings, but of the danger
that too great a deference to the courts may reduce our ability
to carry out our own proper functions—to influence policy
or hold governments to account in a timely way. The constraints
on us are, quite rightly, far greater than those on the press,
avowedly because what we say has more weight and authority; that
will not remain the case if we are prevented from engaging with
the political issues underlying particular court proceedings until
long after the wider debate has ended.
23. A further consideration is that Parliamentary
intervention may reassure members of the public that their case
is being taken seriously. We know that our hearing on the Debt
of Honour Report brought some feeling of recognition to many former
internees, whether or not our report changes Government policy.
It is sadly also true that had we delayed, there would be fewer
alive to receive even this small satisfaction.
Direct Review of the Ombudsman's Decisions
24. Although Judicial Review of the Ombudsman's
decisions has been frustrating for us, I do not think it inevitably
would always have a major adverse effect on our work. It is possible
that we might consider a court judgement revealed that the Ombudsmen
needed new powers, or that she has been badly advised, or her
office had not worked well. In all these cases we could take evidence
and report after the court judgement had been made.
25. On the other hand, we were greatly frustrated
by the proceedings in relation to Equitable Life; they meant that
we were unable to discuss the Ombudsman's findings as fully as
we would have liked. This was particularly unfortunate since our
terms of reference give us responsibility for examining the reports
of the Ombudsman and related matters; there is a risk that in
this case judicial accountability was not filling a void, but
displacing Parliamentary accountability. The judicial proceedings
were not concluded; it is possible that had we been able to intervene
and press for a further investigation the same end would have
been reached more speedily and cheaply. Nor would our intervention
have turned on the legality or otherwise of the Ombudsman's decision.
Judicial review of matters which are also the
subject of complaints
26. As we have seen, Judicial Review of matters
which are also the subject of complaints can mean that a lengthy
legal process is followed by a lengthy Ombudsman's investigation
before any final determination is made. This has been particularly
unfortunate in the case of the former civilian internees, who
are, by definition, elderly, but we do not think that anybody
should have to wait 3½ years to have a decision on their
case.
27. In our report on A Debt of Honour
we recommended that there might be cases in which the Ombudsman
considered it appropriate to conduct an investigation in parallel
with Judicial Review proceedings, to enable her to report quickly
at the conclusion of such proceedings, if it was appropriate.
28. That might mean that in future the Ombudsman
could report at the conclusion of Judicial Review proceedings,
but only for the matter to become sub judice again if an
appeal was lodged. I do not think it is sensible to speculate
about what the Committee and the House would then do; so much
would depend on the circumstances of the case.
Judicial Review about matters related to an Ombudsman's
finding
29. Here again each case must be decided on its
merits. Clearly, it is undesirable for a court and a committee
to consider the same matter at the same time. However, if there
is likely to be a significant delay in court proceedings, and
there are good reasons for holding committee hearings quickly
then I believe we should be prepared to take advantage of the
fact that the sub judice rule does not automatically apply
to judicial review proceedings of a ministerial decision. If we
do not do that, then there is a real danger that Ministers will
use the prospect of such proceedings as a way of avoiding Parliamentary
accountability.
February 2006
35 The Prudential Regulation of Equitable Life,
Fourth Report of the Ombudsman, Session 2002-03, HC 89-I, paras
9, 14. Back
36
The Work of the Ombudsman, Minutes of Evidence, 27 November
2003, HC 41-I, Q2. Back
| 
