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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 714-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE PROCEDURE COMMITTEE
APPLICATION OF THE SUB JUDICE RULE TO PROCEEDINGS IN CORONERS' COURTS
Tuesday 29 November 2005 MR JOHN DENHAM MP and DR ROBIN JAMES Evidence heard in Public Questions 1 - 61
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Procedure Committee on Tuesday 29 November 2005 Members present Mr Greg Knight, in the Chair Annette Brooke Ms Katy Clark Mr David Gauke Andrew Gwynne Rosemary McKenna Sir Robert Smith Mr Rob Wilson ________________ Witnesses: Mr John Denham, a Member of the House, Chairman of the Home Affairs Committee, and Dr Robin James, Clerk of the Home Affairs Committee, gave evidence. Q1 Chairman: Welcome. At the close of the last Parliament the Procedure Committee, as you are well aware, looked into the operation of the sub judice rule and published a report which has not yet been debated or approved by the House. In the light of further representations that we have received and a request we have received from the Liaison Committee, we have decided to revisit this area in particular in relation to coroners' courts, but also looking at the issue again, so nothing is ruled out in this second visit to this area because the operation of the sub judice rule is giving cause for concern for a number of Members in carrying out their constituency duties as well as the concerns you have expressed from a select committee point of view. Thank you for coming and offering to give evidence. Although we have no television cameras here, we are on a webcast so everything that is said will reach a wide audience. We are also anxious to see that we obtain as much evidence as possible to assist us with our deliberations. If, towards the end of your evidence, you feel it would be helpful to allude to a specific sub judice case we are happy at that point to resolve to go into private session so that any evidence you may care to give which might fall foul of that rule is not denied us. Mr Denham: Thank you very much indeed. I very much welcome this inquiry. If I set the scene very briefly, after the London bombing on 7 July the Home Affairs Select Committee decided to have a one-off hearing in September, anticipating that we would want to look at the broad state of affairs two months after the bombing. There then was the attempted bombing on 21 July and the shooting of Jean Charles de Menezes on 22 July, so as we approached the September meeting we wanted to give all of those issues as good an airing as we could. The difficulty that faced the select committee was that we were advised very clearly that almost everything to do with the three events, 7th, 21st and 22nd, was sub judice by virtue either of them being the subject of coroners' courts because of course 52 people were killed on 7 July, or because people had been arrested and charged in relation to the 21 July or because it was at least possible that charges might be brought at some time in the future against some of those involved in the shooting. We had therefore some difficulty in preparing the hearing in September. We looked at the very helpful report that this Committee produced last year and it was very clear from that that the 2001 resolution gave the chairman discretion on the sub judice rule in cases of national importance. This was clearly a case of national importance. However, 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. The advice erred strongly on the side of caution. There is no criticism at all of the clerks who were very helpful throughout, as was the Attorney General in his role as the supervisor of prosecutions. I felt though that in practice the committee was not able to ask a number of questions that were being very widely discussed in the media that would have been helpful to ask. 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. I am happy to go into more detail about some of the things we would have liked to ask and the way the rules were applied. Q2 Sir Robert Smith: You mentioned the issue of national importance. Do you think any guidance to chairmen on how that could be defined would have been helpful? Mr Denham: I do not think we had any difficulty in deciding that this was an issue of national importance and in this particular case it was pretty self-evident even if it had just been the tragic shooting as an isolated incident. Even that I think we would have seen as an issue of national importance. Our problem was deciding what it was legitimate to do once we had decided it was of national importance. Clearly there was already a number of people who had already been arrested and charged. We would not have wanted to do anything that could prejudice the trial of those individuals. That would be completely unacceptable. However, not to be able to discuss some at least of the detail concerning the shooting because it was in front of the coroners' courts and because it was just theoretically possible one or more police officers might have been charged at some point in the future seemed to me to be too limiting on such an important issue. Similarly on 7 July. So far as everybody knew the perpetrators were dead. It was put to us strongly that there might be subsequent arrests and charges and we should therefore avoid prejudicing those. That seemed to me to be too tight a restriction on what we could ask. Q3 Sir Robert Smith: Where did the subsequent arrest advice come from? Mr Denham: That came as I recall in discussion with clerks when we were seeking background advice. That was the most substantive point. It also was the case of course that the 7 July was subject to a coroner's inquiry. Q4 Sir Robert Smith: The Attorney General's evidence was that the moment of arrest was the point. The fact that someone may be arrested in the future has not normally been- Mr Denham: I am inclined to agree. Q5 Sir Robert Smith: If we split the three things apart, there are obviously people arrested, facing charge. That is probably the most difficult one and you probably felt you would not want to tread in that area. Then there is the slightly grey area where people might be arrested, where in the past we have not restrained ourselves. Then there is the coroner's inquiry which was a part of the report. That was the grey area about when that trigger point should be and whether there was scope for redefining it because obviously there can be a long delay from when they open to when there is a chance of being prejudiced. Mr Denham: Indeed. There were two types of coroners' inquiry going on. One was for 7 July where, at least in terms of the immediate perpetrators, there was not going to be much doubt about how people came to be killed. There was also the coroner's inquiry into the shooting on 22 July which clearly might play a very important role in identifying responsibility. I would put it to this Committee that in both those cases it would have been in the broad public interest for our committee to have been able to explore those events in some more detail than we were able to. Q6 Andrew Gwynne: What action did you take before and during the evidence session to ensure that the sub judice rule was respected? Mr Denham: Prior to the public session, I went through the issues with members of the committee. Dr James had also provided quite a helpful note which, if you like, we can share with the Committee, suggesting the areas that should not be covered and those that could be covered. We went through that in the private session. In the public session, I read out a prepared statement to the press and public explaining the sub judice rule. In practice, once the session was underway, nobody came near to flouting the rule. Indeed, the truth is, rereading the transcript, we probably stayed incredibly within the comfort zone. This was one of the difficulties. If you have very restrictive and cautious advice, members then probably do not go anywhere near breaching that advice. I suspect there were many things that could have been asked in the committee session, even within the guidance we had been given, that were not asked because people were so nervous about making a mistake. Q7 Andrew Gwynne: In the House of Lords the sub judice rule has been interpreted less strictly than in the House of Commons. The shoot to kill policy has been discussed in the House of Lords. Are you concerned by this? Mr Denham: I am. It points to one of the flaws. The argument in part about sub judice is that things that are said in the House of Commons when reported outside are likely to have a particular weight and therefore are more able to prejudice a trial than things that are said widely in the media. The fact that that does not seem to be a problem with the House of Lords suggests that that historic view, if it ever was true, is no longer true and that we are less likely to do damage than has been the perceived wisdom in the past. The question is: is what we do proportionate to the importance of the issue that we are discussing. Q8 Mr Wilson: In your opening remarks, you said you took quite a bit of advice and, as I understand it, you took advice from the Attorney General, Mr Speaker and House officials. Have I missed anybody? Mr Denham: No. There would be a number of House officials involved. Dr James: That would be principally the Clerk of the House who, as this Committee will be well aware, is the House's chief adviser on procedure and the Clerk of the Journals who specialises in sub judice and privilege issues. Q9 Mr Wilson: Did you find that the advice they gave was all pretty similar or was there a range of advice? Was it something you could pick and choose from? Mr Denham: The advice was pretty consistent. It will be no surprise that Mr Speaker's advice was consistent with the advice that I had had from the House officials because I am sure he would have taken the same briefing as me. The Attorney General was very consistent with that advice as well. He had some broader concerns about other terrorist cases. He was concerned that we should not prejudice those by raising them in the session but that was the only new issue he raised. Q10 Mr Wilson: Can I tease out of you a little more detail about what the sub judice issues were facing the Committee? Mr Denham: The sub judice issues were, one, that we should not prejudice criminal actions that were going to proceed in the courts. The second was that we should not, in a more general sense, offend the sub judice rule on matters that were going to be in front of the coroners' courts and the third was the suggestion that we should avoid prejudicing matters where charges might be laid in the future, particularly in relation to the shooting but also possible arrests under the 7 July bombings. Those were the three areas of concern. Q11 Mr Wilson: How did you make the committee aware of those issues? Mr Denham: As I recall, we did circulate members in advance of the meeting to warn them that there was going to be an issue and then it was discussed in a private session before the main hearing. Q12 Mr Wilson: Did they support those objectives? Mr Denham: I think they accepted the guidance that they were being given. I do not think there was anybody in the committee who wanted to have an argument about it before we went into the main session. Equally when we discussed this matter after the hearing, everybody agreed that I should write to the Liaison Committee because everybody felt that we had not done as good a job in airing issues in public as they would have liked. Q13 Mr Wilson: Do you think there was a difference in feeling at the end of the meeting from the start of the meeting in the acceptance of what you could and could not ask? Mr Denham: The committee is very disciplined and if the committee gets advice from the clerks as to what is permissible the members I have on the Home Affairs Select Committee are going to follow that advice because they will trust the source of it. The frustration perhaps is that we were not able to get a different set of advice. Had there been some clearer guidance to the clerks, we could have had some advice that would have enabled us to go further. Q14 Mr Wilson: What do you think the outcome of all this will be? Do you think there will be an effect on the final report you are able to present? Mr Denham: This was a one-off hearing and therefore it was particularly important that we aired the issues in public. If we had been carrying out an inquiry over six or seven sessions in the normal way, we might have taken the advice of the Procedure Committee and met to hear some evidence in private. It is a little difficult to say whether, had we been producing a report, we could have produced a report having had some sessions in private, but we were having a one-off hearing which we do on a number of issues from time to time and therefore it made no sense to have a private evidence session. Q15 Rosemary McKenna: All the advice you were given was based on the resolution of the House of 2001? Mr Denham: Yes. Q16 Rosemary McKenna: Were you aware of the Procedure Committee's subsequent report, although it had not been before the House? Mr Denham: Yes, we were. We found it very helpful up until, if you like, the last point in the proceedings because the Procedure Committee report referred to the 2001 resolution, so it was very clear this was a matter of national importance. It was very clear therefore that the chair had discretion. It was very clear from your report that I was the chair for the purposes of that resolution, although it advised me to talk to Mr Speaker. However, the implication of the 2001 resolution is that, if it is of national importance, you can in some way vary, waive or ignore the sub judice rule, but it does not tell you how. The clerks had difficulty in advising us what bits of sub judice we could ignore because it was of national importance. In practice, I think the advice we had from the clerks was almost identical to what we would have got if there had not been the 2001 resolution. What I hope this Committee might consider is giving some guidance as to, once you have decided it is of national importance, the ways in which sub judice might be varied by select committees. Q17 Rosemary McKenna: If this report said that the select committee chairs would have the power to exercise chair's discretion, that would not be sufficient? Mr Denham: That is the way I read the report but it does not tell me what I can then do. As the chairman I would not want to go so far as to ruin the trial of the people who had been arrested for 21 July. When it came to the question of the shooting, it was very difficult to be clear. In principle, we would have liked to have set aside the fact that the shooting was subject to the coroner's court, at least to some degree. How far I could go in ignoring the sub judice rule was not at all clear. Q18 Rosemary McKenna: What advice would you like this Committee to give? Should we say that in those specific instances where it was of national importance-? Mr Denham: For example, if we had had something that said to the committee, "You need to some extent to set aside sub judice but you need to be careful about the risk of prejudicing a trial. Therefore, committee witnesses should avoid making direct allegations or implications against named individuals" and had we had that sort of discretion we probably could have asked questions about the intelligence on the named suicide bombers, information about their foreign travel, known associates, knowledge of how they were recruited, if any, how knowledge of that compared with other studies by the intelligence services and questions about methods used by the suicide bombers. There is a whole series of questions which we felt unable to ask because we felt that would breach the sub judice rule as it was interpreted to us. Q19 Rosemary McKenna: It is a different interpretation of the sub judice rule? Mr Denham: It is a narrower interpretation, looking at the 2001 resolution which says that, if it is of national importance, I as the chairman have the discretion to set it aside but it does not help decide what I can and cannot do. Nobody believes the 2001 resolution simply means you can ignore sub judice and be as irresponsible as you want and nobody would want to be that irresponsible. It is giving some clearer guidance on how to operate the 2001 resolution in practice that is needed. Q20 Rosemary McKenna: A single form of publicised guidance to select committee chairs would be of particular help? Mr Denham: Yes, and we could anticipate the sorts of issues that arose over these three events and say that these were the sorts of questions that would have been permissible and those would not have been. Q21 Sir Robert Smith: Do you think you can really prepare generic guidance without looking at the individual case? Mr Denham: It ought to be possible to look at a range of individual cases and lay down some principles that the clerks could then interpret for chairmen in giving us advice. At the moment, I agree you cannot have an exhaustive list of all the things you can and cannot ask but it ought to be possible to identify some principles that the clerks could rely on. Q22 Ms Clark: Would you feel confident handling a sub judice matter that was raised without warning during a committee meeting? Mr Denham: Yes. I do not think that is too difficult. That does come up from time to time on the home affairs select committee. We had a hearing just last week about the UK/US Extradition Treaty where there are a number of live and highly publicised cases. It is not too difficult for the chair to simply stop a line of questioning on the spot. Q23 Ms Clark: How can the House ensure that committee chairman have access to the advice they need in order to apply the sub judice rule appropriately? Mr Denham: The main way the House could do that is by, hopefully, this Committee giving further guidance to the clerks about how committees could approach the sub judice rule when there is a matter of national importance. That seems to me to be the missing element at the moment. I feel strongly that the advice I received-I make no criticism of the clerks-would not have been any different had the 2001 resolution not been in place. The 2001 resolution clearly implied that things should be different in cases of national importance. Q24 Rosemary McKenna: Even in private? You did not feel you could have gone into private session? Mr Denham: I did not feel we could go into private session in the circumstances of this one-off hearing. Given that the committee's intention was to show that Parliament was considering these matters of national importance-we were meeting in September; the House was not sitting-it made no sense to go into private session. Had we been carrying out an inquiry over a series of six or seven sessions, I would have felt quite comfortable going into private session. It would not necessarily have been entirely satisfactory from a public point of view but I would have been more relaxed about doing it. To have met in September for a one-off hearing and then to have held half of it in private would have undermined the point of the exercise. Q25 Rosemary McKenna: The problem was exacerbated by the fact that it was a one-off hearing? Mr Denham: It certainly was. Q26 Rosemary McKenna: There was not going to be a report? Mr Denham: That is right. Q27 Mr Gauke: You mentioned earlier the coroners' courts and the implications for the 7 July and 22 July matters. At a practical level, would there have been a substantial difference to your committee's hearings if the coroner's court proceedings had fallen outside the sub judice rule? Mr Denham: There would have been. For example, there were questions like what was the nature of the officers who were on duty on 22 July. It was widely reported in the media that there were Army officers patrolling London on that particular day who may or may not, depending on which press report you read, have been involved in the events of that day. That was the sort of question which does not seem to me to directly relate to the responsibility of anybody who might subsequently be prosecuted but which would have been useful for us to air in a select committee. Had there been less of a blanket ban on asking questions about the specific events of 22 July we would have been able to raise those types of issues. Q28 Mr Gauke: You talked about guidance being available to chairmen of select committees. Would there be an argument for specific guidance that related to coroners' courts, particularly tailored to that area rather than court proceedings as a whole? Mr Denham: I think that certainly would be helpful because the issues that arise in the coroners' courts are slightly different. The implication of this is that the interpretation of sub judice would be a lot narrower on issues of national importance. It is really giving guidance on where and when you can narrow it. Q29 Mr Gauke: Would there be an argument for not applying the sub judice rule other than, say, a month before a hearing because one of the difficulties with coroners' courts is that proceedings can last years. I do not know whether you would favour some flexibility on that so that you only have to apply it in a very limited period? Mr Denham: I have not considered a strict time limit of that sort but the position we were in was certainly unsatisfactory. We were meeting in September. We already knew that the earliest that the coroner's court would reconvene would be February or March, depending on the time of the IPCC inquiry, so something that allowed for a period of grace would be very useful indeed. Q30 Chairman: Would it be fair to say that the concerns you have expressed to us today are shared by all members of your committee? Mr Denham: Yes. I have raised this with the committee on two occasions, once when I first wrote to the Liaison Committee and again when I reported that I was giving evidence today. I have support from the committee. No committee member has raised any concerns about this. Q31 Chairman: Do you think there is fairly wide dissatisfaction amongst members generally over this matter? Mr Denham: Yes, I am sure there is. Q32 Chairman: You mentioned in your evidence that you had a note prepared for your committee which you are happy to let us see. Could I make a plea that we have that fairly speedily, please? Could you send a note attached to it identifying who put the note together if that is not obvious from the document itself? Mr Denham: Yes. It was Dr James. It was the first two pages of the normal committee brief but we will send you the documents. Q33 Chairman: Is there anything you wish to add, Dr James? Dr James: There were two pages in the committee brief with a very prominent warning on the front page of the brief asking all members to read these pages as a matter of urgency. I compiled the advice on the basis of my consultation within the Clerk's Department and on the basis of the discussions that Mr Denham and I had with the Attorney General. Q34 Sir Robert Smith: One of the suggestions from some is that maybe the coroners' courts are something we do not have to worry about prejudicing. Would you accept that we should still be careful in terms of Parliament and even the coroners' courts that we are not seen to prejudice? Mr Denham: I do not think we should dismiss all of the concerns in this area. There are quite legitimate concerns that we should not prejudice the courts in a wilful way, for very good reasons that were set out in your report. There are cases though when an issue is of great national importance, if Parliament cannot be seen to ask obvious, basic questions about what is going on and questions are being asked every day on the television and in the newspapers, we are taking the rule too far. Our response needs to be proportionate. If it is a major, national event, we should perhaps give a somewhat lower priority than we have done historically to the sub judice rule in the coroners' courts. I would not for one moment say that it does not matter or we should not have respect for the procedures. It is a matter of approaching it sensibly and in a proportionate way. Q35 Chairman: Is there anything you want to add which has not been covered by the questions? Mr Denham: I think we have covered all the substantial points I wanted to raise. It may be helpful to the Committee if, when we submit the note of our meeting, perhaps I could expand that with a further list of some of the questions that I think the committee might have liked to raise which we felt unable to. Q36 Chairman: Please feel free to do so. Is there anything you want to add in private today? Mr Denham: I do not think so, no, thank you. Chairman: Can I thank you both for coming? We share your concerns on this matter. It is a question to which there is no easy answer but we are going to see if we can find some way of perhaps refining the situation which would be of help to the House. Thank you for contributing. Witness: Ms Sally Keeble, a Member of the House, gave evidence. Q37 Chairman: Thank you for coming. As you know, the Committee has looked at the operation of the sub judice rule before but because of ongoing concerns we have decided to revisit this, particularly as it is applied in respect of coroners' courts. We are grateful to you for coming along today to give evidence. We are in public session but, if there is any aspect of your evidence where you wish to refer to a particular sub judice case to make a point which you feel it is essential we should hear, we are prepared to go into private session but I would like to leave that to the end. If you feel when we come to the end of questioning that you wish to emphasise a point by referring to a particular case we are happy to go into private session. Would you like to make an opening statement to the Committee? Ms Keeble: Yes, thank you. I am extremely glad that you have decided to look at this issue again because it is one that has concerned me greatly. I put in a short note updated from my previous note, which I assume people have. It moves things on a bit from the evidence I gave last time because last time we went through issues about the wider sub judice rule and dealt with coroners' courts in part. The Committee then took a view, amongst other things, that it would be appropriate to look at the discretion which the Speaker has and see if that provided a remedy. I went down that road and it did not because of a variety of procedural issues about getting to put the point to the Speaker. There is also an issue that, if the case that you are concerned about, as mine was, was fair and square, right in the middle of the sub judice rule as it applies to coroners' courts, there is not much room for discretion. It turned out that what might have provided a remedy did not and I think that is quite important because it means that not only are Members unable to raise questions about matters that they are particularly concerned about but there is no way you can appeal against that. There is no room for manoeuvre. 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. It should not apply to coroners' courts. The case I was concerned about last time is still sub judice. There has still been no decision from the Crown Prosecution Service. The incident was very serious and I would appreciate perhaps commenting on it right at the end. It occurred in April last year and there is still no prospect of being able to hold ministers to account for what happened. I think that is terrible. It cuts against the whole reason that we are elected and come to this place. I will leave it there because I have put this in writing and you have had the previous evidence. That covers the detail of my view. The statement serves perhaps to give some feeling to the prosaic words. Q38 Sir Robert Smith: After reading the report, do you still believe that coroners' courts do not need the protection of the sub judice rule at all? Ms Keeble: That is right. There are a few issues. I have thought about this quite a bit and I have talked with friends about it as well, obviously, and the media. There has been quite a bit of media coverage on it. It does seem that some of the thinking that informs the sub judice rule as it applies to the media is different from what informs ours in terms of who can be influenced, because that was part of the thinking, that we might through debate here influence somebody's right to a fair trial. We dealt last time with when proceedings are active and influencing a jury, but I understand that there are also issues about whether you can influence a single judge or judicial figure sitting alone. We do not get back to: can you influence a coroner. It seems also that there is a major issue-the Committee in a sense conceded this last time-about when proceedings are active. 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. Q39 Sir Robert Smith: In our report we looked at that point and a closer trigger to the case that could be prejudiced rather than 18 months out, not being able to talk about something. Do you accept at all the argument though that decisions of a coroner's court can have an impact on future proceedings or on insurance policies? Ms Keeble: No. If we could not talk about things that affect insurance policies, there would be all kinds of things we could not talk about, as you know. Q40 Sir Robert Smith: The outcome of the coroner's case can have an impact, obviously. Ms Keeble: No, because the findings cannot be of anybody's guilt. Q41 Sir Robert Smith: No, but they can have an impact. If someone's insurance policy says that suicide means they cannot be paid out on their life insurance, if the coroner's court decides they committed suicide-? Ms Keeble: In terms of what influences an insurance policy, I do not think there is any argument at all for saying that we cannot talk about things that might at some time or another influence an insurance policy. We might as well say that there is no point talking in the Commons about anything that influences anything. Q42 Sir Robert Smith: It is the separation between the court's decision being seen by the person affected by the decision and the confidence that the court made the decision on its own merits and not because Parliament chose to interfere. Ms Keeble: There are several issues involved there. One is about who you influence. Part of the thinking that informs the contempt rules that journalists have to abide by-I cannot remember the detail; I am a bit fuzzy on it now-is that a jury is open to being influenced but a judge, for example, is not so there is much more freedom, as I understand it, about reporting matters where it is a judge or a single person sitting on their own. The real issue is about influencing juries. That influences a person's right to a trial. That is not about what happens to the institution; that is purely about the individual's right to a fair trial. By extension, if nobody is on trial, contempt does not arise and that is a big bit of my argument about the coroners' courts. Nobody is on trial because that is not what coroners' courts do. They have a variety of findings. It might imply that a death was not wholly accidental but it is not finding anyone guilty of anything. Q43 Chairman: Although what you say is correct, what do you say to the Attorney General's comments when interviewed by this Committee when he accepted the point you have made but he went on to say, in effect, that although the coroners' court itself was not a trial, the coroners' court conclusion may determine whether criminal or civil proceedings then take place? Ms Keeble: That still is not influencing somebody's right to a trial which seems to me to be one of the fundamental principles which we, as elected Members, have to accept. If you then say that what happens in a coroners' court can affect something that happens elsewhere, then yes, but this comes back to the fact that there is not a jury involved. If you have a single judicial figure or a judge sitting on their own, are they open to influence? That is where, as I understand it, the principles that affect the rules as they apply to journalists would say no, they do not, in the same way as we would say that if the courts say something about Parliament are we influenced by it. Q44 Sir Robert Smith: North of the border in Scotland there is quite a protection on interfering with judges. If an appeal is on, there is no way politicians would start discussing it. Ms Keeble: There is a third point which is about the principle of comity, the equality between institutions. It would seem to me that that is given away completely by the fact that the Lords are quite entitled to discuss the particular case which I have been barred from mentioning and they have discussed it in quite some detail. The ministers in the Lords have also mentioned it. They have referred to it by name. Q45 Sir Robert Smith: We need to look at that relationship between the Lords and the Commons. Ms Keeble: I do not see that the discussion in the Lords has had any influence at all on the coroners' courts and nor will it. It has had no influence on the CPS. Nothing has speeded up the Crown Prosecution's decision. I cannot see that things that have happened here have had any influence in terms of prejudicing the coroner's court. Q46 Sir Robert Smith: It is not a question whether it has influence but whether someone could reasonably believe it could have had an influence. That is one of the worries. For justice to be seen to be done and for people to have confidence in the system, we may think we have not had an influence but if the aggrieved parties feel the process is no longer fair because-? Ms Keeble: Who is the aggrieved party in a coroners' court? Q47 Sir Robert Smith: Presumably, if you were the relatives of someone who was found to have committed suicide and you did not receive any insurance payment you would be fairly aggrieved when you thought it had not been a suicide and someone in Parliament had been- Ms Keeble: It seems to me that insurance pay-outs are a whole different issue and you cannot limit Parliament's right to free speech because of what insurance companies might do. Q48 Sir Robert Smith: No, what courts might do that impact on people. Ms Keeble: The issue at stake is not whether or not people get paid out; it is whether or not people have a fair trial. In some instances it might be whether or not somebody who is vested with a great deal of authority and respect is capable of making a decision without being influenced by an adjournment debate in Westminster Hall. Q49 Mr Gauke: To give another example rather than an insurance pay-out, say you have a hypothetical case of a coroner's report on a death of somebody in custody. If there is a finding of unlawful death, that may relate specifically to, for example, a police officer, an individual who will be potentially adversely affected by any coroner's report because it will lead directly to criminal proceedings and there is, if you like, a better relationship there than with an insurance pay-out. Is there not a danger there that discussion in Parliament may prejudice or be seen to prejudice a coroner's hearing and in turn that would have quite an impact upon a criminal case? Ms Keeble: You obviously get these sequential events and you have to work out at what point it is appropriate to discuss them in Parliament and at what point it is not. As you pick your way through that, you have to, first of all, respect a person's right to a fair trial. The trial might come quite some way down the line. There are decisions further on as to whether charges are brought against somebody. There are also issues about in-house disciplinaries. In the instances you are talking about, those would come somewhere down the line. To limit Parliament's right to free speech to protect someone's right to a fair trial is absolutely proper. I would not criticise that. To limit Parliament's free speech because of somebody's disciplinary at work I think is not appropriate because that is an internal mechanism to the employer. To limit Parliament's right to free speech pending a decision by the Crown Prosecution Service I also think is wrong because the Crown Prosecution Service is well shielded and protected. That would be key to the issue that you have raised because somebody might have been killed in particular circumstances and, hard though it might be for the relatives, it might not be possible to bring a prosecution. I have been in that situation myself when my own sister died so I understand from the inside how it feels when that happens. To stifle debate around the process of the CPS making a decision would be wrong. When it comes to a coroners' court, I think it is right that for the duration of the court hearing the matter should not be discussed in Parliament. Obviously this idea that you cannot even refer to it is very hard to police but it is right that something should not be discussed where there is a jury sitting and where it is a death in custody. What is happening might well influence a jury but the hearing itself can be quite short. If it is a decision without a jury, in which case it is a different set of circumstances from the ones you are talking about, or if the inquest is simply opened and adjourned and remains adjourned, it seems a nonsense to limit Parliament's free speech for the whole of that period of time, particularly when the issues at stake are of key concern to the public. We should as MPs be able to raise our issues in a general sense and also in a direct sense hold the executive to account for what has happened. Q50 Rosemary McKenna: In your letter you say, "The area in which the Speaker can use his discretion is so slight that it does not provide a remedy when there is a matter of real public concern that is caught by the sub judice rule." Is it simply a wider use of the chair's discretion that you would look for or a more generously defined rule on the chair's discretion? You say there is a difference between how it applies in the Lords and the Commons. Are the Lords given different advice? Is the Leader? Ms Keeble: The Leader serves a different function. They do not have anyone organising them so they organise themselves. They chat about what they want. Q51 Rosemary McKenna: The guidance to the Speaker is far too narrowly defined? Ms Keeble: I could not get to the Speaker. I do not want to criticise the Speaker for this because I think he behaved absolutely properly. There is no procedure. There is no clear route. I have had no indication at any stage that there is any possibility for discretion or how a discretion might be operated. The people who advise the Speaker are the same people who rule us out of order. You are stuck. I do not think it is any fault at all of the Speaker. If the Speaker is told that a coroners' court is open, that a case has been opened and adjourned and the matter is sub judice until it is concluded, that is pretty straightforward. If a Member tries to raise something before a coroners' court where it has been opened and adjourned, then they are bang to rights; it is sub judice. I tried the discretion route but I could not even get to the Speaker so I could never discuss this. I do not see how it works. Q52 Rosemary McKenna: Do you think that should apply to chairs of select committees who also have a very narrowly defined discretion, it would appear, given the advice from the clerks? Ms Keeble: I think the sub judice rule needs rewriting. I do not think it should be a matter for discretion. I believe that very strongly. I think what has happened in this instance is an absolute outrage. Q53 Rosemary McKenna: It is not the operation of guidance that is the problem; it is the actual sub judice rule? Ms Keeble: That is right. Q54 Rosemary McKenna: Looking at the procedures of the House in terms of the application of the sub judice rule would not really resolve the problem? Ms Keeble: I suppose you could draw up some guidance as to how you think the discretion might operate so that everybody knows. I think the more important thing is to look at what the sub judice rule means because if the Committee wants to continue to apply the sub judice rule to matters before coroners' courts-I personally disagree with that-and if that is the conclusion the Committee reaches, I think it should be much more precise about when matters are before a coroners' court. I would argue that opening and adjourning a case and leaving it there for 18 months should not stifle debate on the issue at hand for 18 months. I think that is a nonsense. Q55 Rosemary McKenna: I think that is a different issue. That is to do with the length of time it can take the Crown Prosecution service to bring it to trial. Ms Keeble: It is not unusual. If you think of the Marchioness disaster on the river, that coroner's court was adjourned for several years. Q56 Chairman: In your view, the scope of the sub judice rule should be looked at. You would like to see guidance given to the Speaker and to chairmen of committees and the contents of that guidance should be made known to Members. Ms Keeble: Yes. If the sub judice rule is going to continue to apply to coroners' courts, this is not a matter of guidance. That section of the sub judice rule should be more narrowly defined so that it should only apply to coroners' courts when proceedings are active, i.e. when the hearing is taking place. You then do not prejudice the hearing and that is absolutely clear. Further, if there are issues which are felt to be so outstanding that there still needs to be discretion, it must be clear how that should be applied and how Members are to go about asking for discretion, because it was unclear to me and simply writing to the Speaker was not the way to do it. Q57 Chairman: In the light of the questions you have had today, are you still maintaining that, in your view, the sub judice rule should not apply at all to coroners' courts whatever the case and the circumstance? Ms Keeble: I personally think it should not. Q58 Ms Clark: If the Committee decides that the sub judice rule should still apply in coroners' courts, do you think it would be of assistance to have formal guidelines outlining the Speaker's power of discretion and defining what counts as a matter of national security? Ms Keeble: I do not think my case was a matter of national security. It was much more a matter of public interest. I still think there should be definition about when a case is active. That is a bit of a compromise between not having it apply to coroners' courts at all and having the application that we have now. The guidance should include cases where it might be thought that discretion should be allowed and something about how they should go about doing that. It may well be that you would not just say national security but perhaps also outstanding public interest or public concern, something like that. Q59 Annette Brooke: We are greatly concerned about the inconsistency. I do not recall the exact events. Once it had been raised in the Lords, did you then make further inquiries in the Commons as to whether you could raise it? Ms Keeble: It had been raised in the Lords before I gave evidence at the Committee last time. The Committee then said, "Try to see if you can get the Speaker's discretion" so I tried to do that. After that, about a couple of weeks ago, the Lords discussed it again in much more detail after I had done some media coverage of it. I was able to speak about it outside here and everybody was able to cover it. There is no issue about journalists and the sub judice rule; it is just in here. I have not been back to the Speaker again. I have tried to chase up the CPS through questions to the Solicitor General but I have not gone back to the Speaker to ask to raise it in the Commons, no. Q60 Chairman: Has the fact that the House of Lords discussed this led to you having any difficulty locally with people either stating or inferring that you are not discharging your duties as an MP? Ms Keeble: No. Because these are very disadvantaged children in the care of the state, this is one of the tragedies of it all. They do not have people who by and large are prepared to speak up for them so I do not think anybody would. Q61 Chairman: Is there anything else you want to say before we have a short, private session? Ms Keeble: It might be helpful if the Committee understood a bit about the circumstances as to why it is so acute. Chairman: Perhaps this would be better in private. |