4.68  The privilege of freedom of speech in Parliament places a corresponding duty on members to use the freedom responsibly. This is the basis of the sub judice rule. Under the rule both Houses abstain from discussing the merits of disputes about to be tried and decided in the courts of law.

4.69  The Joint Committee on Parliamentary Privilege recommended that the two Houses should adopt a resolution on sub judice set out in the committee's report.[155] The House of Lords did this on 11 May 2000. The resolution is as follows:

"That, subject to the discretion of the Lord Speaker,[156] 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:

(1) Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.

(a)  (i)  Criminal proceedings are active when a charge has been made or a summons to appear has been issued, or, in Scotland, a warrant to cite has been granted.

  (ii)  Criminal proceedings cease to be active when they are concluded by a verdict and sentence or discontinuance, or, in cases dealt with by courts martial, after the conclusion of the mandatory post-trial review.

(b)  (i)  Civil proceedings are active when arrangements for the hearing, such as setting down a case for trial, have been made, until the proceedings are ended by judgment or discontinuance.

  (ii)  Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.

(c)  Appellate proceedings, whether criminal or civil, are active from the time when they are commenced by application for leave to appeal or by notice of appeal until ended by judgment or discontinuance.

But where a ministerial decision is in question, or in the opinion of the Lord Speaker 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.

(2) Specific matters which the House has expressly referred to any judicial body for decision and report shall not be referred to in any motion, debate or question, from the time when the Resolution of the House is passed, until the report is laid before the House.

(3) For the purposes of this Resolution—

(a)  Matters before Coroners Courts or Fatal Accident Inquiries shall be treated as matters within paragraph (1)(a); and

(b) "Question" includes a supplementary question.

4.70  The House has agreed that the practice governing motions and questions relating to matters sub judice should be similar in both Houses of Parliament.[157] It is desirable that each House should be in the same position to debate a sub judice matter when the circumstances warrant it.

4.71  The rules governing sub judice do not apply to bills, Measures or delegated legislation or to proceedings on them. Nor do they apply to matters being considered by departmental inquiries and the like; but it is recognised that Parliament should not generally intervene in matters where the decision has been delegated to others by Parliament itself.

4.72  A case is deemed to be sub judice from the moment a petition for leave to appeal is presented to the House of Lords.[158]

4.73  The Lord Speaker must be given at least 24 hours' notice of any proposal to refer to a matter which is sub judice. The exercise of the Speaker's discretion may not be challenged in the House.[159]

156   Procedure 2nd Rpt 2006-07. Back

157   Procedure 1st Rpt 1963-64. Back

158   Procedure 1st Rpt 1989-90. Back

159   Procedure 1st Rpt 1994-95, Report of the Select Committee on the Speakership of the House of Lords, HL Paper 92 2005-06. Back