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Lord Ackner: My Lords, I wonder whether the Minister can assist me in one matter relating to paragraph (1)(b)(i) and civil proceedings. It is there provided that,

I take it that "civil proceedings" applies to the civil jury trial as well as to the non-jury trial. A civil jury trial would encompass defamation and malicious prosecution by way of example. Does the Minister see any difficulty in the sub judice rule applying so late that it is after arrangements have been made for trial in that type of case?

Lord Williams of Mostyn: My Lords, yes; and in answer to the second question, I do not think so.

Lord Goodhart: My Lords, we welcome this Motion because it makes common sense that the sub judice rule should be the same, as far as possible, in both Houses of Parliament. However, in the longer term are there not issues that we should look at again?

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Under the present rules, your Lordships' House will continue to be unable to discuss issues which the media are free to report on and discuss. Under the Contempt of Court Act 1981, the media are guilty of contempt of court only if they publish statements which are intended to interfere with the course of justice or which create a substantial risk that the course of justice will be seriously impeded or prejudiced. That is far less restrictive than the parliamentary sub judice rule. I wonder therefore whether we should look at the issue again in due course to consider whether the parliamentary rule should be relaxed and perhaps aligned with the contempt rule. It seems anomalous when we in your Lordships' House and our colleagues in another place cannot discuss issues which are being freely and lawfully discussed in the press. It is ironic that, when we have introduced a statutory right to freedom of speech under the Human Rights Act, we continue to be limiting our own freedom of speech in this way.

Lord Williams of Mostyn: My Lords, I take the point of the noble Lord, Lord Goodhart. Of course, the media are in a different position to your Lordships' House. It is axiomatic that the world at large pays a good deal more attention to what we say than to anything that might appear in the vulgar press.

There is an underlying point in what the noble Lord says. I imagine your Lordships may well want to return to this matter after a trial period. Of course, the Liaison Committee met earlier this week and agreed the desirability of setting up a Joint Committee on Human Rights. If that Joint Committee is set up, that aspect of the noble Lord's question may be something it wishes to take on board and discuss.

Lord Richard: My Lords, we are taking a valuable step to align procedure in this House with procedure in another place. I take the point made by the noble Lord, Lord Goodhart, that we may have to come back to this matter. If we do, it is important that we and another place come back to it together. To end up again in a situation in which there are two different sub judice rules depending upon which House one is in would not be sensible. I hope my noble and learned friend will keep that in mind.

Lord Williams of Mostyn: My Lords, my noble friend Lord Richard is absolutely right. In fact, not for the first time, if this resolution is passed today we shall be in advance of another place. But there is obvious sense in having the symmetry to which my noble friend referred.

Lord Lamont of Lerwick: My Lords, I too accept that it would be desirable to have the same procedure in both Houses. But given that there is no Speaker in this House and that the Leader of the House occupies a different position, obviously they cannot be identical.

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Can the Minister reassure me that the words,

    "subject to the discretion of the Leader of the House",

mean only that the Leader of the House can give a waiver if he or she thought it desirable, but that it is not possible for the Leader of the House to exercise his or her discretion and judge something to be sub judice when the Clerks of the House take a different view? Will the noble and learned Lord also confirm that in extradition proceedings it will be possible for Members of this House, in between stages in a case, to question the Home Secretary's quasi-judicial position?

Lord Williams of Mostyn: My Lords, on the question of waiver, the noble Lord, Lord Lamont, is quite right: that is intended as a further protection for the rights of this House; in other words, discussion would not be curtailed. In my own experience, the advice of the appropriate advisers is always taken by the Leader of the House. I believe that that has also been the experience of the noble Lord.

As to extradition, it seems to me that every issue of fact and of law would have to be considered on a case-by-case basis. I know that the noble Lord did have questions that he wanted to put in connection with a recent, fairly well-known extradition case and that there were occasions when he was not able to do so. Ultimately, of course, we had quite a lengthy debate which he instigated and which I believe was valuable to all of us.

Lord Simon of Glaisdale: My Lords, this Motion obviously comes before your Lordships with potent backing from the Joint Select Committee chaired by my noble and learned friend Lord Nicholls, backed by the Procedure Committee of your Lordships' House. Nevertheless, I hope that your Lordships will allow me to raise some questions about it. I hope that they have percolated through to the noble and learned Lord. I asked that the noble Baroness the Leader of the House should be given notice of them.

Last night your Lordships debated at length an impasse which we seemed to have reached by not taking note at the time of the constitutional implications for the privileges of the two Houses of the setting up by the Prime Minister of the Nolan Committee. I suggest that we should at least take notice of the implications involved in this Motion.

The sub judice rule is of course the complement of what we were discussing last night--the reverse of an obverse. The Houses claim privileges; that is to say, certain specific rules to enable them to carry out effectively their constitutional duties as Houses of Parliament. However, in the past that has led them into collision with courts of law, which were equally trying to carry out their constitutional duties to adjudicate on the rights of individuals seeking recourse to judicial remedies. The matter came to a crisis in the middle of the last century, as your Lordships will remember, in the famous case of Stockdale v Hansard, which ended most unfortunately with, on the one hand, the House of Commons committing the sheriffs of Middlesex, who were enforcing the decrees of the

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law courts and, on the other hand, the law courts committing the Officer of the Serjeant-at-Arms, who was carrying out the decrees of the House of Commons. It was such a scandal that, thereafter, both parties retreated from their extreme positions. Parliament recognised that the courts of law should proceed within their own jurisdiction by observing the sub judice rule, while the law courts agreed to respect the privileges of Parliament.

As was pointed out in previous interventions, it is obviously desirable that both Houses should operate in the same way as far as concerns sub judice discretion. But there has to be some inherent difference. As I read the structure of what is proposed, I see that sub judice applies generally under paragraph (1) of the Motion, "where proceedings are active". However,

    "where a ministerial decision is in question",

and so on, the rule may be waived and that is subject, at the outset, to the unchallengeable discretion of the Leader of the House.

What led the Joint Select Committee into that mystery as to whether the Leader of the House was the right person was the fact that in the House of Commons the Speaker has, I think to general satisfaction, the power of waiving the sub judice rule. But the Speaker of the House of Commons is by no means in a similar position to the Leader of your Lordships' House. The Speaker of the House of Commons is not the Leader of the House; that is a political appointment. The Speaker of the Commons is elected by the whole body of electors. It was noticeable that the present Speaker, a woman, who has operated, I believe, to general admiration, was elected by a predominantly Tory House of Commons--that is, predominantly Tory and predominantly men. However, the Leader of your Lordships' House is not in the same position at all. She is in a similar position in many respects to the Leader of the House of Commons; in other words, it is a political appointment and she is a member of the Government, charged with seeing that the Government's business gets carried through the House. That is a vital difference.

The intention of this Motion is to give the noble Baroness an additional task, an additional loyalty; namely, as the vindicator of your Lordships' right to debate. That sort of hybrid quality is not unknown to our constitution. Ever since 1923, the Law Officers have recognised a dual loyalty. I am sure that the noble and learned Lord the Attorney-General will confess to his schizophrenia in that respect. But is it necessary to add to the schizophrenia of the Leader of the House? Would it not be preferable, instead of giving her an absolute and unchallengeable discretion, to leave the matter in the hands of your Lordships, with the Leader of the House providing guidance, as she does on so many other matters, but with the decision, the responsibility, remaining with the general body of your Lordships?

The matter is particularly accentuated by the terms of this Motion. I refer to the words,

    "where a ministerial decision is in question".

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That raises the question of judicial challenge to a ministerial decision. Is it really desirable that your Lordships should debate and pre-empt, or the other place debate and pre-empt, the decision of the appropriate court of law? Is it not inherently objectionable that the Leader of the House, a Member of the Cabinet, should have to decide whether her colleagues' decision, which has been challenged in a court of law, should nevertheless be debated in Parliament in pre-emption to the decision of the court?

We should at least be alive to where we are going constitutionally. I therefore presume to lay those considerations before your Lordships.

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