PROCEDURE (Hansard, 20 June 1963)

§ The Chancellor of the Duchy of Lancaster (Mr. Iain Macleod)
I beg to move, That this House doth agree with the Committee in the said Report.
In December, 1961, certain Questions in the House were ruled out of order on sub judice grounds in a civil action where a writ of libel had been issued. As far as we can trace, this is the first recorded instance of this rule being invoked in this House in respect of a civil action. The Ruling gave rise to a certain amount of misgiving, and it was taken up by the hon. and learned Member for Northampton (Mr. Paget). In due course, because the procedure of the Select Committee on Procedure was established, this matter was referred to the Select Committee, and we had a long, detailed and a very interesting examination of this point.
Perhaps I may be allowed to summarise our conclusions and our answers. We first asked ourselves whether there should be a rule at all, and our unanimous answer was that there should be. I must record, and those hon. Members who have read the Report will realise, that the hon. and learned Member for Northampton came to the conclusion, and so put it to us in evidence that, in effect, there should not be a rule but that it should be left to the good sense of the House. We found it difficult to see how that would work, because I imagine that it would mean—as we have not, for example, the power that another place has to move that an hon. Member be no longer heard—leaving it to the individual judgment of every Member of the House whether it should be raised or not. We therefore came to the conclusion that there should be a rule.
If there should be a rule, there are three questions to answer: when it should start, when it should stop and 783 to which sort of cases if should apply. The conclusions that we reached are recorded in the Report. As to the rule in criminal cases, the Committee came to the conclusion that we should, in effect, continue the present practice as we understood it after taking careful evidence from many people, including Mr. Speaker. The effect of this is embodied in a suggested rule in paragraph 7 of the Report.
Civil cases are more complicated although less important in the sense that the example which I have quoted from December, 1961, is the only instance of which we know in the history of the House of Commons and, therefore, perhaps, we should not be too concerned about the exact definition. We tried, however, to find the best answer that we could. I recognise that the answer is imperfect, but I recognise equally that any other answer would also be imperfect.
Our suggested recommendation to the House is in paragraph 10 of the Report. The key phrase is that the decisive date should be when the case has been set down for trial. There are, of course, difficulties here and the only point I would make is that we came to the conclusion that probably there would be more difficulties in any other circumstance.
One then turns to the third question of when the rule stops. The conclusions are that in the case of courts of law, it should stop when the verdict and sentence have been announced or judgment has been given; but it should, of course, be resumed when notice of appeal is given until the appeal has been decided.
There is then a reference to the special cases of courts martial. In the case of a judicial body, which happened purely by coincidence at the time to be very much in the news and in our minds, the recommendation—and this is slightly different from the procedure followed by the House so far—is that the rule should start to operate when the Resolution of the House is passed and should cease to operate when the Report is laid before the House. Those are the conclusions of the Select Committee on Procedure.
I wish to draw particular attention, because I am sure that this should be 784 recorded, to the last sentence of the conclusions, which states that the Committee wish to stress, however, that in the last resort the discretion of the Chair must be absolute". We cannot, of course, help you, Mr. Speaker, in every detail of these extremely complicated matters. What we can do and have sought to do is to give the best advice that is possible. We must, however, always recognise that your authority and your decision in these matters is final and should not be questioned. Therefore, on these matters, complicated, intricate and interesting as they are, which have been referred to the Select Committee on Procedure, I think the Report which we have now produced, which I ask the House to adopt and which will in future, if the House agrees, govern the sub judice question, is the best answer that the House can find.

§ Mr. Eric Fletcher (Islington, East)
I am sure that the House is grateful to the Select Committee on Procedure for having examined so thoroughly this important and difficult subject. The House is also grateful to the Leader of the House for having said what he has just said with regard to the Committee's Report.
As you, Mr. Speaker, know probably better than anybody else, this is not an easy matter and it is one which has given you and your predecessors some difficulty. The existence and the scope of application of the sub judice rule has on many occasions produced difficulty and has at times appeared to restrict and hinder the House in discussing subjects which it wished to discuss and which some of us thought ought to have been discussed.
One observation which the Leader of the House made towards the end of his speech disturbed me a little. He seemed to imply that if the House should pass the Motion now before us, saying that we agree with the Report of the Select Committee, then the rules that the Committee suggests would immediately become operative. I am not sure whether that is so or not. I had imagined from the text of the Report, and particularly from paragraph 25, that it would also be necessary for the 785 House to pass Resolutions in the terms suggested by the Committee. I hope that when the Leader of the House replies he will confirm that my understanding is correct, and, if it is correct, that the House will then have another opportunity of considering and, if it should think fit, approving a specific Resolution which will be put on the Order Paper.
I should also like to emphasise, as the Leader of the House has done, the last sentence in the Report in which the Committee stresses that in the last resort the discretion of the Chair must be absolute. That seems to me to be the essential safeguard of the rights of Members of this House. As you will be aware, Mr. Speaker, the variety of matters in which the question arises as to whether matters which are sub judice should be mentioned in this House is infinite. I think it is within the recollection of us all that in last Monday's debate on the Profumo case, for example, it was inevitable that a number of references had to be made to the pending proceedings against Dr. Stephen Ward, and in many respects the debate that took place on Monday would have been quite impossible if there had been a strict application of any sub judice rule.
I think the whole House is grateful, as some organs of the Press have recognised, that on Monday you allowed the debate to take place in such a way that references, which otherwise might perhaps have been ruled out of order on a strict application of the sub judice rule, were made in this House by speakers on both sides, and were necessarily made if the House was to do full justice to the subject then under discussion.
Before I read the Report I had some sympathy with the observations tendered to the Select Committee by my hon. and learned Friend the Member for Northampton (Mr. Paget), and I was inclined to doubt whether any rules at all were necessary. I think we should bear in mind, in any circumstances, however one draws the line, that the rule must to some extent be arbitrary. For example, the rule proposed in paragraph 7 of the Report with regard to proceedings of a criminal nature applies only when matters come up in this House at Question Time or on Motions. It has no application when 786 legislation is being considered in the House in respect of Bills.
I would, therefore, observe that it is difficult in those circumstances to see what is the precise nature and purpose of the sub judice rule. If the doctrine is that any reference in this House to a matter which is sub judice in a criminal trial might perhaps prejudice the course of that trial, then that doctrine would seem to apply equally whether the House were discussing a Question or a Motion, where the rule would apply, or a Bill, where it would not apply.
Equally, it seems to me that to some extent it could be said that the rule proposed by the Select Committee with regard to civil proceedings is equally open to the comment that it appears somewhat arbitrary that the line should be drawn at the point where a civil action is set down for trial. There is no very obvious merit in drawing the line at that point, because if there is any prejudice it is difficult for me to see what prejudice can arise in a civil action if the matter has been set down for trial that might not equally arise if the action has not been set down for trial.
Having made those observations, and bearing in mind that this is a matter which affects the Press very nearly as much as it affects Members of the House, I would conclude by saying that I think that the Select Committee has rendered a service by analysing this very difficult subject, and if, Mr. Speaker, you find that the rules proposed by the Select Committee would be a measure of guidance to you in the future, then I think the whole House would wish to accept them, but in doing so would wish again to emphasise that in every case, in the last resort, the discretion of the Chair must be absolute, and must, I imagine, be exercised in considering not only the possible prejudice to an individual but the public interest as well, in making reference to matters which may be before either a criminal court or a civil court.

§ Mr. Iain Macleod
If I may just make a comment on two of the matters the hon. Gentleman the Member for Islington, East (Mr. Fletcher) has raised, I would agree, frankly, with his doubts as to whether the formula in paragraph 10 787 for civil cases is ideal. It is, as I say, worth recalling that there has been only one such case, and it may well be that there will never be—at any rate, in the time we can foresee—another. This does not, of course, absolve us from the duty of trying to find the best possible answer. It is a perfectly fair comment and I would assure the hon. Gentleman that the Select Committee was very conscious of the justice of the criticism—not criticism: the comment—that the line we have taken, that is to say, the time the case is set down for trial, is a somewhat arbitrary one. That is quite true, but it is difficult to find any other, and we thought that this was the best one. We were influenced by the evidence of the Chair 788 in this matter and I think it is right that we should take this formula into account.
The only other comment I should like to make, beyond endorsing, as we have both done, what has been said about the absolute discretion of the Chair in these matters, is to confirm a point the hon. Gentleman made. He is quite right, and I did not mean to give any contrary impression. I am moving the agreement, from the point of view of the House, with this Report. At some subsequent date it will be necessary to embody these rules in resolutions.