PROCEDURE (SUB JUDICE RULE)

HC Deb 28 June 1972 vol 839 cc1589-627

Ordered, That the Fourth Report from the Select Committee on Procedure be now considered.—[Mr. R. Carr.]

11.1 p.m.

The Lord President of the Council and Leader of the House of Commons (Mr. Robert Carr)

I beg to move, That—

1. (1) notwithstanding the Resolution of 23rd July 1963 and subject to the discretion of the Chair reference may be made in Questions, Motions or debate to matters awaiting or under adjudication in all civil courts, including the National Industrial Relations Court, insofar as such matters relate to a Ministerial decision which cannot be challenged in court except on grounds of misdirection or bad faith, or concern issues of national importance such as the national economy, public order or the essentials of life;
2. (2) in exercising its discretion the Chair should not allow reference to such matters if it appears that there is a real and substantial danger of prejudice to the proceedings; and should have regard to the considerations set out in Paragraphs 25 to 28 of the Fourth Report from the Select Committee on Procedure.

The first words I would like to utter to the few hon. Members who may not already be aware of the fact are that I am not a lawyer myself, and, therefore, I embark on talking about these matters with a certain amount of trepidation, and with great comfort and pleasure in knowing that my right hon. and learned Friend will be available to wind up the debate and deal with legal matters which are altogether beyond my knowledge and understanding.

As the House has immediately recognised, the Procedure Committee's Report to which this Motion relates concerns matters of very substantial constitutional importance. It concerns, really, the balance between two general principles. The first principle is that, unless there are strong overriding reasons, Parliament should never be inhibited from discussing matters of national importance—in the words quoted in the report: The fundamental responsibility of Parliament to be the supreme inquest of the nation with the overall responsibility to discuss anything it likes. That is the first principle.

On the other hand, the second principle of major constitutional importance is the need to ensure that the proceedings in our courts, and the integrity of the judicial process, are not prejudiced by comment or debate in Parliament. The sub judice rule, or "convention'" as the Procedure Committee would prefer to call it, represents the desire of Parliament, imposed, as it were, voluntarily upon itself, to set a balance between these two principles, which can, of course, in particular circumstances, conflict with each other.

Sir Harmar Nicholls (Peterborough)

I am wondering whether my right hon. Friend will tell us why this particular time should be the time when we discuss these very profound things, and whether he can show that the application of the Resolution of 23rd July, 1963, which has been in operation since then, has cut across the profound principles which he says he wants to protect.

Mr. Carr

I hope I shall do so. Whether I shall satisfy my hon. Friend by my manner of doing so, I am not sure. We shall have to see. But I will certainly try to do so.

The first thing I must say to my hon. Friend is—and this is one of the difficulties—that the point at which this balance should rest must inevitably be, in the last analysis, a matter of subjective judgment and not objective judgment. It is essentially a matter of subjective judgment, but it seems undeniable, at least to me, and, I think, to the Committee—I think the Committee made this clear-that from time to time we need to re-examine the position in the light of changing circumstances.

As the House will be aware, the present position is governed by the Resolution of 23rd July, 1963. This provides that matters awaiting or under adjudication in any court of law—criminal courts, courts martial, civil courts and tribunals under the Tribunals of Inquiry (Evidence) Act, 1921—should not, subject to the discretion of the Chair and the right of the House to legislate, be referred to in any Motion or debate, or by any Question to a Minister if it might prejudice a case under trial. That Resolution further specifies at what stages the convention should apply in different kinds of proceedings.

Your Procedure Committee, following a suggestion made to it in the House on 20th April, and welcomed by Mr. Speaker, has reviewed this Resolution and its effects in the light of the extent to which changes and developments since 1963 have altered the circumstances in which the convention has to be applied in the House.

In particular, the Committee has had regard to the increasing extent—and I believe this is the real answer to my hon. Friend—to which restrictions on debate in Parliament on matters of national importance have been thrown into relief by the increasingly rapid coverage by Press, radio and television, and by the increasing involvement of Ministers as parties to court proceedings on matters in the financial, economic and planning fields, and especially in the last two or three months in relation to proceedings before the Industrial Relations Court.

Not only in relation to the Industrial Relations Court but also in relation to the other subjects which I have mentioned, over the last decade there has been an increase in the involvement of Ministers, and also an increase in the activity of the media, which have thrown these matters into relief and have sometimes appeared to create the impression that the media are free to discuss matters in general terms to a greater extent than are the House of Commons and Parliament. I have never believed it right that Parliament should be more inhibited in these matters than other media. This is an important principle, difficult though it may be to get it rightly defined and rightly applied with an ideal balance at any particular time.

I am sure the House would wish me to express its appreciation of the speed and thoroughness with which the Procedure Committee has dealt with these complex matters.

The Procedure Committee, in short, has concluded, in the light of its consideration, that the present balance in certain respects is over-weighted against discussion in this House, and that changes in the application of the 1963 Resolution are called for. It therefore proposes that in certain areas the existing sub judice convention could, with safety and subject to the discretion of the Chair, be relaxed in the interests of providing enlarged opportunity for the debate of issues here in which, despite the fact that they are before the courts, the overriding consideration should be the need of an opportunity for their ventilation in Parliament.

To interpose an observation of my own in recent weeks and months—which I hope my hon. Friend the Member for Peterborough (Sir Harmar Nicholls) and others who think as he does will take into account—under the application of our present rule, and in spite of your own sensitive care and responsibility in these matters, Mr. Speaker, it is possible through the raising, for example, of a point of order—and I make no criticism of this—to say words which impinge on matters of moment, but the application of the rule prevents the expression of any opposite view or any response to the points that may be raised.

It has been very much in my observation in recent weeks and months that, on a number of occasions, the application of the rule, as it stands at the moment, or the convention, as the Committee would have us call it, has acted contrary to the real purpose of the convention; and that it is better, if these things can be mentioned at all, that wherever possible they should be debate able and not merely be the subject of any comment which may be made before it can be judged and ruled upon by you, Mr. Speaker, and which if ruled upon unfavourably cannot be replied to. That is a matter which I have had much in mind in my observation of what has been happening over the last month or two.

The Committee's principal recommendations, summarised in paragraph 33 of its report, are that, whilst there should be no change in the sub judice convention regarding the matters before the criminal courts, matters awaiting decision in any civil courts, except in the case of defamation proceedings, might in future be referred to in the House, unless the Chair considers that …there is a real and substantial danger of prejudice to the proceedings". The report, having enunciated that general principle, deals specifically with the application of such a change as it might affect cases being considered by the Industrial Relations Court, which are the cases which have given rise particularly to the examination of the convention.

Broadly, the Committee recommends that the sub judice rule should normally be relaxed, at the discretion of the Chair—that factor must be emphasised—in relation to the discussion of ministerial views expressed to the Industrial Relations Court, insofar as these cannot be challenged in the court except on grounds of misdirection or bad faith, and with regard to the discussion by the House of the general background of any ministerial application to the court.

The Committee considers, however, that a sub judice convention is still needed, again at the Chair's discretion, in the case of more precise issues before the court—for example, in relation to the recent industrial relations cases, the specification of the areas of employment and persons that may be affected by an order under subsection (2) of Sections 139 and 142 of the Act.

Mr. Norman Atkinson (Tottenham)

The Minister will recollect the Heatons and Craddocks judgment which went to Lord Denning. I understand that, since Lord Denning reached a conclusion, the matter has been referred to the House of Lords. Will the Minister give us some information whether on Monday we may discuss this matter in the House, or is it sub judice, having been referred to the House of Lords? Can we get down to the detail of the whole of the case affecting the dockers?

Mr. Carr

I make two comments on the intervention of the hon. Member for Tottenham (Mr. Atkinson). First, it seems to me as a layman that the particular case to which he referred is a contempt rather than a sub judice case, although I recognise that the two are related. If I am wrong about that, my right hon. and learned Friend will no doubt put me right later. The main and far more important point is that, under the recommendations of the Committee, every case must be subject to the ruling or discretion of the Chair. We should all recognise that this is inevitable. Indeed, it is inevitable under our present Resolution. It puts a very heavy responsibility on Mr. Speaker, but I think that it is inevitable, and I do not think, therefore, that it is possible for me or for any Member to answer specifically the question which the hon. Gentleman put.

Mr. Atkinson

I am grateful to the hon. Gentleman for that point of view, but he is now Leader of the House and no longer Secretary of State for Employment. Has he not, therefore, an opinion whether on Monday we shall be able to discuss in great detail the reference which has been made to the House of Lords on Lord Denning's judgment?

Mr. Carr

I may be Leader of the House and no longer Secretary of State for Employment but I am not Mr. Speaker, and that is the essential difference.

Mr. Russell Kerr (Feltham)

Give yourself time.

Mr. Carr

A great deal of time will have to elapse before I have any desire to accept your onerous but essential responsibilities, Mr. Speaker. My feeling in this matter—and I hope that I am not out of order in expressing my feeling, because it can be no more than a feeling—is that we would be able on Monday to discuss the sort of matter which the hon. Member for Tottenham raised. But it must be for Mr. Speaker to rule. The fact that I have expressed that view as a layman cannot in any way bind the House or be taken as an interpretation on the matter concerned, and the decision must be a matter for Mr. Speaker, as it is at the moment. There we shall have to leave the matter for the moment. My own feeling is that probably we would have been able to discuss it under the old convention, but that, again, is only a personal feeling.

As I promised the House when it came out on 15th June, the Government have given this important report urgent and detailed consideration. I am grateful to the Opposition for their ready agreement to the arrangements for this early debate, because it is important that we should have it early, not only because the Opposition have a strong desire to debate these matters soon but because once a thing like this is seriously in doubt it is a matter of urgency that the House should declare itself and put it as far as possible beyond doubt.

Mr. Leslie Spriggs (St. Helens)

From what the right hon. Gentleman has just said it appears that he is putting a tremendous responsibility on the shoulders of Mr. Speaker. Should not the House have some responsibility without having to bear so heavily on Mr. Speaker's ruling?

Mr. Carr

There has always been a heavy responsibility on Mr. Speaker in this matter as in others. Certainly it is very great in this matter. What the House attempted to do by the 1963 Resolution was to give, as far as it is possible for the House to give, in general terms—because it is impossible in general terms to be precise about any rule which could apply to every case that might arise in future—its guidance to Mr. Speaker, who is its servant, on what we wish in these matters. But we have always recognised that the ultimate responsibility of discretion had to rest with him. What we are doing now is considering giving him up-dated guidelines while still leaving him with the burden of responsibility to use his discretion in each individual case. It is a heavy burden but I do not see how it can be avoided.

The Government accept the Committee's view that a relaxation of the existing sub judice convention is now called for in the light of developments since 1963. The Government would propose, therefore, that, subject to the overriding discretion of the Chair, and provided in particular that the Chair is satisfied that no real and substantial danger of prejudice to the proceedings would arise, matters before any civil court, including the NIRC, may in future be referred to by Motion, debate or Question in so far as such matters relate to a ministerial decision which cannot be challenged in the court itself, except on grounds of misdirection or bad faith, or in so far as they concern issues of national importance forming the background to a ministerial application to a court.

The effect of this in relation to matters before the Industrial Relations Court would be that there would in future generally be no bar, subject—I must say it again—to the discretion of the Chair, to Motions, Questions or debate regarding "unassailable" ministerial views expressed to the Court under paragraphs l(a) and (c) of Sections 138and 141 of the Industrial Relations Act; or in regard to the discussion of issues relating to the national economy, national security, public disorder, dangers to persons or livelihoods under Subsection (2) of Sections 138 and 141 of the Act.

With regard, however, to issues under subsection (2) of Sections 139 and 142 of the Act, which concern such matters as the specification of the areas of employment to be covered, and persons to be bound by "cooling off" orders; or the length of the "cooling off" period; or the question on which a ballot is to be taken, the position would be that the Chair would have general regard, as recommended by the Committee, to the impropriety of Questions, Motions or debate on the precise details which the Court must specify in any such orders.

The Government would also propose the acceptance of the Committee's recommendations that Mr. Speaker should not be required to give reasons for exercising his discretion regarding the exclusion from discussion of sub judice matters. The Government also agree that the Secretary of State for Employment should as soon as practicable place in the Library of the House a copy of any application which he makes under the Industrial Relations Act.

As regards the Committee's more general recommendation, however, that all aspects of matters awaiting or under adjudication in civil courts, except defamation cases, should be debatable unless the Chair considers that there is a real and substantial danger of prejudice to the proceedings", the Government believe, while certainly not turning down this recommendation, that it would be premature to go ahead with this general relaxation without more time for consideration.

There does not seem to us to be any urgent need for change regarding these wider aspects of civil proceedings as there does in the cases covered in our Motion. Moreover, we have the Phillimore Committee considering the law of contempt as a whole. The subject of its inquiry is, of course, very relevant to the application of the sub judice convention in this House, in that both are concerned with the potential dangers to the integrity of court proceedings from public debate and comment.

Mr. Michael English (Nottingham, West)

I think that I understand the right hon. Gentleman's argument. Although not going as far as the report proposes, he has gone further than dealing merely with the industrial relations point with which my hon. Friends and I are so keen that he should deal. He has introduced what I can only describe as a somewhat vague phrase in the Motion, namely that we can discuss things which concern "the essentials of life."

This is no term of art of which I have ever heard. It seems an extremely vague boundary line to draw, whereas the report was so clear. Will he comment on what he thinks, in this context, are the essentials of life?

Mr. Carr

My right hon. and learned Friend will be able to deal with this better than I. My understanding is that this phrase is in the 1920 Act under which we take our emergency powers. It is not an easy phrase to interpret and it is difficult to find phrases which are easy. All I can say is that we thought it better to use that phrase which, with all its apparent vagueness, is one to which the House has become accustomed over 50 years, rather than to embark on some totally different line. We have to accept that such phrases are not easy to interpret.

The broad recommendation of the Committee regarding civil actions in general other than defamation cases is one which the Government have not decided to reject ultimately, but we do not believe it needs to be decided at the moment with the urgency of the other matters to which I have referred. We believe that it would be wise to postpone a decision until we are able to consider it in the light of what the Phillimore Committee says.

Mr. S. C. Silkin (Dulwich)

I can well understand that there is a need for consideration of that part of this matter which is not urgent. What I do not follow is the relevance of the Phillimore Committee. That Committee is concerned with the question of contempt of court. It is not concerned with the question of the public interest in matters being discussed in the House which the right hon. Gentleman surely will agree must, in many cases, override questions of individual prejudice. What help shall we get from the Phillimore Committee? Shall we place evidence before it as to the position in Parliament so that it can guide us?

Mr. Carr

However lame a reply it may sound, I must ask my right hon. and learned Friend the Attorney-General to deal with that point because, as I said, not being a lawyer, I find these matters difficult. For me the relation between them is difficult to define.

Sir Harmar Nicholls

It does not need a lawyer to realise that, as the Phillimore Committee is considering the question of contempt in detail, it will be wiser for Parliament to have before it the views of that Committee on the general question before tackling the specific question affecting Parliament. For Parliament to look after itself before the Phillimore Committee has reported is putting the cart before the horse, which is a very dangerous thing to do.

Mr. Carr

That is a view which is sincerely held not only by my hon. Friend but by other Members. The unanimous view of the Select Committee and the view of the Government is that, because of the developments over the last 10 years about which I have spoken, there is a need to change the balance laid down in the 1963 Resolution. This must be a matter of subjective opinion. I come to one opinion about it, as did the Procedure Committee unanimously, and my hon. Friend and other hon. Members come to a different opinion. There is no scientific instrument with which we can measure which of us is right and which of us is wrong. That will have to be judged by experience.

But it is immensely important that Parliament should not be unduly restricted in discussing matters of overall national importance and matters for which Ministers have taken responsibility in their decisions and which should, therefore, unless there are exceptional reasons against it, be debated in the House. I repeat that it is immensely important that we should not get into a position in which we are more inhibited than outside media. That would not be for the health of our parliamentary system or of our democratic system as a whole. I do not believe that we are giving ourselves advantages over other people or in front of other people. We are putting ourselves in a reasonable situation in the matters covered by this Resolution. But in the end the proof of the pudding will be in the eating.

The House will recognise that the proposals put a very considerable extra burden on Mr. Speaker—in particular, in exercising his discretion in this matter. Whilst reluctant to impose this further burden, I am sure that the House would do so with total confidence in the judgment of the Chair.

If accepted by the House the Motion will enlarge the opportunities for parliamentary debate without, we believe, risking the basic security and integrity of court proceedings which is essential for the protection of our society, based as it is on the principle of freedom under the law. That is what the Motion intends to do. I think that it is clearly the desire of the House that it should be so. We believe that this will achieve it, and I commend the Motion to the House accordingly.

11.30 p.m.

Sir Elwyn Jones (West Ham, South)

I join the right hon. Gentleman in congratulating the Select Committee on Procedure on the speed and care with which it produced its Report. As one who was summoned before it, I know that it hustled us along pretty quickly. We congratulate the Committee on what it has done.

The basic principle relating to proceedings in Parliament—and in that expression I include debate, Questions and answers, Motions and Reports—is still that which is contained in such splendid and clear clarion terms in Article 9 of the Bill of Rights of 1688, That the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. That should be emphasised, because it is at the heart of the issue of what Parliament can discuss and what it should discuss. Parliament's right to discuss matters of public importance and to say what it likes about them is paramount, irrespective of any prejudicial effect which may result outside Parliament. That right of Parliament must be jealously guarded by us, its trustees, its Members. It is essential that Parliament should not even appear to give the impression that it accepts limits upon itself other than those which it imposes upon itself and which it can itself remove or modify at any time to suit the requirements of a particular case.

It follows, therefore, from these propositions—which I do not think the right hon. Gentleman has challenged—first, that the Select Committee was right in emphasising that the so-called sub judice rule is not really a rule but a convention and, secondly, that if at any time Parliament finds that the terms in which the so-called convention is framed inhibit Parliament in its duty to debate and question executive action, Parliament has the right and—I submit—the duty to modify it to remove the inhibition, irrespective of its prejudicial effect outside Parliament.

Sir Harmar Nicholls

Is the right hon. and learned Gentleman suggesting that the Resolution of 23rd July, 1963, was a convention? It was a Resolution of this House, passed formally.

Sir Elwyn Jones

It was not a rule; it was not a law, needing an Act of Parliament to change it. It was a convention. That is putting it as high as it should be put.

I was submitting that the Select Committee was right in the assessment of the standing of the 1963 Resolution, and I have submitted that when it becomes necessary for Parliament, in the face of changing executive action, to alter any previous apparent restriction which Parliament imposed upon itself, it is right that Parliament should review the position.

The importance of emphasising the paramountcy of Parliament's rights and duties is illustrated by the extract from a judgment of Lord Denning, Master of the Rolls, quoted in paragraph 2 on page V of the report. The House will have noticed that the Select Committee criticised his dictum after quoting it. The words are: The Master of the Rolls said that— '…If Parliament gave great powers to a minister the courts must allow them to him; but at the same time they would be diligent to see that he exercised them in accordance with the law. That was especially the case where, as here, there was no immediate control by Parliament because the minister applied to court quickly before Parliament would have heard of his intention….' Then there follows the words: and pending the court's decision the matter was sub judice so that his action could not be discussed, and only after action had been taken could the matter be raised in Parliament. With great respect, I submit that it is essential that a dictum in the courts should not convey the impression that it is for the courts and not for Parliament to decide or even to suggest the proper limits of debate in Parliament. I am quite sure that so meticulous a constitutionalist as Lord Denning was not suggesting anything to the contrary and was no doubt stating what he believed—I think on this occasion not accurately—Parliament itself to have decided.

It follows that, despite any Resolution of the House such as that of 1963, Parliament at all times ought to be ready to review the self-imposed limitations that are provided by Resolutions of that kind in the light of current events.

The importance of the Industrial Relations Act is that it has highlighted a problem which has grown in the period since the 1963 Resolution, as the right hon. Gentleman the Leader of the House pointed out. That Resolution was intended, quite properly, to restrict the boundaries of parliamentary debate so as to avoid unnecessary potential prejudice to those involved in litigation. Its careful distinctions between civil and criminal causes and between judicial and non-judicial bodies indicate that Parliament was concerned with the possibility of prejudice to the parties and not with the so-called alternative forum principle which—and I agree with the Select Committee in this respect—was misconceived and confusing. The parliamentary function and the judicial function are quite different and separate.

The 1963 Resolution recognised the paramountcy of Parliament's right to debate, irrespective of prejudice, by expressing the discretion of you, Mr. Speaker, to depart from the rules contained in it.

It was a piece of private litigation which gave rise to the 1963 Resolution and the House was, therefore, not directly seized of the problems which could arise where the executive, or a Minister, is a litigant, particularly where the issue raises important questions of Government policy in addition to the justiciable issues which the court is trying. In such cases it is, of course, not the task of Parliament to try the justiciable issues. But equally, it is the duty of Parliament to debate the issues of policy. If the issues overlap, it is right that Parliament should seek to avoid unnecessary potential prejudice, but it is paramount that Parliament should debate the issues of policy unfettered by self-imposed restrictions, restrictions which are designed to avoid prejudice to litigants but which could result in prejudice to free parliamentary debate.

Perhaps the best illustration of this point was given by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) when he gave evidence that Parliament must not be inhibited from debating the decision, for instance, on the third London airport merely because someone brings an action before the court arising from that decision on a justiciable point.

Although the ruling of Mr. Speaker King in the Mersey Docks and Harbour Board case in 1970 was in the nature of a compromise, it illustrated a growing need for Parliament to distinguish between issues where the executive found themselves, and find themselves, before the courts and those where litigation lay between private citizens and where accordingly in only a tiny majority of cases would any immediate issue of public policy require debate.

The Industrial Relations Act has highlighted the distinction for two reasons. First, because Government policy is directly involved in many cases which come before the National Industrial Relations Court, particularly, but not as we have seen in the case of the three dockers, exclusively, under Part VIII of the Act. As counsel said in discussion of this matter in court, the Government have put a hammer into the hands of the Industrial Relations Court and if the hammer descends it is the muscle of the Government which moves it.

Secondly, because the specific wording of Part VIII is such that it reverses what would normally be the division of function between court and Parliament. The result is that the court is required to decide issues which are essentially matters of ministerial judgment for which Ministers obviously must be responsible to Parliament, whereas the Act undoubtedly withdraws from the court issues which would normally be naturally regarded as justiciable. It is a remarkable piece of legislation. What is political is to be determined by the judge and what is judicial is left to the say-so of the Minister.

In application of the Industrial Relations Act any prejudice to the individual arising from Parliamentary debate is likely to be minimal. Parliament should not be astute to discover the possibility of prejudice in matters where the court is considering questions of policy in the absence of a jury. In any event the paramount principle overriding and overruling potential prejudice must be the public interest in unfettered parliamentary debate.

The words which are quoted in paragraph 27 on page 13 from the joint memorandum by my hon. and learned Friend the Member for Dulwich and myself are expressive of the vital point at issue and I hope I shall be forgiven if I quote it. It would be an intolerable restriction…if the discretion of the Chair were invoked in such a way as to prevent the House from questioning or debating the decison of the Secretary of State to have recourse to the court on the grounds of a threat to national security, the national economy or public order. These are the very matters upon which a Minister ought to be answerable in Parliament. I understand that the Select Committee itself approved of that point of view. However, in paragraph 28 of the report the Committee suggest some restrictions on the exercise of Mr. Speaker's discretion even on these matters and I notice that the Secretary of State and the Government adopt these restrictions. In our view we think that paragraph 28 is too cautiously worded and the restrictions are too widely drawn. In our view Mr. Speaker should allow discussion on the matters referred to in paragraph 28 unless it is shown to him that any resulting prejudice would outweigh the public interest in discussing them.

The report of the Committee states the view on civil cases, other than those in the NIRC, in paragraphs 23 to 25. The Opposition do not wholly agree with those paragraphs and as we read them the Committee distinguishes between three classes of case, those in paragraphs 23, 24 and 25 respectively. We believe that paragraph 24 is too restrictive. Even if there is a "real and substantial danger of prejudice of the cause, it is still possible, even in cases to which the Minister is not a party, that there will be overriding public interest under discussion. Examples are an aircraft accident or a railway accident which could raise issues of great importance relating to public safety. If so, debate in Parliament should, in the discretion of the Chair, be allowed.

We believe that paragraph 25 is too restrictive in referring only to cases where a Minister has made application to the court. It should also apply to cases where the Minister or Department cannot be a party to a case in court so long as important policy questions arise. The cardinal test in both cases should be the importance of the issues of policy. The fact that a Minister is a party merely makes it more likely that an issue of policy will arise.

I refer briefly to the terms of the Government Motion. Paragraph 1, in its enlargement of the freedom of debate in the House over what seemed to be contemplated in 1963, we, of course, welcome. But paragraph 2 contains restrictions which we think go much too far. It seems to be subordinating issues of national importance which are set out in paragraph 1 of the Motion to the question of real and substantial danger of prejudice to the proceedings". In our view, the second part of the Motion fails, for some reason which is not clear to me, to implement the recommendations which are embodied in the first part and which are referred to expressly in recommendations (3) and (4) of the Select Committee. We do not find this acceptable.

If the issue of national importance is sufficiently important, debate should be allowed notwithstanding a real and substantial danger of prejudice to the proceedings". Furthermore, in accepting the guidelines in paragraphs 25–28, the Government are accepting that part of paragraph 28 which we regard as too cautious in its wording, although they would also appear to be accepting the statement which I read out from our joint memorandum, which is set out in paragraph 27 of the report.

On a matter where it would have been happy if we could have reached agreement, I regret to say that we do not find the Motion, and particularly the second part of it, acceptable. We would prefer some such wording as "(2) in exercising its discretion the Chair shall have regard to the national importance of the issues involved and to the risk, if any, of prejudice to the proceedings, but the public interest in the right of Parliament to discuss matters of national importance shall be treated as paramount". A Motion on those lines we think would be wholly acceptable.

Sir Harry Legge-Bourke (Isle of Ely)

In paragraph 9 of his own written evidence on page 18 of the Select Committee Report occurs the original of the passage the right hon. and learned Gentleman quoted just now, which recurs in paragraph 27 of the report. That is the right hon. Gentleman's own statement and that of his hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). It says: We think that it would be an intolerable restriction upon the House's right to challenge the exercise of power by the executive if the discretion of the Chair were invoked in such a way as to prevent the House from questioning or debating the decision of the Secretary of State… What he does not say in that paragraph is at what time he thinks that this right to question should be exercised. Obviously it is conceivable that the right to question it after the event and after the case had been heard could well be given, whereas it might be thought desirable to prevent that happening while the case was still before the court. I am not clear from the paragraph what the right hon. and learned Gentleman has in mind.

Sir Elwyn Jones

What I have in mind is that it may well be too late if discussion of the matter is postponed until the court has made its decision. We are dealing with matters affecting the national economy and the safety of the State. These emergency situations are the very basis upon which the Secretary of State seeks to exercise the powers. They are problems of national crisis and they are of national importance. The action taken by the Minister is taken very quickly. It would be intolerable if Parliament, which, as I have said in my evidence, is the grand inquest of the nation, were silenced in such a situation and were unable to discuss matters of national importance coming before the court and, where the matters brought by the Minister on his ipse dixit and left to the court, are largely political.

Sir H. Legge-Bourke

Will the right hon. and learned Gentleman give way?

Sir Elwyn Jones

I am sorry. I cannot give way, merely because of the time factor.

I share the concern expressed by my hon. and learned Friend the Member for Dulwich in his suggestion that what Parliament can properly discuss in connection with matters which outside Parliament could give rise to proceedings for contempt of court should be a point for Parliament itself to decide. This is not a matter for the judges. It is true that in contempt proceedings and in circumstances where the sub judice rule could apply the element of prejudice plays a part, but Parliament's duty to discuss issues of national importance seems to us to be absent from the issues which are within the terms of reference of the Phillimore Committee, a Committee of great standing for which I have high respect and before which I have had the privilege of giving evidence.

I regard it as wrong to give the impression that Parliament should be guided in these matters by outside judicial view, however eminent. These are Parliament's concerns and matters for the decision of Parliament alone.

11.51 p.m.

Sir Harmar Nicholls (Peterborough)

My instinctive feeling is that the timing of this change as proposed is a grievous mistake. I do not believe that the issues which have brought it about are the legal issues which were adumbrated by my right hon. Friend the Leader of the House and by the ex-Attorney-General. I do not think that the move has arisen from the legal pundits, although they are making it respectable.

What we are discussing and deciding tonight comes as a result of the successful battle by the self-confessed and proud political militants who at any cost want to interfere with the procedures in the new Industrial Relations Court. That is the reason for the Motion being before us tonight. The fact that it is being made to appear respectable by the ex-Attorney-General and by my right hon. and learned Friend the present Attorney-General, who is to wind up the debate, is not a true reflection of the situation.

I will tell my right hon. and learned Friend the Attorney-General and the right hon. and learned Gentleman the ex-Attorney-General, who is greatly respected, that the political militants who have caused this to be brought about will run rings round the legal leaders with their purist approach to these matters. It is what is behind it and not these legal words which causes me considerable concern.

Nor do I think that we are being fair to Mr. Speaker. To leave with Mr. Speaker the amount of discretion which is to be given to him but which he did not have before is to impose a burden on him which, in the light of the pressures he will have put upon him, will make it almost impossible for him to discharge his duties in a way which will be satisfactory to himself. I know that what is being proposed has the approval of Mr. Speaker himself, according to his own evidence, given from his experience in the Chair.

I believe that this is a case in which we should save Mr. Speaker from himself. The real instigation here has nothing to do with the legal interpretation of sub judice in the general matters that come before the courts. If it were, then where is the evidence to justify this change? Neither the right hon. and learned Gentleman nor my right hon. Friend produced any instances where justice had been denied as a result of the application of the Resolution of 23rd July, 1963. The sub judice position as laid out in that Resolution has worked. There has been no denial of justice. At least there is no evidence that anything of that nature has happened. One hypothetical case was suggested by the right hon. and learned Gentleman to do with London Airport, but it was purely hypothetical. Nobody has alleged that the Resolution of 23rd July, 1963, prevented him from acting as he wanted.

I would hesitate before amending as quickly as it is proposed that we should, and in the absence of evidence supporting the need for change, a procedure which has passed the test of the last 10 years, when the only thing that is new is the setting up of the Industrial Relations Court and its workings.

Hon. Gentlemen opposite, who are the real instigators of the proposed change—and it is a great victory for them and I congratulate them on it; they have defeated the Government—want to interfere with the part which the Industrial Relations Court can play in interpreting our legislation. I do not believe that it is good, in matters as sensitive as those which will arise before it, that the court should feel that Parliament is breathing down its neck whilst it is giving its objective and impartial attention to the words that we, Parliament, have used.

It is not good parliamentary practice that Parliament should always feel that it should put its oar in during any argument all along the line all the time. Parliament sets out the legislation. It sets out what it wants. It should then sit back and allow those whose job it is to investigate the issues arising so that they can give an objective ruling without being interfered with by Parliament. I am not at all impressed by my right hon. Friend's suggestion that because television, the radio and the newspapers can comment, it is wrong that Parliament should not be able to do the same thing. It is an insult to Parliament to make that comparison. We are bigger and more important than the television, the radio and the newspapers. They are not of the same significance. Their comments do not have the same impact. They have not the same authority as Parliament has. Parliament has an authority greater than that of the courts themselves. It is one thing for a television commentator to make a comment while a matter is being examined, but it is quite another thing for Parliament, with its special powers, to do so.

I believe that the point made by my right hon. Friend that we have to be put on the same footing as television, radio and the Press is an insult to Parliament. It should be recognised that we are different and should show restraint whilst these matters are being examined by an impartial court. I should have thought that the right hon. and learned Gentleman, who has been a distinguished leader of the Bar and has a fine record, would be just as jealous of the independence, the objectivity and the freedom of the courts from interference even from Parliament as he seemed to be in defending, in this instance, Parliament itself.

Sir Elwyn Jones

I stand by the independence of the courts, of course, and nothing I have said has suggested otherwise.

Sir Harmar Nicholls

I am glad to hear that, and I am sure that the former Attorney-General would try to argue the case that I am now arguing and would do so with his heart in it. We owe it to the courts that Parliament will not be breathing down their necks whilst they are making these investigations.

The people who want to alter things are those who want to kill the Industrial Relations Court. They have not disguised that intention. They have been honourable about it. They think that the court is a mistake, an anachronism, and they want to kill it. I understand their point of view, although I do not agree with it. I believe that my right hon. Friends in the Government are aiding and abetting the militants on the other side in rushing into this change of procedure which I believe will perhaps carry with it the seeds of the disruption of Parliament itself.

One could not have a better example than what has gone on in the last month to show whether Parliament is being denied its rights. The general suggestion is that when these matters go to the courts they will drag on for months. during which time Parliament will not be able to comment or play its part. That has not happened in the last month. Matters have been referred to the courts, decisions have been quick and objective, and the courts themselves have remedied the mistake, if there has been a mistake, of the lower court. That is how our system works.

Parliament is denying itself nothing by allowing the courts to sort out their own procedures and their own standing. While the courts are trying to give this decision, we have an authoritative Parliament, with people in it trying to destroy the legislation Parliament has passed, and if that happens on the parliamentary platform with its authority, it will hinder the court in its interpretation of the legislation we have sent to it.

Nor am I impressed by my right hon. Friend's point about some word or two having been used in haste which cannot be answered. If that is an argument, surely he had better reorganise Standing Order No. 9. If that sort of thing frightens him, that has been happening with Standing Order No. 9over the past weeks. Propaganda points have been put and not answered.

At no point did my right hon. Friend satisfy me that the alteration which he asks the House to accept is one which has been considered deeply enough and which has been examined on the question of timing with sufficient closeness to be truly in the nation's interest.

We have had a good example in the sorting out of the Bill of Rights, mentioned by the right hon. and learned Gentleman, which does not interest the hon. Member for Tottenham(Mr. Atkinson). All the hon. Member for Tottenham is interested in is having a free rein to be destructive in the debate on Monday, to be able to say anything he likes, even before we have a decision from the House of Lords. If he had been able to do it under the sub judice rule, he would have done it last week and the week before, and that would have injured the Industrial Court's decision and the Appeal Court's decision on that.

Mr. Atkinson

I am grateful to the hon. Gentleman for giving way, but why does he insist on reducing all debates to the level of a Mecca ballroom? Why does he go down to details of this kind? Surely it is imperative, if there is a debate on industrial relations on Monday, that we should discuss prices and incomes policies; the role of the shop steward; the docks and containers. We should be able to refer to all these things, which are important, and germane to the debate, so the hon. Member should recognise that we have an overwhelming desire to talk of real issues and not to be hamstrung by some of the suggestions which he has made.

Sir Harmar Nicholls

Parliament on Monday should be free to talk of everything other than matters sent to the courts, until the courts have come to a decision. Parliament should restrain itself from discussing matters referred to the courts. The judiciary is an estate of the realm, like Parliament, and it should be strengthened. Because of the mood of militancy and irresponsibility exhibited in Parliament over recent months, I should like to feel that we have the stronger safeguard of the courts to see that we do not put this nation of curs into trouble.

This Motion tonight is brought about by the successful ploy of militants who wish to destroy legislation they do not like. The only laws they wish to support are their laws, not the laws of the country passed by anyone else. That is bad. If they can restrain themselves and win an election before they change the Laws, then I shall respect them, but not when they expect to rule from the Opposition benches.

I hope that the Government will take this Motion back and give it further thought. They are entitled to take it back because the right hon. and learned Gentleman has said that there has been no bipartisan approach on this. He says that half the Motionis not good enough for him. He said he wants that altered. I would take him at his word. I would take the whole Motion back. The last part of it does not strengthen it, as has been suggested. I would say that it weakens it. I would ask that we wait till we have the Phillimore Report, and till, from that report, we have the whole background to the whole question of contempt of court and the sub judice rule arising from that. We shall be better able to judge the matter in the light of that detailed examination. I do not agree with the right hon. and learned Gentleman that there are any real differences between the other courts and matters affecting parliamentary comment. Our decision ought to come after, not before, that report.

I am asking my right hon. Friend to take the right hon. and learned Gentleman at his word and take back the Motion. It does not satisfy the right hon. and learned Gentleman, it does not satisfy me, and it does not satisfy my right hon. Friend, I think, for he did not seem very enthusiastic about it. I have seen him much more enthusiastic about other matters. I ask him to take it back for a time other than this, for at present I believe, there are tainted influences at work.

12.7 a.m.

Mr. Michael English (Nottingham, West)

I will criticise the Leader of the House for one thing, and that is the limited amount of time for this debate—and also for the length of time he took. Out of two hours, 50 minutes have been taken by the two Front Bench Speakers, though less by my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) than by the Leader of the House. That has further restricted the amount of time for back benchers to speak.

I recognise the sincerity of the hon. Member for Peterborough (Sir Harmar Nicholls), of course; we all do. But it is not the fault of this side of the House that the present situation has arisen. It was not we on this side who wished to drag the trade unions into the courts. We spent hours and hours, through the night, opposing the Industrial Relations Bill. One of the reasons we opposed it is now clear before us. So much have politics and the politics of trade unions been drawn into the courts that we have to change, as the hon. Member quite rightly said, the sub judice rule of long standing.

The hon. Member also said that nobody had given an example of the necessity for changing this rule. I should like, very briefly, to give him one. I should like to give him one because it is also one which, strangely enough, will not be covered by this Motion, although it covers ministerial decision, the national economy, public order and "the essentials of life"—whatever they are.

In my constituency I have a university. Some years ago it was decided to give that university a teaching hospital, for reasons which were undoubtedly desirable for the whole community, because it would assist in increasing the number of doctors, and that is sorely needed in this country, and would also raise the level of medical practice in and around Nottingham, which happens to have the lowest number of doctors of any city in the United Kingdom. The site chosen was that of a certain firm of builders who, in local opinion, procrastinated, and who procrastinated by the remarkable process of challenging a compulsory purchase order before the courts of law. When they did not win their case they appealed it to the Court of Appeal, altogether a process which delayed the building of that teaching hospital for some three years.

Without any desire to prejudice the merits of the case, it would have been highly desirable if I, or any Member of this House, had been able to bring before the appropriate Minister the suggestion that he should point out to the courts of law that a speedy decision in the case was of national importance, as certainly it was of local importance.

It does not matter what decision was reached. If the court had held—it did not—that the firm was entitled to more compensation, well and good. The merits in that respect need not be mentioned in the House. What happened was that for the costs of a legal case the firm was obtaining three years' extra tenure of land, which presumably was for its convenience. For that fairly considerable but not immense sum in relation to the values of land and property these days, the firm obtained that advantage. I am not sure whether a case such as the Chobham Farm case would be covered by the Motion. I have no doubt that the Attorney-General will tell us whether it is.

I should also like to ask the Attorney-General what is the position of people reporting the proceedings of the House. The Leader of the House mentioned the Phillimore Report on contempt. I had the honour to sit under the late Lord Donovan on the Committee of this House that discussed the law of defamation in relation to the House's business. The BBC, for example, is not in the case of defamation protected in reporting our proceedings in the way that the Press is protected. We are absolutely protected, and the Press has a certain quite substantial protection in reporting something said on the Floor of the House which if said outside would be defamatory.

Supposing, under the terms of the Motion, something is said in the House which if said outside would be contempt of court. We are protected by the Bill of Rights mentioned by my right hon. and learned Friend the Member for West Ham, South. But are the people who report it protected? If someone from the Press or the broadcasting authorities report what we say, is he committing contempt of court? Whereas he is protected against defamation, I know of no law which gives him protection from possible contempt of court.

We shall land ourselves in a silly position if when we comment on actions in, say, the Industrial Relations Court, the gentlemen in the Gallery do their job and are then told by their newspaper lawyers that the comments cannot be reported. Have the Government considered this?

If there is to be any broadcasting of the proceedings of the House, the Leader of the House will have to legislate on the peculiar position of the BBC. He will have to introduce a brief, no doubt uncontroversial, Bill in relation to defamation. Is it necessary for him also to legislate on contempt of court?

12.13 a.m.

Sir Robin Turton (Thirsk and Malton)

My hon. Friend the Member for Peterborough (Sir Harmar Nicholls) said that he was anxious to save you from yourself, Mr. Speaker, and he wondered why this question had arisen. I remind you that on 20th April you said you would welcome an inquiry by the Select Committee of Procedure into this matter because of the changed circumstances since 1963. It was on the suggestion of my right hon. Friend the Leader of the House that the Select Committee on Procedure looked into the matter. I feel that my hon. Friend, with his great respect for the courts and his love of Parliament, has forgotten the history of Parliament on this sub judice convention in civil cases.

So far as I know—we asked for all the evidence that was available—there were only two civil cases in respect of which the sub judice convention had been applied to proceedings in Parliament up to 1963. One was an election court case in 1898 at Grimsby, which was of a different nature from most civil cases. The other was the Tradair case in 1961, which was an action for defamation. Therefore, despite all the talk about great change and the revolutionary report of my Select Committee, in effect, what we are doing is establishing what have been the governing rules of successive Speakers, up to the Resolution of 1963, on matters before civil courts—no more, no less.

I should like to express my gratitude to the Leader of the House for the expedition with which he has reached decisions on our report. At the same time, I am concerned that the partial acceptance of our report may give rise to certain misunderstandings. Although I have been disagreeing with my hon. Friend the Member for Peterborough, I have a certain sympathy with his attitude in asking why all this is directed at the Industrial Relations Court. It is, indeed, a much wider matter. We are discussing only Part VIII of the Industrial Relations Act. I mention that lest we give rise to certain misunderstandings outside.

On Tuesday last my right hon. Friend the Leader of the House said: …it would be premature to accept the wider recommendations of the Select Committee in respect of proceedings in the civil courts generally until the report of the Phillimore Committee has been received."—[OFFICIAL REPORT, 27th June, 1972; Vol. 839, c. 1191.] Whilst I appreciate my right hon. Friend's caution in this matter, it would be most unfortunate if his caution led the public in general to believe that the sub judice convention has a close connection with proceedings for contempt of court.

I remind the House of paragraph 7 of the Select Committee's Report, where we tried to make it clear what the distinction was between the sub judice convention—only the convention, because Mr. Speaker's discretion is paramount in this matter and cannot be over-ruled—and contempt of court proceedings. We said: The essential difference between the convention and contempt of court is that the former is imposed voluntarily by Parliament upon itself and exercised subject to the discretion of the Chair, with the object of forestalling prejudice of proceedings in the courts. The courts of law on the other hand protect themselves from prejudicial comment outside Parliament by the exercise post hoc of their powers to punish contempts. That means that the media at present have liberty to comment upon matters sub judice unless that comment flagrantly prejudices proceedings in court, whilst the House is estopped under the 1963 Resolution from any comment, subject to the Speaker's discretion, one a case has been set down for trial in a civil court. The 1963 Resolution changed what had been the practice of Speakers in the House prior to that date.

We have recommended that actions for defamation should be governed by the same rules as criminal cases but that in the remainder of civil cases the convention should apply only when there is a real and substantial danger of prejudice to the courts. Bearing in mind the rule as to ministerial responsibility, it is difficult to see how debate and Questions on civil proceedings that come before the courts can be involved in this House unless there is some form of ministerial intervention.

It is very important that where a Minister intervenes this House should be able to challenge his action, unless it would prejudice the proceedings by doing so. This is why I am disturbed by the limit in the Motion to Part VIII of the Industrial Relations Act. Ministers can also make applications under Part II, Part III and Part IX, and unless we can amend the Motion, or you, Mr. Speaker are able to use your wise judgment in interpretation, we shall have a practice for one part of the Act but not for the other parts.

I take a case which the House will remember—Mr. Speaker King's ruling on the Mersey Docks and Harbour case. It was clear directly he made that ruling that there was something wrong with the 1963 Resolution. You, Mr. Speaker, wisely and with perhaps rather greater clarity, have interpreted his ruling in that case. I hope that, following this Motion, we shall not have this distinction between one part of the Industrial Relations Act—Part VIII—and the rest of the ministerial applications. As my right hon. Friend said, ministerial involvement has grown with the passing of the years.

I remind the House of what I thought was your very clear exposition, Mr. Speaker, of the position when you gave evidence to the Committee on 23rd May. Your statement then was so wise and clear that I want to read it in full, and will sacrifice the rest of my time to it. Answering Question No. 184, you said: I think it is quite clear that there ought to be a sub judice rule or convention, certainly with regard to criminal cases. I think there are certain types of civil case, like actions for defamation of character, where one can see the same sort of thing applying; and I would think there that the rule or the convention ought to exist, only to be relaxed at the discretion of the Speaker. When one comes to wider issues such as those that we have been discussing, I think my present general view is that the rule ought to be invoked only at the discretion of the Speaker, that the general proposition ought to be that matters of general interest are discussable in the House of Commons unless the Speaker decides with regard to a particular issue or particular matter that he ought to invoke the rule. In other words, the presumption ought to be a different way. The presumption should be for discussion rather than against it. I hope that, whatever Motion we pass tonight, nothing will in any way fetter your discretion in applying the convention on those terms, Mr. Speaker.

I cannot see how any report by any outside committee, such as the Phillimore Committee, can make any alteration of the wise shift of onus between the two types of case. After all, it is vital that this should be the Parliament of the nation. This is not a party matter, it is a House of Commons matter. I disagree with the right hon. and learned Member for West Ham, South (Sir Elwyn Jones). I think it is right that Mr.Speaker must always consider whether raising a matter in this House that is actually to be decided by the courts—such as the length of the cooling-off period—is prejudicial to the proceedings. That is why that provision came into our report. In general my view is that it is vital that we get the 1963 Resolution out of the way and show that Parliament is the supreme forum in which we can consider matters of interest to the nation, and where ministerial responsibility can be challenged. We do not wish to be fettered in our discussions.

12.27 a.m.

Mr. Eric S. Heffer (Liverpool, Walton)

The House will be grateful to the right hon. Member for Thirsk and Malton (Sir Robin Turton) for his wise words. They are in contrast to those of the hon. Member for Peterborough (Sir Harmar Nicholls) whom we all regard as a delightful dinosaur, an attractive man but certainly living in the past and not looking at the realities of the situation. I am glad that the House has recalled the situation that arose with the Mersey Docks and Harbour Board because I was the Member who made the Standing Order No. 9 application which was granted by Mr. Speaker King. The next day we found that if he had not ruled as he did we should have been in an impossible situation. It will be seen that in that debate no one took advantage of the situation, no one tried to raise issues not directly applicable to the point at issue and the ministerial responsibility that arose.

The House rose above the outside influences and dealt directly with the realities of the matter which were of great importance, not only to the people of Merseyside, but to the people of the country. In particular this was of great importance to the port of Liverpool. It was therefore something to be discussed seriously in this House, which was the only place where it could be discussed at any length properly.

If we turn to the present situation with the Industrial Relations Act we find under Part VIII dealing with emergency procedures: The Secretary of State may apply to the Industrial Court for an order under the next following section. In that Section the order can be applied for on certain grounds, for example if the industrial actions are likely:

1. "(a) to be gravely injurious to the national economy, to imperil national security or to create a serious risk of public disorder;
2. (b) to endanger the lives of a substantial number of persons"

and so on. These questions involve political judgment. The House has a right to query and discuss whether the Minister has taken the right decision, whether it was a premature move and whether there were alternative avenues open to him.

It is not a question of the militants on this side of the House who object to the Industrial Relations Act trying to get rid of it or to get round it or that sort of nonsense. We made our position clear as a party. We do not like the Act. The question of free parliamentary debate is much more important. That is what we are concerned with. When the Minister made the application we wished to question whether it was right. We were rightly informed by Mr. Speaker that as matters stood we could not pursue the point because of the sub judice rule. That was an impossible situation for the House to be in. But it is not just a question of the restriction on our right to debate these matters. We are the voice of the nation, and, in effect, the whole nation is being restricted because of the limitations on us. That is the essence of the argument.

I welcome the Motion. I do not think it goes far enough, but if there were a vote on it, although I should have liked to see it amended, I would vote for it because what it suggests is the right course. I agree with what has been said about Mr. Speaker. The words of Mr. Speaker which have been quoted were very apt and absolutely correct. We know that there is a case for the sub judice rule operating in certain criminal and civil cases, and it would be wrong for us to debate, to table Motions or to become involved in any way in those cases; it would do far more harm than good. It is quite right that in those cases the sub judice rule should operate. But there is the case which has been admirably argued by the right hon. Member for Thirsk and Malton—much better argued than I could have argued it—and which I support, that there are cases of ministerial responsibility in which this House must have the right to debate, to table Motions, to ask Questions and to deal with the policy matters involved.

I come strictly to the question of the Industrial Relations Act and the effect it is having, not on the House, but on the Press and television and radio. This is what I hope the Government will consider further. Free comment on certain aspects of industrial disputes is being restricted in the Press. I have here an obscure journal called "Socialist Worker". There is a very interesting article in it—I do not know whether it is right or wrong—headed The press quietly hides its gag". It was written by Laurie Flynn. I shall not develop that at any length except to say that he says that there was a meeting with Sir John Donaldson at the NIRC offices in Chancery Lane on Thursday, 8th June, when the industrial correspondents were brought to the offices and Sir John Donaldson gave them a briefing on what they could not do and could not comment upon, and what they could. That was not made as a judgment in the court, explaining the situation; it was done behind locked doors. That is a serious matter.

Mr. Flynn says: But if there was a danger of creating a snowball effect by selective reporting of militant calls to defy NIRC orders, said Donaldson, then the court would quietly tell the newspaper concerned that it was unhappy with the way things were going and ask for co-operation. I regard that as a very serious matter. I regard it as an extension of gagging not of ourselves but of free expression and discussion in the country. On that basis, I hope that the Government will equally consider this situation and that when the Phillimore Committee's report is published we shall discuss the whole question of contempt in relation to the Industrial Relations Board and free expression by the Press in terms of industrial disputes.

12.36 a.m.

Sir Harry Legge-Bourke (Isle of Ely)

I shall be very brief. I must utter one word of warning in this discussion. However much we may desire to do so, I think that we can attempt to go too far in trying to protect Mr. Speaker—to such an extent that virtually he does not have to exercise his judgment but merely has to abide by rules.

Looking at the evidence, it is obvious that Mr. Speaker recognises this. I should think that his evidence to the Committee must have been of immense assistance to it, and we ought to express our gratitude to Mr. Speaker for what he said on that occasion.

One of the awful charges that we put upon anybody whom we drag to the Chair on appointing him as a new Speaker is to expect him, inevitably, to exercise his judgment, and there are certain things for which we cannot lay down laws to avoid his having to do that. There have been moments in this discussion when I have sensed that certain hon. Members thought that we should try to safeguard Mr. Speaker as much as possible against ever having to exercise his judgment. I believe that it is unavoidable that he should have to do so.

One reason why I asked the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) the question I put to him was that timing is sometimes the essence of these matters. I adhere as strongly as he does to the doctrine that the House must, wherever possible, have the right to challenge the exercise of power by the executive. But the right hon. and learned Member did not allow me to intervene on the question of timing.

There will be some occasions when it will be sensible, fully legitimate and thoroughly in the public interest to question—after the court has heard the case—why the Government of the day took a certain action. I would have less concern about the prospect of this having to be post hoc rather than in advance of the case's being heard were it not for the ruling set out in paragraph 2 of the Select Committee's Report, where Lord Denning makes it very clear that in so far as he is concerned there will be no question of Government, executive or even Parliament interfering with the administration of justice by the courts. That is of huge importance in this context. Whether or not we like the introduction of the Industrial Relations Act, surely the best chance it has of being operated successfully is if we try to take out of industrial disputes, so far as we possibly can, the political overtones, and let the Act be administered, in so far as is possible, by the judiciary and the courts—

Mr. Stanley Orme (Salford, West)

It is a political Act.

Sir H. Legge-Bourke

—in such a way that the legality all the way through is shown to be paramount.

The Motion is somewhat contradictory in that we appear at one moment, in the first paragraph, to be releasing Mr. Speaker from having to exercise the old Resolution of 23rd July, 1963, and in the next breath we are saying that the Chair must then exercise very considerable discretion if it appears that a real and subsantial danger of prejudice to the proceedings might arise.

It is obviously highly desirable that we should maintain at least the principle of the Resolution of 1963—and I think that that is pre-dated by a number of other conventions—and that we must try to avoid any prejudice to the proceedings before any of our courts. But the moment we place upon Mr. Speaker the obligation of using his discretion in this matter, especially when it concerns the Industrial Relations Act, we are inevitably placing him in a position in which he must adjudicate as to the political content that is involved because of the court being of the kind it is.

I fully share the views of my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton) about the distinction between contempt of court and the conventions that we set upon ourselves. I express my gratitude for the immense amount of thought and work he has put into the preparation of the report. I fully accept his distinction there. It is not in the least necessary to wait for Phillimore. I disagree with my hon. Friend the Member for Peterborough (Sir Harmar Nicholls) about that. But the Motion is making Mr. Speaker's position even more difficult to interpret than it was under the 1963 Resolution.

This is a House of Commons matter, and my right hon. Friend the Leader of the House was kind enough to assure me that the Government regarded it as that. My right hon. Friend would be wise not to press the Motion but to think more about it. The House has had little time to ponder on this matter. By passing the Motion we can all too easily put Mr. Speaker in a more difficult position than he is already in. I hope that the Leader of the House will consider withdrawing the Motion.

12.44 a.m.

Mr. S. C. Silkin (Dulwich)

I agree entirely with what the hon. and gallant Member for Isle of Ely (Sir H. Legge-Bourke) said about the desirability of not confining too closely your discretion, Mr. Speaker. But I suggest to the hon. Member that the gravamen of criticism of the 1963 Resolution in relation to the sort of matter with which we are dealing tonight is that indeed it did confine the discretion of Mr. Speaker much too closely. It is because we are dealing with situations which were not envisaged by those who framed that Resolution, even though circumstances might have existed at that time, that we support entirely the first part, at any rate, of the Motion.

The hon. and gallant Member for Isle of Ely referred also to the question of timing. His hon. Friend the Member for Peterborough (Sir Harmar Nicholls) said that it was desirable that we ought not to breathe down the necks of the court. Of course we recognise the desirability that the House should not appear in any way to dictate to the courts what they should do, to presume upon their function, which is that of deciding issues between parties. But we must ask whether that principle is one which will prevent the House from debating matters which are a threat to national security, the national economy or public order. Surely these are the very matters which the House must discuss if it is to do its duty to the public and it cannot be inhibited from doing that duty simply because at the same time either a Minister or a private person has brought proceedings before a court upon which the court will consider evidence which is concerned with these very matters.

Mr. Ivor Sfanbrook (Orpington)rose—

Mr. Silkin

I would give way if I could but I must give the Attorney-General time to reply. I am sorry. We say therefore that it is right to review the old rule and to take account of these new factors which were not in the mind of Parliament in 1963. We agree very much with what was said so eloquently by the right hon. Member for Thirsk and Malton (Sir Robin Turton). We perhaps criticised some part of the report but let me assure him that those criticisms were of detail only and that we accept the general tenor of his report with gratitude.

Your observations, Mr. Speaker, which the right hon. Gentleman quoted, at Question 184, are observations with which we, too, find ourselves very much in agreement. They are very much the basis of the wording which my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) suggested as an alternative form of wording to paragraph 2 of the Motion. We therefore ask the Minister or the Attorney-General to give very serious consideration to what my right hon. and learned Friend said about paragraph 2 and to the views of the right hon. Member for Thirsk and Malton. The paragraph directs the Chair to subordinate matters of national importance to questions of danger of prejudice of proceedings. We adhere most strongly to the view expressed by my right hon. and learned Friend that where there is a conflict between matters of national security, the national economy and public order, on the one side, and what might be the prejudice of a private citizen, however undesirable that prejudice, on the other, then the right and duty of Parliament to debate matters of national interest must be paramount. That is what our proposed paragraph (2) would say.

We want to see the Motion accepted by the House, because we regard paragraph (1) as most important. But I ask the Attorney-General seriously to reconsider the second paragraph. If he is unable to give an undertaking to do that, we on this side propose to put down as soon as we can a Motion for further discussion which incorporates an amendment in some such terms as those which my right hon. and learned Friend has proposed, and we shall seek the earliest possible opportunity to debate it.

12.50 a.m.

The Attorney-General (Sir Peter Rawlinson)

The report has been marked by the distinguished leadership of the Select Committee by my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton), and the debate has been marked by a most distinguished speech by him also.

I have a very short time in which to reply to the debate. I have heard what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) said about how he and his hon. Friends may return to the matter, but I cannot accede to the request that he made at the end of his speech.

There is not a Member who would disagree with the statement of the absolute power and rights of Parliament. It has that power and those rights, and it exercises them to debate and discuss, to challenge, to probe and to legislate. It is a right which is paramount over the right of any other person or institution. But because it has this power and this strength Parliament is very well aware that it gives to other institutions duties to perform—duties that are very important in the lives of the citizens of the State and that gives them remedies for the protection of their liberties. It takes from its own power to give the court those tasks. It has always been its objective not to prejudice that important function in any way by what it does here. But of course there are matters of over-riding national security or national importance which rest with the House to be debated here.

The sub judice convention has no effect on legislation. When the House is legislating it matters not what is before the courts. There has never been any diminution of the House's power to legislate by adopting any convention.

The Motion accepts and recommends the heart of what the Select Committee proposed. The Committee concentrated on what the House has recently shown over the past years to be urgent questions. It is a matter not merely of the Industrial Relations Act but the increased participation of Ministers as parties to suits in matters such as planning and the exercise of powers in health and housing questions. Parliament felt concern lest it denied itself the liberty to debate and probe ministerial decisions on issues of national importance.

The Select Committee may well be right to make a wide recommendation with regard to civil actions generally. But I repeat that it might be premature to decide that matter now. What matters is that Parliament should retain its right to probe a ministerial decision when a Minister is a party in a civil action and the court has no power to challenge it. Therefore, that is what is proposed in the Motion.

The Committee recommended that Parliament should retain that freedom to question the Minister in all cases. It arises when in legislation there appears the well-known phrase "Where it appears to the Minister" or, "Where a Minister has reasonable cause to believe" and so on. All these are matters which should be probed, and what is set out in the Motion follows the recommendations of the Select Committee on Procedure.

With regard to the deliberations of the Phillimore Committee, though contempt is not the same as the sub judice convention, the principles and procedures of contempt of court and the sub judice convention are akin, because the courts and Parliament have the same objectives. They have the same objectives, because the court says that it will protect itself and will punish those who do acts tending to interfere with the administration of justice. Parliament says that, subject to its over-riding powers, it does not want the legislature to interfere with the trial of issues which it has handed to the courts to decide.

Exactly what tends to prejudice a trial? It is not merely prejudicing the court itself—that means the judge and jury or in civil actions the judge. What prejudices a witness or a party is a matter which requires examination; and it is being given close examination by the Phillimore Committee.

One case has been brought to my attention as Attorney-General of a civil action to be tried by a judge alone. There has been some publication, with the possibility of prejudice to the parties' reaching a compromise. Those are the sorts of matter on which, clearly, the courts want advice as to what would tend to prejudice. I should have thought that it was in the interests of Parliament to be able to see what it is that would tend to prejudice. Therefore, it is surely wise and sensible to await the results of the deliberations of the Phillimore Committee.

That is why the Motion goes to the heart of the Procedure Committee's recommendations. It retains the discretion of the Chair. As my right hon. Friend the Member for Thirsk and Malton said so clearly, it must be the Chair which ultimately makes the decision. The Motion says that reference may be made in Questions, Motions or debate to matters awaiting or under adjudication in all civil courts, including the National Industrial Relations Court, insofar as such matters relate to a Ministerial decision which cannot be challenged in court except on grounds of misdirection or bad faith, or concern issues of national importance such as the national economy, public order or the essentials of life". That, as my right hon. Friend said, is taken from the Emergency Powers Act. Therefore, subject to the discretion of the Chair, these matters will be permitted to be debated.

Paragraph (2) of the Motion concerns the discretion of the Chair. The Chair asked for guidelines. Guidelines are given— that there is a real and substantial danger of prejudice to the proceedings". I therefore invite the House to say that the Motion sets out what the Procedure Committee has had in mind and what should be approved by the House, retaining for a little longer for further consideration by the Phillimore Committee the question of those civil actions which do not concern Ministers or matters of national importance.

The Vice-Chamberlain of the Household (Mr. Walter Clegg) rose in his place and claimed to move, That the Question be now put.

Question, That the Question be now put, put and agreed to.

Question put accordingly and agreed to.

Resolved, That—

1. (1) no withstanding the Resolution of 23rd July, 1963, and subject to the discretion of the Chair reference may be made in Questions, Motions or debate to matters awaiting or under adjudication in all civil courts, including the National Industrial Relations Court, insofar as such matters relate to a Ministerial decision which cannot be challenged in court except on grounds of misdirection or bad faith, or concern issues of national importance such as the national economy, public order or the essentials of life;
2. (2) in exercising its discretion the Chair should not allow reference to such matters if it appears that there is a real and substantial danger of prejudice to the proceedings; and should have regard to the considerations set out in Paragraphs 25 to 28 of the Fourth Report from the Select Committee on Procedure.