SUB JUDICE RULES

HC Deb 28 July 1976 vol 916 cc649-53

Mr. Christopher Price

On a point of order, Mr. Speaker. I wish to raise with you the general position of the House of Commons on the sub judice rules. I do not wish in any way to ask you to reverse your decision of yesterday, but I wish to raise further the general principle that cases such as that to which I referred yesterday are becoming more important and that the House should take these matters more seriously.

The rules on sub judice are to be found in "Erskine May" on page 427, and hon. Members can read what is stated there. Broadly, the new rules were introduced in 1972 as a result of the Industrial Relations Act, in the hope that not only in cases involving the Industrial Relations Act but in other civil cases the House would have far greater freedom than it had had before to discuss matters which had not been concluded before the courts.

The Resolution of 1972 asks you, Mr. Speaker, in making your decision, to exercise your discretion on two matters: first, is it a ministerial decision unchallengeable in court except on grounds of bad faith or misdirection? Secondly, is it an issue of national importance such as the national economy, public order or the essentials of life?

I ask you, Mr. Speaker, to attempt to rule on a matter which the former right hon. Member for Carshalton, Mr. Carr, when he was Leader of the House, failed to explain—what the House means by "the essentials of life" in this connection.

The Resolution also asks you to take account of various paragraphs of the Report of the Select Committee on Procedure, in particular, of paragraph 25, part of which I shall read: In any case in which a Minister has made an application to a court or has initiated proceedings on a matter of national importance, Your Committee are of the opinion that certain considerations should influence Mr. Speaker in the exercise of his discretion as to whether to restrict comment in the House. The first such consideration is the fundamental responsibility of Parliament to be the supreme inquest of the nation with the overall responsibility to discuss anything it likes. The second is whether a danger exists that the conduct of a case may be prejudiced by Parliamentary inquisition or debate on the arguments which the Minister is presenting to the court. The Resolution fundamentally changed our sub judice rules from the previous position which had been set up in 1963. In my view, in cases being dealt with in the courts in which no jury but simply a judge is involved, on the issue of influencing the court the House should take a fairly relaxed view and put greater emphasis on the first of those principles in paragraph 25 about our responsibility to be the "supreme inquest of the nation"

There are occasions, Mr. Speaker—for example, yesterday—when it has not proved possible to give you notice. On those occasions Back Benchers should be allowed to deploy arguments in support of a proposition which may run contrary to a ruling which you have given. I should like your ruling on that general principle, which is an important principle for Back Benchers, as there is a suspicion—which I am sure is not justified—that Front Benchers can get away with murder but that Back Benchers are very much restricted in this respect.

There is one other matter to which I wish to refer. It concerns the relationship between the House of Commons and the courts, that goes back to the ancient relationship between the High Court of Parliament and the High Court of Justice. It is made clear on page 428 of "Erskine May" that we cannot criticise judges, but that should not restrict us from criticising judgments—the decisions which judges make. I am encouraged by what your predecessor said, Mr. Speaker, in his ruling prior to the Industrial Relations Act debate in 1973: It can be argued that a judge has made a mistake, that he was wrong, and the reasons for those contentions can be given within certain limits."—[Official Report, 4th December 1973; Vol. 865, c. 10921 The two epithets which I used yesterday were in no way directed at the judges. They were directed at the judgments, which I heard, having sat through both the divisional court and the Court of Appeal hearings.

When Lord Justice Scarman was ruling on Attorney-General v. Times Newspapers Limited in 1973, he said: The courts, subject only to the legislative power of Parliament, determine what constitutes contempt of court and have a discretion as to remedy and punishment. Nevertheless, a serious and, perhaps, dangerous situation could arise if the practice of the courts differed substantially from that of Parliament. In my view, that dangerous situation has arisen now. In the Thalidomide case The Sunday Times was gagged but Parliament was free. We have now come across a case where Parliament is gagged but the newspapers are free. We need to get this straight.

It was made straight by the present Lord Chancellor in a debate on procedure in Parliament when he said: 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, He quoted from the article which said: '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.' He went on: 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."— [Official Report, 28th June 1972; Vol. 839, c. 1599–1600.]

Mr. Peyton rose—

Mr. Speaker

Order. The hon. Member for Lewisham, West (Mr. Price) is on a point of order. I shall hear the right hon. Member for Yeovil (Mr. Peyton) immediately afterwards.

Mr. Price

I was concluding, but this is an important matter. It is absurd that in The Times today there can be an article in the middle page setting out, in moderate and general terms, the issues in a particular case, and, indeed, that every paper in the land can write about it, while we are alone in being restricted from even mentioning the subject.

Mr. Peyton

Further to that point of order, Mr. Speaker. The Leader of the House will have heard the point of order. Will he make arrangements to have a debate on this exceedingly extraordinary and important matter in Government time? Meanwhile, the House should not use up any further time. [HON. MEMBERS: "Why not?"] Because we are under the guillotine. The point that I am making is that we are subject to the guillotine under some protest and that we would take it amiss if hon. Members on the other side of the House were willing to impose further limitations upon the time available to the Bill.

Mr. John Mendelson

Further to that point of order, Mr. Speaker. I submit with respect that the right hon. Member for Yeovil (Mr. Peyton) is completely out of order in trying to tell hon. Members what they are to discuss and what they have no right to discuss. That is up to the Chair. The right hon. Member did not contribute to the debate on this point of order. The point of order raised by my hon. Friend the Member for Lewisham, West (Mr. Price) is of the greatest importance to both Back Benchers and Front Benchers. It is important that we should have an opportunity to return to the subject.

As you know, Mr. Speaker, an attempt was made in moderate terms yesterday to persuade you to hear out my hon. Friend when he tried to raise the point in the first place. It is not possible for Back Benchers on all occasions—although they try to do so, Mr. Speaker, as you know from experience—to give you notice of a point of order, particularly when other institutions of the State are involved. Sometimes a judgment may be reported only an hour or two before the House meets.

The House is the central, political and constitutional forum of the nation. Hon. Members and the Chair should agree that in future an hon. Member should be allowed to make his point of order in good faith and to be heard to the end even if he has not given you notice.

Mr. Speaker

I am much obliged for the way in which hon. Members have raised their points of order. I was given notice that the hon. Member for Lewisham, West (Mr. Price) would seek to raise the matter. I consider that hon. Members have raised very important matters for the House and for me. I am anxious that there should be no dubiety on the question and I ask the House to allow me to rule on the matter tomorrow.

The right of hon. Members to be heard on a point of order—and I hope that they will bear this in mind—does not extended to criticism of the courts, or of their decisions, in a manner which impugns their motives or which is calculated to impair the administration of justice. Such criticism can be expressed only in a substantive motion. I shall give my ruling tomorrow.

I have an application under Standing Order No. 9 and a Ten-Minute Rule Bill before we come to the Aircraft and Shipbuilding Industries Bill. A sense of fair play should prevail.