§ The Parliamentary Secretary, Privy Council Office (Mr. Stephen Twigg)
I beg to move,That the Resolutions of 23rd July 1963 and 28th June 1972 he rescinded and the following Resolution be made:That, subject to the discretion of the Chair, and to the right of the House to legislate on any matter or to discuss any delegated legislation, the House in all its proceedings (including proceedings of committees of the House) shall apply the following rules on matters sub judice:1. Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.(a)(i) Criminal proceedings are active when a charge has been made or a summons to appear has been issued, or. in Scotland, a warrant to cite has been granted.(ii) Criminal proceedings cease to be active when they are concluded by verdict and sentence or discontinuance, or, in cases dealt with by courts martial, after the conclusion of the mandatory post-trial review.(b)(i) Civil proceedings are active when arrangements for the hearing, such as setting down a case for trial, have been made, until the proceedings are ended by judgment or discontinuance.(ii) Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.(c) appellate proceedings, whether criminal or civil, are active from the time when they are commenced by application for leave to appeal or by notice of appeal until ended by judgment or discontinuance.But where a ministerial decision is in question, or in the opinion of the Chair a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions.2. Specific matters which the House has expressly referred to any judicial body for decision and report shall not be referred to in any motion, debate or question from the time when the Resolution of the House is passed until the report is laid before the House.3. For the purposes of this Resolution—(a) Matters before Coroners Courts or Fatal Accident Inquiries shall be treated as matters within paragraph 1(a);(b) 'Motion' includes a motion for leave to bring in a bill; and(c) 'Question' includes a supplementary question.The motion stems from the report in the previous Parliament of the Joint Committee on Parliamentary Privilege, one of whose members, the hon. Member for North Cornwall (Mr. Tyler), is in his place. The Joint Committee was chaired by Lord Nicholls and was set up to review parliamentary privilege and to make recommendations. Parliamentary privilege is important. and should be used well. I am grateful to all those, both in this House and the other place, who served on the Joint Committee, and the many distinguished witnesses who assisted in its work.
The Joint Committee addressed free speech in Parliament as part of its inquiry. It noted that freedom of speechis the single most important parliamentary privilege".I am sure that we all agree with that. Members may wish to note that the Joint Committee recommended that there should be no action to limit parliamentary freedom of speech in respect of court injunctions, or in respect of the Official Secrets Acts. Those rights remain absolute, and the good sense of Members of Parliament will continue as the best guard against their misuse.
1013 The Joint Committee also looked at the sub judice rule and recommended that the sub judice resolutions of both Houses of Parliament should be brought up to date, and into line with one another. The House of Lords has already implemented the Joint Committee's recommendation and I now invite this House to do the same. I stress that the new motion does not significantly alter the rules on sub judice. Before I turn to the motion itself, it might be helpful if I remind the House of the reason for the sub judice rule.
A fundamental feature of our constitution is that Parliament and the courts each keep to their appropriate functions. It is for Parliament to make the law; it is for the courts to interpret it. Article 9 of the Bill of Rights providesThat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.Rightly, we have absolute privilege for anything that we say in Parliament. The courts cannot interfere with what we say or do in the course of proceedings in Parliament.
That absolute privilege must not be abused, and the sub judice rule is a means to prevent abuse. As the Joint Committee said,the rule provides that matters awaiting adjudication in a court of law should not be brought forward on motions, debates, questions or supplementary questions.The rule is not absolute. As the Joint Committee said, it triesto strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions. On the other hand, Parliament has a constitutional right to discuss any matters it pleases.The sub judice rule is necessary not only to preserve proper relations between courts and Parliament, but to ensure that trials are not prejudiced by parliamentary comment. I acknowledge that it can be frustrating for Members when the sub judice rule restricts comment in this House more stringently than comment in the media, but that is unavoidable. Media comment is constrained by the Contempt of Court Act 1981 and if such comment oversteps the mark, legal action can be taken.
Article 9 of the Bill of Rights gives us absolute protection in this House, and that should make us cautious about what we say in this place. Moreover, as the Joint Committee said,it is important constitutionally, and essential for public confidence, that the judiciary should be seen to be independent of political pressures".However, we should not limit parliamentary debate more than necessary, and there are three important provisions in the motion that stop the sub judice rule doing so.
The first is that the application of the rule issubject to the discretion of the Chair".As the Joint Committee said,the key to the successful operation of the sub judice rule over the years in the House of Commons has been the sensitive use by the Speaker of discretionary powers.Successive occupants of the Chair have had to grapple with the application of the rules in often difficult and delicate circumstances, and have demonstrated the importance of having a rule that does not seek to 1014 anticipate every situation that may arise but leaves considerable discretion to the Chair. This new rule would, of course, preserve that discretion.
Secondly, the House remains free to legislate on any matter. When it appears that the law needs changing, the sub judice rule does not prevent us from making changes even as cases go through the courts.
Thirdly, the rule does not apply to cases in which a ministerial decision is in question in the courts—that is, where a decision is being judicially reviewed. In fact, the new sub judice rule will relax the practice of the Commons on this matter and bring us into line with the more permissive rule that has applied in the Lords.
The existing rules refer to decisions thatcannot 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".The new proposal has no such restrictions, and that must be right. The purpose of the sub judice rule is to protect the courts from parliamentary interference; it is not to provide Ministers with a convenient protection against questioning in the House. I commend this substantive alteration to the House.
The other alterations to the sub judice rules recommended by the Joint Committee are technical rather than substantive. First, it cannot be right to have the rules contained in two resolutions, rather than one, or to have different rules in one House of Parliament from those that apply in the other. That is rectified by the proposal before the House. Secondly, although it is accepted that the sub judice rule applies to Select Committees, in the past that has not been clearly stated. It will now be explicit that the application is also to the Committees of the House.
Thirdly, changes to court practice mean that many of the references to specific courts in the existing rules are out of date, and need to be changed. The redrafted rules do that.
I hope that the House will agree to follow the Lords and adopt this updated and comprehensive sub judice rule.
§ Mr. Eric Forth (Bromley and Chislehurst)
My guess as I look around the Chamber is that the Minister is likely to get approval for the motion, although we shall have to wait and see. I have no doubt that the debate will be tense, exciting and thrill-packed. That is the way of the House.
I welcome the motion, and I especially welcome the fact that, as the Minister noted, in this matter we are following the lead given by the other place. There is a tendency these days to assert over and over again what is known in the parlance as the "primacy of the Commons". However, every now and then we get examples of how the House of Lords can take a lead, and this is one such. I am happy to follow the Minister's recommendation that we follow the lead given by their Lordships.
I also welcome what I would describe as the saving provisions in the motion, to which the Minister drew attention, and I welcome especially the one that refers to the "discretion of the Chair". Although we must update the provisions relating to sub judice matters, it is also important that we reassert the ultimate provision that the House, through the Chair in this case, has the last word 1015 on such matters. In that way we can rightly set out the normal rules and provisions, but with that very important discretion retained for the Chair.
Mention was made of the reference to where a ministerial decision is in question or, in the opinion of the Chair, a case concerns issues of national importance such as the economy, public order or the essential services. That is particularly relevant in the current circumstances, but it will always be reassuring to know that where there is an overriding requirement, the thrust of the motion may be set aside.
With those brief comments, I am more than happy to recommend to the massed ranks of hon. Members that we accept the motion.
§ Ross Cranston (Dudley, North)
I support the motion because it relaxes the sub judice rule and tidies it up somewhat. Also, as the right hon. Member for Bromley and Chislehurst (Mr. Forth) said, it brings the rules of the two Houses into line.
I underline my hon. Friend the Minister's point that the rule has important constitutional significance. It is important because, as he said, sometimes the House is frustrated by the impediments to discussion that the rule places on us. During the Pinochet case, hon. Members were frustrated because every person and his dog outside the House were commenting on it, but the rule, and Madam Speaker's specific ruling, meant that there could be no comment here. The constitutional foundation of the rule is important because it directs attention to cases where the application of the rule is justified and, conversely, where it might be wrongly invoked to stifle debate.
The constitutional foundation is, as the Minister said, the principle of the independence of the judiciary. That means basically that judges have to be in a position where they can make decisions in accordance with the law and not because they are swayed, suborned or intimidated by Government or Parliament. Only thus can the courts act to ensure that the decisions and actions of the other two arms of government, as they affect individuals, are in accordance with the law.
We have only to look at the situation in places such as Zimbabwe to see how the independence of the judiciary can be compromised, with the result that individual rights are negated and lawlessness encouraged. There are various protections for the independence of the higher judiciary, such as the legislative guarantee dating back to the Act of Settlement of 1701 that they hold office during good behaviour, subject to removal by an address by both Houses.
Among the other contributions that this House makes to the independence of the judiciary is the sub judice rule. It recognises, as the Lord Chief Justice has said, the mutuality of respect between two constitutional sovereignties. For example, as the Minister said, the courts respect parliamentary privilege and, conversely, we ensure, by our procedural rules, respect for the proceedings of the courts within their own sphere. Paragraph 192 of the excellent report of the Joint Committee gives the justification for the rule very clearly.
1016 There is no need to canvass the motion; it updates and rationalises the rules in this and the other House. I shall make only one point. The operation of the rule in the House is always subject to the overriding discretion of the Speaker, a point made by the right hon. Member for Bromley and Chislehurst. With respect, the Speaker and his predecessors have always received and accepted sound advice on the operation of the rule from those who advise them. There is an important balance to be struck between the right of debate in the House on matters of public concern and the respect that we must accord judges. Sometimes, that demands a restraint on our debate, although the debate might fall permissibly within the express terms of the rule.
Conversely, the rule must not be used to stifle debate. As I pointed out, I have no quarrel with—indeed, only praise for—the way that the rule has been administered by successive Speakers. However, a casual perusal of Hansard suggests that there might occasionally have been instances when Ministers do not seem to have taken the Speaker's advice and have sought to invoke the rule to close down debate, on the basis of a misunderstanding of the rule. That is wrong, especially given the change in the rule that recognises that matters can always be subject to debate where ministerial decision is involved and where simultaneously there is a judicial review. Ministers have to be encouraged to take adv ice on the application of the rule and to follow it.
I support the motion. It will update the rules and it is a thoroughly soundly based constitutional provision.
§ Mr. Paul Tyler (North Cornwall)
As the Parliamentary Secretary, Privy Council Office said, I served on the Joint Committee for about 18 months. It frightened the life out of me, because almost all the other members of the Committee held some sort of qualification. I mean no disrespect to the hon. and learned Member for Dudley, North (Ross Cranston) when I point out that now that we have fewer lawyers in the House, we probably do a better job. However, on occasions such as this, we need that legal advice and I want to follow up the point that he has just made.
In the past, Ministers have all too often hidden behind an alleged, possible sub judice restriction to avoid difficult questions, and have not taken direct legal advice from the Chair or the Clerks. Most of us do not have that legal expertise, so in future, now that we have clarification and codification between both Houses, I hope that the situation will be slightly clearer, both for lay Members and for those learned Members who have greater expertise. As a result, I hope that Ministers will not be able to get away with some of the excuses that they made in past.
As the Minister said, although this subject is fascinating only to an elite and intelligent minority, it is important. It is all about the relationship between Parliament and the judiciary. The Minister spelt that out extremely well. However, some elements of the situation remain complex, despite the helpful clarification; for example, most laymen find the whole issue of judicial review complicated.
One of the things that the motion will deal with was not mentioned by the Minister: under the new rule, once a pre-trial issue has been settled, the sub judice rule will 1017 be lifted until that case becomes active again. That is the sort of minefield that some of us might stray into—we might not be sure where we are in that process. I hope that that piece of advice will be heavily underlined for the benefit of the Minister's colleagues.
We should examine the relevant responsibilities in our handling of these matters and their handling by the media—a point that has already been made. After all, the media are the media; they are not part of our constitution. I hope that it is still true not only that the courts, but the public at large, take a little more notice of what the right hon. Member for Bromley and Chislehurst (Mr. Forth) says than of leaders in The Sun. I am not sure about that, but I hope that they do. We must be a little more careful than the editors of national and local newspapers or the editors and producers of television programmes.
The fact remains that Parliament has the privilege of defending the rights of our constituents. That is not a privilege that we exercise on our own behalf:, it is to defend the right of our constituents to be heard and to have their concerns aired in this place—with much greater freedom than out on the street or, indeed, in the television studio. I hope that we can still endorse and support that self-discipline because it is important.
Of course, it is important that the independence of the judiciary is recognised. That, too is an important feature of the motion. However, my anxiety is that sometimes ignorance is treated as bliss, and I think that occasionally Back-Bench Members in the House, and Ministers, may push their luck with a sub judice example. After all, the word can pop out and the reference can be made before the Chair has an opportunity to discuss matters with the learned Clerks, let alone with Speaker's Counsel. It is incumbent on us, if we believe that we may be running into trouble, to try to take advice in advance of making a comment. whether it be in Committee—the Minister rightly referred to the fact that the rule will now apply explicitly in Committee where it was implicit before—or in the Chamber.
However, we must also look at the matter the other way round. Members or Ministers must not be over-zealous in this matter to the extent that we do not have a free Parliament discussing issues that we are free to discuss. My anxiety is that we get that balance right.
I recall that evidence was given to the Joint Committee that the Speaker—and, through the Speaker, the Speaker's Counsel—was available to give advice. My worry is that perhaps, in a borderline case, most of us will take the view that it is better to try our luck than to take what may be very cautious—dare I say it, very conservative—legal advice. Although I accept that ignorance is no defence in those circumstances, I would hope that, in a borderline case, we do not find that the legal advice that we are given is so absurdly over-cautious that Parliament is prevented from doing its proper job.
§ Mr. Gerald Howarth (Aldershot)
I am delighted to take part in what, I concur with the hon. Member for North Cornwall (Mr. Tyler), is a very important debate, even though there are not very many of us in the House. The issue goes to the heart of our constitution and the constitutional position of the House in our arrangements, but I shall be brief because I agree with everything that I have heard so far.
1018 I apologise to the Minister for not hearing his opening remarks from a Bench in the Chamber. I did have the benefit of seeing him make them on the television in my room before. I came to the Chamber.
§ Mr. Howarth
My right hon. Friend may say that, but, having voted assiduously against televising the House, I must say that I am now taking advantage of it.
As the hon. Member for North Cornwall mentioned, the Bill of Rights of 1688 was a very important constitutional measure and it is as valid today as it was in 1688. Parliament fought hard against the Crown to establish its right to be free from any kind of oppression from the Crown to express its view, and to ensure that Members themselves should be free, not on their own behalf but on behalf of their constituents and others, to make a case free from the fear of being oppressed by the Crown or—even worse—locked up or jailed. We should be conscious of that privilege, which was won so hard so many years ago, but we must also be conscious of the need to exercise if responsibly. That is the gist of the Minister's case.
I hope that we have achieved the right balance in the motion before us. It is important that we ensure that there is a separation of powers, and that we ensure that the courts have freedom to interpret the legislation as passed by Parliament—although I must say that I am becoming increasingly alarmed at the way in which the judges are becoming politicised and seeking in too many cases to usurp the duties and responsibilities of Parliament to make the law, by seeking to stretch their interpretation to such an extent that they are almost defying the will of Parliament. However, that is a bigger argument than that with which we are faced today, so I shall not proceed too far down that avenue, except to say that I think that it is not simply a question of being purist about the right of the courts to determine issues without Parliament being in contempt of the courts by raising those issues which could not be raised otherwise.
On the point about Ministers trying to hide behind the sub judice rule, I saw the Parliamentary Secretary, Privy Council Office nodding earlier to show that he is of the view that Ministers should not seek that refuge.
The hon. and learned Member for Dudley, North (Ross Cranston) was right to allude to the Pinochet case as being a good example of the difficulties that the House has faced and that we want to resolve. It was absurd that all the newspapers were discussing that case, it was being discussed on television and radio—everyone was talking about it—and that this House was the only place that was not allowed to discuss it.
The Home Secretary had finally to make a judgment. I am entirely happy about the exercise of that discretion. It should not have been left to the courts; it was an issue of national importance in which leaving it to the discretion of an elected Minister of the Crown was the right way to proceed. However, it was nonsense that we could not question the Home Secretary, who was to make the final decision, when all the newspapers and everyone else were making their representations to him.
1019 The compromise reached, which is thatwhere a ministerial decision is in question, or in the opinion of the Chair a case concerns issues of national importance such as the economy, public order or essential services, reference to the issues or the case may be made in motions, debates or questions",is the right way to proceed.
Since the hon. and learned Member for Dudley, North raised this matter on behalf of the Labour party, as did the hon. Member for North Cornwall (Mr. Tyler) on behalf of the Liberal Democrat party, perhaps I can do so on behalf of the Conservative party, so that we have a united front in declaring to the Chair that we wish to place it firmly on the record that it is the view of the House as assembled here today—given the massive number of Members present—that we hope and expect the Chair to be robust in interpreting this resolution in favour of the House so that it has an opportunity to debate issues in the manner set out in the motion. If there is an area of doubt, I hope that the Chair will err on the side of the House rather than that of caution.
§ Mr. Stephen Twigg
As the right hon. Member for Bromley and Chislehurst (Mr. Forth) implied from the Conservative Front Bench, I am getting used to these debates of great national importance and to crossing swords with him and other hon. Members on these matters. I assure the House that on the doorsteps of Enfield, Southgate in June no more important issue came up than the changes to the sub judice rule. Perhaps that is reflected in the turnout here this afternoon. I am grateful to hon. Members on both sides of the House for their constructive contributions to our short debate.
When I was asked to propose this motion today, I had a similar sense of trepidation to that described by the hon. Member for North Cornwall (Mr. Tyler) —that we would have a debate full of lawyers. In fact, my hon. and learned Friend the Member for Dudley, North (Ross Cranston) was the only lawyer to speak and he made a useful and constructive contribution. I do not intend to cover ground that was covered in my opening remarks. I simply thank all hon. Members for their support.
I very much agree with the hon. Member for North Cornwall, who spoke for the Liberal Democrats, that we are seeking greater clarity and also balance. That is important and it is also central to the matter. I also agree with the hon. Member for Aldershot (Mr. Howarth) that there is real concern about the balance being right and the fact that sometimes it is not. I will not be tempted to take 1020 the route that he was not tempted by, but we want a proper separation of powers and a proper understanding on the part of the judiciary as well as here in Parliament about the roles that we have under our constitutional arrangements.
I am sure, Madam Deputy Speaker, that you heard what the hon. Gentleman said. I can reiterate that there is clearly cross-party support for a strong and robust stance from the Chair, both in the Chamber and in Committees. I am pleased that we have such broad and strong support for this proposed change and. therefore, I commend it to the House.
§ Question put and agreed to.
That the Resolutions of 23rd July 1963 and 28th June 1972 be rescinded and the following Resolution be made:
That, subject to the discretion of the Chair, and to the right of the House to legislate on any matter or to discuss any delegated legislation, the House in all its proceedings (including proceedings of committees of the House) shall apply the following rules on matters sub judice:
1. Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.
(a)(i) Criminal proceedings are active when a charge has been made or a summons to appear has been issued. or, in Scotland, a warrant to cite has been granted.
(ii) Criminal proceedings cease to be active when they are concluded by verdict and sentence or discontinuance, or, in cases dealt with by courts martial, after the conclusion of the mandatory post-trial review.
(b)(i) Civil proceedings are active when arrangements for the hearing, such as setting down a case for trial, have been made, until the proceedings are ended by judgment or discontinuance.
(ii) Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.
(c) appellate proceedings, whether criminal or civil, are active from the time when they are commenced by application for leave to appeal or by notice of appeal until ended by judgment or discontinuance.
But where a ministerial decision is in question, or in the opinion of the Chair a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions.
2. Specific matters which the House has expressly referred to any judicial body for decision and report shall not be referred to in any motion, debate or question from the time when the Resolution of the House is passed until the report is laid before the House.
3. For the purposes of this Resolution—
(a) Matters before Coroners Courts or Fatal Accident Inquiries shall be treated as matters within paragraph 1(a);
(b) 'Motion' includes a motion for leave to bring in a bill; and
(c) 'Question' includes a supplementary question.