HL Deb 25 April 1961 vol 230 cc780-806

4.8 p.m

LORD CHORLEY rose to call attention to the practice which restricts debate on matters which are sub judice in the courts and to the application of that practice to debate on the proceedings of a Departmental Inquiry; and to move for Papers. The noble Lord said: My Lords, in moving the Motion which stands in my name on the Order Paper I think it would probably be most convenient to your Lordships if I referred, very shortly, to the circumstances which led me to put it down. As some of your Lordships will remember, on December 1 last my noble friend Lord Lucas of Chilworth endeavoured to persuade the noble and learned Viscount who sits on the Woolsack to refer to the Council on Tribunals all the circumstances of a local public inquiry which had been taking place at Banbury into an application to develop ironstone working in North Oxfordshire. The noble Lord, Lord Lucas of Chilworth, was concerned not with the merits of these proposals at all, and did not make any attempt to discuss them; they were, indeed, quite irrelevant to the objective which he had in view, which was to get the methods which were being used, or had been used, by the applicants in connection with putting forward their case referred to the Council.

But in the course of the ensuing discussion the noble Lord, Lord Salter, while supporting Lord Lucas of Chilworth in the case that he was making, mentioned a number of reasons why, in his contention, this application should be rejected: that is to say, he did, to some extent, go into the merits of the application which was under review. The noble and learned Viscount the Lord Chancellor then rather castigated him for dealing with the merits of a matter, which, he submitted, was sub judice Most of my speech to-day will take the form of a commentary on the speech of the Lord Chancellor on that occasion, and I am quite sure he will not take amiss what I say.

My Lords, so far as I have been able to discover, this is in fact the first time that it has been suggested that the so-called sub judice rule applies to these local inquiries, or, indeed, to any matters which are up for decision by a Minister of the Crown as opposed to some matter which is up for decision by a judge in a court of law. The Lord Chancellor's statement of views on this subject, in my contention, breaks new ground, and breaks it on a matter which seems to be of considerable importance. At any rate, that is the view I take of it, and I am hound to say that it is a view which a number of other Members of your Lordships' House have taken, too. Therefore, I felt that the statement made by the noble and learned Viscount ought not to be allowed to pass undiscussed—I would even say, ought not to be allowed to pass unchallenged, because, on consideration, I personally have come to the conclusion that it goes too far, at any rate in the light of the position as it has so far been laid down. Indeed, when I discussed it with a number of authorities on constitutional and administrative law, among whom I found that the statement made by the Lord Chancellor had given rise to much interest, I found that they, too, were of the opinion that the sub judice rule does not apply to these local inquiries.

It occurred to me also that the noble and learned Viscount himself might welcome an opportunity of reconsidering his opinion—or, at any rate, of reformulating it, because he spoke on that occasion, as we say, "off the cuff". Although, if I may say so, the noble and learned Viscount is noted for his ability to express very clearly a point of law (or a point of politics, for that matter) impromptu, it is not easy to formulate a view on a matter as important as this without some preliminary consideration; and I must say that, having studied his speech on that occasion carefully, and having read it through more than once, I find that there is perhaps a certain amount of ambiguity in it which I will endeavour to indicate as I go along, although I think the substance of his contention is clear enough.

Your Lordships will doubtless agree that if the sub-judice rule is to be extended to these local public inquiries, the limits of the extension ought to be formulated very carefully indeed, because these matters, as I am sure we all agree, are matters of considerable importance. I have referred to the statement by the noble and learned Viscount the Lord Chancellor. It was an authoritative statement up to a point, but, on the other hand, I do not wish it to be thought that I am conceding that the matter is one which, so to speak, is to be decided from the Woolsack. That is to say, I think the matter is quite clearly a matter rather for your Lordships' House as a House of the Legislature to decide than to be decided by a member of Her Majesty's Government, however authoritative and however well-versed he may be—and, on this occasion, obviously is; both as the leader of the legal profession and as a Parliamentarian of a very long experience.

My Lords, this sub-judice rule is curiously elusive in many ways. Curiously enough, when one begins to try to find out something about its history, one discovers that it is very difficult to find any firm ground. I do not want to take up too much time with its historical side, but I am inclined to think that it was originally introduced in order to prevent juries, which played such an outstanding part in the administration of our law for so long, from being influenced by irrelevant considerations. Of course, in criminal cases, where the jury is still in the centre of the picture, that is still its most important application, and is one with which every lawyer is familiar. But I think it is a little unrealistic to suggest at the present time that judges (who now try practically all civil cases, at any rate) are going to allow themselves to be influenced by what is said outside the courts, by matters which are not given in evidence in the court itself, though the rule as to sub judice is still often said to operate on that sort of a basis.

I should myself have thought, at any rate as far as Parliament is involved in this problem of sub judice, that it is more a question of good manners and of the proper comity which should exist between the great organs of State, such as the Legislature and the Judiciary—that each should not trespass on the proper sphere of the other. But, of course, an inspector engaged in a local inquiry is engaged in what is essentially, in my submission, a policy decision: that is to say, a matter which is basically a political matter, and one which should not fall within the sub-judice rule—which, as its very words indicate, is something which is being decided by a judge, something which is decided in a court of law. Nor, I think, is it realistic to say that pressure is being brought to bear on the inspector, as I think the noble and learned Viscount rather suggested, when it is in fact a Minister of the Crown, a member of the Executive, who makes the decision, and often makes it (as the Saffron Walden case, which has been a little in the public news in the last few days, shows) in the teeth of the advice which has been given to him by his own inspector.

Now I have said that the sub-judice rule has not so far been applied, as far as I have been able to discover, to these local inquiries—or, indeed, to anything short of a judicial inquiry proper. This, I think, appears clearly enough from Erskine May's great work, and I do not feel it requires a great deal of elaboration, although, perhaps, as it is at the very centre of the discussion, I ought to indicate shortly what Erskine May says about it. Before doing so, however, I should like to say this: although good sense no doubt requires that the sub-judice rule should be observed in this House, I have not been able to find anything which expressly says so. I have not been able to find any express decision to this effect. So far as I have been able to look at them, the authorities in Erskine May all appear to have been given in respect of matters which have been raised in another place.

As a matter of history, my Lords, it seems that for a very long time the High Court of Parliament did take upon itself the duty of supervising the workings of the Judiciary, the workings of the King's Court, certainly if they impinged in any way on what Parliament felt was within its own cognizance and jurisdiction. It will be familiar to many of your Lordships that as late as 1689 Parliament actually brought before it two Judges of the King's Bench and committed them for contempt because it disapproved of the decision which they had come to in the case of Gay v. Topham. In your Lordships' House, of course, this supervision of the Judges was eventually concretised, as you know, in the establishment of the appellate jurisdiction of your Lordships' House.

The working of the sub-judice rule is considered by Erskine May at various stages in Parliamentary procedure, as he deals with them in his book, notably in the Chapter which is entitled "The Process of Debate", where he says: A matter which is under adjudication by a court of law should not be brought before the House.

He does not define what he means by "a court of law"; but in a later passage on the same page I think he shows fairly clearly how far he would go in considering what is a court of law, because he says: Anything reflecting upon the conduct of a person holding the position of a Judge, such as a Judge in a court of bankruptcy, or in a county court, or a Recorder"— must not be brought into debate.

So it is clear enough that he has in mind persons who are actually performing a judicial function; and I should have thought it clear enough that an inspector holding an inquiry clearly does not perform that. As I have said, the expression "sub judice" itself is indicative that the rule is concerned with a judge who is actually in the course of deciding some matter which comes before him as a judge in a court. According to Erskine May, the sub judice rule applies to Questions put down to be answered in another place; to Motions for the Adjournment of another place, as well as to problems which are raised in debate.

My Lords, I think it can hardly be contended that these local inquiries, if one looks at them in a realistic way, are courts of law, or judicial hearings, or anything of that nature. I submit that it is clear enough that they are one of the methods by which a Minister prepares himself—informs himself—of the situation and of the facts in order to come to a decision upon some matter of administrative policy. The decision of the Minister in these cases is not a judicial decision, or even a quasi-judicial decision. There may be a few cases where that is not so. I believe that there are cases where the Minister is constituted under an Act of Parliament as a court of appeal in respect of the dismissal of certain types of public servant. There it might well be said that his function was a judicial function, or certainly a quasi-judicial function, and it might be contended that the sub judice rule should apply in a case of that kind; that in principle it would, although so far as I have been able to discover that has not in fact been done previously.

The type of local inquiry which was being held on this particular occasion was not in any sort of way a judicial inquiry; nor was the Minister's decision a judicial decision. That, of course, was finally and authoritatively established by your Lordships' House, sitting in its appellate capacity, in the Stevenage case, in which my noble and learned friend Lord Silkin, who I am sorry is no longer here, was involved as Minister of Town and Country Planning. That was the case of Franklin v. Minister of Town and Country Planning, in 1947, in which the appellant attempted to persuade your Lordships that the Minister had been acting in a quasi-judicial capacity, and that his conduct should therefore, be brought before the court. It was held that that was not so; that the decision was a policy decision and not reviewable.

The Minister, in coming to a decision of that kind, is not, therefore, acting as a judge, or even acting in a quasi-judicial capacity, and if that is so I fail to see how it can be said effectively that the inspector, through whom he is gathering the information and material upon which to come to his policy decision, is acting as a judge, or is holding a court of law, or is bringing the proceedings within the sub judice rule. Indeed, my Lords, many of the procedures which are adopted by these courts of inquiry would not be tolerated for one moment in any court of law; yet they are perfectly proper procedures for the purpose for which these local inquiries are held.

One of them which occurs to me is the sending of a letter about the matter, which I am sure many of your Lordships frequently do if you are not in a position to attend the inquiry yourself; and these letters are read at the inquiry—and very properly read. One of the points which the noble and learned Lord was making, I think, was that the noble Lord, Lord Salter, should have gone to the inquiry, and there given evidence and subjected himself to cross-examination. So he could. Or he could have written a letter. Or, in my submission, he could have done what he did, which was to come and discuss the matter in your Lordships' House. Therefore, although the statement which the noble and learned Viscount the Lord Chancellor made on December 1 might be taken as implying that there is an existing sub judice rule relating to these local inquiries, in my respectful submission that is not really so. I think that what he was doing was to say that a rule of this kind ought to be established; that there had been, as the result of the Report of the Franks Committee and the passing of the Act, a new situation; that the inquiries were now being held in a different sort of way, that the sub judice rule ought to apply, and that therefore the noble Lord ought not to have discussed the matter here upon the merits.

It is at this stage, my Lords, that I must say I feel that the noble and learned Viscount has not quite made it clear how far he thought this rule should go. I do not think he can have intended to say that the whole subject matter under inquiry at one of these inquiries is to be regarded as sub judice until the Minister concerned has published his decision on the matter; I do not think he intended to go so far as that. For one thing, I think it is now generally accepted that the Minister may take into account all sorts of matters which do not come up, and which could not properly come up, at the inquiry— matters of policy which clearly cannot come before the inspector who is investigating into local facts. Also the Minister may, as has been made very clear by the noble and learned Viscount himself in the Saffron Walden case, consult his own civil servants who have not appeared at the inquiry to give evidence there, not only civil servants in his own Department but also in other Departments.

To go back a step in my argument, it is obvious that no judge in a court of law could possibly behave in this way. I suggest that this completely differentiates what is happening here from what happens in a court of law. When he comes to make his decision, the Minister is not in any way limited by the facts which have come out in the inquiry and which have been included in the inspector's report, as, of course, a judge would be in coming to a decision in a court of law. If a judge took into consideration in reaching his judgment anything which had not been given in evidence in court, clearly his decision would be reversible on appeal. And this is another way in which, I suggest, the two types of inquiry are fundamentally different.

However, I do not think that the noble and learned Viscount really intended to go so far. He discussed the dates very carefully in his speech and I took it that he thought that what one might call the sub judice period was a narrower one. He did not indicate exactly where it should begin and where it should end—no doubt, for the purpose of his argument on that occasion, that was not necessary. If there is such a rule, does it begin at the time when the inquiry starts or at the time when the Minister announces that he is going to hold an inquiry? And does it last during the inquiry or, as I think the noble and learned Viscount intended to say, does it last until the time the inspector has drawn up his report; or possibly—perhaps more likely—does it last until the time when the inspector has delivered his report into the hands of the Minister?

As your Lordships will see, this is not very clear and it ought to be clear, because, as I say, this is an important matter.

At one point in his speech the noble and learned Viscount referred (col. 1239) to "potential attacks in Parliament before a matter is decided," which may be taken to indicate that it went right on until the Minister had given his decision. On the other hand, in the light of the dates he gave, I think that the other is the correct view of it. But the noble and learned Viscount is listening to what I say, as is also the noble Viscount the Leader of the House, who is to reply, and I should be very grateful if some further light could be thrown on these matters, because obviously, how long this sub judice period should last is a matter of considerable importance. If it goes on too long, the time for relevant public discussion is short, as I shall indicate more closely in a minute. I think that the noble and learned Viscount was contending that until the inspector had actually reported to the Minister, the matter is to be regarded as sub judice. Even if we regard this as desirable—and I think that it is more than doubtful whether this sub judice rule should be applied at all in these cases—then I submit that it should be applied as narrowly as possible.

Obviously, there are considerable practical difficulties in the way of applying it, and I should like to indicate some of these. The first difficulty is that normally one does not know when an inspector has reported. His report is usually published with the Minister's decision; and until the Minister's decision is given, nobody outside the Ministry knows whether the inspector has made his report or not. Sometimes, when Ministers are asked questions in Parliament about whether they had decided or whether they are going to decide on some point, they make some remark to the effect that they are still considering the report, which would be an indication that a report had been made by the inspector. But there is never any open statement that a report has been made. So that the time when public discussion can be held is not clearly known; and obviously this is a serious drawback.

Secondly, did the noble and learned Viscount mean that there should be no public discussion of any kind until the inspector had made his report? Of course, if this were a court of law, the rules of contempt would bar any sort of public discussion, in the Press, on the T.V. or elsewhere, and the sub judice rules of Parliament would then prevent discussion here. But I imagine that nobody would contend that this was a case where the contempt rules apply. They certainly do not apply as they stand at present, certainly not without a considerable, radical and unwelcome extension of the rules as they stand.

So that if there is not to be a contempt rule for preventing discussion of these matters in newspapers and in broadcasting and outside, is discussion to be forbidden only to Members of Parliament, who are more concerned with these matters, which are matters of policy and politics, than anybody else? Indeed, is it not significant that in this North Oxfordshire case the argument was going on in the Press contemporaneously with this inquiry? The noble Lord, Lord Lucas of Chilworth, referred to articles in the Economist and the Sunday Times, and there were other articles in newspapers such as the Observer. In practice, whenever an inspector makes an inquiry in a controversial case, he does so in the middle of an absolute hubbub of discussion and public comment. Your Lordships have only to cast your minds back to the Piccadilly case, in which all the newspaper continuously carried comment from beginning to end; to the Oxford roads case, in which comment has accompanied every inquiry that has ever been heard, and to any other important inquiry of this kind. Or are we to go back to the sort of rule, which has been established by the Broadcasting Council, limiting discussion to six months in regard to matters to be debated in Parliament? This is really my third point.

To sum up, it seems to me that the fallacies (if I may so describe them), in the argument of the noble and learned Viscount are these. First, with great respect, that he misapplies the sub judice rule on the lines I have explained; secondly, that be assumes that other organs of expression, such as the Press, are silent; and thirdly, that he seems to accept that in drawing up his report an inspector would be influenced by what was said in Parliament but not by comments made elsewhere, which seems to me to be very doubtful indeed.

The matters which come up for decision in this way are matters, I repeat, of public concern. They are matters upon which opinions are strongly held. The independence of judgment of a person who is appointed to report on these matters is not improperly attacked, I think, by expressions of opinion in regard to the policies on which he is called upon to collect material and information for his Minister; and a person who wishes to express his opinions should be left free to decide according to his own judgment whether he can best do so by attending the inquiry or by writing articles in the newspapers or, if he is fortunate enough to be a Member of Parliament, by raising the matter in Parliament. Why should he not do so? And why should an inspector be embarrassed if he does do so?

It appears to me that there is an increasing tendency, which, indeed, I think is exemplified in the argument in this case of the noble and learned Viscount, to judicialise (if I may use that rather awkward word) as much as possible of the administrative process. Some aspects of that tendency are no doubt commendable, but I yam afraid it is being combined with an attempt to restrict discussion and criticism on the ground that the process has become judicial in nature and, therefore, the sub-judice rule applies. This seems to me both specious and dangerous. The inspector is a civil servant, responsible to a Minister, making recommendations, collecting information on questions of policy for which his Minister is responsible to Parliament. This is a political set-up, which is essentially different from a trial in a court of law, and, in my submission, it should be kept so. Criticism should be free and open at every stage. Governments always tend to be rather desirous of escaping criticism, and their attempts to do so are often ingenious and ought to be kept under close scrutiny. It is the duty and, I submit, the privilege of Parliament to see to it that all matters which come within its own purview are brought out clearly into the light of day, and to consider, carefully, and, indeed, to hesitate long, before allowing such a rule as that of sub judice, invented and developed for a completely different purpose, to impede it in its essential work.

I should like to say, in conclusion, that I very much appreciate that the noble and learned Viscount spoke under the impulsion of a deep and, indeed, passionate reverence for the Common Law, for which he is held in the highest respect and regard throughout the legal profession; and I hope that I share this reverence with him. But this feeling, I fear, has sometimes impelled lawyers to apply Common Law doctrines to situations of a kind for which they were not devised. That is what I think we are rather in danger of doing here. It is just as important that the law should not push too far into politics as that politics should not interfere with the administration of the law. Parliament no longer summons judges to its Bar when it dislikes their decisions—it has more sense—but tidies up the Statute. Of course there is no complete separation between the powers of the different sides of the State in matters of this sort; there must always, in practice, be a certain amount of interplay. The Franks Committee and the noble and learned Viscount between them have, I entirely agree, effected considerable improvements in the technique of departmental administration by strengthening what one might call the atmosphere of justice in which these inquiries should be held. I hope that the noble and learned Viscount and the Government will not wish to go too far along this road in an attempt, under the banner of the Common Law, to fetter free discussion of what are, in my view, and in the view of many people, essentially political problems: because if they succeed in doing that, the cure will be worse than the disease. I beg to move for Papers.


My Lords, may I put one question to the noble Lord? With what he said about the matter not being in a legal sense sub judice I find myself in general agreement, but I think that what he has not dealt with, and what I should like to know from him, is how he conceives the problem of the Minister if this matter is raised in Parliament. On the occasion referred to my noble and learned friend on the Woolsack was replying, and was known to be going to reply, to the debate. While I agree entirely with what the noble Lord said on the constitutional principle of the right of my noble friend Lord Salter to raise the matter, I should like to know from the noble Lord what he thinks my noble and learned friend on the Woolsack should have done, if the question of merits was to be debated in the debate. If he had dealt with the question of merits, I think that objection could have been taken in every quarter to the possible influence that was being brought to bear on the inspector. On the other hand, if he were completely silent, again that might have been open to misinterpretation. I think this is an extremely difficult problem, but I wonder what the noble Lord would like the Minister to do if the matter were raised in this House in that way.

4.46 p.m.


My Lords, the noble Lord who opened this discussion said that the origin of his Motion was the comment made by the noble and learned Viscount on the Woolsack on an intervention that I had made in the debate on December 1. The noble Lord, Lord Lucas of Chilworth, then raised a certain procedural question about an inquiry that had taken place in north Oxfordshire, and as the noble Lord, Lord Chorley, said truly, I did not then limit myself to a discussion of procedure, but discussed the merits of the case that had been before the inquiry. I do not propose now to say a word either about the merits of that or any other case, but to limit myself entirely to procedure.

The reasons which made me think at that time that I was free to discuss the question of merits are, I think, relevant to the discussion we are now having on procedure. They were roughly these. I was not aware then, and, indeed, am still not aware, that up to that date, December 1, there had been any authoritative statement of a rule or recognised practice that a question that had been before a public inquiry should be regarded as sub judice until a verdict had been given. In the second place, I was aware that only a few days before that debate a Member of another place had asked a question of a Minister on a matter that went to the heart of the problem discussed by the inquiry, and the Minister had not told him he should not have asked the question, but had, in fact, given a substantial reply.

In the third place, as the noble Lord, Lord Chorley, has already remarked, I had observed that in a number of responsible organs of the Press there had been a discussion on the merits of the question; and I had never heard anyone suggest that they were acting improperly, still less that they should be had up for contempt of court in so acting. It certainly did not occur to me that, if it was right and proper for organs of the Press to discuss the merits between the holding of the inquiry and the verdict or report of the inspector, it was improper for me as a Member of your Lordships' House to do so. After all, we are not an organ of the Executive, and although we are part of the Legislature, now with considerably restricted functions, our main function, I think it is proper to say, is as an organ for the expression of public opinion. For all those reasons, I thought I was perfectly free on that occasion to discuss the question of merits.

I do not propose to follow the noble Lord. Lord Chorley, into his technical and learned argument, for which, indeed, I am not professionally qualified; I propose only to add a few comments from the practical and administrative point of view. I can perhaps best put the kind of attitude that I should have thought was most reasonable and in the public interest, by referring to a more recent discussion in this House on March 1 on B.B.C. and I.T.V. questions which were, and are, under consideration by the Pilkington Committee. On the occasion of that debate, the Lord Chancellor in effect said that he, as a member of the Government which had appointed the Pilkington Committee, was necessarily to some extent—I am paraphrasing; I do not remember his exact words—inhibited in the expression of his opinion on the merits of the questions being considered by that Committee. But he added that he was sure that the Committee would be helped by the expressions of views taking place in this House on the occasion of that debate. I should like to see the same attitude taken with regard to discussions of problems that have been referred to a public inquiry, or on which a public inquiry has been sitting, under the Town and Country Planning Act, 1947.

I appreciate there are differences. A body like the Pilkington Committee is, of course, composed of public people and is a composite body. In those respects, it is different from a public tribunal presided over by an inspector, normally a civil servant or an ex-civil servant. However, with great respect, it does not appear to me that those differences are of decisive importance or that they alter what seems to me the fact, that there is a much closer analogy between such a Committee and a public inquiry than there is between a court of law and a public inquiry.

Take, for example, the kind of questions that come up before a public inquiry under the Town and Country Planning Act. You have, on the one hand, normally and typically, a definite economic proposal with certain economic advantages, and with all the help of the relevant experts, and not infrequently with the involvement in some degree or another of a particular Department of the Government with its own experts. On the other hand, you have the public interest in the possibly threatened amenities of the countryside. Somehow or other there has to be a weighing of those not very easily commensurable considerations on the one side and the other. That seems to me extremely like the kind of question that is considered by a Royal Commission or by such a Committee as the Pilkington Committee, and very unlike the typical question before a court of law, "Is X guilty of this offence or not".

I think, therefore, that it is logical, and reasonable to assimilate the public inquiry rather to a Royal Commission than to a court of law. I think also that this is very much in the public interest, for this reason. I have said something of the advantage that the applicant for permission to develop a certain area has in having a concentrated interest and in having experts at his disposal. Against that, you have the dispersed public interest which is very hard to mobilise effectively, except at a time when it has been aroused by the announcement of a public inquiry; and at the inquiry itself it is very difficult to have the general public interest expressed in such a way as to be equipollent to the presentation of the case of the applicant for the development. Therefore, as I say, I should have thought that if you were to get the best possible working of the public inquiry system it was desirable to allow and, indeed, encourage, a free expression of views, even after the inquiry, by those who are concerned with the general public interest and have some particular knowledge, either of the region concerned, or of the working of the Town and Country Planning Acts, that is relevant.

In those circumstances, I should have liked to ask the Government to make a somewhat different statement as to the proper guiding rule than that which the Lord Chancellor made on December 1. I am not going as far as that now. I would say only this: I think it is clear that some interpretation and supplementation of what he then said will anyhow be necessary. I am not quite sure, for example, whether it would result from what he then said that the closed period was from the time of the inquiry to the report of the inspector or, further than that, to the date at which the Minister gave his verdict. I am not sure whether he implied a distinction between this House, on the one hand, and organs for the expression of public opinion, such as the Press outside, on the other. But in any case, of course he had to speak, as Lord Chorley said, "off the cuff." I had given him no notice that I was raising a question of principle for the simple reason that I had not realised I was doing so, or was going to do so. Therefore he spoke at once without any such notice.

There have also been certain further developments which I think make it clear that there must be some further consideration of procedural matters in regard to these inquiries. I think, for example, that in a Written Answer the Lord Chancellor himself gave a few days ago with regard to the Saffron Walden case, the last sentence indicated that the Council on Tribunals would be considering not only the immediate relevant question to that case of third parties, but also other questions of procedure. All I am going to ask now is that, if that is, as I believe it to be, the case, a sufficient time should be allowed and encouragement given for those individuals or institutions which have relevant experience of the working of the Town and Country Planning Acts, and of these public inquiries, to consider the procedural problems involved and express their views, whether in public or in representations to the Government, before any definite and final line is taken which will govern procedure in future.

5.0 p.m.


My Lords, I was present upon the occasion which has given rise to this debate, and I must say that I was considerably surprised when the noble and learned Viscount on the Woolsack administered such a sharp rebuke to the noble Lord who has just spoken; because it also had never occurred to me that what he was doing was discussing a matter which was sub judice in the general way in which lawyers understand that expression. I have still a considerable amount of difficulty in thinking that the proceedings before an inspector appointed to hold an inquiry on a town planning matter are quite on a par with judicial proceedings as we understand them. There is no definite point of law to be decided; there is not a claim by A against B, or an allegation that somebody has broken the law—which is the kind of point that judicial bodies have to decide. What has to be decided, in the end, is what is or is not to the public advantage in a particular case, having regard, no doubt, to a certain extent to the expectations of individuals who happen to own land and are hoping to develop it in a certain way.

My experience of such an inquiry has shown me that it is very far from being a judicial proceeding, in the way in which we understand such things, because I have a vivid recollection of being pulled up by an inspector conducting one town planning inquiry. When I was cross-examining a witness I was told that I had not the right to ask any questions at all—which I believe was a statement of fact—and, still more embarrassingly, was asked to justify the questions which I was asking. And nothing can be more ruinous to a cross-examination than to have to reveal to the person being examined the purpose of the questions which you are gradually leading up to.

However, to come back to what happened in this House, although I would not accept the general proposition that this was a matter which was sub judice and in regard to which any comment, either here or in the Press, or anywhere else, was virtually contempt of court, I do understand, and I think it is correct, that it is a very difficult thing for such a question to be raised at that stage in either House of Parliament. After all, the Minister, or the person who speaks on behalf of the Minister, is not in a position at that stage to say anything at all; and therefore there cannot be a reply on his behalf to the points which have been raised. He is seized of the matter upon which he has to give a decision as impartially and honestly as he possibly can, and I think that the only way in which he can come to his decision is in the quietude and privacy of his own Department, without being subjected to speeches, pro and con, in this House or in the other.

That seems to me to be a practical reason why speeches dealing with the marks of something which has to be decided by a Minister after a public inquiry ought not to be made in Parliament, because there they cannot be answered on behalf of the Government or on behalf of the Minister, and they can be distinctly embarrassing to the quietude of mind and the impartiality with which he ought to consider his inspector's report and approach a decision. On that account, I think it is correct that these matters ought not to be discussed here when they have reached that stage.


Might I ask the noble Lord whether he would not agree that his argument would have been equally applicable to the debate on March 1, when the noble and learned Viscount the Lord Chancellor said quite frankly that he could not speak as freely on the merits as he would in other circumstances, but also said that the fact that the debate had taken place was likely to be of advantage to the Pilkington Committee? I suggest that while we all recognise the point raised by the noble Lord, it does not, on balance, tip the scales to the point of making it desirable to lay down a rule that, while other people are free to discuss, neither House of Parliament should say a word.


With all respect to the noble Lord, I do not think those things are on a par at all. A Committee of Inquiry or a Royal Commission, or some body of that kind, is appointed in order to collect evidence and to present a conclusion for the benefit of Ministers, for the benefit of Parliament, for the benefit of the country generally; and that is all. There is no question there of the kind which arises in a town planning inquiry where, in the end, a decision has to be given which affects the rights of a particular individual. I have said that it is not in the nature of a litigation between one person and another, but it does affect the rights of an individual who happens to own land and who desires to develop it in a certain way. In that sense it is much more analogous to a judicial proceeding than anything which can take place before a Royal Commission or some other body appointed to conduct in a more or less abstract way a general inquiry on a matter of public policy.

5.8 p.m.


My Lords, this has been an interesting discussion and I think it falls to me to answer it, not because, for reasons I shall give, I have any authority to lay down and define rules, in spite of the numerous invitations which have been directed to me to do so, but because this is a matter of the practice of the House and not really a legal question at all. I think it should be looked at in that light.

I should emphasise this point: that in a court of law rules, as they are called, tend to crystallise out into technical doctrines which can be formulated, put into textbooks and made the subject of judicial decision and appeal. And for quite separate sets of reasons the decisions of the Speaker in another place tend to crystallise, too, and to reach an almost legal clarity. This has never been so with the so-called Rules of practice in this House, al though they are capable of enforcement. This House is the guardian of its own Rules of Order; and, except where it has laid down those Rules in the terms of a Standing Order (which even then it is at liberty to interpret reasonably, or even by Resolution to suspend), I think it is and should remain presumptuous of anyone to seek to lay down general rules in advance of cases.

I start from the premise upon which the noble Lord, Lard Chorley, founded a good deal of his argument. His Motion began, and I thought rightly began, by referring to the practice which restricts debate on matters that are sub judice in the courts. But in the course of his speech he constantly referred to it as the sub judice rule I think it is my duty to point out that this practice itself is not referred to anywhere in the Standing Orders of this House. In fact, quite unlike the parallel position in another place, which I think should never be referred to as a binding or even a persuasive precedent upon ourselves, it has never been referred to at all. In a sense, therefore, there is no sub judice rule to interpret in this House—in a sense, because it has never been formulated at all, even in relation to the courts.


My Lords, the noble Viscount is in effect repeating what I said: that it has never been applied in this House but as a matter of good sense.


My Lords, I am not sure that I was going quite so far as that, but I was going at least as far as this: I have made great efforts to find in Erskine May, for instance, any reference to a rule in the House of Lords known as the "sub-judice rule". The noble Lord, Lord Chorley, quite rightly pointed out that all the instances he had found related to another place. I think that is in fact significant. But, since it has never 'been referred to before, I myself have no doubt that there is in fact a rule of practice recognised by this House, and that this House would in fact enforce a rule of practice if it felt it desirable to do so in the circumstances of a particular case. The absence of reference in the books and in the previous debates is due, I should have said, not to the fact that the practice does not exist, but to the fact that it has been universally observed in relation to the courts of law.

I notice that there is one exception to what I have already said, but I think it confirms it. I notice that my noble and learned friend on the Woolsack referred to the existence of a general sub-judice rule on July 23, 1959, in relation to the case of Podola, and that his reference was endorsed on that occasion by the noble Viscount who leads the Opposition and was not questioned by anybody at the time. That is to say, the reference was before the incident which gave rise to the present Motion. I should myself say that it refers to a universally recognised, but never previously referred to, and never previously defined, practice in this House which noble Lords in fact observe, and which the House would enforce if it thought that a sufficiently grave case of breach had arisen.

The convenience of such a Rule in any House of Parliament is obvious, because in order that justice may be done it is important that two things should happen: first, that the courts, whether they are juries or judges, should be left to form their own conclusions free from political or external pressures of any kind; and secondly, that they should found those decisions upon evidence heard or tested at the trial, and not on matters given contemporarily but extraneously to the trial, because if they founded their conclusions upon the latter kind of material the parties would have no opportunity of answering it, and justice would therefore not be done.

The question which the noble Lord, Lord Chorley, has raised is whether, and, if so, to what extent, this rather indefinite but almost universally recognised practice applies to a debate on the proceedings of what he refers to in his Motion as a departmental inquiry. This is clearly a wider question and a somewhat different question, and it is one upon which I personally am quite unable to find any precedent at all, apart from the particular incident on December 1 last which gave rise to the Motion. It is, I think, worth while my stating, although, as I have said, it is not a precedent for us, that so far as I can find out the other place, too, has not as yet developed a crystallised ruling on the matter. It is fairly plain, and I think it has been said by the noble Lord, Lord Chorley, that the hearings of such inquiries have not been protected by contempt of court procedures, which have a certain analogy although they are not the same; and I believe that, in actual practice, comment, at least in the localities where they are held, is fairly uninhibited. In these circumstances, I think I should he wrong to try to attempt anything like a crisp ruling on this matter, even if I were entitled to do so, which I am not.

The Motion refers to departmental inquiries. These may, of course, take many forms, from the most private and informal to the most formal and public, and I think it would clearly be wrong to expect a single practice to cover them all. In what I am saying now I am confining myself to public local inquiries set up by a Minister, usually, I think, the Minister of Housing, under Parliamentary sanction. It is about this that the debate has in fact revolved, and it was probably what the noble Lord intended. Certainly, it was such an inquiry which gave rise to the debate last December to which he referred. But even these must have quite different subject matters, from the most general to the most particular; and this, I think, is a fact which, to some extent, explains some of the differences of opinion that have emerged during the course of the few speeches. For instance, one cannot really compare, as I think my noble friend Lord Salter tried to do, the kind of inquiry which could conceivably be the subject of a Royal Commission, like broadcasting and commercial television, with something like the case of a man who wants to convert the front room of his house for the purposes of trade which is to be carried on from his home.

I am told that this has been the subject of a recent public local inquiry instituted by the Minister of Housing and, as the noble Lord, Lord Douglas of Barloch, quite rightly pointed out, in such a case, and in many of these public local inquiries you have something which in some ways is almost analogous to the situation in the courts. You have a man trying to defend 'his rights against either another man, or sometimes against a public authority. He wants to argue his case; he wants to call witnesses and to deal with evidence. It may be that the evidence is not the formal kind of oral testimony upon which the courts of law will insist at Common Law, but, none the less, he wants to ensure that he is dealing with the matters which will really influence the position of the case—indeed, I do not suppose he would bother to come to an inquiry, or that the inquiry would have any validity for him or for the public, if he thought that he was going to argue one set of arguments but that somewhere else, where he did not get access, where he could not deal with it, somebody else was going to put forward another set of arguments to which he had not opportunity of replying, and these were going to carry the day against him. I should think that that should give one cause to reflect.

Moreover, although I would agree that there is a certain analogy with contempt of court, I think one has to be pretty careful about applying that here, too. It may be desirable for public opinion to manifest itself in various ways, but it may happen that at the same time it is out of order to discuss this kind of matter in Parliament. The obvious case where this may be so is in the reprieve cases, where public opinion is often extremely vocal about the desirability or otherwise of the prerogative of mercy; but, certainly in another place, and I suspect also here, it would be considered improper to canvass it before a certain event. Other things are debatable in Parliament which cannot be freely discussed outside. Sometimes subjects cannot be debated on television. There was at one time a 14-day rule of which we have all heard. Therefore, I think one should be careful of taking too many analogies in this matter, and that we should really work out our own salvation according to our traditional methods.

In the particular matter, if viewed from this point of view, looking at it not as a question of law but rather as a question of common sense, there were a good many arguments in favour of the line taken by my noble and learned friend as a guide for practice. To begin with, I am sure that the debates on the Franks Committee in your Lordships' House will be fresh in your memory. In those debates the local public inquiry loomed rather large, as I remember well. Noble Lords on all sides of the House—and I remember particularly the interest shown by the noble Lord, Lord Lucas of Chilworth, but there were many others—pressed my noble and learned friend on the Woolsack very hard on that occasion to equate inquiries with the judicial rather than the administrative in various ways; partly that he should insist that his own Department rather than the Minister should appoint the inspector. But there were many ways in which the argument was then put.

It was strongly supported in many quarters that the procedure should be treated as a judicial rather than an administrative device, and in any case as a judicial rather than a political matter. In the end, the House accepted my noble and learned friend's advice, which was that the Franks Committee had been right to draw a balance between the administrative, political side of this matter and the judicial side; and I would say that the truth is that these public local inquiries are nearly always hybrid procedures, taking some of the elements from both types; and it is rather difficult to generalise because, in fact, it may be in relation to one case rather than another that the judicial may come out on top and be more prominent and the more important side, while in another case the matter may turn on an issue of policy, as to which the judicial is less important.

I should have said that my noble and learned friend has attempted to keep a balance between these elements and there is at any rate one set of factors which I believe tells strongly in his favour. It is, if I mistake not, that set of factors put forward partly by my noble and learned friend, Lord Conesford, and by the noble Lord, Lord Douglas of Barloch. After all, Parliament has set up the machinery under which these inquiries function, and I am sure that neither House of Parliament would seek by its own action in debate to stultify what it has quite deliberately, by Act of Parliament, set out to achieve; and I am very sure that no Member of either House would wish, by his speeches, to be the means of that happening.

The object of these inquiries is to enable individuals and public authorities and, indeed, whole communities, and in extreme cases the national community, to get a fair hearing and have their case put where their own or public interests are affected—and before the Minister makes up his mind. It follows that the wells of justice should surely not be poisoned by intervention. After all, the inspector is a paid official. He is far more vulnerable in that way than a High Court Judge. A High Court Judge is protected by his professional training. Also, he is protected by the Constitution from removal; and I should have thought that the inspector ought to be to a great extent allowed to operate and continue his inquiry in an atmosphere free from lobbies and pressures.

I am sure that whatever else is true, my noble and learned friend Lord Conesford was right in suggesting that at least the Minister should be silent on matters until the evidence is complete. I understood that my noble friend Lord Salter, agreed with that. After all, people who feel strongly can come and give evidence, and others who feel strongly in the opposite direction can then argue with them, and the thing can be assembled, marshalled, brought together and finally determined. Surely, that is a better course than for some to seek to influence the decision from a point of vantage from which they cannot be answered, whether that place be the columns of a newspaper or Parliament itself.

If my noble and learned friend on the Woolsack is to be pressed, as he is currently being pressed in relation to the Saffron Walden inquiry, as noble Lords will have seen in the columns of The Times newspaper to-day, to enforce upon his colleagues the view that in many respects they must not go to private and extraneous sources for information and advice (and up to a point he agrees, although in the particular case of the Saffron Walden inquiry he thought that the advice sought was reasonable)—if he is to be pressed on those lines, then surely it must be right, as a matter of practice and personal responsibility, that noble Lords and honourable Members of another place (although I have no right to speak about them) and those who want to discuss the merits should do so before the start of any inquiry and not use Parliament as a forum to ventilate their views.

I am neither authorised nor prepared to lay down a hard-and-fast rule in these cases, and I think precedents would give me small justification for trying to do so; but I should simply think, as a matter of sense, that when these inquiries are pending the House would do well, on the whole, to respect the independence of the inspector and do its best to ensure that the result of that inquiry is not only fair but is seen to be fair.


My Lords, I should like to ask the noble and learned Viscount to confirm or correct two points. In the first place, if I heard him aright, he is making a distinction between the freedom to discuss in the period in question in this House and the freedom of the Press or other organs of public opinion to do so. In the second place, may I ask him whether it is not true that on December 1 last there had been no guiding rule or precedent to limit discussion in this House in the circumstances in question?


My Lords, as regards the second question, that is certainly true. There has been no precedent or ruling. As regards the first, I would say as a matter of general observation that I should think this House ought to decide its own conduct without particular reference to the other kinds of public expression of opinion which may or may not be desirable, and which do not depend so much as the practice of this House does upon the sense of responsibility of individual people. They have to be curbed, if they are curbed at all, by legal processes which sometimes are worse than the disease.

5.29 p.m.


My Lords, I am very grateful to those noble Lords who have taken part in this discussion, and I am gratified by the general course of the discussion. I do not want to take much more of your Lordships' time. I should like to say to the noble Lord, Lord Conesford, that I was glad to find him in agreement with my general argument. I do not think the difficulty he raised is in any sense insuperable. I believe it will be handled by a Minister when it comes up—which will not be very often—in the kind of way in which the noble and learned Viscount handled the broadcasting case. He will say that the arguments have been listened to, and that he will bring them to the attention of his right honourable friend—as so often happens; indeed, as has happened at an earlier stage here this afternoon, once if not twice. The matters that have been brought forward will be before the Minister when he comes to make up his mind, and that is, after all, what this type of political decision requires: that the Minister should have all the relevant material before him; what comes out of the inquiry being just a rather important group of facts forming part of the dossier.

I think that the noble and learned Viscount the Leader of the House has really put the matter in proper perspective when he says that it is a matter for the good sense of the House; that different types of case will require a different attitude from noble Lords. That obviously is so. In the sort of small case in which a man's residence is the whole subject of the inquiry, clearly nobody is going to initiate a debate in this House. But in a case like the North Oxfordshire iron case or the Piccadilly Circus case, or cases of that type, the interests of a very large section of the public are concerned; and the matter is one of real political significance in which it is not only right that Members of Parliament should express their views but, in my submission, their duty to do so. This, I think, is the answer to my noble friend Lord Douglas of Barloch. Some cases should be treated with a kind of sub judice approach; others not.


My Lords, I am obliged to the noble Lord for yielding. He has two or three times referred to the Piccadilly Circus case. I took a fairly prominent part in that, but all the interventions in this House were before the inquiry had been set up. There was no discussion in this House after the appointment of the inspector.


I am not saying that there was. I was saying merely that that is the sort of case in which I should have regarded it as apparently legitimate that there should be, and it differentiates it from the sort of case to which my noble friend Lord Douglas of Barloch was referring.

I was a little sorry that the noble and learned Viscount, Lord Hailsham, did not discuss in more detail the limits of the period of abstention. He seemed to carry it right down to the time when the Minister gives his decision, which I would have thought takes it too far. However, these matters will no doubt come out in the washing. I am sure that the discussion which we have had this afternoon is of very considerable value in regard to these matters; and I hope, for that reason, that the Motion, which I now beg leave to withdraw, has been a useful one.

Motion for Papers, by leave, withdrawn.