Good afternoon and welcome to this public evidence session of the Procedure Committee. This session is the first in our inquiry into the sub judice resolution in the House of Commons. The sub judice rule, which was agreed by the House in 2001, prevents Members of Parliament from discussing active cases before the courts in questions, motions or debates in the main Chamber, Westminster Hall or Committees. The aim of the resolution is to preserve the institutional balance between Parliament and the courts in our constitution, and to avoid the actual or perceived influence of Parliament on the conduct of legal proceedings, therefore protecting the right of individuals to expect a fair trial. This inquiry was launched following a request by the Speaker to review the sub judice resolution in the wake of the Southport attacks, to ensure that it remains fit for purpose in the 21st century. To help us with our inquiry, we are joined by several senior representatives of the House of Commons Administration. Good afternoon to you all. Before we begin, will you introduce yourselves formally for the record?

Good afternoon, everyone. My name is Farrah Bhatti. I am the Principal Clerk of the Table Office.

Afternoon. I am Tom Healey. I am Clerk of Legislation and—since recently—former Principal Clerk of the Table Office.

Good afternoon. I am Tom Goldsmith. I am the Clerk of the House.

Good afternoon. Saira Salimi, Speaker’s Counsel and head of the legal team. I should declare for the record that I also sit part-time as a judge.

I am Eve Samson, the Clerk of the Journals.

Thank you all. What is the sub judice resolution in the House of Commons and what does it seek to achieve?

Thank you, Chair, for undertaking this inquiry. I think you covered some of the answer in your introduction. The resolution is a restriction that the House puts on itself not to discuss in its business matters that are live before the courts. It has two overriding functions. One is about preserving comity, which is the principle that within our constitution Parliament has a particular job to do, but the courts have a particular job too, and Parliament should not try to influence or put undue pressure on the courts as they go about their work. In other words, it should not act as an alternative forum for determining cases—that is a phrase that comes up quite a lot in the literature around this. The second function is to try to avoid prejudicing any particular case that is before the court—and you might want to go into with us how that might happen in practice. That is quite a long-winded way of saying what the Canadians say quite snappily in their guide to procedure. They say that the convention, as it is there, which is a restriction on MPs from making reference to matters before the court, is “in the interests of justice and fair play”. I think that is what is at the heart of the sub judice resolution. Of course, against that principle is the really important one of Members’ ability to have free speech. Obviously, free speech is a fundamentally important privilege that the House needs to do its work. There are a number of ways in which the resolution tries to balance those two principles and to respect the fact that free speech is extremely important. One is that the House can ask questions or debate issues that are before the courts which are about a ministerial decision. The second, which is obviously important, is that the resolution does not apply when the House is legislating. The third, which I think is the most important proviso, is that the Speaker always has an ability to waive the resolution.

Thank you. That is a really good starter for 10.

Does the fact that the sub judice resolution does not apply when the House is legislating undervalue the House’s scrutiny—you just mentioned that a little—and representative functions?

I would look at it slightly the other way round, if I may, and ask what is special about legislation. There might be a number of reasons why it is right that legislation is exempted from the rule. The first is that there might be something going on within the courts themselves that requires a legislative solution, and clearly it would not be possible for the House to legislate without talking about a live case in that instance. You might want to ask us for more detail about how that might emerge. The second thing is an issue about timeliness generally. We know that often when legislation is brought before the House there is an urgency about it. I do not think it would be appropriate for the House not to be able to legislate if there was a live court case that might impede the ability of Members to legislate. The third is about the nature of scrutiny of legislation. The House has debates about legislation that are about the principle, typically on Second Reading, but when it is legislating well, it also has quite detailed and forensic debates about the detail of legislation, sometimes line by line and occasionally word by word. There is an expectation when the House is legislating well that Ministers, if it is Government legislation, will explain what the proposed legislation is about and Members will be able to ask detailed questions. Anything that impedes them from doing that has the risk of meaning that legislation will not be as good or as effective as it might otherwise be. I think those are all quite strong reasons why the resolution should not apply to legislation. I will put another reason forward, which is perhaps slightly more controversial and I do not think is as strong as the first three. When the House is scrutinising, although it is the fundamental place in which Ministers should be held to account, it is asking questions and asking Ministers to explain themselves. To an extent—although often it is not as good as the House doing it—that can go on in other forums. What cannot go on in other forums is legislating. The media cannot legislate; only Parliament can. I think those are all reasons why it is justifiable for the resolution not to apply to legislation.

I have one more point on that. The sub judice resolution does not apply to cases where ministerial decisions are in question. It does not stop the House doing that core scrutiny function of looking at what the Government is doing, even if there is a live case on a ministerial decision.

Thank you, both, for that particularly thorough answer. I appreciate that. It is often said that the twin aims of the sub judice resolution are maintaining comity between Parliament and the courts, and avoiding impacting legal proceedings. Does it do both equally, or is one more important than the other?

I would say that they are equally important, although for slightly different reasons. Comity is fundamental. The balance between, as one judge once put it, two constitutional sovereignties—Parliament and the courts—is really important in the constitutional balance. Also, in individual legal proceedings, particularly criminal legal proceedings, where somebody’s liberty may be at stake, it is extremely important for the roles of Parliament and the courts to be clearly separated so that the courts can carry out their functions uninhibited.

I absolutely agree with that, but I would add that there is also a slightly more self-interested aspect to the risk of prejudicing a case. It is possible to imagine a case that might be prejudiced and have to come to an end because of the reporting of something said in the House. That would be terrible for justice and for any victims in the case, but it would also be pretty bad for the reputation of the House.

The sub judice rule can at times feel quite restrictive to Members, often because we are prevented from saying things in Parliament that are being freely discussed in the media, and indeed that we can comment on in the media. Is that only a matter of perception, or are Members more restrained in what they can and cannot say about live cases than the media? In particular, has pressure from social media increased that issue?

I do not think that it is just a matter of perception. Saira, do you want to pick that up?

By all means. The answer to the second part of your question is that, yes, MPs are more restrained in what they can and cannot say on live cases than the media. You may want to come on to the question of contempt of court and how that applies. The resolution prevents any reference to a live case in any motion, debate or question, whereas contempt of court legislation prevents only discussion of a kind that would substantially prejudice the case. So MPs are more restrained, which reflects the in-the-moment nature of Parliamentary debate. I completely agree—colleagues may wish to come in on this—that social media has increased the pressure in this area. Although contempt of court law applies equally to anybody commenting on a case, with social media there are the twin difficulties of identifying the person behind an anonymous username and the fact that they may not be in the UK to be pursued for contempt of court. Members are under more pressure and a lot is said on social media that is in contempt of court; it just cannot be pursued through the courts.

In my previous job, Members came to me a lot for advice on sub judice, and social media came up a lot in those conversations. In the mainstream media—newspapers, television, radio—professional journalists know a bit about the Contempt of Court Act and matters sub judice. Editors would go to lawyers when they needed more specialist advice on what may or may not be prejudicial. The difficulty now is that Members are exposed on social media to a lot of material that, as Saira says, is posted from behind the veil of anonymity with very little fear of repercussion. That possibly gives the sense that it is kind of okay to say things that could actually be terribly prejudicial because people are doing it on social media, even though they are doing it from the safety of an anonymous account knowing that they are not likely to be prosecuted if they commit contempt of court.

Building on what Tom said, it is worth reflecting on the standing that Members of Parliament have. Even when they are commenting on these things on social media themselves, their words often have more weight, and they particularly carry more weight within the context of parliamentary proceedings. That is another reason why that tension is there.

Finally, whereas these anonymous posters, if they were caught, would be subject to the Contempt of Court Act, what is said in the Chamber is not. Members can say what they like without any legal repercussions. Moreover, spare a thought for the Speaker trying to make a judgment about whether something is going to be seriously prejudicial without a clue what is being said or much detail about it, and not knowing where the sentence is going to end up when a Member starts.

This question is mainly for Saira, but it flows nicely from what you were just telling us. Several submissions to the inquiry have recommended moving the sub judice resolution into closer alignment with the Contempt of Court Act 1981. You have touched on this, but could you outline how that scheme works and the differences between it and the sub judice resolution? What issues could arise if we were to follow that recommendation and move the sub judice resolution closer to that framework?

The Contempt of Court Act 1981 builds on the common law of contempt of court and relates to publications, which, as Tom has already said, means mainly written media of various kinds. You are strictly liable for contempt of court for any “publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.” There is a double test of significance: there must be a substantial risk that it will affect the course of justice, and it has to be a serious impediment or prejudice to the course of justice. Obviously, that is not identical to the sub judice resolution, but I should say—I think this is an important point—that this has real teeth for everybody outside the privileges of Parliament. If you are committed for contempt of court, the potential penalties are a fine, which can be unlimited, or up to two years’ committal to prison. It is backed up by real teeth if the person committing the contempt can be identified. As Eve has already identified, that does not apply to any proceedings in Parliament, because the privileges of Parliament are an absolute protection to Members for what they say in proceedings. So it is different, but it is also operating in a very different context and backed up with very serious penalties. As several people have already said, the application of the resolution has to be in the moment in debate. That is much more difficult to identify and analyse than with a publication. Also, the House’s penalties are not nearly as stringent as the penalties under the Contempt of Court Act. It seems to me that there are differences, but in my view they are explained by the context. It would be extremely difficult to police a rule like the 1981 Act rule in the course of debate.

That makes perfect sense. Thank you.

In what circumstances could a comment in the House prejudice a trial and lead it to be abandoned? You have already referred to a recent case. In addition to that, is the risk higher in certain types of cases—for example, jury trials compared with trials in front of a single judge? Is there a difference in impact between passing reference to a case and repeatedly referring to the arguments that might be made in a case?

To our knowledge, it has never occurred that a trial has had to be abandoned because of proceedings in the House and comment on the case in the House, but there have been some cases where media comment has led to the abandonment of trials, and those might be a helpful parallel. Members may remember the trial of Levi Bellfield, who was tried for the murder of Milly Dowler. He was convicted of that murder and then there was substantial media comment on the case before the jury came back with its verdict on another charge for which he was being tried, which was the attempted abduction of another child. That charge had to be withdrawn from the jury and abandoned because the media comment was so prejudicial that the judge took the view that it was impossible for him to have a fair hearing. There have also been other cases, which although not quite of that seriousness are significant. Two Leeds United footballers were accused of assault. The Sunday Mirror published an interview with the victim’s father and the trial had to be stopped and there had to be a second trial. That meant, as Tom has already referred to, that the victims had to give evidence again, which is obviously a very unpleasant experience. There have been other cases where media headlines have led to either the abandonment of a trial or a successful appeal by the defendants against a conviction. Those are the risks of comment on a trial that is seriously prejudicial to the case. In the context of the House, if there were prejudicial comment in the course of proceedings, it is very likely that the defence’s lawyers would raise before the judge the possibility that these matters have been widely reported and therefore it is impossible for their client to have a fair trial. The judge would then have to consider whether that was a reasonable claim to make in all the circumstances and determine what to do with the proceedings. You asked if there was a difference in risk between different kinds of trial. I think there is. The risk is obviously greatest in a trial where there is a jury. A group of lay people who may not know anything about the law and are being asked to make a decision on the facts are perhaps more susceptible than a legally qualified judge to being swayed by headlines about what has been said, in Parliament or elsewhere, about the proceedings.

Is there a difference in impact between passing reference to a case, or to the facts, and rehearsing the arguments?

There could be. That is a very fact-specific question, in my view. In general, of course it is true that a passing reference to the existence of a case is very unlikely to have a substantial impact on a trial, but occasionally even a passing reference might be quite damaging. It would all depend very much on the facts and circumstances. Eve has already alluded to how difficult it is in the moment, where the Speaker or Chair does not have in-depth knowledge of the criminal or civil case in question, to decide whether a reference will be prejudicial or not.

Two things. Of course, the sub judice resolution itself recognises the difference, because it is much looser about civil cases. Secondly, you said “passing reference”, but let us think about the Post Office case. If somebody had said, “There are 500 postmasters currently on trial for fiddling—that many people can’t have done it,” that would not have been an in-depth reference, but it might well have sowed doubts in the jury’s minds, and if the facts had been otherwise, it might have had an effect.

I absolutely agree with what Saira and Eve have just said, but in practice sometimes passing references are made and not picked up on. That is partly because, as Eve alluded to earlier, sometimes it is not evident that the case is live until the end of a question or a point of order, or something like that. Sometimes Members raise cases that were before the courts but were settled a long time ago. It is difficult for us to know always, when we are sitting there advising the Speaker, whether something is caught by the sub judice resolution. Sometimes there is a practical point that if it genuinely is a passing reference and we think that the parliamentary caravan is going to move on, we would be drawing more attention to it by encouraging the Speaker to intervene and that would be counterproductive to the point of the resolution.

I understand that in the devolved Parliaments the sub judice rule applies in criminal cases from the point of arrest, rather than from the point of charge. What are your reflections on that? Should it be consistent across the UK?

There would be a practical implication if we were to adopt that practice: it is simply more difficult to know the details about an arrest than about a charge. While you are quite right that the resolution does not kick in from arrest, there are occasions when the Speaker will encourage Members to act with caution in what they say because the chances of a charge coming and a case following are quite high. There is definitely an argument for doing that. I think we would find it quite difficult to police. In practice, where we know there is a real risk, the Speaker can do something to try to mitigate that risk anyway. There is a balance. Personally, I think that the balance is about right at the moment, but colleagues might disagree.

It is perfectly possible to argue the point either way. The contempt of court legislation also applies from the point of arrest rather than charge. To add to the practical points that Tom made, of course there may be several arrests and people released without charge before charges are made and a case goes ahead, so there might be quite a long period in which it was not at all clear who was likely to be tried.

If you applied the rule from the point of arrest, I think it would cast the net much more widely. One of the things the Table Office does is keep an eye on live cases before the courts. If you had to expand that to cover everybody who had been arrested for something, there would be a much bigger group of things that we would have to monitor. I think it would be more restrictive if you applied it in that way. Although it is clearly possible to prejudice a trial before it has even started by things that you might say in public, and the Contempt of Court Act applies from the moment of arrest, we talked about the principle of comity. It is comity between Parliament and the courts—[Interruption.]

Order. Sitting suspended for a Division in the House. On resuming—

I will hand back to John Lamont, who was in the process of asking his question as the Division bell rang.

I think Tom was just finishing his remarks.

I was saying that, when you talk about applying it from arrest, there are two other issues, as well as what other colleagues have said about how difficult it would be to enforce. First, the situation changes when somebody is charged because the CPS have looked at it and decided that there is a reasonable chance of successful prosecution, which has not happened until the point of charge. People are arrested for a very wide variety of reasons and then released without charge, and so on. The other thing is that it is about comity between Parliament and the courts. It is not about comity between Parliament and the police, or Parliament and the CPS. The courts are not involved until the charge is made. The current position where it applies from the point of charge is defensible in terms of the purpose of the rule, and it is also relatively easy to police and apply in the Chamber in real time.

Two things. First, remember that the constraints of the sub judice rule are stricter than those of the Contempt of Court Act, so you are putting huge pressure on yourself not to mention arrests, and you might want to mention arrests. If you think the local police force has gone rogue and is arresting everybody with red hair in your town centre, you might very well want to raise that in the House.

Tom, I was reflecting on one of your earlier comments while I was voting. You said the Table Office monitors who has been charged. How much resource does that take, and how do you actually do that practically?

We do it on a rota. One person does it each week. It is probably equivalent to a day a week of somebody’s time, but obviously not all in one day—it will be an hour or two every day. You watch what’s in the news, looking for high-profile cases and for cases where you know a Member is going to raise something because they have told you. In cases where there is a debate coming up, such as a knife crime debate in Westminster Hall, you might say, “Let’s have a look at any high-profile knife crime cases at the moment.” It is a reasonably big piece of work. It largely involves consultation with the MOJ. We basically ring them up and say, “This has been reported in the media. Can you confirm whether anybody has been charged?” If that had to apply to arrests, I just don’t know how we’d do it.

Thinking about the difference between criminal cases and civil cases, the latter usually run for significantly longer periods of time than the former. Do you think it is appropriate to have the sub judice rule applicable for that entire period, or is there a more appropriate point of applicability?

The first point is that the resolution does not necessarily apply for that whole period of time. In criminal cases it applies from charge, as we have said, and that obviously continues until the case is over. For civil cases, it does not bite until the case is set down for hearing, which may happen quite a long time into the life of a civil case. Typically, in a civil case, somebody issues proceedings and there is a defence. At that stage, there is no trial date; there may be no trial date for quite a long time after that. It is not until it is set down for hearing—either for trial of the whole case or for a hearing on a preliminary point—that the resolution starts to bite, and usually that will happen a few months before the hearing actually comes around. If a trial is going to take place in October, it will probably be listed by, say, the start of that year. Although it may apply for months, it does not usually apply for years, and it does not apply for the lifespan of the case.

So you are content to have different bite points between the different types of cases?

It seems to me to strike a good balance between the different kinds of things that are at stake in criminal and civil trials. It also avoids the possibility that somebody could issue completely vexatious proceedings and have them immediately protected by the resolution in a civil case.

The one thing that might be looked at is that it bites from appeal in any case. Whether you might want to change that for civil cases seems interesting. The other thing about civil cases is that sometimes they have little hearings to settle preliminary decisions. Once those hearings are over, unless the main case is listed, the case is no longer subject to sub judice, so civil cases have quite a lot of flexibility for discussion.

I think you also have to put it in the context of Speaker’s discretion, because we find ourselves advising a lot more often that it would be appropriate to exercise a waiver in a civil case, because there might be questions about the timing or because of the absence of a jury, so in practice there can be quite a difference in treatment.

First-tier tribunals are not covered by the resolution. Can you explain why that is, and whether you think it is clear what types of courts and cases are and are not covered?

It is correct that they are not covered, for reasons of historical accident really, because at the point the resolution developed there were really only the courts. Some quasi-judicial tribunals were beginning to get going in the early days of the sub judice resolution, but the whole tribunal system that exists now did not exist when the resolution was first evolving. Even 2001, when the current iteration of the resolution was developed, predates the Tribunals, Courts and Enforcement Act, which sets up the current system of first-tier tribunals. In my view, there is no reason of principle not to include tribunals, but there are reasons of practicality, which my colleagues may want to say more about. I would observe that, although it does not bite on tribunals, there is, as far as I can see, no evidence of a difficulty with Members making inappropriate references to first-tier stages of employment tribunals or other kinds of tribunal. The other question you asked is whether it is always clear. There are one or two anomalies, because the Upper Tribunal and the Employment Appeal Tribunal, despite being called tribunals, are in fact superior courts of record, and their governing statutes say so, so it is not immediately obvious that the resolution bites on them. I think that could be made clear by a bit of redrafting of the resolution.

I am told that the predecessor Committee, back in 2006, took the view that there was no later workable “trigger point” for the sub judice resolution biting on coroners courts and inquests, despite their often lengthy nature and long periods of inactivity. Have there been any substantive changes in how those legal proceedings work to change that conclusion? Should we, as a Committee, be looking at that again?

I will take the first part of that. There have been some changes to how the coronial courts work since 2001, but not, in my view, changes that would affect the application of the resolution. In particular, it seems no more obvious than it was when your predecessor Committee looked at this in 2006 that there is a clear point where you can say, “Right, this resolution should apply from this point.” It is so common for coroners’ inquests to be opened and adjourned while other things happen, whether they are criminal proceedings, civil proceedings or perhaps a statutory public inquiry, which itself would not be in scope of the resolution. It seems to me that it would be very difficult to draw a line anywhere other than the opening of the inquest, because it simply will not be obvious to the Table Office when that point has been reached. At the moment, it is very common for a waiver to be granted in the period when an inquest has been opened but nothing has actually happened yet. In fact, I think it might be more common for a waiver to be granted than not if a Member wishes to mention a specific inquest. Although the resolution bites early, it seems to me that the current system is working well.

Isn’t there also a legal reason why first-tier tribunals should not be covered? That is because, for example, witnesses in first-tier tribunals do not have to give evidence on oath and the tribunal judges do not have the powers of the Contempt of Court Act to hold witnesses and other participants to account if they misbehave. The first-tier tribunals are very different from the court system. It is not just a matter of practicality; it goes beyond that.

That was certainly true in earlier iterations of the resolution, but, although the tribunals system does not include the powers that the courts have as a matter of common law, they have parallel statutory powers. For example, an employment tribunal may make a witness order to require the attendance of a witness, which parallels the process for requiring a witness to attend a court. There are statutory powers that mirror the powers of the courts. The distinction is not nearly as great as it was even 40 years ago, let alone 100 years ago. There are differences, but in my view, they are not now significant differences on which one can draw a principled distinction.

Our local records on the number of waivers go back only to the start of the 2019 Parliament. In the 2019 to 2024 Parliament, 39 waivers were issued. In the current Parliament, 14 waivers have been issued so far. Going back beyond that period would be an imperfect assessment of the number of waivers granted; we would have to go back through either the Journal—although I am not sure we have consistently minuted waivers when they have been given in the Chamber and Westminster Hall—or do an imperfect search of Hansard for keywords. On general trend assessments—going back to some of the points made earlier about the fact that the sub judice resolution does not come into play when the House is legislating—thinking about the trends we have had in parliamentary business alongside the trends in waivers is probably a sensible thing to do. In recent years, we have seen increasing opportunities for Members to expand the types of scrutiny that are undertaken. We have seen more urgent questions, the introduction and growth of Backbench Business and the use of Opposition days. Historically, I would say the House perhaps spent more time legislating, so you would not have seen as many waivers being issued in those circumstances, given that the resolution did not apply.

Over quite a long career, it is my impression that there is more awareness of the need to balance the House’s ability to discuss things and the courts’ rights, but given the changes in business, it is very hard to put that in numbers. It just means that people think about it very frequently and very carefully.

I am looking at Farrah because the Table Office keeps the record of waivers. In principle, there is no problem with that. These are all things that are on the public record, because the Speaker says in the Chamber that he is going to exercise a waiver, so I think that is probably a useful thing to do.

I absolutely agree. If the Committee thought that was a sensible thing for the House to have, we have that information. As Tom says, they are publicly known because the Speaker in the Chamber, or the Chair in Westminster Hall, will announce them during the course of proceedings, so there would not be a problem with doing that.

I certainly think it would be useful for Members and Clerks. One thing to explain is that a waiver is not a binary thing—it is not a yes/no. It is granted in specific terms. The Speaker might grant a waiver for a particular statement. When there was public disorder following the Southport attacks, the Speaker granted a very limited waiver for a specific statement by the Home Secretary so that Members could talk about the public disorder but not refer to the criminal case. Sometimes waivers are granted for a very specific proceeding and then they expire, or they could be very general. They could be in relation to the motor finance cases that have been going through involving mis-sold, or allegedly mis-sold, car loans. If we were going to publish a list, it would probably have to contain the exact wording from Hansard, rather than just saying “Is there a waiver here? Yes or no.” I think it might need to contain a little bit more explanatory material as well, such as, “On this date the Speaker granted a partial waiver in respect of this case for this statement, but that waiver is no longer in place,” or something like that. We would have to think about how to assemble the document, but in principle I think it is a good idea.

I agree with Tom. Sometimes a waiver is limited to a particular proceeding. Sometimes a waiver is otherwise constrained because Members are allowed to talk about a case in some respects but not in others. Formally, under the resolution, a criminal case is caught until sentencing, but in the case of Southport, the Speaker allowed Members to discuss the case after the person pleaded guilty but before sentencing had happened, but he did say—I don’t have the exact words, but we can give them to the Committee—that Members should not speculate about the sentence itself or apply pressure as to what kind of sentence would be appropriate, because that was still properly a matter for the courts. Something else to say on waivers is that sometimes they happen because Members come to us or to the Speaker because they want to raise something that they know is likely to be before the courts. They make a case, and we give advice to the Speaker, and he decides. Sometimes we spot things that are obviously things the House might want to talk about, and we proactively give advice to the Speaker about a waiver. We think about whether it should be done in a limited way, for the reasons I have just given. We are very conscious at that point about the rights of the House and its Members to exercise free speech, which is very important. Where things are a close call, I think our tendency is to advise that a waiver should be given. There is a phrase that the Canadians have used that I quite like, from a Canadian report by the Special Committee on Rights and Immunities, and it says, “where there is any doubt in the mind of the Chair, a presumption should exist in favour of allowing debate and against the application for the convention”—it is a convention in their case. I think that is what we do in terms of advice in any event, where it is a close call and where there is doubt, but it is quite a handy articulation.

The Government’s written evidence suggested that the Speaker’s Office publish guidance on when a waiver might be granted. Taking into account the nuance of the last answer and the fact that it is case by case, do you think this would be helpful and possibly doable, given what you have just said about how they are granted?

My initial impression is that it would be potentially unhelpful. At the moment, the Speaker has very wide discretion. The discretion to grant a waiver in the sub judice resolution basically applies if he thinks it is in the national interest to do so. It goes on to give some specific examples: the economy, public order and essential services. Those are examples, not an exhaustive list of the areas where he can grant a waiver. I think trying to come up with a hypothetical set of criteria could end up, further down the line, in a situation where you encounter a situation that you just had not anticipated and you discover that the hypothetical criteria you had published two years ago suddenly do not work in this situation. I would be cautious about that. I think there may be some scope for a high-level statement of principles, but anything beyond that—I think it is helpful, in this context, for the Speaker to have fairly broad discretion, because it allows him to deal with any situation that might arise.

Do you think that using previous waivers as a sort of framework or explanation, so that we have an idea, may be a way of dealing with that? I am talking about a sort of case history.

I definitely think you could do that. You would start to essentially build up a body of case law. If we started publishing a list of waivers, in a few years’ time we would find ourselves with at least several dozen if not a few hundred waivers, and somebody could start to look at them and work out what kind of criteria had been in play. That might be one way forward, but I think it is also about trying to formulate a set of principles. The principles we apply when we are advising the Speaker on this are, broadly speaking, “How great is the public interest in this being discussed in Parliament?”, and, “How great is the risk of prejudice?” Lots of other things are in play, and obviously it is the Speaker’s own decision—we advise and he decides—but at the highest level, you are trying to balance those two things: risk of prejudice versus public interest in it being discussed in the House.

What we could do that might be helpful—I agree with Tom—is make Members more aware that if they ever have a question about this, or if they are thinking about raising something and they are not sure whether there is a problem because the courts are involved, they should always come and ask for advice. Quite often, Members are properly cautious and will come and ask, and it is not caught by the resolution, so we can give them reassurance. At other times, things might be caught by the resolution, but we could say, “Look, this could be a case where you want to put something to the Speaker for a waiver.” At other times, we might be able to advise on the formulation of a question that gives the Member the opportunity to raise the main points without specifically referring to the case. Normally, if a Member comes to us when there is an issue about potentially being caught by the resolution, we can do something to help. We could probably publicise better the fact that we can do that.

I want to come on to the powers of the Speaker, which we touched on earlier when we were talking about contempt of court—the very great differences in punishments. What are the powers of the Speaker to deal with breaches of the sub judice resolution, and do you think they are sufficient?

The Speaker has a specific power under the Standing Orders to stop a Member if they breach the sub judice resolution. I think I am right in saying that the power under that Standing Order has never actually been used. That probably suggests that the powers are sufficient, because on the whole here, Members are respectful of the authority of the Chair and normally—well, in every case in that time—not using the formal power but being able to give Members a steer is enough, I think.

Beyond that, you have the standard set of disciplinary powers that the Chair has to ask Members to withdraw, to name them and so on, which could also come into play.

We now have some questions about the practical operation of the sub judice resolution, so I will hand over to Graeme.

Tom Healey, you touched earlier on how you keep track of cases, but how confident are you that you have all the relevant cases at any one time and, on the resource related to that, what would be the implications for overall House Administration of any expansion of the sub judice resolution to include additional legal proceedings?

If I may, I will pick this up, having recently taken over from Tom in the Table Office. In terms of being able to track all the live cases, it would be impossible to track everything that is going on in the courts, for obvious reasons. But as has been alluded to by colleagues, the team do a lot of work to proactively look ahead at future business—to look at the debates happening and the questions tabled for the week ahead—and to proactively contact Members where issues that are sub judice might be raised in those debates. We do a bit of scanning of news articles, keep our ear to the ground in questions and get feedback from Clerks at the Table about issues that Members have raised in the Chamber, so it is a bit of an iterative process in that sense. Sorry, what was your second question?

What would the resource implications be for you and the rest of the House Administration team if the sub judice resolution was expanded to include additional legal proceedings?

It becomes a bigger piece of work the broader the scope goes. I suppose there would be more risk that we miss things in the research that we are doing behind the scenes, and it would become harder to police in the Chamber itself. Tom has already mentioned the resourcing effort that goes on. It is probably about a full day’s work for one individual on a weekly basis to update the documentation that we have. Beyond that, there is the contact that goes on with Members, and the reactive work that happens day to day. For example, if there is an urgent question that might have a sub judice angle to it, we will be doing a bit of quick research in the morning ahead of discussions around whether the UQ might be granted. Obviously it is not just our team who are working on this. We are in touch with Government Departments, which often hold a lot of the information—MOJ and others being the operative ones.

Presumably, that is a formal part of a number of people’s roles. It is not like, “While you are looking at one thing, could you look at three others?” It is a formal part of someone’s role.

Yes.

On a point of practicality, the question of expanding the resolution to arrest was raised earlier. It gets much more difficult to track a case if you do not know who the parties are. In civil proceedings, it is usually reasonably obvious—although if we know that there are likely to be a number of claims against a particular person or entity, but we do not yet know who any of the potential claimants are, that is hard to track. Similarly, if we know that charges are likely to be brought, but we do not yet know the name of the potential defendant, that also makes the Table Office’s job much more difficult.

We track this to help the Clerks at the Table and the Chair. Once you have a document with more than 50 cases on, none of which is likely to be used, and somebody says a name, there is nowhere you can find the name. It has to be small enough, and focused on things that Members are likely to be interested in, to help.

To follow up on that, we do more work now than we did five or six years ago on trying to track high-profile cases, making sure we are ahead of the game in spotting them and thinking about our advice in advance. That is largely to help Members—so that they can ask what they want to ask with confidence—as well as to help the Chair. It also helps to avoid embarrassment and difficulties in the Chamber, and avoid the resolution being inadvertently abused. But there is a responsibility for Members here as well. On the whole, they will have a lot of knowledge about the case they want to raise—more than we do sitting at the Table, especially if it is just raised impromptu. It is quite interesting that the Canadians say that the responsibility of the Chair in protecting the convention during Question Time should be quite limited. The reason, they say, is that, “the responsibility should principally rest upon the Member who asks the question and the Minister to whom it is addressed. Should a question to a Minister touch upon a matter sub judice, it is likely that the Minister involved will have more information covering the matter than the Speaker, and the Minister might be better able to judge whether answering the question might cause prejudice.” Now, we always alert the Speaker if we spot something that is clearly sub judice, but I think there is something in what the Canadians say in their guide to procedure. Members have to take responsibility for this, and we will not ever capture every instance.

The previous Committee, in its 2006 report, highlighted the importance of co-ordination between the Lords and the Commons in applying the sub judice resolution consistently. What co-ordination is there currently, if any, on sub judice matters, including any waivers?

From the perspective of officials, there is a lot of informal contact between different offices. Colleagues in our Table Office will be in touch with colleagues in the Lords Table Office. Eve will be in touch with her counterpart as Clerk of the Journals in the Lords. Saira will be in touch with her counterpart as parliamentary counsel. There is a lot of informal engagement. When it comes to the issuing of waivers, that is a matter for the Speaker, and the Speaker in our House will be operating independently of the Speaker in the Lords.

The other thing to add is that the House of Lords is self-regulating. Their Speaker does not have the powers that the Commons Speaker has to enforce rules. As Tom mentioned, there is a specific power in the Standing Orders for the Speaker to direct a Member to resume their seat if they are breaching the sub judice resolution, but no equivalent power exists in the Lords. They rely in all their proceedings much more on Members knowing the rules and observing them.

Would a more formal process be helpful, or does the informal process that is in place now work okay?

It seems to me that it is working well at the moment.

It works—if we have a query, it gets established. Lords intending to raise a sub judice matter, in theory, have to give the Lords Speaker 24 hours’ notice, so when there is a question of the Lords and the Commons saying, “How does this line up with you?”, they have time to come to us. We have already spoken about the Speaker’s power to waive, which is not as easy to do in the Lords because the Lords Speaker does not have the powers of our Speaker, but they have time to consult us informally. I am not sure that something formal would add anything.

I have one final question on the practical application. Is there anything else about the Table Office’s role on the sub judice resolution that has not already been covered?

I can’t think of anything, but just to amplify something Farrah said, we do contact Members proactively. When we look at next week’s business and see questions on the Order Paper, or Westminster Hall debates, that look like they might relate to sub judice matters, the office contacts Members proactively. But I think we have given you a good sense of what the office does.

The only other thing, to pick up on something that Tom Goldsmith said, is that we are there to provide a service to Members. If there is anything that we can do to better advertise that, that is something we can think about. As Tom mentioned, we can advise on the right formulation for a question. Just this week, we have had discussions with Members about the right formulations for early-day motions that skirt around sub judice issues. That is also a service that we provide.

In your written submission to the Committee, you recommended removing the reference to mandatory post-trial reviews. Could you tell us a bit more about why you are proposing that and what can be done to ensure there are no unforeseen consequences of such a removal?

This simply reflects the fact that the resolution is now nearly a quarter of a century old, and the law relating to courts martial has moved on in the intervening years. The Armed Forces Act 2006 abolished the requirement for a mandatory post-trial review, so that reference is now beating the air.

So we have had time to see the unforeseen consequences. My second question also refers to the written evidence. You noted that paragraph 2 of the resolution, relating to “matters which the House has expressly referred to any judicial body for decision and report”, is now obsolete.

That again refers to repealed legislation. Under the Tribunals of Inquiry (Evidence) Act, the House could set up by resolution what is now a statutory inquiry, which is covered, but those previous bodies do not exist any more.

What could be the impact of extending the exemption “where a ministerial decision is in question” to include the decisions of independent bodies, such as agencies or regulators?

That is an interesting proposal. We can sometimes get into a difficulty about what is a ministerial decision and what is a Government decision that is none the less ministerial. The flavour of the resolution is that the House should be able to ask Ministers about things for which they are accountable to Parliament, so I can see that you could formulate the resolution differently to capture that. You would have to choose your words carefully—“central Government bodies under ministerial supervision” or something; I do not know quite how you would phrase it—but in my view that would be an improvement on the existing resolution. It would give a better indication of the principle, which is that Ministers should not be able to hide behind legal proceedings to avoid accountability to Parliament, but you would have to think carefully about the drafting.

On the “issues of national importance” bit of the resolution, your written evidence suggests removing the non-exhaustive list from the resolution. Why is that?

I do not think it adds very much. “Issues of national importance” is a category of things, then it says, “such as the economy, public order or the essential services,” but it does not confine it to those things. For example, we had a waiver last year about the series of deaths in HMP Parc in Wales. It was a coroner’s inquest case—there were no civil or criminal cases then, as far as I was aware—but that was not quite any of those listed things. I suppose you could argue that prisons are an essential service, but it was a matter of national importance to do with security and safety in prisons and so on. You could take those words out of the resolution without, I think, changing its meaning. Why have them there if they are not doing anything useful?

How is the sub judice resolution applied in Select Committee proceedings? Would you recommend any changes to the resolution’s application to Select Committees?

The resolution does apply to Select Committees. The Chair of a Committee has the ability to waive the resolution, but they should consult the Speaker wherever possible before doing so. That is, I suppose, a matter of trying to ensure some consistency, because it could potentially be quite embarrassing and against the spirit of the resolution if different decisions were taken in the Chamber and in a Committee. I think on the whole that works fairly well. I was formerly head of the Committee Office and sub judice issues did come up, but on the whole consultation worked reasonably well. The same principles were applied as in the Chamber. I am not sure I can think of any obvious improvements to the resolution itself.

If the Speaker does it from the Chair in the Chamber, does it automatically cover all Select Committees? Do the individual Chairs have to replicate what the Speaker has done?

The formal decision on its application in the Committee would rest with the Chair of the Committee, but we would be very surprised if a Chair took a different view. We would encourage taking the same view for consistency.

I will start, but Eve may have some points to add. That case was heard in the Court of Human Rights because there was no applicable domestic process, because it was protected by article 9. It related to a statement made in the House of Lords by Lord Hain, who identified Philip Green as the person who was protected by an interim injunction in live court proceedings that were set down for hearing a couple of months after he made the statement. Philip Green brought proceedings in the Court of Human Rights, essentially complaining that the House of Lords procedure provided inadequate protections for someone whose identity had been revealed in that way. The Court found that the margin of appreciation in that case for decisions about parliamentary privilege and how it operates was highly relevant. It found nothing wrong with the House of Lords procedures on sub judice. It did not require any additional protections for people affected by statements made in breach of the resolution. The one recommendation that the Court made that is of relevance to the work of this Committee is that the resolution should be kept under regular review. Obviously, that recommendation is of equal relevance to both Houses. The work of this Committee, now and in the past, is essentially carrying out that regular review.

Another point of interest is that the Court found the UK is not unusual among other countries. In other countries, what is said in Parliament is protected. Indeed, in some ways, UK parliamentarians have less protection than in many ECHR countries, because there is no immunity for MPs while they are MPs here, whereas there is in many countries. The Court was troubled. Philip Green was going to court to protect his identity, that was what the whole court case was about: should there be a permanent injunction? That would have been breachable, by the way, on the Floor of the House; the SJ resolution would not have applied, and breaching it would have made the whole case vanish. The Court did find that there was a real issue there, but it thought about it and decided that it could not as a court say to a Parliament, “You’ve got to have controls on this, either before somebody speaks or by having punishments afterwards.” Ultimately that would mean the courts deciding whether those controls were adequate, and courts should not control Parliaments—and I suspect they would say vice versa, but that was not covered. It is an interesting judgment. I am really glad that you are doing this inquiry and that you will be thinking about these issues because the Court had a point.

The operation of the resolution as it stands does strike the right balance. In general, as has been said, Members are extremely respectful of the work of the courts and, in general, they do not breach the resolution. Members are careful about breaching it.

We have been talking about tribunals where we do not see a problem. When there was a problem about a decade ago, with super-injunctions and injunctions being breached, there was a Joint Committee to look at it, as well as a judicial committee. The House notices and monitors. A lot of privilege is based on the individual Member’s right to make individual decisions about what they think is right. That is at the core of it.

It is very important that it is a self-denying ordinance by the House because freedom of speech is absolute. Members are entitled to exercise it, but the House has chosen collectively to restrict it in this way, and the House could decide to change that in the future. It seems to me that that is constitutionally very important.

For the record, how do injunctions interact with sub judice in the House?

That is quite a difficult question. Starting with the point that Eve made, once the court proceedings are over, the sub judice resolution no longer bites, but of course, an injunction may potentially last for a lifetime. A breach of the injunction is not itself a breach of the resolution. It is a separate rule of law that bites on people outside proceedings, but because freedom of speech here is absolute, it can be breached without any penalty. Interim injunctions are more complex because they are likely to be happening in the context of live court proceedings, so a breach of an interim injunction may be a breach of the resolution, but it will not always necessarily be.

Thank you, Saira—we have had some discussion about this. Basically, you would have to be very ingenious to breach an interim injunction if the case was set down for a hearing. Assuming that it is a civil case, and you have the interim injunction and a hearing date down the line, you are going to have to be quite ingenious to mention the interim injunction without getting into the underlying case. The difficulty would arise if you had an interim injunction and there was not yet a trial date. I do not know how likely that would be.

Not very, I think, but it could certainly arise. A permanent injunction is just one form of court order, and Members are free to breach court orders in the exercise of their freedom of speech. As Eve said, it is a matter for each individual Member’s judgment whether the circumstances of the case justify that.

But if people start doing it left, right and centre, the House itself tends to take an interest.

So what Lord Hain did was not in breach of any sub judice rule—is that what you are saying?

No, Lord Hain was breaching an interim injunction. There were live legal proceedings at the time to which the resolution applied.

So he was in breach of a sub judice rule?

Yes.

Why was that allowed to happen in the House of Lords? In this House, the Speaker would have intervened to prevent it.

I don’t think we can comment on House of Lords proceedings.

You also have the interesting question of whether he was ingenious enough to mention an interim injunction without mentioning the underlying case.

But being quite serious about it, does that not underline a lacuna? If we are saying that we are trying to set up a set of rules, and the rules were breached in the Hain case in the House of Lords, is there anything we should do to try to change that?

I think it is very important to remember the two Houses are separate institutions with separate rules. That is a matter for the House of Lords.

I am conscious that we are the Commons Procedure Committee, and we are straying beyond the remit of our inquiry there, Chris. I am going to draw this session to a close. I thank colleagues for their participation, and I thank our witnesses for their evidence. If there is anything anybody would like to add to their evidence, we are very happy as a Committee to take written evidence as well.