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2.28 pm

Mr. Eric Forth (Bromley and Chislehurst): My guess as I look around the Chamber is that the Minister is likely to get approval for the motion, although we shall have to wait and see. I have no doubt that the debate will be tense, exciting and thrill-packed. That is the way of the House.

I welcome the motion, and I especially welcome the fact that, as the Minister noted, in this matter we are following the lead given by the other place. There is a tendency these days to assert over and over again what is known in the parlance as the "primacy of the Commons". However, every now and then we get examples of how the House of Lords can take a lead, and this is one such. I am happy to follow the Minister's recommendation that we follow the lead given by their Lordships.

I also welcome what I would describe as the saving provisions in the motion, to which the Minister drew attention, and I welcome especially the one that refers to the "discretion of the Chair". Although we must update the provisions relating to sub judice matters, it is also important that we reassert the ultimate provision that the House, through the Chair in this case, has the last word

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on such matters. In that way we can rightly set out the normal rules and provisions, but with that very important discretion retained for the Chair.

Mention was made of the reference to where a ministerial decision is in question or, in the opinion of the Chair, a case concerns issues of national importance such as the economy, public order or the essential services. That is particularly relevant in the current circumstances, but it will always be reassuring to know that where there is an overriding requirement, the thrust of the motion may be set aside.

With those brief comments, I am more than happy to recommend to the massed ranks of hon. Members that we accept the motion.

2.30 pm

Ross Cranston (Dudley, North): I support the motion because it relaxes the sub judice rule and tidies it up somewhat. Also, as the right hon. Member for Bromley and Chislehurst (Mr. Forth) said, it brings the rules of the two Houses into line.

I underline my hon. Friend the Minister's point that the rule has important constitutional significance. It is important because, as he said, sometimes the House is frustrated by the impediments to discussion that the rule places on us. During the Pinochet case, hon. Members were frustrated because every person and his dog outside the House were commenting on it, but the rule, and Madam Speaker's specific ruling, meant that there could be no comment here. The constitutional foundation of the rule is important because it directs attention to cases where the application of the rule is justified and, conversely, where it might be wrongly invoked to stifle debate.

The constitutional foundation is, as the Minister said, the principle of the independence of the judiciary. That means basically that judges have to be in a position where they can make decisions in accordance with the law and not because they are swayed, suborned or intimidated by Government or Parliament. Only thus can the courts act to ensure that the decisions and actions of the other two arms of government, as they affect individuals, are in accordance with the law.

We have only to look at the situation in places such as Zimbabwe to see how the independence of the judiciary can be compromised, with the result that individual rights are negated and lawlessness encouraged. There are various protections for the independence of the higher judiciary, such as the legislative guarantee dating back to the Act of Settlement of 1701 that they hold office during good behaviour, subject to removal by an address by both Houses.

Among the other contributions that this House makes to the independence of the judiciary is the sub judice rule. It recognises, as the Lord Chief Justice has said, the mutuality of respect between two constitutional sovereignties. For example, as the Minister said, the courts respect parliamentary privilege and, conversely, we ensure, by our procedural rules, respect for the proceedings of the courts within their own sphere. Paragraph 192 of the excellent report of the Joint Committee gives the justification for the rule very clearly.

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There is no need to canvass the motion; it updates and rationalises the rules in this and the other House. I shall make only one point. The operation of the rule in the House is always subject to the overriding discretion of the Speaker, a point made by the right hon. Member for Bromley and Chislehurst. With respect, the Speaker and his predecessors have always received and accepted sound advice on the operation of the rule from those who advise them. There is an important balance to be struck between the right of debate in the House on matters of public concern and the respect that we must accord judges. Sometimes, that demands a restraint on our debate, although the debate might fall permissibly within the express terms of the rule.

Conversely, the rule must not be used to stifle debate. As I pointed out, I have no quarrel with—indeed, only praise for—the way that the rule has been administered by successive Speakers. However, a casual perusal of Hansard suggests that there might occasionally have been instances when Ministers do not seem to have taken the Speaker's advice and have sought to invoke the rule to close down debate, on the basis of a misunderstanding of the rule. That is wrong, especially given the change in the rule that recognises that matters can always be subject to debate where ministerial decision is involved and where simultaneously there is a judicial review. Ministers have to be encouraged to take advice on the application of the rule and to follow it.

I support the motion. It will update the rules and it is a thoroughly soundly based constitutional provision.

2.36 pm

Mr. Paul Tyler (North Cornwall): As the Parliamentary Secretary, Privy Council Office said, I served on the Joint Committee for about 18 months. It frightened the life out of me, because almost all the other members of the Committee held some sort of qualification. I mean no disrespect to the hon. and learned Member for Dudley, North (Ross Cranston) when I point out that now that we have fewer lawyers in the House, we probably do a better job. However, on occasions such as this, we need that legal advice and I want to follow up the point that he has just made.

In the past, Ministers have all too often hidden behind an alleged, possible sub judice restriction to avoid difficult questions, and have not taken direct legal advice from the Chair or the Clerks. Most of us do not have that legal expertise, so in future, now that we have clarification and codification between both Houses, I hope that the situation will be slightly clearer, both for lay Members and for those learned Members who have greater expertise. As a result, I hope that Ministers will not be able to get away with some of the excuses that they made in past.

As the Minister said, although this subject is fascinating only to an elite and intelligent minority, it is important. It is all about the relationship between Parliament and the judiciary. The Minister spelt that out extremely well. However, some elements of the situation remain complex, despite the helpful clarification; for example, most laymen find the whole issue of judicial review complicated.

One of the things that the motion will deal with was not mentioned by the Minister: under the new rule, once a pre-trial issue has been settled, the sub judice rule will

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be lifted until that case becomes active again. That is the sort of minefield that some of us might stray into—we might not be sure where we are in that process. I hope that that piece of advice will be heavily underlined for the benefit of the Minister's colleagues.

We should examine the relevant responsibilities in our handling of these matters and their handling by the media—a point that has already been made. After all, the media are the media; they are not part of our constitution. I hope that it is still true not only that the courts, but the public at large, take a little more notice of what the right hon. Member for Bromley and Chislehurst (Mr. Forth) says than of leaders in The Sun. I am not sure about that, but I hope that they do. We must be a little more careful than the editors of national and local newspapers or the editors and producers of television programmes.

The fact remains that Parliament has the privilege of defending the rights of our constituents. That is not a privilege that we exercise on our own behalf; it is to defend the right of our constituents to be heard and to have their concerns aired in this place—with much greater freedom than out on the street or, indeed, in the television studio. I hope that we can still endorse and support that self-discipline because it is important.

Of course, it is important that the independence of the judiciary is recognised. That, too is an important feature of the motion. However, my anxiety is that sometimes ignorance is treated as bliss, and I think that occasionally Back-Bench Members in the House, and Ministers, may push their luck with a sub judice example. After all, the word can pop out and the reference can be made before the Chair has an opportunity to discuss matters with the learned Clerks, let alone with Speaker's Counsel. It is incumbent on us, if we believe that we may be running into trouble, to try to take advice in advance of making a comment, whether it be in Committee—the Minister rightly referred to the fact that the rule will now apply explicitly in Committee where it was implicit before—or in the Chamber.

However, we must also look at the matter the other way round. Members or Ministers must not be over-zealous in this matter to the extent that we do not have a free Parliament discussing issues that we are free to discuss. My anxiety is that we get that balance right.

I recall that evidence was given to the Joint Committee that the Speaker—and, through the Speaker, the Speaker's Counsel—was available to give advice. My worry is that perhaps, in a borderline case, most of us will take the view that it is better to try our luck than to take what may be very cautious—dare I say it, very conservative—legal advice. Although I accept that ignorance is no defence in those circumstances, I would hope that, in a borderline case, we do not find that the legal advice that we are given is so absurdly over-cautious that Parliament is prevented from doing its proper job.

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