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Lord Monkswell rose to move, as an amendment to the Motion, at end to insert ("with the exception of item 2 (The Sub-Judice Rule) which shall be referred back to the Select Committee for further consideration).

The noble Lord said: My Lords, this amendment in effect asks the Select Committee to have another look at the issue of the sub judice rule. I hope to explain to

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your Lordships why this may be useful, but before I do I wish to pay a tribute to the Select Committee. I am sure I speak for all of us when I say that we owe a debt of gratitude to the hard work of the Select Committee and in particular to the noble Lord the Chairman of Committees for the exemplary way in which he has introduced this report.

I should also like to express my gratitude to the powers that be for enabling consideration of this report to be taken now rather than before the Christmas Recess. That has enabled us to consider the report at our leisure and digest the implications. That is useful. I wish to say a few words about the background to the report, then to consider the implications of the recommendations and suggest an alternative way of dealing with them.

As the noble Lord the Chairman of Committees has already explained, section 2 of the report effectively sets a precedent in the way in which we conduct ourselves. Two of the very real strengths of this House are that every Member of your Lordships' House is able to contribute to our debates and offer their advice to the Government. Also, virtually all our business is taken on the Floor of the House. In this respect we are rather different from the other place and I think we need to recognise that difference and revel in it, if I may say that.

We must recognise that in the other place there are 650 Members, all of whom want to speak and contribute and raise issues. Over the years they have evolved a system of rules and they have empowered their Speaker to control their debates and determine who shall and shall not speak. But we do things rather differently in this House. I have spoken on previous occasions about the risk that we run in taking business off the Floor of the House and dealing with it upstairs. I do not wish to elaborate on that except to say that in this report we must be careful—I am sure we will be—about recommendations (1) and (3) in section 1.

However, in section 2 on the subject of the sub judice rule we run a new risk. Here I must stress that nothing in my remarks should be construed as a wish to interfere with the judiciary in the discharge of its functions in a court of law. I am sure that I speak for all of your Lordships when I say that we should have no right, nor should we seek to interfere, in the practice of a court of law.

The rules of sub judice should not be used to prevent Parliament offering advice to Government Ministers in the discharge of their discretionary functions. As the committee has advised the House, it is right that issues of national importance should be raised.

In 1963, as the report makes clear, it was agreed that the practice in this House should be similar to the practice in another place. I stress "similar", rather than the same. It is eminently sensible that the committee should be able to raise issues which are in theory sub judice. However, the committee goes much further and suggests that the Leader of the House should have the power to determine what should or should not be discussed on the Floor of your Lordships' House and, unfortunately, to suggest that the decision of the Leader of the House should not be challenged on the Floor of the House.

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I suggest that that recommendation raises a number of problems. First, it places one of our number in a superior position in determining what may be raised in the House. It also gives that Member the ability to determine what another noble Lord may or may not say in the House. It places the Leader of the House in a very difficult position by calling on him to make a judgment about whether another member of the Government of which he is a member may be called into question on the Floor of the House. It also suggests that the Leader of the House may not be challenged on the Floor of the House in the exercise of his judgment.

I suggest that that is not the way we do business in this House; nor is it a way in which we should do business in the future. It is a major departure from precedent and sets a precedent which may do us harm in the future. Nowhere in the Standing Orders nor in the Companion do we give such power to the Leader of the House.

It has been suggested that the issue of Private Notice Questions is a precedent. I argue that it is not. As Standing Order 33 makes clear, and the Companion elaborates on page 81, there is no bar on a Private Notice Question being asked and the House can insist on the Government giving an immediate reply. That is completely different from giving the Leader of the House the power to prevent an issue being raised and to prevent the House from challenging his judgment.

I have also learned that there has been some concern among noble and learned Lords on the subject of your Lordships raising cases that are sub judice because of the possible risk of this House trying to influence the decision of a court of law. We must recognise that we have a special responsibility because of our relationship with the highest court in the land. I suggest that there are probably Members of your Lordships' House who would have dearly liked to influence a court of law, but we do not do that. I am sure also that if anyone in this House tried to do so there would be a very swift Motion from any quarter of the House that such a noble Lord should no longer be heard.

Where do we go from here? I suggest that we use the precedent that has already been established. I refer to the case of Miss Sue Hagan and Miss Sally Croft. That case was raised in this House on 31st March, 13th April and 6th June last year. On at least two of those occasions the case was sub judice because it was before a court of law. It is interesting and significant that at no time did any Member of your Lordships' House try to influence a court of law, but there was a concerted effort from all sides of your Lordships' House to influence the Home Secretary in the exercise of his discretion in that case.

On one occasion during those debates it was moved that a noble Lord be no longer heard because it was felt that he might transgress the sub judice rule. On that occasion the Motion was withdrawn. The House was adjourned for five minutes and when it reassembled the debate continued.

I suggest that the way in which that case was raised and debated in your Lordships' House showed your Lordships' House at its best. It demonstrated that, even when passions are roused and the rules appear likely to be broken, self-regulation by your Lordships works. In

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saying that I must pay tribute to the noble Lord, Lord Wakeham, who, as Leader of the House at the time, demonstrated true capacities of leadership which enabled the House to work to its own rules by accommodating our current sub judice rules with the will of the House expressed in 1963 that our practice should be similar to that of the other place while maintaining our self-regulatory climate. I see no reason for not using that precedent to frame a modification to the Companion to enable debate in this House that would enable us to give advice to government Ministers and prevent us attempting to influence courts of law.

To summarise, there is a need to change our sub judice rules in line with the practice in the other place. In the other place the Speaker controls the business. In this House we control our own business. It has been suggested that the Leader of the House should assume the role of Speaker in this case, but he is a member of the Government and not a servant of the House. We have a proud and good record of controlling our own debates without a Speaker. My amendment would enable the procedure Committee to look at the subject again and frame changes to our sub judice rules which would preserve our self-regulatory regime, allow us to offer advice to Ministers and prevent interference in the conduct of cases before a court of law. I beg to move.

Moved, as an amendment to the Motion, at end to insert ("with the exception of item 2 (The Sub-Judice Rule) which shall be referred back to the Select Committee for further consideration).—(Lord Monkswell.)

3.15 p.m.

Lord Harmar-Nicholls: My Lords, my first instinct was identical to that expressed by the noble Earl, Lord Longford, in his short intervention a few minutes ago. The rest of the report may be reasonably satisfactory, but trying to install a pseudo Speaker in your Lordships' House would be not only the wrong thing to do but a stupid thing to do. In terms of wanting to copy the other place, if any copying is to be done the other place ought to copy our procedures and our standards. Anyone who has sat in both Houses will be familiar with the nonsense of the points of order which arise from the interpretation of what is right or wrong. Our system works, and it works well. Whatever happens to the rest of the report, I hope that it is not too late to alter the suggestion that there should be a Speaker—whether it is the Leader of the House or anybody else—giving judgment of that sort.

Our strength is our complete independence to work to our own rules. The system has worked well. Any alteration in the direction which is suggested in terms of making the Leader of the House a pseudo Speaker will tie us up in bureaucracy which will interfere with the effectiveness of this House.

I do not know whether the right way to give effect to what I suggest is by voting for the amendment. I shall give more thought to that in the light of what other noble Lords may say. However, whether it is through the amendment or by some other means I hope that the complete freedom of this House to adhere to its own self-control will not be interfered with.

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I have sat in your Lordships' House under Leaders from different parties, so there is no question about the individuals involved. Indeed, I can think of no one I would rather follow almost without question as Leader than the present Leader of this House. However, that is not the point. To enter into the bureaucracy which would flow from an individual dictating—and being legally able to dictate —how the House shall conduct itself would be a retrograde step. I hope that at this stage we shall find some way to avoid moving down that road.


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