Speaker Martin is making matters worse by applying the sub judice rule to his own appeal against the Information Tribunal’s ruling. The one place, therefore, that there can be no discussion of this incredible appeal is in the Commons itself among its members.
This is in my view an unreasonable and abusive exercise of his discretion as regards sub judice: he should now resign.
Sub judice isn’t a rule of law; legally, Parliament can discuss whatever it likes. Unlike the media, it need not fear that the Attorney General will try to injunct it to prevent contempt of court; nor can anyone else take action against it for what member say, whether under libel laws or any other cause of action. The rule is in effect a self-denying ordinance, through which Parliament seeks to respect judicial independence and the separation of powers, and avoid any unfairness to the public that might otherwise arise from its complete legal freedom of speech. And it’s quite clear, looking at the latest, 2001 resolution in which Parliament restated the rule, (see this illuminating report from Richard Kelly of the House of Commons library – the resolution is on page 14) the rule is not absolute. How it applies is a matter for the Chair’s discretion, and the resolution says that where a ministerial decision is in question, or something which in the Chair’s opinion is a matter of national importance, reference to the issues may be made.
Now, as well as protecting Parliament’s legal freedom of speech, one of the effects of the Bill of Rights 1688, article 9, which provides
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament
is that no one can challenge the lawfulness of the Speaker’s sub judice ruling. But if you apply normal public law principles to it – the principles that would apply to any ministerial decision – it is in my view plainly an unlawful one. It would be irrational and perverse for the Speaker to think this is not a matter of national importance: it clearly is. Given what the resolution says about such cases, therefore, it must be unreasonable for him to exercise his discretion against free mention of the issues, especially since there is no serious risk that High Court judges will be influenced, in their view of the legal issues (remember, this is an appeal on a point of law only to the High Court), by anything any MP might say.
What’s more, the Speaker has in effect acted as judge in his own cause in this ruling: he himself has decided MPs cannot debate, discuss or criticise his decision. This must give rise to at the very least the appearance of bias, and that he has abused his power to protect himself from criticism. He’s in the same position as the former Attorney General was in relation to cash-for-honours prosecutions, of appearing to have power to keep himself free from harm, but whereas Lord Goldsmith had the sense to make arrangements to limit, as far as the law allowed, his own role in any decision in that case (a decision that never had to be made, of course) the Speaker seems to have taken the decision himself. What he clearly should have done was ask members to avoid discussion of the issues pending an urgent consultation of all parties and ruling by committee chaired by a Deputy Speaker or even another MP.
It’s an unreasonable decision, tainted by procedural impropriety and the appearance of bias: were it judicially reviewable, in my view it would be quashed as an abuse of power.
So, at the risk of being locked up by the High Court of Parliament for breach of article 9 of the Bill of Rights, I certainly question what the Speaker has done. He should resign.
Quite right. Iain Dale seems to think that lefties will start bleating about snobbery re Michael Martin, but as one of those lefties I have to say that I don’t have any confidence in him. The appeal was bad enough, although I might just about cut him some slack on that, but he appears to have gone wrong on sub judice now. From the Joint Committee on Parliamentary Privilege:
“The present rule rightly tries to strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions. On the other hand, Parliament has a constitutional right to discuss any matters it pleases.”
I don’t see how clarifying the grounds of appeal would be prejudicial to the actual appeal and that leads to the whole thing stinking even more of an unnecessary cover-up.
Nor do I, chief. Sub judice is not there in order to protect government or other powers in the land from scrutiny by MPs: for the Speaker to use his discretion to give it this effect seems to me a clear abuse of power.
Huh, so we still have the Bill of Rights. I thought Straw had cleared this one out – he must have overlooked it in the hurry.
The invocation of sub-judice by Mr Martin was another entirely predictable move. He and his supporters will fight this all the way down the line. I don’t think he has put up a single decent argument for his actions – and it’s clear that several MPs are seriously disquieted by this series of moves by the Speaker – rightly so.
The political damage which the Speaker is doing is phenomenal. How do his actions uphold the reputation of our Parliament and our elected representatives? Is the Speaker in the business of promoting real democracy and accountability or is he in the business of venality and secrecy? Where is his authority in this matter? Has he sought Parliament’s approval for this trivial pursuit through the Courts?
Link to the actual text of the House’s sub judice resolution, anyone? (Just so that the comment on this thread can be a little more informed.)
Very few people outside of Parliament like this chicanery but these people are a law unto themselves. Our constitution makes them so and that is the fundamental problem. IF normal public law principles applied to the Speaker then you are undoubtedly right in saying that his decision to invoke sub judice would be quashed. However, as things stand, only the MPS themselves can overrule him.
In reality the sub judice rule is a nice little tool used by politicians to stifle debate. We have seen it used on occasions when there is some public scandal. They set up an inquiry and then say the matter is sub judice. Months later there is a report but the heat has gone out of the situation.
Your observation about Goldsmith is also interesting. On public law priciples he could not delegate his authority to make those prosecutorial decisions. He could merely seek advice but he would have had to exercise his own judgment. This is why statutory reform of that post is needed.
It is all utterly scandalous but few people out here actually care and they will get away with it. Come the next election it will all be a mere footnote!
anonymous: Link
I did post a link to the resolution, anonymous: in the Richard Kelly report, page 14.
The Speaker / House of Commons Commission is also using the Bill of Rights clause 9 in another High Court case appealing against a decision by the Information Tribunal.
They are colluding with the Office of Government Commerce in trying to prevent full disclosure of the early, and now out of date, Gateway Review reports into the Home Office’s Identity Cards Programme.
See Tony Collins’ blog in Computer Weekly:
High Court case on ID Cards Gateway reviews, the 1689 Bill of Rights and Commons’ Speaker
“If the judge, Mr Justice Stanley Burnton, accepts Chamberlain’s arguments he may throw out the Tribunal’s ruling on the basis that it would be a breach of Parliamentary Privilege, as granted by the 1689 Bill of Rights, for the High Court to question the Tribunal’s findings.
The OGC’s argument – and Chamberlain’s – is that Article 1X of the Bill of Rights prevents Parliamentary proceedings from being questioned in the courts. So the OGC cannot question in the High Court much of the Tribunal’s ruling, the Tribunal having quoted extensively from the report in 2004 of the Work and Pensions Committee. Chamberlain says that even the cogency of a select committee’s reasoning cannot be questioned by the courts. Whether a committee’s report is incomplete cannot be questioned. Inferring conclusions from a Parliamentary report would be a breach of privilege.”
Not being a legal eagle, can I ask a question for the sake of clarification.
Is this a new ploy by government to retain information that otherwise would be released as the Tribunal being the last point of appeal under normal circumstances.
I understand that Ministerial decisions are often challenged in the courts, but here we have the Speaker launching the appeal.
Is it that because the Speaker allegedly represents parliament when launching the appeal that the Bill of Rights clause 9 can be invoked, which would not be available under a normal Ministerial challenge.
Did you know that USA and Europe blocked Wikileaks? What do you think about it?
Hope for no silence
bye bye ;))
Blithesome Fresh Year everybody under the sun! 🙂