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.

2008-03-26T16:35:00+00:00Tags: , , |