Parliament: Freedom of Speech and the Rule of Law

Lord Mackay of Clashfern Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I put my name down to speak in this debate when it was a two-and-a-half hour debate and I had intended to go by plane to Inverness later today, at a time that would have allowed me to be here until the very end of the debate and after. Unfortunately, for some reason a strike has taken place at Inverness Airport and my flight was cancelled. I have therefore had to make alternative arrangements to fly to Edinburgh and get the train, which as your Lordships can imagine is a slightly longer procedure. I may therefore have to leave before the end of this debate. I am extremely sorry about that and I shall attend as long as I possibly can—but I gather that the Jubilee line is not perfect today, which is another difficulty.

I want to look at this issue in a general way, and do not propose to deal with a particular case. The right of free speech in Parliament is well-established and has been ever since the present arrangements of Parliament came into being. There are two difficulties with that. One is that Parliament might seek to affect a judgment in a case before the courts—the so-called rule of sub judice. On the other hand, Parliament has free speech when there is no current case and, as mentioned by the noble and learned Lord, Lord Brown, when there is a decided case about a matter. My understanding of the law on this is that that right to speak freely is to be exercised responsibly by Members of Parliament.

That is the general rule. The rule for sub judice is different because here, there is a perceived conflict on the final decision between the court—which has been set up to decide these matters as part of our constitution —and Parliament, if it has stepped in to alter the judgment or make it instead of the court. That is a special problem that, over the years, Parliament has thought needs to be dealt with. Parliament has no desire, as a corporate body, to replace the courts of law, which are independent and set up for that purpose, with severe oaths affecting the judges and so on.

That issue has been thoroughly discussed in this House. A committee, under the distinguished chairmanship of Lord Nicholls of Birkenhead, came up with a resolution that Parliament adopted, at page 60 of the volume of the Companion to the Standing Orders that we all have. That sets out what a sub judice case is and the attitude that Members of Parliament should have to it. A Member of Parliament who seeks to make a statement that may, in some way, affect a judgment or resolution still to be made, should give notice to the Lord Speaker in our House. In the House of Commons, a similar resolution was passed to give notice to the Speaker. The Lord Speaker here has the discretion to see whether the statement proposed by the Member is likely to interfere with the course of the judgment. Even if it refers to it, as long as it does not seek to interfere with the course of the judgment, it might be allowed at the Lord Speaker’s discretion. That seems an entirely satisfactory arrangement and I have no reason to seek to change it.

This is fundamental to the more general aspect referred to by the noble and learned Lord, Lord Brown. Strictly speaking, if you analyse it properly, the courts have no jurisdiction to restrict the speech of a Member in Parliament. It is not part of their jurisdiction. Therefore, if somebody in Parliament makes a statement that conflicts with a decision of the court, because the court’s jurisdiction does not extend to Parliament, it is not a breach of the order. On the other hand, it could give rise to confusion. The rule, therefore, which seems general and appropriate, is to exercise these rights responsibly, as for every other right we have. That includes consideration of the effect of what you are doing on the general position in the country for which we are responsible.