Matters awaiting judicial decision and matters under investigation

21.19Subject to the discretion of the Chair and to the right of the House to legislate on any matter1 or to discuss any matters of delegated legislation,2 matters awaiting the adjudication of a court of law should not be brought forward in debate.3

The House first came to a resolution formalising this rule in 1963. That resolution was revised in 1972 (and subsequently). The current resolution governing matters sub judice was passed on 15 November 2001,4 as follows:

‘That, subject to the discretion of the Chair, and to the right of the House to legislate on any matter or to discuss any delegated legislation, the House in all its proceedings (including proceedings of committees of the House) shall apply the following rules on matters sub judice:

1. Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.
   1.  
      1. Criminal proceedings are active when a charge has been made or a summons to appear has been issued, or, in Scotland, a warrant to cite has been granted.
      2. Criminal proceedings cease to be active when they are concluded by verdict and sentence or discontinuance, or, in cases dealt with by courts martial, after the conclusion of the mandatory post-trial review.
   2.  
      1. Civil proceedings are active when arrangements for the hearing, such as setting down a case for trial, have been made, until the proceedings are ended by judgment or discontinuance.
      2. Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.
   3. Appellate proceedings, whether criminal or civil, are active from the time when they are commenced by application for leave to appeal or by notice of appeal until ended by judgment or discontinuance.
   But 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, reference to the issues or the case may be made in motions, debates or questions.
2. Specific matters which the House has expressly referred to any judicial body for decision and report shall not be referred to in any motion, debate or question, from the time when the Resolution of the House is passed until the report is laid before the House.
3. For the purposes of this Resolution—
   1. matters before Coroners Courts or Fatal Accident Inquiries shall be treated as matters within paragraph (1)(a);
   2. “motion” includes a motion for leave to bring in a bill; and
   3. “question” includes a supplementary question.’

The Resolution of 2001 is much more precise than its predecessors in making clear the point in any proceedings at which it becomes operative; in addition, it specifically exempts from its operation any application for judicial review of a ministerial decision. Where in a criminal case there is a delay between conviction and sentence, the restriction remains in force until the sentence has been passed.5

The restriction on reference in debate in the case of any judicial body to which the House has expressly referred a specific matter for decision and report does not apply to ad hoc inquiries established by Ministers even when presided over by a judge,6 nor does it apply to matters referred to a departmental inquiry.7 The Select Committee on Procedure has also considered whether a similar rule should be established prohibiting reference to matters subject to injunction or interdict by the courts,8 but no such rule has been established.9

Successive Speakers have exercised the discretion provided for them in the resolution to allow matters to be discussed on which (although they fall within the strict terms of the sub judice rule) they have considered that no substantial risk of prejudicing proceedings would arise,10 subject if necessary to certain constraints.11 Following the terms of the resolution of 15 November 2001, the Speaker routinely allows debate in relation to matters that are the subject of an application for judicial review. Prior to a debate in Westminster Hall the Speaker indicated that he would permit references to a current case to allow general principles to be discussed but not the detail of the matter before the court.12 Deliberations of non-domestic courts, including the courts of the European Union, are not subject to the sub judice rule.13

Standing Order No 42A was made on 1 November 2006 specifically to empower the Speaker or Chairman to direct any Member who breaches the sub judice resolution to resume their seat.

In addition to the constraints on debate under the sub judice rule, the Chair has on occasion indicated more generally that where matters are not within the terms of the resolution, but discussion could prejudice ongoing police or other law enforcement investigations, Members should exercise caution in how they raise such matters.14