Speaker and Minister Clash Over Legal Advice

John Bercow, the Speaker of the House of Commons, has called into question the legal advice given by the lawyers at the Department of Health during a debate into funding for those suffering from Batten Disease. Jacob Rees-Mogg had secured the debate to discuss the concerns of a constituent, but Caroline Dinenage, the Minister for Care, said that she couldn’t comment on the individual case.

Dinenage said in reply to Rees-Mogg’s speech:

“I will endeavour to respond as fully as I can to the issues that my hon. Friend and other Members raised, but I should begin by saying, sadly, that I am unfortunately unable to comment on matters relating to the availability of Brineura, a drug used to treat Batten disease, as this is currently subject to an active judicial review procedure.”

John Bercow intervened and said:

“However, for the purposes of clarification, I want to make this point. I am not aware that this matter is sub judice, as I have not received prior notification that it is. I am not aware that it is, I have not been informed that it is, and the Clerks have not been informed that it is. If it is not sub judice, nothing whatsoever precludes the Minister from commenting on this case. If it is sub judice, as colleagues will know, it is within the competence —I use that term in the technical sense—of the Chair to waive the sub judice rule, which it would most certainly be my instinct to do.​

What the Minister says is a matter for the Minister, but it would not be right, as far as I can tell, to say that it is not possible, in a legal sense, for the Minister to comment on this matter. The Minister is the Minister, and the Minister’s answer on the specifics is sought. If the Minister wishes to proffer that answer, she can do so.”

Civil servants from the Department of Health quickly debated the matter, with Dinenage then saying:

“The advice that I have been given is that I have to be very careful on the legal procedure because of the fact that it is not a legal procedure between individuals and the Department, but between individuals and NICE. I do not want anything that we say potentially to negatively impact on a family’s opportunity to get these very important drugs for their children.”

Bercow replied:

“Very important decisions are subcontracted to NICE, but policy responsibility, as the hon. Member for North East Somerset has pointed out, is that of the Government. We do not have Government by NICE; we have Government in the case of health policy through the Department of Health and Social Care.”

At the end of the debate Bercow commented:

“Ordinarily, the proceedings would now conclude, and they will do so shortly. However, I think it important that our proceedings should be intelligible not only to right hon. and hon. Members but others who are interested in our proceedings but are not Members of this House. To try to achieve that objective, I want to add, by way of conclusion, the following.

I am advised by my officials that the Department of Health and Social Care claims that this matter—the subject of the debate—is sub judice because an application for a judicial review has been made. In the light of that, let me explain. Under the sub judice resolution of this House,​

“Civil proceedings are active when arrangements for the hearing, such as setting down a case for trial, have been made”.

The Department has not supplied evidence that this test is met. Therefore, I stand by what I said earlier on advice.”