Letter from the Chairman to the Home Secretary
The Joint Committee on Parliamentary Privilege
is about to consider their draft report. As you know, part of
that report will deal with the extent to which members of both
Houses will be subject to the law of corruption.
The Committee would be able to make more useful
recommendations if you could give them a clearer picture of the
legislation you have in mind for corruption generally. In the
written answer contained in the Commons Hansard for 31
July (col 850) you said that the Government accepted in principle
the Law Commission's proposal that there should be a single offence
of corruption to cover both public and private sectors. But you
do not indicate whether you are at present sympathetic to the
specific proposals contained in the draft bill proposed by the
Commissionor whether there is another option being considered
in the Home Office review which may provide a better solution.
Has any decision been taken to abolish common law bribery? Have
you yet decided whether there should be a single offence or group
of offences? Have you ruled out specific offences for persons
in particular occupations or having particular duties?
You will appreciate that it is difficult for
the Committee to arrive at an informed decision on whether or
not members of both Houses should become liable to be charged
with a criminal offence, without some indication of how that offence
will be defined.
We are in even greater difficulty over a second
matter. In your interesting and helpful evidence to us in January
you indicated that you were considering whether or not to bring
members and ministers within the scope of a new statutory oiffence
of misuse of public office, which you were looking at primarily
in the context of the report of the Nolan Committee relating to
local Government. Do we need to address this matter or have you
decided that they should be excluded?
As you rightly say in your written answer, this
a complex area. "Misuse of public office" might be defined
in many ways, and, if applied to ministers and other members,
it might require at least a partial statutory definition of their
duties to measure the offence against. Without some knowledge
of what you intend, the Committee may not be able to reach any
8 October 1998
Reply from the Home Secretary
Thank you for your letter of 8 October requesting
an update on where we stand on our review of the law of corruption
and our work on a possible new offence of misuse of public office.
I am sorry not to have replied sooner.
As you know, we have set up two inter-departmental
groups to examine (i) the Law Commission's Report No 248 on Corruption
and (ii) the possibility of a new statutory offence of misuse
of public office. Although these groups are making good progress
with their examination of these issues, they have not yet completed
their work. As a result, I am not in a position to be as helpful
as I would like in responding to the points you have raised. What
I can say, however, is that there is much to support the Law Commission's
proposals for the common law offence of bribery and the existing
statutes on corruption to be repealed in any new legislation on
corruption. It is also likely that our reform of the law of corruption
will be modelled along the lines of the Law Commission's draft
Bill on corruption. Although the inter-departmental working group
on corruption is still considering the detail of a modern statute
on corruption, it is not currently envisaging specific offences
for persons in particular occupations or having particular duties.
It is likely that we will wish to construct a criminal law provision
which will have general application. We have already indicated
that we accept, in principle, the Law Commission's proposal that
there should be a single offence of corruption to cover both public
and private sectors. This reflects the reality that some functions
which would, in the past, have been carried out by the public
sector are now carried out by public/private partnerships or in
the private sector. As I said in the Parliamentary Written Answer
to which you referred, this approach also reflects the importance
of ensuring high standards of priority in all aspects of life,
whether in the public or the private sector.
Separate work is taking place in respect of
a possible new statutory offence of misuse of public office. This
is proving particularly tricky and no decision has yet been taken
on which categories of public servant might be included. It may,
as you say, prove necessary to examine the statutory duties of
Members and Ministers in this context. We are conscious that we
need to avoid unnecessary overlaps between any new offence and
existing offences, civil remedies and disciplinary codes. Clearly,
we do not wish to capture conduct which can be best left to disciplinary
procedures or other effective mechanisms. Equally, however, there
would be presentational difficulty in excluding certain categories
of public servant from the scope of any new offence.
The area of political activity is particularly
problematic as you have, no doubt, yourself already found. We
are still grappling with the issues and would welcome the views
of your Committee, even if they are inevitably provisional and
to some extent dependent upon decisions which we have yet to take.
18 November 1998