Parliamentary Privilege Report


II.  CORRUPTION AND IMPROPRIETY

  33.  Corruption or similar impropriety by a Member in the performance of his or her duties is a contempt. It affronts the dignity of the House, and is a perversion of the parliamentary process: on the metaphysical or the practical level it merits punishment. Most cases of corruption in which the House has proceeded in this way, however, are some time in the past[42]. For decades, the House has usually — not invariably — preferred to regard actions of this kind not as classical contempts but as "conduct unbecoming"[43] — though the disciplinary proceedings to which the wrongful actions give rise and the sanctions available are broadly the same whichever description is used. This approach has been substantially reinforced by recent developments: the Committee of Privileges has become the Committee on Standards and Privileges, and reports are made to it by the newly-appointed Commissioner for Standards. Thorough review of the House's rules and expectations in the matter of transparency in the declaration of interests has led to specific changes and to the drawing up of a Code of Conduct[44]. This sets out general prescriptions for Members' honesty, integrity and accountability in all aspects of parliamentary life.

  34.  Simultaneous with these developments in Parliament was the growth of concern outside the House that corrupt behaviour by Members in the exercise of their parliamentary responsibilities should be within the criminal law (if it was not already there), and not left to the law of Parliament. The Royal Commission on Standards of Conduct in Public Life in 1975, presided over by Lord Salmon, thought that bribery of a Member should be brought within the ambit of the criminal law[45]. The Nolan Committee on Standards in Public Life in 1995[46] believed that the law on the offer to and receiving of a bribe by a Member ought to be clarified. The Law Commission has provisionally concluded that the law of corruption (in general) is in an unsatisfactory state and that the common law and statutory offences of corruption should be re-stated in a modern statute[47]. As regards Parliament, the Commission commented:

    whether Members of Parliament are subject to the criminal law of corruption and more particularly whether they should be are both contentious issues.

  35.  The case brought recently against a Member for misuse of public office is mentioned elsewhere (paragraph 11) in the context of the interpretation of "proceedings in Parliament". In this context, it should be added that the charge involved whether benefits the Member was alleged to have received ought to be regarded as improper inducements to affect his conduct as a Member. The defence argued that what was alleged was not an offence known to the common law — even the prosecution agreed that there was no precedent in the United Kingdom — and that in any case it was one over which Parliament, not the court, had jurisdiction. The judge concluded that the offence was known to the common law; that it would be a common law offence for a Member to accept a bribe as well as for someone to offer it; and that in the case before the court, no privilege under article IX could be claimed. He said: "that a Member of Parliament against whom there is a prima facie case of corruption should be immune from prosecution in the courts of law is to my mind an unacceptable proposition at the present time".

  36.  Notwithstanding the action taken by the House in establishing new procedures in 1995 and approving a Code of Conduct, the difficulty of concurrent jurisdiction remains. The House's position is not yet fully settled. The Committee on Standards and Privileges is undertaking further consideration of its role as an appeal body when the findings of the Commissioner for Standards are challenged. So far as the courts are concerned, no case has been brought before them where the judgment in the case referred to in the preceding paragraph could be applied. Equally significantly, no case has ever come before the courts where the actions corruptly procured included "proceedings in Parliament", specially protected by article IX.

  37.  The Select Committee on Standards in Public Life recommended that the Law Commission should review the common and statute law relating to bribery with specific reference to Members of Parliament[48] (see also paragraph 34). The recommendation was accepted in a slightly different form and the Home Office has asked the relevant parliamentary committees for their views, on the basis of a consultation paper[49]. Four options are offered — leaving bribery of Members to be dealt with by privilege and the law of Parliament; leaving it to the criminal law; dividing objectionable conduct between the two; and making criminal proceedings subject to the approval of Parliament.

  38.  Resolution of the concurrent jurisdiction issue is far from easy. The disadvantages implicit in the first option — leaving offenders to be dealt with in Parliament — are that the House and its Members are unlikely to be qualified or indeed to wish to turn themselves into a court of law. Even if a sufficient number were qualified and prepared to give up the necessary time, and the House adopted for this purpose the rules of evidence and other protective provisions which obtain in the courts, there are always by definition at least two parties involved in a corrupt transaction. How could the House try those not Members who were accused of having offered the corrupt consideration? They could hardly be called to account separately from the Member accused of receiving it. A committee might be appointed which was thought capable of hearing and determining a serious criminal charge of this kind against a Member: but could the House as a whole find the time to consider the evidence in order to give its judgment in any appeal? Limitations on the House's powers to award punishment (see paragraphs 31-32) would have to be removed, so that offenders who were Members could receive the same order of sentence as those who were not. Finally, even if a parliamentary means could be devised which would solve these problems, would it be able to convince public opinion of its even-handedness?

  39.  The second option — the criminal law — would imply that the House would have for the first time to accept that a court should be able to inquire in detail into a Member's motives for some activity which is part of proceedings in Parliament — a speech in the Chamber, for instance — but is suspected of having been subject to improper influence. If corruption trials involving Members' actions as Members were simply handed over to the courts, there would be natural anxiety about the possibility of cross-examination challenging the motives of Members who are not under suspicion. In a major case, it would be hard to put any limit on the papers the court was entitled to see, or the number of Members whose evidence might be called. The courts would be drawn into an interpretation of the rules and conventions of the House. It might be argued that if the contempt of bribery were withdrawn from the jurisdiction of the House, other cognate means of perverting the House's proceedings — intimidation or molestation for example — should go with it. In short, this path would cut directly across the protection given for three hundred years by article IX, and by pre-statutory claims for freedom of speech long before that.

  40.  The third option tries to bridge the gap by suggesting a prior distinction between conduct which should fall to the process of the criminal law and that falling to Parliament. Each House would come to resolutions determining that a particular kind of conduct ought to be dealt with by the parliamentary and not criminal law, and if such a case came before the courts their task would be simply to decide whether the conduct complained of had been retained by the House. This would diminish but it would not dispose of the problems associated with the House's assumption of a criminal jurisdiction mentioned in paragraph 38.

  41.  Fourthly, it might be for the House to decide in a particular case whether criminal charges should be brought or the issue should be dealt with by the House. There would be a presumption that the House would take responsibility unless it resolved to the contrary. In assessing this scheme, the consultation paper itself mentions the possibility that the public might regard the critical decision as party-politically motivated; that the decision could not be sensibly taken until after an investigation and a decision to prosecute; and it might involve debate over the whole area of the charge, which would prejudice later proceedings either in court or in the House. Finally, like the preceding option, it would not solve the difficulties of the House as a court of law.

  42.  Members may wish to consider a further possibility which would bear a resemblance to the nineteenth century solution adopted to deal with disputed elections, where the House realised that its age-old privilege of determining these cases had become unsustainable. The decisions were too difficult and too politicised. They were therefore turned over by statute (the Parliamentary Elections Act 1868) to the courts, with an appropriate residual interest on the part of the House.

  43.  In principle, allegations of corruption on the part of a Member would under this proposal be a matter for the criminal courts. Paragraph 39 has indicated where the problem with that solution lies — in the compromising of the protection given by article IX. It may be worth considering whether that compromise has to be accepted. The House cannot preserve statutory protection of freedom of speech in all its fullness without also taking steps itself to sift and come to a judgment on a Member's use of that freedom, when a charge of criminal wrongdoing has been laid. If, as seems the case, the House cannot take those steps, logic demands that the exercise of freedom of speech in such instances must be subjected to some other body. But if concessions of this sort are to made, they should be made in a way which limits and minimises the inroads into the right of Parliament.

  44.  Two possibilities present themselves. Consideration might be given to a procedure by which, when a charge of criminal corruption was laid against a Member, and that charge involved or was likely to involve proceedings in Parliament — not simply actions in the discharge of the Member's functions in that capacity — the House might be invited to apply to that case a statutory formula relaxing the provisions of article IX. Such a form of words could be adapted from that used in section 13 of the Defamation Act 1996 (see paragraph 15). It would apply only to the case and to the Member in question and would give rise to no presumptions about its subsequent applicability. The decision whether or not to allow a prosecution to proceed would be the House's alone: the "waiver" of the statutory protection would not be in the hands of an individual Member. Damaging discussion of the case itself on the motion to vary the effect of article IX could be avoided by the Chair's strict application for the sub judice rule, which could be reviewed to ensure its adequacy for this purpose. The rights of those Members and others covered by article IX against whom charges were not laid, preservation of which may well be regarded as the touchstone of a reasonable solution, would not be at risk. A resolution of the House, reiterating that conduct unbecoming — but not criminal — would remain a matter of parliamentary review and decision and not that of the courts, ought to be respected by judges, given their many observations over the years, repeated in the most recent cases, that the courts desire not to upset the "comity" between themselves and Parliament (see paragraphs 6-7). The Code of Conduct might need to be reviewed in the light of any such procedure. Statutory definition of "proceedings in Parliament" is not a sine qua non of this suggestion, but it would of course be useful.

  45.  Alternatively, a definition of "proceedings in Parliament" might be attempted. Those activities which fell within it would be distinguished clearly from the "functions of a Member in that capacity". Corruption in the latter area would be a specifically defined offence and so without question a matter for the criminal courts. It is understood that this regime applies in Canada and Australia, and has not to my knowledge given rise to problems where allegations are made touching on both "proceedings in Parliament" (and therefore article IX) and the wider compass of "functions of a Member". Subject to that, this approach would preserve the absolute character of the protection of article IX, though the problem would remain of how the House could adequately deal with alleged corruption were it to arise — as it has not so far done — within the definition of "proceedings".

  46.  If under either of these schemes a Member were found guilty of the offence alleged, and it appeared that questions of conduct (not law) had arisen which were not dealt with by the courts (see paragraph 44), the House would be able to take such steps as seemed necessary. If a Member were found guilty of an offence, it would be of course for the good sense of the House whether to take these steps or to follow the principle of not punishing twice for the same offence. If the charge found proved were a very serious one, the House would of course retain its right to expel a Member, even if (for example) any term of imprisonment imposed did not itself imply disqualification. The corollary of these considerations might be that, where in the case of investigation of matters of conduct in Parliament it became clear that an action of a criminally corrupt character might have been committed, the evidence would have to be turned over to a competent prosecuting authority which would decide whether or not to institute an investigation.


42   See Erskine May, pages 112-115. The principal resolution of the House in this matter dates from 1695, when the House resolved that "the offer of money or other advantage to any Member of Parliament for the promoting of any matter whatsoever, depending or to be transacted in Parliament, is a high crime and misdemeanour" (CJ (1693-97) 331). Back

43   Of the three Members whose conduct in connection with the affairs of an individual convicted for corruption was reported on by a select committee in 1977, one was held to be guilty of a contempt, and the other two were judged to have conducted themselves in a manner inconsistent with the standards the House was entitled to expect (ibid page 113). Back

44   HC 688 (1995-96).

 Back

45   Cmnd 6524, pages 96-99. Back

46   Cm 2850-I, paragraph 2. 104. Back

47   Law Commission consultation paper No. 145, Corruption, paragraph 4, 18. Back

48   First Report, HC 637 (1994-95) at paragraph 52. Back

49   Clarification of the law relating to Bribery of Members of Parliament, December 1996. Back


 
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Prepared 9 April 1999