Parliamentary Privileges Report


Examination of Witnesses (Questions 105 - 119)

TUESDAY 20 JANUARY 1998

THE RT HON JACK STRAW, MISS CHRISTINE STEWART, MR NEIL CLOWES AND MR STEPHEN BRAMLEY

Chairman

  105. Home Secretary, the Committee is very grateful to you for coming to assist us in the review of parliamentary privilege which we are carrying out. The questions on which we would like your help will be, at any rate, primarily addressed to you but we will be happy to have answers from any Member of your team who you think might be able to most help us. Before I begin to ask questions, is there anything which you would like to say to the Committee at the outset?

  (Mr Straw) My Lord Chairman, perhaps I might at the very outset introduce the officials who are sitting with me. I have with me Christine Stewart, Grade 5, who is Head of the Sentencing and Offences Unit, Stephen Bramley from the Legal Adviser's Branch and Neil Clowes who works with Christine Stewart in the Sentencing and Offences Unit. If I might, I would like to make a brief statement setting out our overall position and then I would be delighted to answer as many questions as I can and, in the time honoured tradition, questions I cannot answer I shall invite officials to answer for me. I should like to place the issue of changing the law on bribery of Members of Parliament in the context of the Government's strategy overall for the prevention of corruption. We are determined to root out dishonesty in public life and to increase trust in those who hold public office. Last June we published a consultation paper on a general reform of the law relating to corruption. This sought views from the legal establishment, industry, Members of Parliament and members of the public on three specific issues. First, on the idea of the single new offence of corruption covering both the public and the private sectors. This would reflect the fact that the boundary now between the public and the private sectors is no longer as distinct as it once was. Second we raise the question as to how to strengthen enforcement. One way of doing this would be to extend the presumption of corruption beyond the area of letting contracts to receipt of gifts aimed at influencing the actions of recipients. Another way would be to make corruption offences serious arrestable offences under Schedule 5 of the Police and Criminal Evidence Act which would put these offences on a par with serious offences against the person or the state. A third issue which we raised was whether the anti-corruption legislation should be extended to cover behaviour which amounts to a misuse of public office. This would create a new statutory offence for anyone in public office to misuse their position to obtain an unfair advantage to themselves or someone else. This was a matter considered separately by the Nolan Committee in their third report last July. There has been an almost universal welcome for the proposal to formulate a modern corruption offence and a widespread recognition that the dividing line between standards in the public and private sectors is outdated. The idea of creating a new statutory offence of a Misuse of Public Office put forward by the Nolan Committee report last July received overwhelming support in the responses in the public consultation exercise. It may be worth me mentioning also that we have been working on the international front to combat corruption. On 26 May last year I signed the European Convention on Corruption on behalf of the United Kingdom Government and further work is going to be taken forward under the United Kingdom EU Presidency on a Convention combating corruption in the private sector. On December 17 the Government signed the OECD Convention on Combating Bribery in International Business Transactions. The Government has nearly completed negotiations on a Council of Europe Convention combating corruption. All this is the changed context within which I have asked this Committee to consider the options set out in the discussion paper "Clarification of the law relating to the Bribery of Members of Parliament" which was published by the previous Government in December 1996 and the further evidence which has been presented to you. One of the options in those documents was to make Members of Parliament subject to the criminal law in respect of corruption behaviour. As I know your Committee well recognises, this would mean suspending provisions of the Bill of Rights and the Claim of Rights in such cases, as can be done currently in defamation cases at a Member's own request. It is my belief that the basis of Members' privileges is to ensure that they may speak freely without fear of the consequences. I am a staunch defender of such Parliamentary protections as a bulwark of democracy but I do not believe that they should be used to protect dishonest Members or that their waiver in cases of corruption would inhibit an honest Member's ability to speak or to act in Parliament. Using the cloak of Parliamentary privilege to protect the rare dishonest Member will damage the reputation of all Members in the eyes of members of the public. The Government is determined that the United Kingdom should stay at the forefront of the fight against corruption both domestically and internationally. Our review of the corruption laws as they apply to Members of Parliament is an integral part of that fight. It would assist us considerably in preparing legislation if this Committee could reach a speedy decision—if I may respectfully ask you this—on the narrow issue of the question of bribery of Members in advance of their general considerations about privilege. Thank you very much, my Lord Chairman.

  106. As you indicate, Home Secretary, one of the reasons why the Government considered a review of parliamentary privilege was needed was the parliamentary implications of the general reform of the corruption statutes which is now being taken forward by your department. In making its recommendations on this topic the Committee would be assisted if the legislative proposals on which it is commenting could include the specific as well as the general. Now I have in mind that to some extent this is a chicken and egg situation. The Government would like to have the benefit of the Committee's recommendations in its report to the two Houses before deciding but the Committee cannot make detailed recommendations without knowing what is proposed. So let us just see how far we can get. On your current thinking what will be the scope of proposals to amend the law of corruption? Are you minded to confine yourselves to updating and consolidating the existing statutes or are you looking towards more radical proposals?
  (Mr Straw) As you know, my Lord Chairman, we published this document on Consolidation and Amendment of the Prevention of Corruption Acts 1889-1916. That set out a possible framework for new definitions on those specific offences and we are considering currently the responses which we have received to that. Obviously we are taking account also of the views of the Law Commission and the idea of creating a new statutory offence of Misuse of Public Office. I accept it is to some extent a chicken and egg situation but I respectfully say that it would be I think very difficult for any ministers of the Crown to go before Parliament with proposals for extending or creating offences of bribery of or corruption by Members of Parliament without the benefit of advice from this Committee because the first question would be put: "Well this is a matter first and foremost for Parliament rather than for the ministers". Now what I have tried to do in my opening statement, and I am happy to expand on this, is to give you an indication of our thinking.

  107. Please do.
  (Mr Straw) The thinking is that the general law on the prevention of corruption ought to be widened and clarified as we have set out in this document here. Secondly, that it should be possible to run effective criminal proceedings against Members of Parliament for bribery and corruption. Thirdly that there should be an offence of Misuse of Public Office which should apply to ministers, should apply to councillors, to other members of public bodies and should also apply to Members of Parliament.

  108. As I understand it, your present thinking is that there should be criminal legislation which would apply to MPs and peers?
  (Mr Straw) Yes. It would be an impertinence for me to bring those proposals forward without the benefit of this Committee's view. It may be that in the end the Government takes a different view from this Committee but I hope it does not.

  109. Perhaps I can begin at what is I suspect an uncontroversial starting point. There needs to be a fair, workable and publicly acceptable system for dealing with the corruption or alleged corruption of MPs and peers, I believe you would agree with that?
  (Mr Straw) Yes, I would.

  110. Now pausing there, do you think there is an actual problem of corruption or are you mainly concerned with satisfying public concern?

  (Mr Straw) Certainly there is I think a well documented problem of undue influence of Members of Parliament. I speak only with direct experience of the House of Commons not of the House of Lords. It was that experience of undue influence of Members of Parliament which led to rising concern in the last Parliament at the establishment of the Nolan Committee on Standards in Public Life. Members of your Committee, my Lord, will be well rehearsed in all the allegations of sleaze which took place in the last Parliament. Now some have suggested, as you know, that some of those alleged acts might have rendered the individuals liable to criminal proceedings for corrupt practices if such criminal proceedings had been possible. If you ask me in terms of numbers do I think that generally Members of Parliament are open to undue influence my answer to that is no, I think that generally speaking the standards of conduct of public life in this country and in Parliament are extremely high but occasionally there are incidents which give rise to concern. Also I think, to answer your question directly, there is a very important general principle and that is that the law should apply equally to everyone and especially ought to apply to law makers. Given the temptations that are around and the money that can be made by changes in legislation or the influence of ministers, it is vitally important that the same checks on unacceptable behaviour should apply to Members of Parliament as we in Parliament impose on members of the public.

  111. As we know there are various ways in which corruption could be dealt with. One possibility is the one you have already mentioned, that MPs and peers should be subject to criminal legislation. Another possibility might be that MPs and peers should be subject to the disciplinary processes of the two Houses or of some other body or tribunal and there are variances on those two basic possibilities, some of which are set out in the discussion paper produced in December 1996 and others have been canvassed. I understand from what you have said already that currently you prefer the route of criminal legislation. Now what is it that at the moment causes you to think that on balance that is the better route?
  (Mr Straw) For the reason I have already stated which is I can think of no compelling argument as to why Members of Parliament who make money out of their position should be treated more favourably than any members of the public. Indeed, I think it undermines confidence in the processes of politics and government if Members of Parliament only face the risk of disciplinary proceedings and the loss of their office if they act corruptly whilst other members of the public also face the prospect of a severe criminal penalty including imprisonment. The discussion paper brought out the fact that if Parliament was to go simply for the latter alternative, which is disciplinary proceedings, these would have no effect at all where the corrupt practice came to light after a Member had ceased to be a Member of Parliament. Moreover, I do not believe that these two are alternatives. Let us use the analogy of, say, a senior official in Government or chief executive of a local authority, if they are charged and then found guilty of a corrupt practice they will suffer a criminal penalty but they will also then suffer a disciplinary penalty as well, typically they would also lose the office they hold. I think that is the preferred approach that Parliament should adopt, that there should be criminal proceedings where there is an allegation of a serious kind and if the individual Member of Parliament is found guilty and in the light of the conviction it is obviously serious then Parliament should consider whether it is appropriate for that individual to continue to hold office as a Member of Parliament.

Sir Patrick Cormack

  112. May I just ask the Home Secretary what is wrong with the alternative procedure? If a Member of Parliament is judged by his colleagues to be guilty of impropriety and after that he then faces criminal prosecution, would there be any objection?
  (Mr Straw) I think there have been many objections taken by the legal advisers to that individual as to whether a fair trial has been prejudiced, I am not in any doubt about that. Of course it is for that reason really in any other employment context where such an issue arises, it is true for example in respect of police discipline but also discipline of teachers or an employee in private employment, that when there is such an allegation what will happen is that normally there will be criminal proceedings followed by a final decision about discipline in the light of the criminal proceedings. It may be if, for example, someone has been found with their finger in the till that they will be suspended sometimes without pay until the completion of criminal proceedings but the usual arrangement is, so as not to prejudice the outcome of those proceedings, that no final decision is made. May I say, Sir Patrick, aside from the issue of principle as to whether Members of Parliament ought to be treated differently for what is a common offence of bribery or corruption, I think there are also overwhelming practical arguments as to why a parliamentary committee would be an inappropriate forum for holding the principal trial of that issue.

Chairman

  113. The view might be expressed that one reason why, as you put it, Members of the two Houses ought to be treated differently from others is that they are in a very special position in relation to their work, in particular the criminal legislation route would involve, as you recognise, a substantial incursion into Article 9 of the Bill of Rights. It would involve, do you agree, the possibility that a criminal court might have to look in depth into what a Member did in the House, what he said in the House, and in the chamber and why he did what he did and why he said what he said. In addition, the conduct, for example, of his defence might involve the calling of witnesses who are also Members of one or other House, who likewise would need to give evidence and be cross-examined on similar matters? Do you see that as an established constitutional position which can be satisfactorily changed in this way for this purpose?
  (Mr Straw) First of all, my Lord, I think what you describe is an inevitable consequence of making bribery and corruption of Members of Parliament part of the criminal law. I do not think we should resile at all from that consequence, that is what would happen. The second issue is: is it right that that should happen, is there some inviolable issue of parliamentary privilege or the Bill of Rights which should override the availability of evidence to the court in that way? That is obviously the central issue before this Committee. I thought about it a good deal and I do not believe that there is an overriding issue here. Parliamentary privilege is plainly of huge importance to the normal conduct of Members of Parliament, of their duty as Members of Parliament. From the eighteenth century there have been gradual modifications both of parliamentary privilege and then of the interpretation of the Bill of Rights. The Parliamentary Privileges Act of 1770 if you like eroded the privilege which previously existed against the arrest of Members of Parliament and that established in practice that Members of Parliament would be open to arrest and, therefore, criminal proceedings in respect of virtually any other offence in the criminal calendar apart from bribery and corruption. If you like that was a very major erosion of what had previously been seen as parliamentary privilege. I suggest that the reason for that was that by that stage in our political history Members of Parliament were reasonably relaxed that arrest would take place on good grounds and not as a result of political prejudice. You will be familiar, my Lord Chairman, with the fact that so far as Article 9 is concerned there has been a series of judicial cases which have narrowed the scope of Article 9, the most obvious one of which is Pepper v Hart, by which ministerial interpretation of legislative provisions may now be adduced in evidence where there is an issue of ambiguity of a statute, but there is also, for example, the authority of Pickstone v Freemans, where there was a question of ascertaining the purpose of subordinate legislation. When there is an issue as to whether a minister has acted correctly in judicial review proceedings the authority of Home Secretary ex parte Brind allows for the parliamentary proceedings to be adduced in evidence, and so on. I do not see this as an overwhelming issue. Of course it would very rarely happen. My last point is that of course this issue did arise in the Harry Greenway case where Mr Greenway, former Member of Parliament, was charged with corruption relating to his conduct with a railway supply manufacturer in or near his constituency. You will remember that the learned judge in that case suggested that Article 9 was not a bar on bringing into those criminal proceedings what had happened in Parliament.

Mr Tyler

  114. My Lord Chairman, may I follow up on a matter of principle before we get too much into detail. I wonder whether the Home Secretary would agree that one of the advantages of taking the criminal law route is that it is obviously a well tried route, while if we were to set up some entirely new parliamentary machinery we might create a rather novel sledgehammer to crack a comparatively small number of nuts. As members of the Committee will know, I am very concerned that we should not send out a signal that this is a huge and growing problem simply because we are discussing it, and indeed it may be that the inter-relationship with our consideration of the problem and that of the Neill Committee, the Government's evidence to the Neill Committee, may form a better context for this, rather than simply giving emphasis to Members of Parliament's potential for corruption. The Home Secretary would probably agree that the average Member of Parliament has very little influence; indeed, perhaps he should be charged with false pretences rather than corruption on the whole. Is it not right then that the Government, in asking us to look at this particular question, should also give us some indication of how it relates with the issues of improper influence over parties, over ministers, over governments? We had again this morning yet another case of potential accusation of undue influence over a party. I am concerned that by giving such emphasis to the individual members and their potential we may perhaps be giving the public the wrong impression altogether.
  (Mr Straw) I do not see these as alternatives. The committee under Lord Neill is currently considering the question of the funding of political parties and he has issued and published a discussion document about that. I have no doubt that one of the major issues before that committee is how to ensure that political parties are funded in such a way that undue influence is not brought to bear. There is no doubt at all that there is an issue about the standards of conduct of Members of Parliament. The Nolan Committee was not manufactured out of thin air. It came because of rising concern about the way in which a small minority of Members of Parliament were undermining the reputation and credibility of the whole institution of Parliament itself. There is no doubt at all that that is what was happening and that is illustrated for example by opinion survey work which shows that the reputation of Members of Parliament has over the years been damaged by this kind of revelation and I would suggest not only by the revelation but also by the apparent failure of parliamentary processes to deal with these allegations effectively, which is why we now for example have the Commissioner on Standards in Public Life, Sir Gordon Downey, a new parliamentary committee to oversee such matters and consideration by this committee of the proposals in respect of corruption by Members of Parliament. You said almost parenthetically that Members of Parliament had little influence and there was a throw-away line that maybe Members should be charged with false pretences for implying that they had influence. I am afraid I do not accept that. Members of Parliament can have very considerable influence. Chairmen and Chairwomen of Select Committees can exercise considerable influence on the process of government, and rightly so, and so can members of a Select Committee. I have seen this myself and those members of your Committee, my Lord, who have been Members of Parliament will know that the reports of Select Committees are taken very seriously indeed in Government. If a report was produced which came to certain conclusions as a result of the undue influence of a Member or the Chairman or Chairwoman of that Committee, I think it would be extremely important that that undue influence, maybe involving bribery and corruption, should be the subject of criminal proceedings. I also say however that although those factors have very considerable influence indeed, it is after all our purpose. It is a thought that for all the self-deprecatory remarks we make about our position, most of us are desperate to get into Parliament and even more desperate to stay in Parliament. There is a queue a mile long as soon as a vacancy arises. This is, quite rightly, a very influential position which we hold and therefore I think it is very important that the public should know that the standards of conduct which we expect of other people and that the sanctions which we will impose and have imposed on other people where they depart from a certain standard of conduct are going to be the same sanctions and standards which we impose on ourselves.

Lord Archer of Sandwell

  115. Home Secretary, would you agree that this is going to make a wider incursion into the Bill of Rights than anything that has happened previously, because we are not simply talking about obstruction of a Member in his duties but about raising the issue in court of how Members operate in expressing a particular view or arguing a particular case. You could very easily, could you not, get into the situation where he is asked, "Well, you did not say that because you really believe it, because last year you said something different"? Have your team given any thought to how we can tailor this so that it does not become something like what we see in the United States Senate hearings?
  (Mr Straw) I think you are right, Lord Archer, to suggest that it would be a significant incursion. For reasons I have explained, that does not cause me difficulty. I do not believe and never have believed that we should be wholly ruled from the grave. I think we should always be guided by our ancestors, which is after all the root of our common law, but we have to change with the times and in a less significant way the House of Lords Judicial Committee I thought took a very daring decision in Pepper v Hart because there had previously been an absolutely iron view that the only texts which the courts could ever examine from Parliament were the products of discussions, namely acts or subordinate legislation, and never the process by which those texts had been reached. That was changed in Pepper v Hart and I think changed for the good because both the courts and Parliament ended up in an absurd situation where the courts were having to interpret legislation without the benefit of what was clearly in the minds of ministers and Parliament when the legislation was put forward. I accept your point that this would be none the less a more significant change but I believe however that the processes leading to a criminal prosecution and the rules and practices of the prosecution itself are such as to ensure that this would take place only very occasionally and that when the matter came to court the judge conducting the trial would ensure that there was a very narrow frame of focus on the issue and I am quite sure that the judge concerned would be alive to the need for the prosecution not to be a general excursion into the Member of Parliament's conduct. It would be a narrow issue of, for example, whether he took money in order to raise matters in the House and I dare say that evidentially there would be two issues: did he take the money and what did he do for it. The number of prosecutions is likely to be tiny I think. The prospect of a prosecution would be still less if we made it clear in the legislation that criminal processes would come down very heavily on any Member of Parliament who did take money.

Lord Mayhew of Twysden

  116. Home Secretary, does it seem to you that this really is at the core of the practical area which this Committee has to consider? It seems to me that all of us share the common ground of wanting to discourage, if necessary by penal sanctions, wickedly corrupt behaviour, whether it is in outside Parliament or inside Parliament. The practical difficulty so far as people inside Parliament are concerned is the knock-on effect on the functions of Members of Parliament and also on the separation of powers between the judiciary and the legislature. Therefore, arising from your last reply, are you confident that the involvement of the judiciary in the workings of Parliament and how people have behaved within Parliament really could be limited as closely as your last reply suggested, in a case where desperate consequences are involved for the reputation of a Member of Parliament in a trial which will be conducted before a jury? The danger as it seems to me is that the judges are going to be drawn (against their wishes probably) inevitably into an investigation of what has motivated not just the parliamentary behaviour of the defendant but of those whom he has chosen to call to support his defence. Is that something which strikes you as a danger? If it is, is it one to which your reply, "Oh, well, it would not happen very often" really represents your response?
  (Mr Straw) Lord Mayhew, I accept that there are disadvantages to changing the law as well as advantages. The disadvantages are those that you describe. My view is that the advantages, indeed the imperatives in my judgement, in changing the law outweigh the disadvantages. The disadvantages are those that you describe and the infrequency with which the disadvantages you describe will arise. The advantages are those that I have set out and the need I think to have a law that applies to everybody, and for Members of Parliament not to appear to be either above the law or subject to a different law. If I may just underline the fact, in a sense we have no need to look into the crystal ball. We can look at the book because exactly this issue arose in the prosecution of the former Member of Parliament Harry Greenway, and in his defence it was submitted that bribery of a Member of Parliament was not a crime and that if there is a crime only Parliament could try a Member for bribery because the matter was already the subject of parliamentary privilege. You may remember that it was Mr Justice Buckley, despite representations from the Attorney General in that case, that ruled that Members of Parliament were subject to criminal law on bribery and corruption and there was a nice point, I understand, made in that case which was the question of the timing of the corrupt act. What was argued was that the corrupt act was complete at the time when as it were the money or the gift had passed over and that necessarily took place outside the conduct of the Member of Parliament's office since nothing to do with his office involved corrupt practices. There was an issue of what he had done for the bribe and that certainly goes into the question of adducing proceedings in Parliament and that I think was what was going to happen in the Harry Greenway case, and I cannot remember what happened but I think he was acquitted.

  117. He was acquitted.
  (Mr Straw) In fact that did arise in that case. When it occurs I think there will be problems; I do not think we should deny that. Of course somebody charged with an offence and resisting the charge is going to do everything he can to secure acquittal, that is understandable, but the rules of evidence are pretty clear in terms of relevance. I certainly have great confidence in the kinds of judges who would be trying such cases to conduct such a trial without it turning into the kind of circus that takes place sometimes in the Senate of the United States Congress.

Lord Wigoder

  118. How could juries be helped to distinguish between payments which parliamentarians regard as proper and payments which parliamentarians regard as improper?
  (Mr Straw) By the arrangements that Parliament is now putting in place, I believe, for declaration of payments and also the rules that have been laid down as to what Members who do receive payment may or may not do for that—this distinction between advocacy and advice for example and the other guidelines—both by parliamentary committees and the Nolan Committee and I think by the practice of Sir Gordon Downey. Of course, alongside that the other issue a jury would have to consider is whether the Member of Parliament had acted dishonestly, which I suggest is something that juries are quite good at using their nous to determine just on the totality of the evidence before them. They will have to look at the evidence and say, "Is this the sort of thing a Member of Parliament would normally do or is he acting dishonestly?" and they will come to their view.

  119. It would depend on the interpretation they put on the word "corruption", would it not?
  (Mr Straw) Yes, but that has always been the case, and the courts have been quite robust in resisting arguments about what we may be casuistically viewed as corrupt. There is a commonsense interpretation of the word "corrupt" which is not that dissimilar to the commonsense interpretation of the word "dishonest" and I think it is an issue which can be left to the jury.


 
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