Parliamentary Privileges Report


Examination of Witnesses (Questions 120 - 139)

TUESDAY 20 JANUARY 1998

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

Sir Patrick Cormack

  120. Home Secretary, when you answered my earlier question you rather dismissed the alternative suggestion that Parliament should deal with its own first. Could I take you back over that? As Lord Mayhew has said, there is common ground, I am sure, around this Committee that those guilty of corruption should be dealt with properly and expeditiously. Surely those are the two key issues and what has prompted your disquiet has been the feeling that older cases have not perhaps been dealt with as properly and as expeditiously as they might have been. Bearing in mind that you agree that we are dealing with a very small problem, are there sufficient grounds for a constitutional change of very far reaching significance and have you really thought through just how far reaching it is?
  (Mr Straw) I was not trying to dismiss your earlier remark, Sir Patrick, but merely expressing a difference of view from it. They are two very different things. I believe that the case has been made out for a change in the law for the reasons which I have tried to explain. Although the number of occasions on which Members of Parliament may have acted corruptly or dishonestly may be small, I do not think any of us in Parliament can be immune to the very substantial change in public perspective which has arisen in the last five to 10 years as a result of some notorious cases. We also have to accept that, aside from that, times have changed. People expect much greater transparency in the conduct of public business than they used to. It is just a fact of life if you like of the way in which we have become more not less democratic. I do not think people are willing to wear any longer that Members of Parliament should be privileged if by that it means that Members of Parliament should not be subject to criminal proceedings, and if anybody else commits a similar offence they are subject to criminal proceedings.

  121. Should we not nail the lie really? Members of Parliament themselves are not privileged. The privilege is vested in them on behalf of their constituents so that they can effectively discharge their duties. If they abuse their position and become corrupt, of course they should be dealt with most severely; but I think it is important to recognise that distinction and I think it is important therefore not to dismiss out of hand the responsibility of Parliament to deal with its own.
  (Mr Straw) I think Parliament would continue to have a responsibility to deal with any evidence of corruption by a Member of Parliament, but there is a question whether it is an alternative or in addition to criminal proceedings. It is my submission to this Committee that it should be in addition to criminal proceedings, not an alternative. I accepted the assertion from Lord Archer and Lord Mayhew that the changes we are proposing would represent a more significant alteration to Article 9 of the Bill of Rights, but the qualification I would put to that is that I would suggest the change made in 1770 to the Parliamentary Privileges and Criminal proceedings Act resulted in far more open parliamentary proceedings and does not seem to have damaged the reputation of Parliament.

Chairman

  122. Have you considered the practice of an alternative which would involve a lesser degree of incursion into the Bill of Rights? Let me illustrate what I mean. You have mentioned the case of former MP Mr Harry Greenway. In his case, as I understand it, all the seven charges brought against him related to actions which he had taken, so it was alleged, as a Member but outside the House. Have you considered the possibility that the criminal legislation line might be drawn so that on the one side conduct as an MP outside proceedings in Parliament should be criminal but everything which relates to proceedings in Parliament should be on the other side of the line?
  (Mr Straw) I have considered that and indeed it was one of the possibilities which was raised by the previous Government in their discussion paper which they published in December 1996. It is set out at paragraphs 18 to 20. Personally I think that that could cause very considerable problems. What was incontrovertible in the Harry Greenway case was that the allegation was related to his position as a Member of Parliament, so it was not to do with his position as director of a company or anything else. It was fair and square his position as a Member of Parliament. I think that there would first of all be a practical problem about how in practice a distinction was drawn between a Member of Parliament's activities outside the House and his activities within the House, and you could easily get a situation where, in return for taking corruptly sums of money from a firm, say a Member of Parliament had done all sorts of things perhaps to secure contracts or to help to procure contracts for this particular firm. That might include getting meetings and attending meetings with a minister and that presumably evidence of what happened in that meeting would be adduceable and subject to those proceedings outside the House. Say he only got the meeting as a result of standing up in the House of Commons and asking for it, which is quite often what happens. A minister searching for an answer offering blandishments to a backbencher about a meeting might well say, "Of course I will see him, my honourable friend"; it happens all the time. That might be relevant to the proceedings but under this proposal what actually happened in the Chamber, even though it was part of the whole story, would not be adduceable in evidence. I find that distinction artificial in those circumstances. I think it is very important that the court should have the full story. I think, with respect, that the practical choice before the law is do we make corruption and bribery by a Member of Parliament an offence or do we not? If we do then various consequences follow which I certainly would be willing to accept, which is that the Member's conduct overall ought to be adduceable in evidence. If we do not then obviously no part of his conduct is adduceable.

  123. So you think the choice, for the sort of practical reason you have just illustrated, is all or nothing?
  (Mr Straw) I also think so for reasons of principle because I think that the public would be very unimpressed if a Member of Parliament against whom there was otherwise pretty compelling evidence was none the less able either to avoid a prosecution or to gain an acquittal simply because the key part of the evidence which was otherwise public could not be adduced before the court.

  124. There might be concern that if there is criminal legislation embracing the whole field, private prosecutions might be brought for party political reasons, say just before an election, and then abandoned thereafter. Have you considered the possibility of providing that prosecutions require the consent of the Director of Public Prosecutions or some other safeguard?
  (Mr Straw) I have not actively considered it. I see that there is a strong argument for that. I would be very happy to have the views of the Committee. A number of members of the Committee are very experienced in this field, with at least one former Attorney General. Even where there is a private prosecution it is possible for the Attorney General to stop it by a writ of nole prosequi. I accept that in the scenario you suggest of just before an election, although it is an incontrovertible truth that the Attorneys General always act judicially in such matters, if an Attorney General tried to stop a prosecution and it was brought by another party against a member of the Government party, there would be suggestions that he had acted improperly even if unquestionably he had not, so it might be better to have the gateway in advance as a result of the consent of the Director of Public Prosecutions or the Attorney.

  125. Have you considered another possibility which has been raised, that is that prosecutions should always be subject to the approval of either the House of Commons or the House of Lords?
  (Mr Straw) This issue is also raised in paragraphs 21, 22, 23 and 24 of the 1996 consultation document and I certainly considered it very actively. I think it would be very ill advised because that would be to embroil either House or both Houses in a prosecution decision in I think a most unacceptable way. How would you make that decision? Would it be by committee? What would happen if the committee split? All committees are creatures of the main Houses so you would end up in a position where the main House was voting for whether a prosecution should take place and how then, to come back to a point which was raised by Sir Patrick Cormack, if that had been the case and the alleged culpability of the Member had been well advertised in the House, in what position would the House then be when and if there had been a conviction in a criminal court and subsequently the House had to take disciplinary action against the Member? I think really there are very many objections to that suggestion. I think it would end up with Parliament being in the worst of all worlds.

  Lord Merlyn-Rees: I think there is an example, although I cannot remember the details, arising from the case of Mr Maudling when the House split almost on complete party lines on an aspect of it. This is the danger. I would like to come in later on another issue. I do not want to break up this present discussion.

Mr Williams

  126. I have two points to put to you. The first point relates to timing. I think the Committee would start with a predisposition to go along with your view that as few people as possible should be exempt from the law of the land. Our difficulty is that we are trying to preserve the basic rights that enable Parliament to work as Parliament, while at the same time giving you an answer to the basic question of whether or not Members should be subject to the normal proceedings in the courts. On timing, that means that we have a real problem. How urgent is it to you to have advice from this Committee? What is the absolute deadline, because we have to unravel other aspects of the privilege question?
  (Mr Straw) You are sitting next to the President of the Council who is a senior business manager and on such matters, as you well know, Mr Williams, it is a rash mere mortal member of the Cabinet who gives any undertakings about timing of legislation. So I do not. However, we would like to proceed as quickly as possible. I know that is "how long is a piece of string?". Not this session, but if it was possible to proceed next session then I would like to do so.

  127. Knowing the vagaries of the legislation committee and all the rest of it, what is your deadline if you are going to include this legislation in the Queen's Speech next year? You could, for example, draft contingency provisions which need not be included in the final Bill if this Committee recommended—and you decided to go along with the recommendation—that legislation for Members should not be included.
  (Mr Straw) If it were possible to have the opinion of this Committee in the next three or four months, that would be hugely to our advantage because it would then mean that we would be able to give proper consideration to the proposals, have the clauses drafted and for them to be included in proper order in a criminal justice measure. Obviously, if that is not possible, we will have to do the best we can.

  128. Would there be a possibility of contingency drafting? It is not excluded, is it?
  (Mr Straw) No, it is not, but again, the resources of parliamentary counsel are scarce and are also controlled by my distinguished colleague sitting next to you and not by me. It is fair enough: you should not set parliamentary counsel on hares. They are so busy that one should only ask them to undertake drafting where there is a clear Government decision that the drafting is likely to be needed.

  129. The point I am trying to get at is that the more time we have the more orderly our approach to both problems is, preserving the necessary privileges while trying to make people subject to the law. May I switch and make a couple of observations with which Mr Mickie may or may not agree. Both of us have served on the Privileges Committee in the last Parliament on the cash for questions issue and I now serve on the Privileges Committee in this Parliament. It does seem to me that there are certain clear difficulties in our in-house procedure when you are dealing with the serious cases as opposed to run of the mill minor references to the Committee. The first and most obvious must be our lack of investigative power and resource. We have a Commissioner, we do not have a police force, we do not have all the back-up that a normal criminal case would have. Secondly,—I am not a lawyer and the lawyers will immediately correct me if I am wrong—lying to a committee of this House of Commons may be a disgraceful thing to do and may be reported to the House but I do not think it bears the same sanction of criminal proceedings as in the courts. Thirdly, and this came out in the most recent case, there is a limited capability for a Committee of this House of Members of Parliament with all their other duties to carry out a sustained investigation in a way in which it could be pursued in a court proceeding. The final point is that there are in any case limited penalties open to us to impose, which are far below the penalties that would be imposed in a court in the most serious cases. I have put those forward as thoughts. I do not know whether they are helpful or not.
  (Mr Straw) They are helpful to my argument because I happen to agree with them. Mr Williams, my Lord Chairman, has had very extensive experience of being a member of such investigative committees and I take very seriously his comments on the natural restrictions on the scope of their work. The points which are made, if I may say so, are very strong ones.

Lord Mayhew of Twysden

  130. Could I come back to this question of jurisdiction and the fact that questions or proposals would rest on the judiciary. You say it is all or nothing, and one well understands the inclinations of a department and a Secretary of State responsible for upholding the criminal law and proper standards. But you said something about fraud trials which suggested to me that you were separating in your mind the ability of a jury to cope with a fraud trial from the ability of a jury to deal, directed by a judge, with the question of corruption. The first question I would like to ask is this. Do you have it in mind in this context to have some sort of wider definition? As you say, the courts have dealt robustly with this kind of case. If you are not, are you reasonably satisfied that a jury is going to be able to distinguish what is corrupt and what is not corrupt or what is not proven as being corrupt in a trial of this kind, given that one can foresee that the defendant will call A, B, C and D, all with "MP" after their name, to explain what has happened in the forming of their decisions and so on. I remember vividly a decision by the former Government not to implement the recommendation of Lord Roskill's Committee that jury trials should be withdrawn from serious fraud cases. It is enough perhaps for me to say that I have had to rather question my own position on that at that time in the light of subsequent events. Is there not as much opportunity in the context that we are discussing for, I do not say the obfuscation but the multiplication of evidence which could lead to very serious fears that a jury would say, "Well, I cannot be sure"? That is what worries me. We might come later to look at what kind of judges are going to handle this and what kind of juries and so on.
  (Mr Straw) I have made my reference to fraud trials as it were almost as a throw-away line but for the moment very complicated fraud cases do go before juries. I am aware of the recommendations of the Roskill Committee and they may at some stage need to be revisited because life goes on. I think, with respect, Lord Mayhew, that the kind of issue that arises in an allegation of corruption is a simpler one that typically arises with one of these very complicated fraud trials. I say that without a great deal of information but I think that is true. Obviously there would have to be some financial information available in terms of the transactions, but in a typical corruption case as I recall there will obviously have to be evidence about the passing of the gift, the money or some other kind of favour, but then a lot of the argument is not so much about that because normally it is quite difficult to resist the evidence that the favour has been made, but about the use that was then made of the favour itself and that is then down to tracking what the Member of Parliament did for it. Coming to your reference to the judge who talked about a simple adverb, I think it was well said. The Recorder of London in this case said that it means purposely doing an act which the law forbids as tending to corrupt. I think it is reasonable on the whole for a jury to do it. A jury has a good idea of what is corrupt and what is not corrupt. There was another point you raised which was how do we make the change of law generally. In this document which we published in June 1997 we raised three specific issues. One was whether there should be the creation of a single offence of corruption in the private and public sectors and whether there should be a boundary between the public and private sectors because I think the boundary between public and private has broken down very considerably in recent years. To some extent the statute to cover proceedings it is thought should include the misuse of office and I think personally there is a very strong case for doing so and, as you will recall, the proposal from the Nolan Committee was that an offence of misuse of office should amongst other things replace a surcharge on operations which apply to local councillors and not to anybody else, whether there should be amendments to legislation to aid enforcement and other various details. Of course those would be substantive changes in the law and alongside those changes there would be the question of whether the law as it stood should apply to Members of Parliament.

Lord Archer of Sandwell

  131. I wonder whether the problem is the fact that it may be a complicated question. I would have thought it was not the complication of the question but the question of whether a Member of Parliament expressed a particular point of view because he had been given some inducement or because there had been some corrupt bargain. I seem to remember that Lord Chancellor Bacon's defence was yes, he had taken bribes but he had not then carried out the bargain on the basis of which they were given. If you were to have two Members of Parliament each of whom had said almost identical things, but one of whom could show that it was something he had believed passionately all his political life but the other could not, you might get a distinction drawn between the two on the evidence. Is not that what is rather worrying about this, Home Secretary, that you might then find the court drawn into an argument about what this person really did believe and what his reasons for believing it were and what his political background was?
  (Mr Straw) Lord Archer, first of all I apologise—I knew there was another member of the Committee who had been an Attorney General and that was you. Surely what you are describing is likely to arise or could potentially arise in any corruption trial. Exactly that kind of issue has arisen where there have been allegations of corruption against members of a local authority. I do not see that in principle on this matter that a Member of Parliament could or should be in any different position from a member of a local authority. You could have two members of a local authority, both of whom have accepted favours from a property developer, both of whom have voted in favour of the planning application. One could advance the argument that he was going to do it anyway and he might well produce endless leaflets which he had produced before he had ever met this character, and if he was a Liberal Democrat councillor he most certainly would have produced such leaflets and they would have been written with a Liberal Democrat focus to explain on this occasion that he was going to be in favour of this development, and say that although he had taken this favour he had actually done nothing whatever to change his mind, and there might be evidence against the other character that it had changed his mind and had caused him to act in a corrupt way. That would ultimately be a matter for the jury. We have had any number of corruption trials affecting local councillors. They occur from time to time. I do not think evidentially there is a bigger problem about Members of Parliament than there is already over local councillors.

Sir Patrick Cormack

  132. Are you really suggesting that local councillors and Members of Parliament should be treated in exactly the same way?
  (Mr Straw) I am suggesting that when it comes to criminal sanctions Members of Parliament should indeed be treated in the same way as anybody else, including local councillors. You and I may have a difference about privilege. I accept entirely that the importance of parliamentary privilege, in other words the privilege of Parliament, is essential if Members of Parliament are to do their job, but I do not believe that there is a privilege which attaches from parliamentary privilege to individual Members of Parliament. I do not think the public do either. As I said, to go over the point, there was a time when, up until 1770, it was assumed that there was not only a privilege of Parliament but a privilege which attached to individual members of Parliament so they could not be arrested. In other words they were immune from the criminal process. That was changed in 1770.

  133. I think you are pursuing a false analogy.
  (Mr Straw) With great respect, I do not think I am. There is a very important point here, that over time the rights and privileges of individual Members have changed and I do not think those changes have affected the privilege of Parliament and above all the privilege of Parliament to allow its Members to speak out honestly without fear or favour as to consequence.

  134. But again I want to reiterate the fact that I am at one with you in wishing to root out the corrupt and wanting to deal adequately with the corrupt. But I would put it to you that there is a very real danger—and this is why I am suggesting that you are pursuing a false analogy—in a Member of Parliament not being allowed to claim parliamentary privilege (which is much the same as the privileges that clerics used to claim in the Middle Ages) if charged with rape or any other felony, and a Member of Parliament who is accused of doing something corruptly or in the course of his parliamentary business. It is proper, it is essential, that if he is doing something corrupt he should be or she should be properly and adequately dealt with, but whether the adequate dealing with the Member requires such a constitutional incursion is another issue, and it is the issue that this Committee obviously has got to address. At the beginning of your statement to the Committee you very properly said that you would wish to hear what we finally decided. I do not know what we will finally decide. We have not deliberated. I do not know what I will finally decide, but I would hope that you will be able to assure us that if we did come to the conclusion the constitutional consequences were such that we would recommend a different course, you would listen very carefully to that.
  (Mr Straw) Of course I would. The Lord Chairman said that we were in a chicken and egg situation here. I think that there might have been a great deal of cause for complaint if I had come here and expressed no opinion on these issues.

  135. Of course.
  (Mr Straw) Since I have an opinion it seems to me sensible to express it. I said that we would wish to see the Committee's deliberations before we come to final conclusions. It is still possible that we will come to a conclusion which is different from the Committee's and that is in the nature of the conduct of parliamentary and Government business, but I hope that we do not and in any event we shall be informed by the Committee's decisions.

Lord Merlyn-Rees

  136. As a very young man I can remember Mr Aneurin Bevan saying, "If you want power it is not in the Palace of Westminster: it is across the road." We delude ourselves if we think that talking and arguing is the major part of the issue. How can a Member of Parliament be corrupt? It would be very difficult for a jury to answer that question if I cannot answer it myself after the length of time I have been in Parliament. How can a Member of Parliament be corrupt? Taking money for what? What is he able to deliver? We have to clear our minds on the nature of parliamentary corruption when we are talking about parliamentary privilege, not individual privilege. I am sceptical about much of this talk about parliamentary questions. It may be wrong to do something but the result of doing it could be nil. What is parliamentary corruption?
  (Mr Straw) Lord Merlyn-Rees, ultimately whether a Member of Parliament was corrupt if the law were changed would be a matter for the courts. I am sorry to labour this point but in the Harry Greenway case the courts accepted that there was a prima facie case of corruption against Mr Greenway and that is why they allowed the trial to proceed. He was acquitted in the end. The court also accepted that Members of Parliament were subject to law of corruption, and I do not remember all the details but the short point of the case as I recall it was that they alleged that Mr Greenway had accepted various favours from this firm of railway machinery manufacturers which I think were either in or just adjacent to his constituency and in return for that had exercised disproportionate influence on behalf of that firm, and that was the point as to whether it was well beyond the call of duty. That is all I remember about the case. I do not remember whether the judge directed an acquittal or whether it went to the jury, but I imagine that the issue in his defence was that it was not beyond the call of duty. I have said earlier in answer to Mr Tyler that I think Members of Parliament are in positions of considerable influence. Clearly the line between influence and power is a very subtle one in our system, and so it should be, but I would venture to suggest that the Chairman or Chairwoman of a Select Committee could be highly influential in the process for example by which Government made a decision about a very large procurement contract. This may be an extreme example but it would not be an impossible example. Say there was an issue about whether the Government should go for a European fighter aircraft or an American alternative—it has been an issue—and say the issue was very finely balanced both in terms of cost and military advantage and that parliamentary opinion was awaiting the outcome of say the Defence Select Committee or the Trade and Industry Select Committee report, and say that the Chair of that Committee had taken large sums of money or other favours from one or other of the companies involved and he worked extremely hard in order to persuade his colleagues to come down in favour of a recommendation to the advantage of that particular company. You can say on the face of it that that was corrupt. This man in his position as a Member of Parliament, not in the position of Minister, is such that it would not be impossible for it to be the subject of criminal investigations, so there is one example.

  137. If I may pursue the matter, I said that there are examples. I cannot remember the Harry Greenway case in detail. They are isolated cases. I am worried about a jury understanding the nuances of influence, which is a better word than power in this case.
  (Mr Straw) They are, with respect, isolated cases. It can be argued that most sensible Members of Parliament act as a result of influence on them in order to influence others and that is the nature of democracy. Any of us who are, or have been, Members of Parliament stands up in the House of Commons on behalf of firms in our constituency because they have sought to influence us, we have sought to influence Members of Parliament, and it may well be that we have learned more about that firm as a result of having lunch at the firm. This happens all the time. I do not think that a jury would regard that remotely as corrupt. They would regard that as part of the political, democratic process and it is right. On the other hand, with all these issues of fraud and undue influence, these offences, it seems to me a matter of proportion. On the other side of it, if there were a firm in my constituency and I was speaking on their behalf repeatedly and it turned out that they were paying me and I had not declared it and I was going on holiday with the managing director and beating a path to the door of ministers repeatedly, then it seems to me that that would be pretty good evidence that I was acting dishonestly, corruptly, and might be open to charges.

Lord Wigoder

  138. Would that be because you had received money or because you had failed to disclose it?
  (Mr Straw) It would be because I had received money or maybe both, but I was about to say that normally when there are allegations of corruption, say, amongst local councillors, there could be allegations twofold. One is that they have received money or favour, and two, that they have hidden it. I do not believe that disclosure should be a complete defence to a charge of corruption, otherwise the small embarrassment of disclosure would outweigh the very large receipt into one's bank balance and it would make life, I think, very easy for those who have a brass neck.

Sir Patrick Cormack

  139. But do not forget that we have very rightly tightened up the whole rules of disclosure and if the hypothetical chairman of the select committee to whom you have referred had not declared his interest, he is clearly in severe breach of parliamentary standards and rules already and can be dealt with by the House for that offence alone. If he has declared his interest properly, he also has to declare within a band how much he was receiving and I think it is, frankly, inconceivable that any such person would be allowed by his colleagues to continue to chair that select committee if such a sensitive issue came up. Therefore, I do think that many of your arguments are built on a slightly flawed premise.
  (Mr Straw) I know you think that, Sir Patrick, and I say, with respect, I do not share your view about my arguments and we will have to agree to differ about that. I accept that the changes that have been made post Nolan do required Members to exhibit much higher standards of conduct and transparency than hitherto and that if a case were to arise of corruption of the kind I have described, it would almost certainly involve concealment of the favour as well. So I accept that but, as I say, I do not think disclosure should be a complete defence. I can think of circumstances in which there had been partial disclosure or it was not the whole story, for example.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999
Prepared 9 April 1999