Parliamentary Privileges Report


Examination of Witnesses (Questions 140 - 154)

TUESDAY 20 JANUARY 1998

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

Mr Michie

  140. As a long experienced backbencher, I warm to the discussion which seems to suggest that the higher up you go, minister or chairman, the more likely you are to be found corrupt rather than a mere backbencher who has no influence at all on taking his seat. This gives me some encouragement to remain on the backbenches! One point I would like to go back to is that on treating MPs differently to local councillors, the point that Sir Patrick raised. I was not quite sure which way we were going to go on that. Were we going to treat MPs the same as councillors or councillors the same as MPs, and how far down the line does this go? Does it just go for corruption or does it go for any fiduciary problem that you may find by a councillor, for instance, misuse of public funds or misuse of taxpayers' money? Can MPs who are on the Defence Committee, for instance, be accused of wasting taxpayers' money by the defence budget being three times over that which was estimated or agreed? How far down the line do we go?
  (Mr Straw) I think you may be raising the issue of surcharge there. The Nolan Committee have made recommendations about surcharges and proposed that surcharge of councillors should be removed and in place there should be an offence of misuse of public office, which should apply to any holder of public office. We are considering that recommendation, but I obviously understand the arguments in its favour. On the wider issue, Mr Williams certainly was a long-standing Member of the Public Accounts Committee and, indeed, still is, and I am sure he could advise you on the various sanctions which are available to the Public Accounts Committee if there has been waste by ministers, permanent secretaries or Members of Parliament, but I think that is a wider issue and I am not sure we ought to get into that.

Mr Tyler

  141. Just to pursue for a moment the consistency with other holders of public office, you have made a number of references to the common law offence of misuse of public office in your paper, and again today. I wonder if you could give us a slightly more full explanation of where you see the Government's position as of now on this, because this does seem to provide quite a substantial way forward. I am very sympathetic to your point about consistency. I do not take Sir Patrick's view. I think all holders of public office have common duties and responsibilities, but I am not clear precisely where you see this fitting within the overall package?
  (Mr Straw) We raised in this document, and it was also raised in the report of Lord Nolan's Committee, that, as I say, this new offence of misuse of public office should replace surcharging and, indeed, expand the criminal law more generally. We are still considering that in the light of representations made to this document and to the Nolan Committee report, but if it appears that there is pretty substantial support for such a change, obviously we will take account of the extent of support for change if we are going to propose one.

  142. You would anticipate that Members of both Houses could fall fairly and squarely within the categories of people who could be considered under this?
  (Mr Straw) There is an issue about who is an office-holder.

  143. Exactly. That is why I am asking.
  (Mr Straw) There is much to be said on that point. Miss Stewart is writing me a note. She may want to speak for herself.
  (Miss Stewart) The whole question of misuse of public office obviously is quite a difficult one in determining the precise definition of "public office", as the Home Secretary was just saying. It was an issue on which the Nolan Committee asked for views. There is the question of whether it should apply more generally, for example to education authorities, as well as the question of how it should apply to Members of the House. The Nolan Committee in its paper drew specific attention to ministers and I think implied that ministers clearly would be covered but raised a more general question about whether it should go further. That is an issue on which we have not yet reached any final view and we need to consider the comments that people make, indeed some of the views that are being discussed here.

  144. But from what the Home Secretary said this morning, for example, the chairman of a select committee would seem to be only in a matter of degree a step away from the power of a minister, so there would be logic?
  (Mr Straw) Yes, there would be logic. You may see the way my mind is working. These are always, as ever, matters of degree. Where do you draw the line?

Lord Mayhew of Twysden

  145. How much do you mind a constitutional change which would oblige somebody who was not a defendant MP but somebody who was subpoenaed to give evidence—how much do you mind a constitutional change which obliges somebody who has always been recognised to owe a duty to his constituents and to Parliament to come before a court in criminal proceedings and be cross-examined as to why he exercised his judgement in a particular way? Do you see that as something simply as a matter of gradation—you have more than once referred to the changes which have been made in the scope of parliamentary privilege, freedom from arrest and so forth—or do you see this as something considerably more substantial than that?
  (Mr Straw) I think I see it as a matter of gradation. I know there is a prior issue of principle but I think we can take comfort in the fact that it would happen very rarely indeed. I also go back to the analogy, which I think is a fair one in this area, with local government. We have elected local councillors who owe similar—not the same but similar—duties to Members of Parliament to their constituents and who are supposed to speak and act without fear or favour. I believe that where allegations of corruption against members of local authorities have been made, as they have been—there has been a series of convictions over the years—issues have arisen as to not only the conduct of those individuals who have been charged but also of their colleagues who have not been charged and some have ended up in the witness box. That is what happens with criminal trials and I think there are consequences which go with the changes which I am proposing which, as I say, I do not resile from. This is one of them. It will not happen very often. I think it will be a matter for the judge to ensure that the evidence which is sought is relevant, that it does not turn into the kind of excursion that Lord Archer was worried about, and I think that, although it will represent a departure in terms of potential obligations of being a Member of this House, there is a greater good achieved by it, namely, that Members of Parliament are no longer, as it were, above the law when it comes to corruption.

  146. Do you recognise as a practical distinction or not what was put to you by the Chairman some time ago, that a particular change might be one which was limited to the actions of a Member of Parliament which did not constitute the proceedings in Parliament, and we have all of us been referring to the case of Mr Greenway? I suspect that Mr Bramley would be able to give us the answer whether there was an acquittal at the direction of the judge or not. I am sorry to say that although I was Attorney at the moment I cannot remember exactly whether that was the case or not. But while he is thinking, that was a case, was it not, where there was no added-on factor of a question asked in Parliament? These were specific actions which you yourself, Home Secretary, have characterised, though without, of course, being held to the detail, which are outside any parliamentary proceeding. Would there be, for example, in your view, a practical halfway house in which the anxieties which have been voiced round this table about letting the courts examine why persons not defendant MPs acted as they did in parliamentary proceedings, could be excluded, where, as part of the prosecution case, there was no element of, "Oh well, you asked a question," or where no question had been asked and, therefore, it could not be part of the defence case? Do you see it as a kind of dividing line? It would not give you everything you wanted but it would make the point which you wish to make that corruption or corrupt behaviour has to be subject to the same sanctions, notwithstanding the defendant is a Member of Parliament, as are loaded on everybody else and you will be able to say it is only out of the special circumstances that affect a Member of Parliament as the legislature in this country that we do not enable the courts to go further than the Bill of Rights permits?
  (Mr Straw) Lord Mayhew, I understand the case, and as I said earlier, this was raised in the consultation document published by the previous administration in December 1996. I really think there are quite severe practical problems about drawing this kind of distinction between what happens in Parliament itself and what happens outside, and aside from the practical problems there is an issue of principle, which is that I think it would make for really quite severe difficulties in terms of the reputation of Parliament if members of the public saw a situation where someone was able to evade conviction when he or she could have been convicted if evidence which is on the public record anyway by definition could have been adduced before the court, and I think the public would regard that as a very odd situation. I would also say that I find persuasive one of the arguments used in this consultation document. It is in paragraph 16. They recite the arguments against making MPs subject to the criminal law and then go on to say: "But the contrary view is that disapplication of Article 9 of the Bill of Rights is unnecessary since the corruption is complete when the bribe is given and accepted for a corrupt purpose; what happens thereafter in Parliament is nothing to the point." It then says: "However, it may be necessary to consider the conduct of the Member in question, in Parliament, as evidence to prove that the offence was committed." I think if one is searching for a way through these theological thickets, then what is said in paragraph 16 provides a quite useful route.

Chairman

  147. Home Secretary, may I raise with you another possible implication of criminal legislation. Under the Scotland Bill Members of the Scottish Parliament would appear to be subject to the Prevention of Corruption Acts without qualification, and the Scotland Bill also adopts something very similar to the advocacy rules contained in the House of Commons Code of Conduct but treats breaches of the rule as criminal conduct rather than as a matter for parliamentary discipline. If MPs and Peers are made subject to the criminal law in relation to bribery, will the next step be that paid advocacy would become a criminal offence?
  (Mr Straw) The Westminster Parliament is sui generis, as I think everybody here knows. There is a profound distinction which is reflected in the text of the Scotland Bill, which is that it is the Westminster Parliament which is sovereign and the Scottish Parliament which is being made by the Westminster Parliament. I am not going to talk about parish councils on this occasion but what is the case is that whenever Parliament itself has set up new institutions, including institutions a million miles away from parish councils, like a Scottish Parliament, and very august and dignified bodies like the Scottish Parliament, it is duty bound to lay down schemes of arrangement for the conduct of Members and in that particular there is a parallel to be drawn between what Parliament over the years has done in respect of other public bodies like local authorities and health authorities and what it is now doing in respect of the Scottish Parliament. This is a new institution. It does not have a thousand years of history to rely on and all the conventions that go with it, nor does it have Erskine May, and I say that in a very serious way, which amounts to the nearest statement we have of constitutional principle and practice and which is regarded as authoritative. So we are starting from scratch and it is, therefore, very important that rules of probity should be laid down from scratch. Different considerations may apply to Parliament, although I have given the Committee the benefit of my opinions this morning.

  148. Can I next seek your help on one aspect of the substantive definition of the criminal offence. There are, of course, a number of material differences which distinguish the position of a Member of Parliament from the public officers to whom the Prevention of Corruption Acts apply, for example the independence of their position, their accountability to their constituents, duty to exercise free speech and to call the executive to account, and there may properly be thought to be even more differences when the unique position of Peers is considered. In both Canada and Australia this has been recognised by specifying an offence relating only to bribery of Members and Senators. In Australia, for example, there is a provision that a Member who receives a benefit of any kind for himself or anybody else on the understanding that the exercise by him of his duty or authority as a Member will be influenced or affected is guilty of an offence. If this Committee were minded to suggest that if there is to be criminal legislation Members of the two Houses should be specially provided for in legislation rather than made subject to a general offence of bribery, would this encounter any fundamental objection?
  (Mr Straw) I do not think so, my Lord. It is, frankly, as you have indicated, a complicated issue and it requires a lot of further thought. As I have indicated, I have had a good deal of clarity of many of the issues here but this is one on which for me I am still thinking.

  149. You will have seen the evidence given on this question of bribery by the Clerk and the Clerk Assistant of the House of Commons to this Committee in December. The thrust of parts of their evidence is different from the course you are now currently favouring. Are there any particular comments you would like to make on any parts of their evidence?
  (Mr Straw) I confess I did not read every word of their evidence but I have read a pretty thorough summary of their evidence. I would say, with respect to them, that I think they were pointing out, as they are duty-bound to do, the difficulties in making any change in each case and there are always reasons for not doing things and usually only one reason for doing something. As I have indicated, my Lord Chairman, my own view is that although there are plainly disadvantages in making Members of Parliament subject to the general criminal law, those disadvantages are overridden by the advantages of so doing.

  150. I would like to pass for a moment from the particular topic of bribery and ask for your assistance more generally on the question of parliamentary privilege. Have you any view on whether Members should be immune from prosecution under the Official Secrets Act in relation to statements made in the House?
  (Mr Straw) I do not believe we should be immune from prosecution, because otherwise one could envisage situations in which Members of Parliament and presumably accomplices outside could subvert wholly the purpose of Parliament in passing the Official Secrets Act, namely, to preserve information which ought necessarily to remain secret. So I do not think there is any good reason whatever for that.

  151. Would the incorporation of the European Convention on Human Rights into United Kingdom domestic law as presently proposed have any implications for parliamentary privilege?
  (Mr Straw) I do not think directly, my Lord. There are greater experts around the table here than I am and it is worth repeating always that, as is known, what we are proposing is not new substantive rights in respect of British citizens, British residents, but simply to make those rights more accessible, and these are rights which technically have been available to institutions and individuals in this country for 50 years and sometimes are available to them if they are willing to take the long, tortuous and expensive route to the European Court of Human Rights in Strasbourg. So we do not anticipate it. I am open to correction by my better informed colleagues.

  152. I think more than once you have mentioned the need for accessibility. Have you a view on whether parliamentary privilege should now be codified into a single statute?
  (Mr Straw) No, I am sorry, I am going to bat that one back. I think it is a matter for your Committee, not for me. I am here to give advice on a narrow issue of the law on corruption and bribery. I think it would be pretty difficult to codify parliamentary privilege into a single statute, would it not? There would be the question of how that would help, but anyway, there are many distinguished lawyers, my Lord, on your Committee and maybe you will come to this view.

  153. Can I, as we finish, return to the question for a moment of timetable. As you appreciate, the Committee wholly understands and sympathises with the Government's wish to make progress as soon as possible. The Committee is also conscious that if Members of Parliament and Peers are brought within the scope of criminal legislation, as you are currently favouring, this would represent an incursion into the protection of Article 9 of the Bill of Rights and the Committee has in mind that it might be unwise for it to make a recommendation relating to the particular incursion represented by the proposed criminal legislation for bribery without considering the problem in the round in relation to all other issues where questions of that type arise. That is the difficulty that is facing us, that it might be undesirable for us to express a view on one aspect in advance of and separately from the other respects in which Article 9 would have to figure in our recommendations. You mentioned a deadline of four to six months. We shall have that in mind. If we are not able to attain it and if we are not able to accede to your invitation to produce a separate report in advance, I am sure you will accept it is not through lack of sympathy or willingness to assist?
  (Mr Straw) I am very grateful to you, Lord Nicholls, for putting it in that way. I said what we would find desirable from our point of view, but obviously on this issue I am very much in the Committee's hands. I have already made it clear that I think it would be an unwise Home Secretary who went to the House of Commons with proposals for change in this area without the benefit of your Committee's advice but I understand the argument that you have advanced. I think that it is very much a matter for you and the Members of your Committee and not for me.

  154. If there are no other questions, may I thank you, Home Secretary. We are grateful to you and to the members of your team for your assistance.
  (Mr Straw) Thank you very much.



 
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