Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 160 - 179)



  160. While bribery is being mentioned, may I ask you this. If there were to be criminal legislation, would you favour special legislation for particular offences in relation to Members of the two Houses, or should there be one wide ranging offence which would apply as much to Members as anybody else?
  (Mr Davies) Members of Parliament are in a special category in public life and it may well be necessary to secure their position in some way different from the general public. It depends on what is regarded as the offering of a bribe to Members of Parliament or to peers. Many Members of both Houses have parliamentary consultancies which they have to register. In the House of Commons, there are sponsored MPs and the like, so it depends how far you take the question of undue influence on a Member of Parliament.

  Mr Michie: We do not have sponsors any more.

  Mr Williams: No; it finished last year, just for the record.

  Mrs Taylor: It did use to be the case but not now.


  161. So you would favour, if there were to be legislation, specific provisions tailored for the position of Members rather than attempting to sweep Members into a universal anti-bribery criminal offence?
  (Mr Davies) Yes, I think so.
  (Mr Rippengal) I agree. I think Members of both Houses are in a unique position and I think it would not be easy for a general offence of corruption to accommodate them very readily.

Mr Tyler

  162. Is there a problem in the apparent difference of definition between the two Houses relating to the concept of public office, to which you refer in your memorandum? If we are going to have a specific definition for Members of both Houses, it is surely desirable that it should be not only specific but identical for Members of both Houses?
  (Mr Davies) I assume that legislation could be drafted to encompass the membership of both Houses, but there is a difference, I believe, between a Member of the House of Commons who is elected and Members of the House of Lords who owe their position to the writ of summons, which asks them to give counsel and to advise the Sovereign on matters of public affairs.

Lord Mayhew of Twysden

  163. But that is a difference surely of route only, is it not? The function is that of a legislator?
  (Mr Davies) Yes.

  164. And is that not as much a public office in your view for a Member of the House of Lords as for a Member of the House of Commons?
  (Mr Rippengal) The view has been taken up to now of course, apart from the Greenway case, which went I think contrary to what was regarded as the usual legal view, that Members of neither House hold a public office for the purposes of the common law offence of corruption, or indeed the reference to public office in the Prevention of Corruption Acts. That has been the traditional view. It was the view taken by the Salmon Commission, but I accept of course that if one were legislating anew, Members in both Houses have public duties and ought to be subject to the laws of corruption.

  165. Both Houses?
  (Mr Rippengal) Both Houses, yes. If you were having special legislation for defining offences of corruption or bribery (or whatever it was going to be called) in relation to Members of Parliament, you might want to have slightly different provisions. It depends how elaborate the provision was going to be. Members of the Commons owe duties to their constituents. Members of the Lords have no such corresponding duties. You might end up with a slightly different offence. It might cover more ground for the Commons.

  Mr Williams: But surely that is a matter of defence, not of offence. It is legitimate to say in defence that you are looking after constituents' interests, but surely on the basic point of access to ministers, on your ability to ask questions and your ability to advocate, a Member of the Lords is in precisely the same position as a Member of the House of Commons, and those are the three areas which have given rise to special concern. Therefore, other than the matter of appointment, there is not much difference in the Lords' ability to influence, which is as marginal as is our ability to influence.

  Lord Merlyn-Rees: If I may make an observation, if ever this place became an elected Chamber it would be a completely different place. In your paper you made a distinction between more Lords being part-time than full time. There are some Members of the Commons who are more part-time than others. It would be very difficult to make the distinction in the legislation, "I am the undeserving poor, my Lord", that sort of thing.

Lord Wigoder

  166. Could I ask if you have any comments on the article by Professor Graham Zellick, which suggested that the Salmon Commission was wrong in its view that public office was something that did not apply to Members of the House of Commons, although Zellick went on to say that it would still apply to the House of Lords. But he took the view that Salmon was clearly mistaken in relation to the House of Commons. It is an area that we have to clarify, is it not, if we do legislate?
  (Mr Rippengal) I would have thought certainly. The Zellick article I think went against the weight of received opinion. I think he had one or two Commonwealth cases in his favour but I would have thought it clear that you could not leave the law as it is. The Greenway case has moved the law on but the law must be doubtful, I would have thought, in this sphere as it stands.

Sir Patrick Cormack

  167. You talk about special legislation and that is your preferred route. Can you spell out for the Committee a little more clearly what form that special legislation should take and how far you think it would impinge upon Article IX?
  (Mr Rippengal) I would need to have given the matter more thought to try and spell out the ingredients of the offence. I think there is more than one way of approaching it. You might have a rather broad brush approach, or you might try and pinpoint particular matters, but certainly once you got as far as making it a criminal offence triable in the ordinary way, that would have an impact on what we call the wider aspect of Article IX.

  168. I understand that, of course I do, but you did in answer to a question from the Lord Chairman say that the route you favoured was special legislation which would deal specifically and precisely with Members of Parliament of both Houses. As you have reached that conclusion, you have obviously given a great deal of thought to the matter, and I just wanted you to try and explain in a little more detail the form the legislation might take.
  (Mr Rippengal) It is going to have to cover the offering and taking of bribes by Members of Parliament to exercise their functions so as to give advantage to the offerer of the bribe. Whether you want then to spell out particular kinds of conduct that fall within that and particular kinds that would not be regarded as falling within that, there is a judgement which would have to be made when you really got down to the nitty-gritty.

  169. Do you think that legislation would also deal with the offence of offering a bribe to a legislator or would he or she be dealt with without this legislation?
  (Mr Rippengal) Oh no. I would have expected them to be inseparable elements. The offering of the bribe would have to be part of the offence, yes.

Mr Williams

  170. Mr Davies, you used the phrase "special provision"—I noted it at the time—you obviously did not throw it in off the top of your head. So what led you to make that statement in detail?
  (Mr Davies) It was because of what I said later, which was that Members, certainly of the House of Lords, have registered interests as parliamentary consultants to various bodies on account of their membership of the House of Lords. They are legitimately entered into, they are registered; but nevertheless from some perspectives it might be viewed that they are being paid to deliver a service. One has to distinguish that from perhaps what would be regarded as a bribe in the sense of being offered money through underhand means.

  171. Excuse my ignorance amongst lawyers but, coming back to my comment about defence and offence, are you not really putting forward now the defences that would be available to a Member of either House which may be different from those which would be available to a member of the general public, and therefore is it not possible to frame it in a way where the wider defences are recognised? That would seem to be one possibility, but would that be a practical option?
  (Mr Davies) I imagine that the instructions to the draftsman could deal with that. I am not a lawyer myself and possibly Mr Rippengal has further comment on the drafting of the legislation.
  (Mr Rippengal) I suppose it all depends how the thing comes out in the wash. We have only seen a consultation paper from the Home Office about the possible offences. It might be possible to embrace Members of both Houses in it and give them special defences. I am rather doubtful about that. My own view is that it is difficult to have an all-embracing offence which really is well tailored enough to meet the case of Members of both Houses, but you may well be right. It is always difficult to take a very hard line, until you actually get down to trying to work out the instructions for a Bill.

  172. In neither House is it an offence to have interests. The offence is to advocate (serving in the Commons, I do not know about in the other place). So you are not committing an offence by having a declared interest. You are committing an offence if you do not declare it and the rules relating to advocacy in relation to your interest are different from those in general, so surely it must be reasonably straightforward to make some sort of provision for that.
  (Mr Davies) I think that is a matter for the Committee probably to decide, whether the view we have expressed is—

  173. But you are the experts.
  (Mr Davies) We have expressed a view that it would be better to draft legislation which was specifically aimed at the position of Members of Parliament but would include in that offence the member of the public who is offering the inducement.


  174. May I take that a little bit further? If I were Chairman of a large company, on the face of it any payment made to me in connection with my work by an outsider can comparatively easily be outlawed if it is done with a view to influencing the way I were to discharge my duties as Chairman of the company, because that on the face of it would be something which is not a proper exercise by me of my fiduciary and contractual duties. When one goes across to the position of Members of Parliament, it is not quite so straightforward because certain payments can be offered maybe to Members of Parliament in connection with the very fact that they are Members of Parliament without being improper. Payments for lobbying for example, are one particular topical example. So to try and apply across the board the same approach which is applicable in my instance to the Chairman of a company to Members of Parliament might be thought to be an unsatisfactory course. Is that the sort of point you have in mind when you say that there should preferably be different legislation?
  (Mr Rippengal) In a word, yes, my Lord Chairman.

Mr Williams

  175. I think the rules of lobbying must be much stricter in our House than they are in the other place. Lobbying would count as advocacy and therefore would be precluded.
  (Mr Davies) In the House of Lords that is also the case. The register of interests contains three categories. The first category is registerable parliamentary consultancies. The second is being a director or employee of a company engaged in parliamentary lobbying, and the third is financial interests which Members of the House have outside their membership of the House of Lords. The first two categories do mean that those who hold them cannot advocate or lobby.

Sir Patrick Cormack

  176. But it is a voluntary register, is it not?
  (Mr Davies) Not for the first two categories. The first two categories are mandatory.

Mr Williams

  177. So could a statute therefore cover the parliamentary position by including special provisions based on our own codes which effectively are codes of conduct?
  (Mr Davies) Yes, I think it could.


  178. Can I ask for your help on two points you mention in paragraph 24 of your memorandum on the question of bribery? Six lines into it, having set out that there are in your view in reality only two options, you say: "At best, however, the House would hardly be in a position to deal with a corrupt Member as effectively as such behaviour deserves (even if the House were given power to suspend members)." Pausing there for a moment, in your view should the House be given power to suspend Members?
  (Mr Davies) The future of the House of Lords at the moment is uncertain.

  179. As matters are now.
  (Mr Davies) As matters stand now, yes, I think there is no reason why it should not be given that power.

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