Parliamentary Privilege Minutes of Evidence

Memorandum by the Parliamentary Commissioner for Standards

  1.  I welcome the opportunity of commenting but should emphasise:

    (i)  that my knowledge of parliamentary practice is very limited except where it impacts directly on my role as Parliamentary Commissioner for Standards;

    (ii)  that this post has only existed for two years and is constantly facing new situations;

    (iii)  that the views expressed in this note are mine alone: in particular, I have not consulted the Committee on Standards and Privileges to whom I report on disciplinary cases; and

    (iv)  that I am not a lawyer.

  2.  I have three main functions under Standing Order No 150:

    (i)  to maintain and improve the Register of Members' Interests and other Registers;

    (ii)  to advise the Committee (and Members) on the interpretation of the Code of Conduct and, more generally, on questions of propriety; and

    (iii)  to receive, and, if I think fit, to investigate complaints about the conduct of Members under the rules of the House.

  3.  The Nolan Committee also saw the appointment of an independent Commissioner as a means of improving the public perception of Members and I, too, see that as an objective.

  4.  For the purposes of this inquiry my relevant experience lies in:

    (i)  assisting the Committee on Standards and Privileges in drawing up the Code of Conduct and the Guide to the Rules of Conduct of Members; and advising on their interpretation; and

    (ii)  undertaking independent investigations of complaints against nearly 40 Members; and reporting the evidence and my conclusions to the Committee.

  5.  Several of these cases contained elements of corruption and defamation and I will comment on these aspects in turn. I will also mention two other aspects of privilege which are important to my role.


  6.  I take it as axiomatic that unless there are public interest considerations (such as the ability of the House to perform its proper functions) which outweigh and conflict with the interests of the individual, it is desirable, on grounds of principle, that Members (and anyone else who may be covered by privilege) should be subject to the same laws as other people. Moreover, any departure from that principle is liable to undermine confidence in the House.

  7.  In the case of corruption, this general principle has particular force when applied to those in the public service who are appointed or elected to positions of public trust.

  8.  I see no reason why corruption should not form the basis of a criminal offence, applicable to Members, and enforced by the courts.

  9.  The present practice of treating it as a disciplinary matter has a number of disadvantages. For example:

    (i)  the sanctions are not those applying to everyone else;

    (ii)  such sanctions as the House possesses (in practice, expulsion and suspension) cannot be applied to former Members. Public condemnation may well be serious but its effect will be quixotic; and

    (iii)  nor can the House take effective action against the other party to a corrupt act.

  10.  If corruption is to be the basis of a criminal offence applying to Members, the present disciplinary process of enforcement would be inadequate. It consists of an independent investigation by me (assisted, on occasion, by Counsel), followed by a necessarily limited consideration by a Select Committee and the House. We clearly do not have the investigative resources required for a criminal prosecution. Nor does the process seek to provide the safeguards of a court. The procedures are inquisitorial, not adversarial. Witnesses are given the opportunity to consider and respond to allegations and supporting evidence but not to cross-examine or be represented by Counsel.

  11.  There is therefore no doubt in my view that if Members are made subject to a criminal offence and criminal sanctions relating to corruption, enforcement must be by the courts.

  12.  If the offence is one of bribery, it would follow that the courts would have to establish not only that payments had been made but also the motive for any related action on the part of the Member. If the action took place in the House, this would presumably count as proceedings in Parliament with consequences for the Bill of Rights. But it seems to me that corrupt payments are a special case and that it is no more difficult (or less necessary) to establish a motive for Members than for other people; and a court would be seen as more impartial in reaching that judgement than the House itself. Nor can I see that the proper work of the House would be impeded. Of course a Member would be largely ineffectual while the case was being heard: but this must already be the position in respect of other criminal charges. In practice, the number of cases is likely to be very small.

  13.  It has been suggested that a law of bribery might have to be tailored in its application to Members to allow for the fact that, under the rules of the House, Members are permitted to receive payments from outside bodies in return for advice and (within defined limits of advocacy) for promoting the interests of those bodies in the House or in correspondence with Ministers and officials. At first sight, as a non-lawyer, I would have thought exemptions were unnecessary. I assume that the offence of bribery would involve some corrupt intent; and that actions allowed under the House's own rules would not be construed by the courts in that light. But this is clearly a matter which will need careful consideration.

  14.  In practice, the reverse circumstance seems much more likely—that is, that actions which do not justify criminal prosecution would still be unacceptable to the House. There have been a number of cases of payments to Members which may fall into this category which, for one reason or another, the House has decided were matters for censure. At times it has reached that judgement without reference to specific rules, although, since the adoption of the Code of Conduct in July 1996, such cases would probably fall within the provision requiring Members never to undertake actions which would bring the House into disrepute.

  15.  I envisage that such cases would continue to be decided under the normal disciplinary procedures of the House and it is worth considering one or two examples of how this might work out in practice.

Example 1

  A Member is accused of bribery and a criminal investigation is launched. If the same allegation were contained in a complaint to me, I would recommend (and expect the Committee on Standards and Privileges to agree) that this aspect of the complaint should be shelved until the police investigation and any subsequent court action had been completed. If the court case were discontinued or the Member were acquitted, this would not, I think, preclude a resumption of the disciplinary process for a breach of the rules of the House.

Example 2

  A complaint is made against a Member which includes allegations of improper payments which may not be recognised as a potential criminal offence. If, during the investigation, it became apparent that criminal action might be involved, the Committee would need to consider whether to complete the disciplinary process (which might prejudice a subsequent court action) or to refer the matter to the police. If it were referred to the police there would be a need for clarity about the status of the evidence already supplied for the purposes of the disciplinary inquiry. My understanding of the present position is that, in practice, evidence supplied for a court action cannot be handed over to me for a parliamentary investigation without the consent of the courts or the parties concerned. I would assume that the same principle should operate in reverse—that is, that evidence supplied to me ("unreported evidence", currently covered by privilege) should not be released for a police investigation without the consent of the House or the parties concerned.

  16.  One can, of course, see awkward overlaps arising in particular circumstances but it seems to me that the potential for these exists already. For example, if the allegation were of tax fraud, rather than bribery, the same problems could arise: and if corrupt payments were associated with a Member's actions outside the House, the offence is already within the jurisdiction of the courts.

  17.  I conclude that any problems created by extending the offence of bribery to Members' actions within the House should not be insuperable. But the House may need to consider whether it would wish to exercise its powers of expulsion or suspension against any Member found guilty of any such offence in the courts.


  18.  The same arguments do not, I think, apply to defamation. Here, freedom of speech in Parliament has to take precedence over the rights of individuals. Members are necessarily treated differently from other people and the aim must be to reconcile the public interest with a minimum of injustice to them and to others affected.

  19.  As I understand it, until the Defamation Act of 1996, the privileges conferred by the Bill of Rights meant that a Member could not be sued for anything said in Parliament; but, conversely, was effectively prevented from suing others who may have defamed him if the privilege attaching to proceedings in Parliament prevented them from mounting a proper defence. Injustices occurred but there was at least a perception of symmetry.

  20.  Following the amendment of the Defamation Bill, a Member was able to retain privilege to protect himself against involvement in libel proceedings or to waive it if this enabled him to proceed against others. On the face of it this created rights which upset the symmetry to the possible advantage of Members.

  21.  My experience suggests that the present position is illogical and unsatisfactory. The justification for privilege in defamation cases is that it is necessary to enable Parliament to discharge its proper functions. The granting of any application for waiver of privilege (if allowed at all) should therefore, it seems to me, be at the discretion of the House. This would not restore "symmetry" but at least it would ensure that a judgement is made on the overriding public interest, taking account, so far as possible, of the interests not only of the Member wishing to sue but of others (including other Members) concerned.


  22.  If privilege is to be defined by statute, there are two aspects which are important to my role, which I hope can be retained. These are:

    (i)  recent court judgements have established that the results of my investigations are not subject to judicial review. Mr Justice Sedley characterised my position as essentially "the means by which the Select Committee carries out its functions" and, as an officer of the House, "a part of Parliament's own processes". Although the Committee is currently reviewing its appeal procedures, it seems unlikely that it would choose judicial review for this purpose; and

    (ii)  communications between a member of the public and myself are not covered by parliamentary privilege nor privileged at law unless and until I decide the case has some substance to merit further inquiry. This distinction is important in two ways:

  —  it rightly enables me to reject frivolous or malicious allegations against Members without conferring privilege on the communications concerned; and

  —  unless privilege attaches to allegations supported by evidence, members of the public will be discouraged from disclosing misconduct for fear that their evidence may not prove the case and they are left exposed to legal action for defamation.


  23.  On the basis of my limited experience my conclusions are:

    (i)  I see no reason why corruption should not form the basis of a criminal offence, applicable to Members;

    (ii)  any such offence should be tried in the courts, leaving the House's disciplinary procedures in place to deal with lesser charges;

    (iii)  I doubt if a law of bribery would need to be tailored in its application to Members but this would need careful consideration;

    (iv)  in defamation cases, the granting of any application for waiver of privilege should be at the discretion of the House, if allowed at all; and

    (v)  if privilege were to be defined by statute, I would hope that the aspects referred to in paragraph 22 above could be retained.

Sir Gordon Downey

25 February 1998

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