Examination of Witnesses (Questions 819
TUESDAY 28 APRIL 1998
DOWNEY, KCB AND
819. Sir Gordon and Mr Pleming, may I welcome
you both to this meeting of the Committee and express the Committee's
appreciation at being able to take advantage of your expertise
in this area of the Committee's work. In the course of the discussion
on which we are about to embark, I and other members of the Committee
will ask questions but please will either or both of you respond
according to whether each of you thinks you can assist us? May
I make one general comment before we do start? On this Committee,
we are concerned with general principles, not with the details
of individual cases, except in so far as they may exemplify a
point of general application. As a Committee, we shall abjure
any looking into or reopening or revisiting the rights and wrongs
of particular cases which may have been the subject of a report
from you, Sir Gordon, in the past or the subject of advice from
you, Mr Pleming. We are concerned rather with what general conclusions
can properly be drawn from past experience. Before we begin, is
there anything that either of you would like to say to us?
(Sir Gordon Downey) Thank you, my Lord Chairman. Mr
Pleming may have something to say by way of introduction but,
for my part, I shall be perfectly happy to go straight to questions.
(Mr Pleming) My Lord, I have nothing to say by way
of introductory remarks.
820. Sir Gordon, you are aware of the evidence
we have had on the possible application of the law of bribery
to Members. In your very helpful memorandum, you are unequivocal
in stating that bribery should be dealt with by the courts. One
of the matters we have to consider is this: if the police and
if the courts were to have jurisdiction in respect of allegations
and charges of bribery against Members concerning acts done in
one of the Houses, what effect might that have on the rules of
the two Houses for self-regulation, not least on the Code of Conduct
and the disciplinary procedures? Do you think there are problems
there and that they are surmountable?
(Sir Gordon Downey) I think there are bound to be
problems but I also believe that they are surmountable. It seems
to me that if bribery were made a criminal offence which could
be enforced against Members as against other people, clearly this
would have a consequence for the way in which disciplinary matters
were handled by the House because that type of casewhich,
if I may say so, I think would be an extremely rare type of casewould
be excluded from the jurisdiction of the House. On the other hand,
I think the other types of breaches of House rules would be unaffected.
Although there would be a certain amount of overlap between cases
of criminal corruption and breaches of the House, I do not think
that would create insuperable difficulties. When I say that there
would be overlap, it seems to me almost by definition that any
criminal offence of corruption would, under the Houses' current
rulesthis would not always have been the casealmost
certainly also offend against the Code of Conduct and the rules
of the House. I say this would not have always been the case because,
in some respects within the last couple of years, the Houses'
rules have been strengthened in two ways in particular. Firstly,
there has been introduced the Code of Conduct which has a general
clause in it requiring that Members should not undertake any action
which brought the House into disrepute, which of course is a very
wide requirement indeed. The other one, which is more specific,
is that the House has adopted a rule under which Members are prohibited
from entering into any form of paid advocacy. I think that is
particularly relevant to instances of bribery and does, in my
view, mean that any criminal charge of bribery will almost certainly
offend against or, in many cases, will offend against that particular
rule of the House.
821. Is this right: as you see it, in large
measure, there will be overlap in this way, that there would be
a criminally proscribed activity which would be amenable to police
investigation and trial by the criminal courts. That area and
indeed a wider area would be subject to the disciplinary processes
of the House so that, for example, if a Member were subject to
criminal investigation and conviction, it would still be open
to the House to take disciplinary action against him. Is that
the way you see it operating?
(Sir Gordon Downey) Yes, it is. There are two points
there which I think I would make. One is that one might think
that this creates a form of double jeopardy and that, I suppose,
is true. On the other hand, I do not think this is an unusual
situation in the case of, for example, professional organisations
which have their own disciplinary codes but nevertheless their
members are subject to the criminal laws as well. I had a second
Sir Patrick Cormack
822. May I just ask this for clarification?
Is it your contention therefore, Sir Gordon, that if a Member
is accused of this offence he should first of all be tried in
the civil courts before Parliament even looks at it?
(Sir Gordon Downey) Yes. That in fact was the second
point and I am grateful to you for reminding me of it. It seems
to me that, in these circumstances, this would be sequential and
that, provided the potential criminality of the offence was recognised
from the outset, as I think I have explained in one of my examples
in my memorandum, my expectation would be that the House would
stand back and allow the criminal charge to be handled first by
823. As there is bound to be, for example, a
case of double jeopardy, as you put it, whichever sequence is
followed, what is the factor that convinces you that it is better
to do it that way round rather than to have the House first look
at the matter and, perhaps with your advice, determine whether
it really is something that should be passed on to other authorities?
(Sir Gordon Downey) I think one of my main concerns
about that would be that, of the two processes, clearly the criminal
process would carry more severe sanctions than the House process.
I would be very concerned that the criminal process coming second
would be in some way jeopardised or compromised by the process
undertaken by the House in advance. It seems to me that, if the
House had opined strongly that in their view very improper actions
had taken place, this would be a very bad point from which the
Member concerned would start his defence of the case in the courts.
824. But it would almost inevitably follow,
would it not, that if your prescription is followed, there could
only be one penalty that the House could impose which would be
expulsion if somebody had been actually found guilty in a criminal
court of this offence.
(Sir Gordon Downey) That of course would be a matter
for the House to decide. I imagine that that is quite a likely
consequence in the very rare case where this might happen. If
a Member were convicted of a serious criminal offence and perhaps
sentenced to a custodial sentence, then I think it would be for
the House to decide whether this was a proper person to remain
in the House.
825. Just one final point on these questions:
you have yourself used the expression "very rare" on
two or three occasions. Are you quite convinced with your experience
now in this new post that this is indeed something that is very
(Sir Gordon Downey) I am confident that it is a very
rare occurrence and I think I would be confident that it would
be even rarer if a change were made to make this type of offence
a criminal offence. One thing I would like to add to that, if
I may, is that I have seen it argued that, because it is likely
to be so rare, is it really worth devising a new system to deal
with it? My own view is that the infrequency of the offence does
not really alter the strength of the case for this change for
two reasons. One, I think there is a question of principle here,
unless it is necessary for the proper discharge of the House's
functions for there to be exceptions. I think, as a matter of
principle, Members should be subject to the same criminal code
as anybody else but there is another point which worries me deeply.
I think perhaps I have not seen this argued so much in the evidence
I have read. It is the question of the confidence which the public
can have in the legislature. One of the most worrying examples
which was quoted by the Nolan Report was the one which demonstrated
the vast distance between reality and public perception of this
area. I believe that in fact instances of bribery or corruption
are very rare. On the other hand, the Nolan Committee quoted an
opinion polladmittedly in 1994and 64 per cent of
those questioned subscribed to the view that most Members of Parliament
make a lot of money by using their office improperly. I think
that is a devastatingly bad statistic and one which really is
very unfair and very damaging to the democratic process.
826. Can I follow that up? If you asked the
same person the question whether they make some money out of this
corruption, they would say, "But it is not my MP". This
is an interesting point. On this double jeopardy, I agree with
you that the problem is once we start debating what this House
or both Houses should do with a Member it could in fact compromise
the court proceedings when and if the matter finally gets to court.
I notice in your report that you have the power, if I understand
it correctly, to make the judgment, if you get a letter from a
member of the public, if it is picked up in the press, or from
a Member, whether that matter is a matter of corruption or a matter
of bringing the House into disrepute. Therefore, would you take
the decision to refer it to the courts? I ask this question because
of this double jeopardy. Once it goes to Committee, then it is
open to public scrutiny and therefore could compromise the courts.
(Sir Gordon Downey) No, I would not expect to have
a hand in the sifting process. It seems to me that the authority
I have in that respect is much more that of being able to sift
out trivial, malicious or vexatious complaints and those I feel
quite able to reject and not allow any further process to take
place in the House. The advantage of that is that, by rejecting
them at an initial stage, I can avoid conferring any privilege
on the process from the outset. Here, we are talking about serious
complaints involving serious allegations. In those circumstances,
I would not see it as my role at all to act as a sift. Certainly,
if there were a question of my having spotted that a complaint
to me seemed to be potentially a criminal allegation, then my
first recourse would be to the Committee and I would expect to
discuss it with them. I might well make a recommendation to the
Committee. Certainly if I thought that this should be handled
by the courts, my recommendation to the Committee would be that
they should agree with that course and I think almost certainly
the Committee would agree.
Mr Michie: That does mean of course that it
is then the property of the House and therefore can be debated.
This is a problem we have been wrestling with the whole time on
827. You mentioned, Sir Gordon, that despite
the element of double jeopardy, a Member of Parliament who was
convicted could and should be dealt with, if desirable, by the
House in addition to that for breaches of its own disciplinary
rules. The same would apply equally, would it not, if a Member
of Parliament were acquitted? It could still be referred back
if it disclosed a prima facie breach of disciplinary rules, rather
like a police officer who was acquitted of a criminal case.
(Sir Gordon Downey) Yes, I think that is right. If
the offence of bribery were not upheld, there may nevertheless
be an offence against the rules of the House. For example, the
House had been brought into disrepute even though it did not meet
the criteria of a criminal offence. Indeed, I think the vast majority
of breaches of the House rules will not be corrupt acts. On the
other hand, from a charge of corruption if it happened in the
courts, I can quite see that following an acquittal there may
still be factors involved which the House would wish to take into
account and perhaps exercise their own disciplinary processes
828. You said I think, Sir Gordon, that it is
very difficult, if not impossible, to contemplate a case where
there would be an offence of bribery where there was not also
a breach of the House rules. The contrary is also the case, is
it not? It is very, very difficult to contemplate any case where
there could be a conviction where there was not a breach of the
House rules? Is that not right? There is a sort of symmetry here.
The solution that you suggest is a very neat one because in fact
the end result of the criminal case would actually depend on whether
the Member had breached one of the rules of conduct of the House.
(Sir Gordon Downey) I think that is certainly the
case and I think I have drawn attention to this in my memorandum.
I do envisage that, if allegations of bribery were taken into
the courts, one would need to feel comfortable that the courts
and the prosecuting authorities were going to take into account
what was acceptable to the House. Otherwise, in my view, there
would be no criminal intent. It seems to me that if the House
has agreed rules under which, within certain limitations, Members
may receive money and may offer advice and perhaps, within tight
limits, can engage in a form of advocacy in the House, it would
be a quite unreasonable double jeopardy if that type of action
were found by the prosecuting authorities and the courts to be
an action involving criminal intent.
829. Can you clarify something for me? Suppose
you receive evidence from someone and it is clear they have not
submitted it to anyone elsethey stated itand there
was a prima facie case, to your mind, of criminal bribery. What
would the process be then? You would not notify the Committee
surely, because it is irrelevant if it is a potential breach of
the law. Would you not go direct and refer the information and
evidence to the police straight away?
(Sir Gordon Downey) No, I would go to the Committee.
Mr Williams: Why?
Sir Patrick Cormack
830. Exactly; you are an Officer of the House.
(Sir Gordon Downey) I think I do take that view. In
a sense, I am an instrument of the House and, on disciplinary
matters, I report to the Standards and Privileges Committee. It
would be a very arrogant abuse of my power probably to decide
that a complaint which had been made to the House in the form
of myself should be channelled elsewhere for investigation without
consulting the Committee first. The only exception to that, as
I have mentioned earlier, is that, if I receive complaints which
I regard as vexatious, malicious, trivial, then in those circumstances
I think it quite reasonable that I should just reject them.
831. Your status in relation to the House when
it was originally set up was partially modelled on the Comptroller
and Auditor General, was it not? It is not my recollection that
the C&AG and the National Audit Office would feel that they
had to report to the Public Accounts Committee before they drew
attention to the fact that they had come across what they regarded
as corruption and improper practice in a case they were looking
(Sir Gordon Downey) I speak with some authority in
this matter because, as a former Comptroller and Auditor General,
I recognise what you say. On the other hand, I think there is
a slight misunderstanding here in that it was much more the recommendation
of the Nolan Committee that there should be elements of the C&AG's
role taken up when my appointment was made than was ever actually
taken on board by the House. Following the report of the Committee
on Standards in Public Life, the Nolan Committee, the whole of
their recommendations were examined by an internal House committee
and they determined my role in a way which did not really relate
closely to the C&AG's role at all. The only point in common
I think was that there was a clear intention from the start that
I should act as an officer of the House but in an independent
832. Having held both offices, do you feel it
would actually have been better had they observed more precisely
the recommendations of the Nolan Committee and made you more analogous
to the C&AG? This is important to the Committee because we
can make recommendations.
(Sir Gordon Downey) I do not really think so. The
way the role was created was really quite appropriate for the
circumstances which I have to deal with. I do not feel the lack
of any opportunities which had been open to me as the C&AG
and which I could do with now.
Sir Patrick Cormack
833. But surely, as the Comptroller and Auditor
General, such malpractices as you might have felt obliged to report
to the civil authorities did not necessarily involve Members of
Parliament; whereas in this case any accusation would involve
a Member of Parliament and therefore, as an officer of the House,
you must report it to the Committee before going any further.
We can certainly see that, if we followed your recommendations,
many of the cases that were referred to the courts would in fact
have come to you first. You would have made a recommendation that
this was a case for criminal prosecution to the Committee; the
Committee would have endorsed your recommendation and at that
point the civil courts would take over. The Committee would hold
back until the matter had been disposed of by the courts. That
is correct, is it not?
(Sir Gordon Downey) Yes. I think there could be instances
either way. In fact, we have seen instances either way already.
I note what you say about not going into particular instances
but in this case I think it is quite a useful example. In the
case of the investigation which I undertook into allegations against
Mr Michael Howard, these were clearly allegations of bribery.
In that case, the complaint was made to the House. Originally,
it featured in some evidence which Mr Al Fayed tried to put to
the Privileges Committee. Eventually, he constructed his supporting
evidence and put that evidence to me. Following consultation with
the Committee, it was decided that parts of these allegations
fell within my remit, although allegations against ministers normally
do not. That justified my investigating the case up to a point.
That point would have been to establish whether there was any
prima facie evidence of improper payments, in which case, had
I decided that that was so, I think it would have been for the
Committee then to decide what subsequent action should take place.
One very real possibility I think would have been that the matter
would have been handed over to the police. On the other hand,
we have had a more recent case of an allegation of corruption
against a new Member of the House which was made to the police
and is still going through the processes of the police investigation
and the courts. There was, at the same time, a complaint made
to me covering the same subject. I brought this to the attention
of the Standards and Privileges Committee and recommended to them
that, since this was currently in the hands of the courts, they
should await the outcome of the court action before
834. Those allegations relate to the activities
of a Member certainly, but the alleged offences were committed
before he became a Member, as I understand it.
(Sir Gordon Downey) Yes and no. Some of the allegations
related to actions before the election and some after. Certainly,
if they had all been before, none of the issues would have fallen
within my terms of reference anyway because I would only be concerned
with his actions as a Member.
835. If the law is changed, as you are advocating,
it would presumably be possible for a Member to be charged with
things without any reference to you?
(Sir Gordon Downey) Yes.
836. In one case, it could come through the
sieve of the Committee, advised by you; in the other case, with
precisely similar circumstances, you could have no cognisance
of it at all.
(Sir Gordon Downey) Absolutely, yes.
837. Can I just ask you one final question on
this? You talked about frivolous complaints and your duty there
which the House gave to you and which you, very properly, exercise.
Have you had a vast number of frivolous complaints against Members?
Can you give the Committee some idea of how many?
(Sir Gordon Downey) I do get quite a large number
of frivolous complaints from members of the public.
838. What sort of numbers are we talking about?
20 a week?
(Sir Gordon Downey) No. One or two a week, perhaps,
but I suspect Members of Parliament will be familiar with the
type of correspondent I am talking about in many cases. These
are people who are perhaps sincere but perhaps a little unstable.
Lord Archer of Sandwell
839. Could I just be clear that I have understood
you correctly, Sir Gordon? You said a few moments ago, as I understand
it, that in deciding whether money was taken with a corrupt intention
the prosecuting authorities and possibly subsequently the courts
would have to apply, as a very important criterion, whether there
had been an infringement of the rules of the House. If that is
so, they may have quite specifically to decide whether there has
been an infringement of the rules of the House. As I understand
it, you are suggesting that, if there is a possibility of criminal
proceedings, the House would not wish to proceed to decide that
question; they would be content to leave it to the courts to decide.
Have I understood you correctly so far?
(Sir Gordon Downey) Yes. There is a problem here and
I am not sure how serious a problem it is. It is certainly a problem
in theory; I am not sure whether it is a problem in practice.
You are quite right. My view is that there is only one way in
which a single offence could be applied to Members, as distinct
from an offence which might have to have special provisions to
allow for their special position. This is that perhaps the only
condition I would see to a single offence being satisfactory is
this one that the courts and the prosecuting authorities should
take into account what is acceptable to the House. The problem,
if it is one, is how and who should decide what is acceptable
to the House. The House rules have been drawn up by the House
and were intended to be interpreted by the House. They were not
intended to be interpreted by lawyers. They have not been drawn
up in a legal form. Also, I do not think one would regard the
interpretation of the House rules as entirely static, as this
can vary over time. The House can put its own gloss on the rules
in the form of comments on individual cases. It is a slightly
evolutionary process. To that extent, if one were to hand the
matter entirely to the prosecuting authorities to decide what
is acceptable to the House, there may be a little stress and tension
created there. I am not sure how that would be best overcome.
It seems to meand this brings me into slight conflict with
the recommendations of the Law Commissionthat the Law Commission,
as I understand it, are recommending that leave to bring a prosecution
should not require the authority of the Law Officers or of the
DPP. I was slightly surprised about that because I thought it
was different from the present position in relation to bribery.
I also thought that that might create particular difficulties,
or at least would add to the difficulties that I have already
mentioned to you. It seemed to me that, if the authority of the
Law Officers or the DPP were required, it would administratively
be very much easier for account to be taken of what was acceptable
to the House and, to some extent, the prosecuting authorities
could, if they felt the need, seek advice on the subject either
from me, from the Committee or from the House authorities in some
form or another. I think that would be a way in which one could
feel comfortable that they would be taking into account the House's
current interpretation of its own rules. I said this seemed to
me to be at least a theoretical problem and maybe a practical
problem. I am not sure whether it is a practical problem because,
as I have indicated earlier, I think the threshold for bringing
a prosecution for criminal corruption is likely to be higher than
the threshold for disciplinary offences of the House and, in almost
all cases where a prosecution is being mounted for corruption,
an offence of the House will have been committed. In practice,
I do not think there would be too much of a problem.