Examination of Witnesses (Questions 840
- 859)
TUESDAY 28 APRIL 1998
SIR GORDON
DOWNEY, KCB AND
MR NIGEL
PLEMING, QC
840. What happens when you get to the next stage?
Supposing they initiate a prosecution. The jury may have to decide,
among other things, whether what was done was in accordance with
what was usual or acceptable in the House or perhaps even specifically
whether there had been an infringement of the rules of the House,
in which case it might be necessary in some form either to produce
evidence before the jury or in some other way to give them guidance.
I wonder whether you have any views on how that can be done?
(Sir Gordon Downey) If that occasion arose, then I
think you are quite right. It would seem to me that it should
be possible for the courts to seek guidance if they need it. The
defence could call me, for example, to give evidence for them
if it turned on the interpretation of the House rules. On the
other hand, I am not sure that I explained myself too clearly,
but I do feel, the more I think about this, that the likelihood
of this tension arising is really fairly remote and that, if allegations
of corruption have got to the point of surmounting the hurdle
to criminal prosecution, almost certainly maybe 100 per cent or
maybe 99.9 per cent of the cases will either involve an infringement
of the code, by bringing the House into disrepute, or of the rules
involving paid advocacy.
Lord Mayhew of Twysden
841. On the same subject, is the start point
for your line of thinking that it would be wrong for any offence
that is created to catch Members of Parliament for corruption/bribery
to be capable of being committed, notwithstanding that what is
alleged is within what is permitted by the House? In other words,
if the House regards through its clear rules what is alleged to
have been done as being within the rules of the House, then it
would be wrong and perhaps even absurd for a criminal offence
to impute criminal liability. Is that a start point in your mind?
(Sir Gordon Downey) Yes, I think that is a start point.
842. You speak of the threshold for a criminal
prosecution, but it is the case, is it not, that the threshold
for a criminal prosecution is the same as for any other prosecution,
namely, there has to be a realistic prospect of conviction in
the assessment of the prosecuting authority? There has then to
be, in order to arrive at that judgment, an assessment of whether
or not the thing is going to be within the rules of the House
or may be within the rules of the House. In those circumstances,
would it be right to describe it really as a classic case for
the Law Officers' consent to be required for any such prosecution?
(Sir Gordon Downey) I am not enough of an expert and
certainly not a lawyer to be confident about my reply on that,
but it did occur to me that, if a prosecution required the authority
of the Law Officers or the DPP, then I would feel more confident
that administratively it would be possible for the prosecuting
authorities to take into account what was acceptable to the House.
843. Perhaps this is not for you but there is
a contrary feeling of course that, oh well, the Law Officers are
Members of Parliament and are members of the government. The fact
that they are Members of Parliament of course gives strength to
the proposal that I am making. I do not know whether you have
had an opportunity to read the evidence that the Lord Chief Justice
gave?
(Sir Gordon Downey) Yes, I did, but some time ago.
844. Did you read anything in it which caused
you to disagree with his assessment that, though nothing is perfect,
the consent of the Law Officers is a valuable precaution?
(Sir Gordon Downey) I saw value in it although I take
the point that you make, that there is, I suppose, a public perception
that the duality of his role, both as a Member of Parliament and
as a Law Officer, creates unwarranted suspicion.
845. How far does one take concern for unwarranted
suspicion in the case of—?
(Sir Gordon Downey) In my own case, I do not have
that concern and I think it would be a sensible precaution.
846. Because—is this right?—the
risk of getting into the stress and tension, to use your rather
modest words, that would arise if the courts had to determine
whether the rules of the House of Commons had been breached is
less likely to be encountered if the prosecution decision has
been informed in that manner?
(Sir Gordon Downey) Yes.
Sir Patrick Cormack
847. Do you think the Speaker can have a role
in that as well, advised appropriately by you and the clerk? I
ask this on the proposition that it really is manifestly absurd
to have any man or woman prosecuted for a criminal charge if the
rules of the House have not been breached and that is the substance
of the charge.
(Sir Gordon Downey) I would be a little more concerned
about the public perception in that case. I think there is a long
tradition which many people understand, though some may not, that
the Law Officers are in some way very distinct from membership
of the House when they are acting in their legal capacity; whereas
I think the Speaker necessarily is always going to be seen as
the Speaker of the House of Commons. I do not think there is any
duality of role there which would in a sense give her the public
perception of independence, which I think would be really very
important here.
848. And yet the impartiality of the chair is
its greatest defining characteristic.
(Sir Gordon Downey) Yes, but that, if I may say so,
is an impartiality as between the different sides of the House.
On the other hand, she is a very strong advocate for the House
as a whole and I think there might be a perception that she, above
all as it were, would be rooting there for her Members—I
think quite wrongly, of course, but nevertheless I think public
perception is important in this area.
Mr Tyler
849. I wanted to pursue the threshold issue
a little bit further and who triggers which route should be taken.
It seems to me that your recommendation is both attractive and
ingenious where the issue is clear cut and I accept that we are
all labouring to some extent under the difficulty that we have
had very few cases, thank God, and therefore we may be unduly
influenced by our recent experience; but of course at least one
of those cases was a multiple allegation. I do not know the details
and I do not think that matters but you can imagine the circumstances
where there were ten different allegations made, of which nine
were thought to cross the threshold of the House's rules and only
the tenth seemed to be potentially a matter for the courts. How
would you see your recommendation working in those circumstances?
(Sir Gordon Downey) Given that the tenth is going
to be by far the most serious allegation, I think my view would
still be that the House's investigation of the nine should await
the outcome of the court case on the tenth.
850. The whole process in the House would be
frozen until the outcome of the tenth was known?
(Sir Gordon Downey) It would be frozen, yes. It would
be in suspense while the court case was being heard.
Lord Wigoder
851. Is it your proposition that the corruptor
should be subject to the same position in relation to the rules
of the House as the corruptee? In other words, if a person offers
money to a Member of Parliament and does so quite corruptly, with
totally corrupt intent, so that the Member should do something
to his advantage, would it be a defence for the corruptor to say
in the course of the trial, "I have just discovered that,
according to the rules of the House, this was not so improper
after all"?
(Sir Gordon Downey) I think even under the present
rules of the House a corruptor could be said to be in contempt
and therefore has offended against the rules of the House. In
practice, very little can happen because the House does not have
within its armoury the sort of sanctions which can be imposed
against a corruptor from outside the House. Expulsion and suspension
do not apply. The House gave up its other sanctions a long time
ago. I think my answer would be that I would take the view that
it would be no defence for a corruptor to be able to say, "There
is no specific rule in the House affecting the payment by outsiders
to Members of Parliament and therefore I am in the clear".
I think it does breach the rules of the House and would be a contempt.
Lord Mayhew of Twysden
852. This is rather an interesting question,
is it not, because, in the scenario posed, here is the would be
corruptor finding, not necessarily to his chagrin, that he is
not a corruptor because the rules of the House do not make it
an offence. If they specifically made it not a breach of the House,
if they okayed it, it would be quite wrong surely for anybody
to be convicted?
(Sir Gordon Downey) I think perhaps I have not answered
the previous question in a sensible or helpful way. The rules
of the House apply to Members and do not apply to people outside.
Therefore, I do not think a person outside, the potential corruptor,
could pray in aid that the rules of the House do not cover him.
They do not cover anybody outside. Therefore, if the payment of
a bribe to anyone, whether it be a Member or a non-Member, under
whatever law of bribery is involved, is a corrupt action, I do
not think he can claim any defence by reference to the rules of
the House.
Sir Patrick Cormack
853. Bribery is bribery, is it not?
(Sir Gordon Downey) Bribery is bribery.
854. If a Member legitimately declares an interest
and that is registered with you and accepted by you, then he quite
properly cannot be prosecuted for that interest and nor can the
person who pays that amount of money which he has declared be
prosecuted either. If it is done without the rules of the House,
without telling you, without registering it, then it does indeed
become a potential act of bribery, presumably?
(Sir Gordon Downey) Although it might be an issue
in some cases, I do not think registration is necessarily the
determining issue here. Whether or not a payment was registered,
there are requirements, for example, that, broadly speaking, a
Member who receives any sort of benefits from outside, whether
he registers them or not, may not then promote the interests of
that outside person or body in the House. Therefore, it would
be a contravention of the House rules if he did so. If at the
same time that series of actions—the payment to the Member
and the action by the Member of the House—were seen to be
a corrupt action so far as the prosecuting authorities were concerned,
whether or not it had been registered would not come into it.
Chairman
855. Can we try and tackle this from a slightly
different angle, because I confess I am not at all clear in my
own mind precisely what is the role of the House's own rules in
relation to a criminal charge of corruption. As I understand it,
you favour what I might call a universal offence. That is to say,
that the criminal offence should be drawn in terms which are equally
applicable to Members and to everyone else. Have you had an opportunity
of considering the draft Corruption Bill that the Law Commission
have recommended and, if so, do you have any comments on the suitability
of that proposed line of approach which of course, as you know,
involves, as a necessary ingredient, corruption?
(Sir Gordon Downey) I have looked at it but not with
an expert eye. My lay reaction was that it seemed a very sensible
approach, except that I have this reservation that I mentioned
earlier about whether or not authority should be required to bring
a prosecution by the DPP or the Law Officers. That was my general
reaction: that this was a sensible approach. On the other hand,
certainly I would be interested and perhaps the Committee would
be interested if Mr Pleming were given an opportunity to speak,
because I know he has looked at the Law Commission report quite
carefully and I would value his opinion on that.
856. Can we tempt you, Mr Pleming?
(Mr Pleming) I am keeping very quiet because I feel
ill equipped to comment on much of what has been discussed so
far, in so far as it covers procedures of the House. What worries
me is that the problems arise when there are parallel complaints,
parallel investigations. If it has been accepted that there is
criminal jurisdiction to deal with either bribery as a crisp offence
or corruption as a slightly less crisp offence, then particularly
with the introduction of the word "primarily" in the
Law Commission's report, I find it both interesting and worrying
as to how one is to determine, for a Member of Parliament, whether
something has been done or not been done primarily, because
of the possibility of an advantage. I was thinking, for example,
of the situation where there was a complaint to Sir Gordon with
nine or ten components. One, two or even three of them could be
within the very wide definition of corruption; perhaps one of
those three within the tighter boundary of bribery. Would the
House be content that the criminal jurisdiction should take over
for those offences, but that the public concern expressed in the
other matters should be left on hold for a very long period of
time, perhaps during the duration of the House's sitting? It seems
to me that there are very difficult political questions or policy
questions to deal with when looking at parallel procedures and
parallel complaints. I have noted also that the Law Commission
talks in terms of what is corruption without referring specifically
to an essential ingredient of dishonesty but only "dishonesty"
in a much wider sense of "it must be wrong" or "that
is not the kind of thing that decent men and women do". When
the Home Secretary gave evidence to this Committee, he, like many
others I suspect, was tempted to gloss over the problem, so that
dishonesty and corruption were being used in the same sentence.
It may be that the touchstone for a decision to prosecute is the
hint of or at least the possibility of a dishonest motive. Bribery
is easier to recognise or define than is corruption. My concerns
are not so much how the Law Commission has framed the offence
but how the House with its particularly special and unusual role
is to deal with corruption. There is no equivalent in government
that I can find and there is no equivalent in the professions.
You, as Members of the House of Commons and the House of Lords,
make the law. You are at the top of the tree. Perhaps there are
higher expectations, but if there is going to be a parallel criminal
procedure with the House doing nothing in the meantime then the
perception of the public may be that there is a Member sent off
on that route, where they remain for some time, but the problem
is not being addressed. Could I pick up one point on "filtering".
It seems to me that there is a central problem if criminal guilt
or innocence is to be affected by compliance or non-compliance
with the rules of the House. I can see how that must be at least
a starting point, but who is to determine that issue, and when,
seems to me to be a particular problem. Is it to be determined
by the filtering officer, such as the Attorney General, who decides
that there should be a prosecution, or is it to be determined
by Sir Gordon or by the House or a committee, and when is it to
be determined? Is it to be determined before a prosecution commences?
What if the person who is eventually prosecuted disagrees with
the opinion that there has been a breach of the rules of the House?
Is that question to be determined by a jury? Sir Gordon accepts
that he could be called to give evidence, that is inevitably so,
but one would again have the slightly peculiar position of a jury
trying compliance with the rules of the House. Having spent some
time trying to understand the rules of the House, I do not wish
that on anybody, let alone on a jury which has not received any
in-House training or in-House experience. The rules seem to me
to be an improving set of standards, certainly a set of standards
which change during time. That is my contribution so far. I see
real areas of concern which this Committee perhaps should grapple
with and resolve.
857. Perhaps I may follow up this point. Would
it be possible to achieve the result of taking into account the
rules of the House, without in fact making the corruption offence
different in the case of Members from what it is in the case of
others?
(Mr Pleming) It would either have to be a different
definition of corruption—which I would have thought was
impossible, unless there is added in the specific ingredients
of intent or dishonesty, which is not in the Law Commission's
recommendation—or the position is to be tailored for the
peculiar situation of Members of Parliament by inserting a specific
defence along the lines that corruption cannot be established
if the act described is consistent with the standards of the House.
That may produce a fair result, but again I would be interested
in the public perception where the House is itself describing,
and can describe on a day-to-day basis, what is or what is not
acceptable conduct. Persons outside the House might say, "Well
that looks acceptable to you, but as far as we're concerned, it's
unacceptable". So all I see at the moment—I am no use
to this Committee at all—are difficulties rather than solutions.
I am becoming more and more intrigued as to how the Committee
is to resolve those difficulties—save by doing one of two
things. First, is to say that the criminal route is the only route
(subject to a filter, which I can see is a very sensible suggestion
of the Lord Chief Justice). Subject to that filter, it is for
the police authorities, the prosecuting authorities, and they
make their own decisions. The defence can run any defence it wishes
to run. The prosecution takes its own course. Second, is to say
that corruption is to be dealt with in-House, it is to be dealt
with as part of the discipline of Members, with all the problems
that that involves. It is the overlap which I find quite difficult.
Sir Patrick Cormack
858. So you have no solution which you unequivocally
commend to the Committee?
(Mr Pleming) Not at the moment. I am listening. As
I say, as well as researching I am listening to the discussion
this morning. As soon as one allows compliance with the rules
of the House to be determinative of guilt, then it seems to me
either that that issue has to be decided in the House, in some
lead-up to a prosecution, and/or maybe again decided by a jury
or by magistrates.
859. Would it not be the trigger to prosecution
that it is judged by the Committee to whom Sir Gordon reports,
that the rules have been breached?
(Mr Pleming) That then means that one would have had
a trial in-House for breach of the rules. If that is the route
which is taken, then my concern would be not so much double jeopardy
but rather prejudicing either the prosecution or the defence.
This is particularly so as this House—understandably—favours
transparency and public debate, so that you would have, in the
glare of television cameras, or at least reproduced in some form,
a full and sometimes heated discussion as to whether or not a
person's behaviour is acceptable. If that is going to be tried
again, it would be quite difficult.
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