Joint Committee on The Draft Corruption Bill Written Evidence


APPENDIX 3

Memorandum by the Clerk of the House of Commons (DCB 5)

INTRODUCTION

  1.  This memorandum is concerned with only two aspects of the Draft Corruption Bill: the application of the proposed new law to Members of Parliament, and the implications possible consequences of enacting Clause 12 of the draft bill as set out in Cm. 5777. These two issues are not entirely separate one from another; but they are different. Clause 12 could be invoked in a case which did not involve a Member of Parliament; for example, a witness's evidence to a Select Committee could be used as evidence in support of a charge of corruption against that witness. On the other hand, a Member of Parliament could successfully be charged with corruption without recourse to Clause 12 if, for example, the advantage obtained by the bribe which he had accepted were improper influence (exerted outside Parliament) over a Ministerial decision. The liability of a Member to prosecution under the proposed new law is not secured by Clause 12 (which on the face of it is only about the admissibility of evidence) but by the absence of a specific exemption.

  2.  I have seen in draft the memorandum to be submitted to the Joint Committee by my predecessor, Sir William McKay. I endorse his analysis, in the first two sections of that memorandum, of the unsatisfactory state of the present law on corruption and the difficulties of dealing with such offences under the parliamentary law of contempt; and I have not attempted to cover that ground in this paper.

Application to Members

  3.  On the question whether the proposed new Corruption Act should in principle apply to Members of Parliament, I cannot improve on the written evidence submitted to the Joint Committee on Parliamentary Privilege in 1998 by the then Parliamentary Commissioner for Standards, Sir Gordon Downey. The relevant passage reads as follows:

"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.

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.

I see no reason why corruption should not form the basis of a criminal offence, applicable to Members, and enforced by the courts."[21]

  This still leaves open the possibility that the draft bill, as presented to Parliament, may raise public interest considerations of the sort that Sir Gordon referred to. The remainder of this paper is largely concerned with discussing that possibility.

Clause 12 of the draft bill and Freedom of Speech

  4.  Clause 12 of the draft bill does not refer directly to the Bill of Rights 1689; but its reference to an "enactment . . . preventing proceedings in Parliament being impeached or questioned in any court or place out of Parliament" is in fact a reference to Article IX of that historic statute. Thankfully citizens of the United Kingdom no longer live in a country where their elected representatives are in a constant danger of being put on trial, imprisoned or tortured for what they say in Parliament. So there is an inevitable temptation to regard the "privileges" of Members of Parliament—including the privilege of freedom of speech which Article IX embodies—as being archaic curiosities which can safely be consigned to the dustbin of history. The Joint Committee on Parliamentary Privilege, in its comprehensive, scholarly and authoritative analysis of the different aspects of privilege, did not succumb to that temptation. Its report stated clearly and firmly:

"Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle."[22]

  5.  It is not necessary for me in this paper to set out at length the arguments for considering parliamentary freedom of speech as still being an "essential constitutional principle". Reference may be made to the relevant parts of that Joint Committee report, and also to the recent judgment of the European Court of Human Rights in the case of A v the United Kingdom[23]. In that case the UK's arguments on the fundamental issue of parliamentary immunity (which was central to the case) were supported by third party interventions submitted on behalf of the Governments of Austria, Belgium, Finland, France, Ireland, Italy, the Netherlands and Norway. The Court concluded that:

"the parliamentary immunity enjoyed by the MP in the present case pursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary."

  It is also referred back to a previous case[24] when the Court had stated that:


"while freedom of expression is important for everybody, it is especially so for an elected representative of the people. He or she represents the electorate, draws attention to their preoccupations and defends their interests. In a democracy, Parliament or such comparable bodies are the essential fora for political debate. Very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein."

  6.  In A v the United Kingdom the European Court of Human Rights thus recognised that the wider public interest of securing the freedom of Parliaments and their independence from judicial interference has to take precedence over the more immediately perceived needs of a particular court judging an individual's case. That is one of the fundamental principles underlying Article IX of the Bill of Rights. Unfortunately, since the Pepper v Hart judgement, courts in the United Kingdom have shown an increasing tendency to nibble at the edges of that principle.

  7.  In the Command Paper presenting the Draft Corruption Bill, the Government states that its proposal "acts on a recommendation from the Joint Committee on Parliamentary Privilege."[25] But this is just one recommendation among many. The Joint Committee also recommended "a statutory enactment to the effect that no court or tribunal may receive evidence, or permit questions to be asked or submissions made, concerning proceedings in Parliament by way of, or for the purpose of, questioning or relying on the truth, motive, intention or good faith of anything forming part of the proceedings in Parliament or drawing any inference from anything forming part of those proceedings."[26] I would find it somewhat easier to accept the inclusion in the bill of a provision derogating from the principle of freedom of speech in the case of alleged corruption by a Member of Parliament if it were being presented in the context of a wider statutory restatement of parliamentary immunities and the scope of parliamentary freedom of speech. Instead, the government has adopted a selective approach to the Joint Committee's recommendations, a possibility on which the Committee commented as follows:



"The recommendations of the Joint Committee requiring enactment by legislation should be included in a new Parliamentary Privileges Act. These recommendations will stand enactment by themselves, but if so enacted the results will be an uncomfortable mixture of modern statute and ancient learning."[27]

  8.  My anxiety is that in practice the consequences of implementing the recommendations of the Joint Committee in a cherry-picking rather than comprehensive manner may turn out to be worse than merely "uncomfortable". If Article IX can be set aside for the prosecution of a particular type of serious offence, the question is bound to be raised whether it should not also be set aside to facilitate the prosecution of other serious offences.[28] The result of this could be that freedom of speech would eventually fall victim to death by a thousand cuts.

Scope of Clause 12

  9.  This anxiety is heightened by the wide drafting of Clause 12 of the draft bill. The Joint Committee's recommendation, on which the draft bill is stated to be based, reads as follows:

"Members of both Houses should be brought within the criminal law of bribery by legislation containing a provision to the effect that evidence relating to the offence committed or alleged to have been committed under the relevant sections shall be admissible notwithstanding article 9."[29]

  The strong implication of that passage is that the recommendation is intended only to relate to offences alleged to have been committed by Members. But, as drafted, Clause 12 goes far wider than that. As already mentioned, it would enable evidence given by a person to a Select Committee to be called in question in court in support of a charge of corruption against that person. If a Member of Parliament had commented in debate on an individual who was subsequently charged with corruption, the Member's speech would be admissible as evidence under Clause 12 and the Member might be questioned about its meaning and the information on which it was based.[30] Similarly, if a public official or agency were charged with the new offence of corruption, any relevant papers in the possession of (say) the Public Accounts Committee would appear to be admissible as evidence. In my view this amounts to far more than the "minimal encroachment upon the territory safeguarded by article 9" which the Joint Committee on Parliamentary Privilege originally envisaged.[31]


  10.  In his letter of evidence the The Clerk of the Australian Senate has drawn attention to cases in Australia where Members have been prosecuted for corruption-type offences without reference to parliamentary proceedings. Sir William McKay has deployed some United States cases to support his argument that a distinction can and should be drawn between the offence of corruption and the act (which may be a proceeding and, if so, remains protected) which the bribe was intended to procure. It can similarly be argued that the fundamental requirement for the successful prosecution of the proposed new criminal offence of corruption will be clear evidence of the existence of a corrupt bargain and that Clause 12 will not materially assist the prosecution in meeting that requirement. For my part, I accept that some hypothetical cases of corruption by Members of Parliament would be, at least, extremely difficult to prosecute as criminal offences without encroaching on the Bill of Rights. This would be the case, for instance, if the allegation was that a Member had accepted a bribe to cast his vote in a particular way. But even if some statutory encroachment on the Bill of Rights is necessary to achieve the policy objective that Members of Parliament should be liable to prosecution for corruption in the discharge of their parliamentary duties, I consider that this could be achieved by a much more narrowly drafted provision than the existing Clause 12.

Mischievous prosecutions and the role of the Attorney General

  11.  The Joint Committee on Parliamentary Privilege referred to the risk that Members of Parliament might be particularly vulnerable to malicious or mischievous allegations of corruption.[32] I share that concern. Members are obliged, by the House's internal rules, to make public a good deal of information about their financial and business interests, down to details of individual gifts, hospitality and travel abroad. Their constituency duties often now lead them into involvement with sensitive cases concerning individuals, companies and public officials at a local level. Inter- and intra-party rivalries are a routine feature of political life. For all these reasons it is not difficult to envisage the possibility of specious or circumstantial connections being made and mischievous allegations being fabricated for political or local advantage. The very generalised phraseology which the draftsman has been obliged to adopt in the valiant attempt to define the essence of the offence of corruption lends itself to wide interpretation. As a result, for example, the bill would appear to make it a potential criminal offence for a Prime Minister, after a hung General Election, to offer cabinet positions to members of a minority party in return for an undertaking to vote in favour of the Queen's Speech.

  12.  The safeguard which the bill erects against these risks is the requirement for the consent of the Attorney General to the prosecution of an alleged corruption offence. I am not surprised that in 1998 the then Attorney General expressed serious reservations about his suitability for such a role in the case of allegations against Members.[33] Even when due allowance is made for the special constitutional position of the Attorney General[34], the proposal that this crucial discretion over the prosecution of elected Members of Parliament, potentially involving their freedom of speech, should be exercised by a Government Minister runs contrary both to history and to principle. An alternative which the Committee may wish to consider is that, in relation to allegations against Members, the safeguard role should be fulfilled by the Director of Public Prosecutions after consultation with the Parliamentary Commissioner for Standards. The involvement of the Commissioner would help in ensuring that the borderline between an allegation of corruption and a complaint of a breach of the House of Commons Code of Conduct is properly and consistently observed.



Conclusion

  13.  Public policy in regard to the issues dealt with in this memorandum has, since the mid-1990's, largely been driven by a single case involving Members of Parliament—albeit a serious, spectacular and long-running one. That case led to the establishment of the Committee on Standards in Public Life, to the formulation of a code of conduct for MPs and to the creation of the post of Parliamentary Commissioner for Standards. It also led to the enactment of section 13 of the Defamation Act of 1996. That section was a serious encroachment on the principles underlying Article IX of the Bill of Rights. The Joint Committee on Parliamentary Privilege concluded that it had "created indefensible anomalies . . . which should not be allowed to continue", and recommended that it be repealed.[35] But, for the time being at least, it remains on the statute book. There has been no recent case, comparable to the Al Fayed-Hamilton case in terms of public impact, to demonstrate the dangers of eroding the independence and freedom of speech of Members of Parliament. But, cumulatively, those dangers are nonetheless real.

  14.  I hope, therefore, that the Committee, when examining the draft bill, will consider whether provisions of Clause 12 are proportionate to the perceived problem, and also whether such a clause ought to the draft bill should proceed, in any form, in the absence of a firm commitment from the Government to the introduction of a more comprehensive Parliamentary Privileges Bill.

May 2003





21   HL Paper 43-II (1998-99), page 217. Back

22   HL Paper 43-I (1998-99), page 18, para. 40. Back

23   Application No. 35373/97; Judgment of 17 December 2002. Back

24   Jerusalem v Austria, No. 26958/95, HH 36 and 40. Back

25   Cm. 5777, para 5. Back

26   HL Paper 43-I (1998-99), page 29, para 88. Back

27   Ibid, page 3. Back

28   For example fraud, an issue which has already been raised with the House authorities by the Serious Fraud Office. Back

29   HL Paper 43 (1998-99), para 167. Back

30   Although, as things stand, the Member could refuse to attend the court as a witness. (See HL Paper 43 (1998-99), paras 330-333). This is an example of the anomalies that are bound to arise from a selective approach to the implementation of the recommendations of the Joint Committee on Parliamentary Privilege. Back

31   Ibid, page 2. Back

32   HL Paper 43-I (1998-99), para 151. Back

33   HL Paper 43-III (1998-99), page 151. Back

34   See, for example, "Constitutional Conventions", Geoffrey Marshall (1986), pages 111-119. Back

35   HL Paper 43-I, para 69. Back


 
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