Joint Committee on The Draft Corruption Bill Written Evidence


APPENDIX 24

Memorandum from the Committee on Standards and Privileges (DCB 35)

INTRODUCTION

  1.  The draft Corruption Bill, presented to Parliament on 24 March 2003 as Cm 5777, raises several issues of interest to the Committee on Standards and Privileges. In particular, the scope of the new corruption offences it creates may have implications for the House's arrangements for investigating complaints of breaches of its Code of Conduct, and the provision that would allow proceedings in Parliament to be questioned in court proceedings on the offences to be created has implications for the privileges of the House.

  2.  In view of the possible implications for the arrangements for investigating complaints about the conduct of Members, a responsibility the House has entrusted to the Parliamentary Commissioner for Standards, we have consulted him in the course of preparing this memorandum.

  3.  The Bill, if enacted along the lines of the published draft, would abolish the existing common law offence of bribery, and existing statutory corruption offences. It would create three new statutory offences, of general application, relating to:

    —  corruptly conferring an advantage;

    —  corruptly obtaining an advantage; and

    —  performing functions as an agent corruptly.

  4.  The proposed new offences are of general application. The provisions would therefore apply to Members as to all other citizens, thus fulfilling the objective of the Joint Committee on Parliamentary Privilege of ensuring that Members fall clearly and unambiguously within the scope of the criminal law on corruption.[55]

APPLICATION OF THE LAW ON CORRUPTION TO MEMBERS OF PARLIAMENT

  5.  We support the proposition that Members of Parliament should be subject to the law on corruption in precisely the same way as it applies to others. Indeed, given that the antidote to corruption is good governance, we believe it is vital that Members are, and also demonstrate themselves to be, above corruption. Central to public confidence in their elected representatives must be a perception that they put the public interest first and foremost, ahead of any private interest. Our approach to the proposals in the draft Bill is guided by these over-riding principles.

  6.  The House of Commons has for centuries recognised the corrosive nature of corruption: as long ago as 1695 it passed a Resolution against offering bribes to Members and it has punished severely Members who have accepted them. More recently, it has agreed a Code of Conduct,[56] through which it makes clear that it expects Members, in all aspects of their public lives, to recognise their public duty to uphold the law and observe high standards of personal conduct. The requirements of the House, summarised in the Code and the Guide to the Rules, go far beyond mere compliance with the letter of the criminal law. Complaints that Members have failed to comply with the requirements are investigated by an independent officer, the Parliamentary Commissioner for Standards. If they are substantiated, the Member concerned is liable to be punished by the House for his or her failure.

  7.  We have no reason to believe, from the small number of prosecutions[57] and from the pattern of complaints received about their conduct, that corruption involving Members of Parliament has hitherto been a problem of any significance. This belief is reinforced by the recent comment of the Committee on Standards in Public Life:

    "We endorse the view that standards in the House of Commons are generally high, and that the overwhelming majority of members seek to, and in practice do, uphold high standards of propriety.".[58]

  8.  If the draft bill is enacted in its present form, we envisage (and hope) that cases where the possibility of corruption arises will continue to be very rare. However, the broader definition of corruption offences adopted in the draft Bill makes it possible that some breaches of the Code previously considered to be purely disciplinary matters for the House to deal with may also need to be viewed as possible criminal offences. Appropriate procedures will therefore need to be in place to deal with this eventuality.

CRIMINAL PROCEEDINGS AND THE HOUSE'S DISCIPLINARY ARRANGEMENTS

  9.  The possibility of criminal liability does not prevent the House from imposing an appropriate disciplinary penalty for conduct in breach of the Code: criminal and disciplinary proceedings are not mutually exclusive, and the House could, if it wished, decide to take action if breaches of the Code had been revealed irrespective of whether criminal proceedings are initiated, or their outcome.[59] A concern of ours is, therefore, the relationship between the proposed legislation and the House's arrangements for enforcing standards, which apply whether or not the acts complained of might also be corrupt in law.

  10.  We believe that criminal proceedings should take precedence over the House's disciplinary proceedings. This means that the House should take steps to minimise the scope for its own activities to prejudice criminal proceedings. However, we would be concerned if the Commissioner and the House were required routinely to stay investigations for more than a brief period (a requirement that arises only very infrequently at present) while the possibility of criminal proceedings was explored, and in some cases completed. Delays of significant magnitude could seriously hamper the disciplinary process, particularly towards the end of a Parliament.

  11.  The House's standards system is essentially complaints driven. Where a complaint is made to the Parliamentary Commissioner for Standards alleging criminal conduct by a Member—whether involving an offence under this Bill or any other offence—and the complaint is neither malicious nor frivolous, we would expect the Commissioner to report the facts to us with a recommendation that the matter be referred to the police for further investigation. This would be in line with the second recommendation of the Sixth Report of the Committee on Standards in Public Life.[60]

  12.  Where the Commissioner becomes aware that police inquiries are in hand in relation to a matter in respect of which he is already investigating a complaint, we would expect him to recommend that his inquiry be suspended at least until the police investigation has been completed and a decision taken on whether to charge the Member. Such action would minimise the scope for our own investigations to prejudice the question of criminal proceedings. Other than in exceptional circumstances, we would expect to agree to such a request as a matter of course.

  13.  It is possible that in the course of investigating a complaint the Commissioner may come across evidence suggesting to him that a criminal offence may have been committed. In this case, we would expect him to inform the police, having first consulted us. Once again, we would normally expect to suspend our own investigation at least until a decision had been made on whether to initiate criminal proceedings.

  14.  Where a case under investigation by the Commissioner becomes the subject of a police investigation, the question arises as to the extent to which the police should have access to the Commissioner's records. In this context, we note that the House expects Members to cooperate fully with the Commissioner in his investigations and has punished failure to do so without reasonable cause. We would not want any arrangements for disclosure to prejudice Members' willingness to co-operate in the future.

  15.  In any case where the Commissioner suspects that criminal offences may have been committed, he will need to pass on some information, including a copy of the original complaint, to enable the police to start an investigation. In principle, we would have no difficulty with the Commissioner also making available to the police documentary material in his possession which had been voluntarily given to him in support of the complaint and, with the agreement of the Member concerned, material which he or she has supplied, or which has been supplied in his or her support, provided the relevant source also agrees. Other material, such as the Commissioner's notes of telephone conversations, meetings or interviews, should not in our view be made available. In any event, we understand that the evidential value of material such as the Commissioner's notes of conversations would be limited, as it will not have been obtained under caution.

  16.  The interests of fairness create a presumption that the Commissioner will also make available to the Member, at his or her request, material that he has disclosed to the police, or which falls within a category that he would have been willing to disclose, had they sought it.

  17.  We will, however, need to give careful consideration to the precise details of both what might be made available, and in what circumstances, to minimise the risk to Members' future cooperation with the Commissioner's inquiries. Whatever was to become the practice, the Commissioner would ensure that Members and others were made aware of it. The Commissioner will continue to seek to develop appropriate policy proposals in the light of discussions with others who have a policy interest, including the police and the Crown Prosecution Service. As the underlying issues are matters that relate to criminal offences in general, and are not restricted exclusively to the offences to be created by the draft Corruption Bill, this work will continue irrespective of what further progress the bill makes.

CLAUSE 12 OF THE DRAFT BILL

  18.  Clause 12 of the draft Bill would have the effect of making evidence admissible in proceedings for a corruption offence notwithstanding Article IX of the Bill of Rights 1689. This Article prevents proceedings in Parliament being impeached or questioned in a court of law. In setting the provisions of the Article aside in relation to any proceedings for a corruption offence, not just those involving Members, the draft clause is significantly broader in scope than the provision the Joint Committee on Parliamentary Privilege envisaged. It concluded:[61]

"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 an offence committed or alleged to be committed under the relevant sections shall be admissible notwithstanding article 9. . . .

. . . We anticipate there will be few prosecutions of members, because we believe there are few instances of corruption of members. We anticipate, further, that in only a small proportion of any prosecutions will it be necessary to question proceedings in Parliament. Thus, to allow evidence to be given as we recommend will involve only a minimal encroachment upon the territory safeguarded by article 9. The occasions when a court will be called upon to question a parliamentary proceeding will be rare indeed.".

  19.  Article IX, and the privilege which it confers, does not exist in isolation; it is designed to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information.[62] Central to this provision is the protection of freedom of speech for all who participate in proceedings in Parliament.

  20.  As the Home Secretary pointed out in his evidence to the Joint Committee on Parliamentary Privilege, the body of Parliamentary privilege is not, and never has been, fixed and immutable.[63] Provided that the primary policy objectives we have set out above remain unaffected, we are not in principle opposed to changes in the scope of the privilege conferred by Article IX, if these are necessary in the wider public interest. However, each specific proposal for change needs to be examined carefully on its individual merits, and an appropriate balance struck as to where the overall public interest lies.

  21.  In the following paragraphs, we see how the provisions of Clause 12 of the draft Bill might work.

  22.  Clause 12 of the draft Bill would undoubtedly reduce the scope of Article IX. On the other hand, the proposed change may make it easier to prosecute (or, in some circumstances, defend) corruption cases where proceedings in Parliament provide relevant evidence not available elsewhere. For example, if a Member had denied in the House ever meeting a particular person, and the Crown presented clear evidence to the court that he or she had done so, the admissibility of the Hansard record as evidence might have a significant impact on the proceedings.

  23. As we have stated earlier, we believe that Members of Parliament should be subject to precisely the same criminal law on corruption as everyone else. Given the unique nature of offences of corruption, and the implications for public confidence in elected representatives and the interests of good governance, it is in our view essential that there are no artificial impediments to the prosecution of Members for corruption offences, or of others in cases where Members are involved. As the Joint Committee on Parliamentary Privilege put it:[64]

    "Several witnesses thought it wrong that article 9 should appear to have the effect of protecting corrupt members: in no way did this serve the interests of free speech. A former Leader of the House of Commons, Lord Newton of Braintree commented:

`My general view is that while there are clearly good and sufficient reasons for the privileges of members of Parliament in relation to freedom of speech . . . it is extremely difficult to see why [members] should enjoy the same privileges in respect of bribery and corruption . . . one cannot envisage an argument that says it is necessary for a member to take a bribe or to be corrupt in order to do his job as a member of Parliament'."

  24. We agree. We also note that, whether or not proceedings in Parliament are made admissible in criminal proceedings in corruption cases involving Members, they can be drawn on by the Commissioner and the House in relation to investigating and adjudicating on complaints about Members' conduct. We believe that it would be difficult to justify such a substantial distinction between their treatment inside and outside the House if this had a material effect on a decision about whether to launch a prosecution for corruption, or on the outcome of a case.

  25. In our view, the balance of advantage in relation to corruption cases where Members are involved rests with removing the protection of Article IX. We do not believe that making proceedings in Parliament admissible as evidence in such cases risks prejudicing the underlying freedoms which Article IX protects. We therefore support the provisions of Clause 12 to the extent we have outlined.

  26. However, Clause 12, as currently drafted, would cover all cases involving corruption offences, whether or not Members are involved. A wide range of proceedings in Parliament, beyond those relating to cases in which Members are involved, including those in select committees, might be affected. So far as proceedings in select committees are concerned, the Chairman of the Liaison Committee has written to the Prime Minister setting out its concerns about the broad scope of Clause 12, and has copied this letter to the Joint Committee.

June 2003















55   Report of the Joint Committee on Parliamentary Privilege, Session 1998-99, HC 214-I, paras 166-169. Back

56   The Code of Conduct together with the Guide to the Rules relating to the Conduct of Members 2002, HC 841 (2001-02). This replaced the original version, approved by the House on 24 July 1996 (HC 688 (1995-96)). Back

57   The Joint Committee on Parliamentary Privilege could find only a single case, that of Mr Harry Greenway MP in 1992, who was acquitted of corruptly receiving benefits from a company for using his influence as a Member on its behalf. No proceedings in Parliament were relevant to this case (see HC 214-I, para 136). Back

58   Eighth Report of the Committee on Standards in Public Life, Cm 5663, para 27. Back

59   Also, under the Representation of the People Act 1981, a Member imprisoned for more than a year becomes disqualified from sitting and the seat is vacated. Back

60   Cm 4557-I. Back

61   HC 214-I (1998-99) para 167-8. Back

62   See Erskine May, 22nd Edition, p 93. For a description of what constitutes "Proceedings in Parliament" see ibid, p 95ff. Back

63   HC 214-II (1998-99) Q 113. Back

64   HC 214-I (1998-99), para 149. Back


 
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