Joint Committee on The Draft Corruption Bill Written Evidence


APPENDIX 25

Letter from the Chairman of the Liaison Committee to the Prime Minister (DCB 36)

LIAISON COMMITTEE

  At the Committee's meeting on 19 June, Sir George Young, as Chairman of the House's Standards and Privileges Committee, raised the issue of the implications for the House and select committees of the draft Corruption Bill now being considered by a Joint Committee of both Houses.

  The Liaison Committee agreed that I should write to you about the very great concerns we have about those parts of the draft Bill which may affect the ability of the House and its committees to operate unimpeded by the risk that witnesses will be less than frank, whether in public or in private.

  Our principal concern relates to Clause 12 of the draft Corruption Bill, published by the Home Office as Cm 5777, which provides that, in respect of proceedings on the proposed new corruption offences created by the Bill (replacing existing statutory and common law offences) the protection offered to proceedings in Parliament by Article 9 of the Bill of Rights will not apply.

  The Explanatory Notes describes the Clause in the following terms:

    "This clause implements a recommendation made by the Joint Committee on Parliamentary Privilege (HL Paper 43 and HC 214, March 1999, paragraph 167). Its effect is to make evidence admissible in proceedings for a corruption offence (as defined in subsection (2)) notwithstanding Article 9 of the Bill of Rights 1689 which prevents proceedings in Parliament being impeached or questioned in a court".

  At the request of the then Home Secretary, Jack Straw, the Joint Committee on Parliamentary Privilege, on which I served, and which reported in 1999, considered the issues of bribery of Members and the application of Article IX at some length and considered a number of options for reform in the context of a wide-ranging examination of all aspects of Parliamentary Privilege. In the context of an over-arching recommendation that there should be a codification through a new Parliamentary Privileges Act, it concluded:

    "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." (Paras 167-168).

  The Joint Committee in its Report recorded its doubts about the extent to which the existing law on corruption applies to Members of Parliament. In doing so it envisaged changes specific to the position of Members.

  The terms of the Explanatory Notes are, in my view, misleading as they relate to Clause 12 of the draft Bill. The provisions of the draft Bill differ significantly from what the Joint Committee envisaged, in two material ways.

  First, the proposed new statutory offences (set out in Clauses 1-3 of the draft Bill) of corruptly conferring an advantage, corruptly obtaining an advantage, and performing functions as an agent corruptly, are to be offences of general application. So these provisions would apply to Members as to all other citizens, whether or not Clause 12 is included in the Bill.

  Second, Clause 12 as drafted applies to all proceedings in Parliament relating to the proposed new corruption offences, not just cases in which Members are involved. Members and others could be questioned on what lay behind statements that they had made, or evidence they had given. Evidence given by witnesses to select committees would fall within its scope.

  During discussion at the Liaison Committee, several senior Members from both sides of the House expressed very grave concern about waiving Article IX not just in relation to Members but in relation to witnesses before Committees. The Explanatory Notes on the draft Bill contain nothing to justify extending the scope of Clause 12 so far beyond the intentions on the Joint Committee on Parliamentary Privilege. The Liaison Committee is also concerned that the precedent that would be set by this significant incursion into the legal protection of proceedings in Parliament raises the possibility that the Government may seek to extend it beyond corruption offences, with the result that evidence to committees could be used in criminal proceedings in relation to other crimes also. To extend the provisions so far beyond what the Joint Committee proposed in 1999 would raise the possibility that evidence to committees might be used in relation to crimes other than bribery.

  The Liaison Committee is convinced that it would be wrong to enact the draft Corruption Bill in its present form. It should be modified to bring its provisions truly in line with the intentions of the Joint Committee in 1999. If the House is to be effective in carrying out its functions of holding the Executive to account and scrutinising its activities, it is vital that witnesses are full and frank in their evidence. At present, they know that whatever they say cannot be questioned or impeached in any court here. In its present form the draft Corruption Bill would undermine that essential principle in relation to the offences it creates.

  As a former member of the earlier Joint Committee I should emphasise that it made its proposals in relation to the bribery of Members in the context that there ought to be a Parliamentary Privileges Act. Personally I much regret this recommendation has not yet been implemented.

  Copies of this letter are being sent to Lord Slynn as Chairman of the Joint Committee on the draft Corruption Bill and to David Blunkett, Peter Hain and Sir George Young.

The Rt Hon Alan Williams, MP

24 June 2003


Letter from The Prime Minister to the Chairman of the Liaison Committee

  Thank YOU for your letter of 24 June, in which you raised two points on the draft Corruption Bill.

  First of all, I should say that I welcome your interest in this Bill and am also very grateful to Lord Slynn's Committee for the close attention they are giving to it. The area under discussion is clearly of constitutional importance and rightly of concern to Parliament, and it is proper for it to receive close Parliamentary scrutiny and questioning. I will be particularly interested in what Lord Slynn's Committee have to say on this issue. This is a Bill published for pre-legislative scrutiny, and the Government will carefully consider the Committee's report before introducing any revised Bill to Parliament.

  To turn to the detail of your letter, I agree that the new offences of corruption will apply equally to Members as to other persons. The Government thinks this is the right policy. Corruption is a crime which always involves two persons (at least) and it would seem odd to have separate offences for Members, on the one hand, and for those non-Members who might bribe them, on the other. I do not think the Bill proposes anything different from Nicholls on this point. The Nicholls Committee said "Members should be, and should be seen to be, subject to the same criminal offence as everyone else" (Paragraph 174 of their report).

  The Nicholls Committee were also clear that Article IX of the Bill of Rights should be set aside in any prosecution where Members were involved. They did not address the question of witnesses before Select Committees, but it seems to us even more important to rule out the possibility that non-Members might evade conviction for corruption because of privilege. MPs have their own disciplinary system, but a non-Member might well escape entirely. Lord Slynn's Committee has heard the Attorney General on this point and I agree with what he said:

    "I think you can argue very strongly that freedom of speech is actually enhanced by having a limited exception so that you can be satisfied that people who are speaking are speaking from the heart, honestly and openly, and not speaking because they have been paid secretly by somebody".

  I do not think that the Nicholls Committee envisaged the changes to the law of bribery as coming forward in the same package as a wider Bill on Privilege. Indeed, having set out proposals which they recommended for inclusion in a new Parliamentary Privileges Act (not including bribery), they added "We assume our recommendations on bribery will be incorporated in the proposed criminal legislation . . ." (Paragraph 377).

  Nevertheless, as I said above, this is an area which we will need to look at very carefully in the light of the report from Lord Slynn's Committee before revised proposals are introduced to Parliament.

  Finally, I also note your concern that this approach could be applied to crililinal offences other than corruption. That is not the Government's current proposal. If the Government made such a proposal, it would bring the matter before Parliament.

  I am copying this letter to Lord Slynn, David Blunkett, Peter Hain and Sir George Young.

9 July 2003






 
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