Joint Committee on The Draft Corruption Bill Minutes of Evidence


Memorandum from Professor Sir William McKay (DCB 11)

  1.  This paper is concerned with clause 12 (1) of the proposed bill set out in Cm 5777, which reads:

    No enactment or rule of law preventing proceedings in Parliament being impeached or questioned in any court or place out of Parliament is to prevent any evidence being admissible in proceedings for a corruption offence.

  My comments relate also to clause 29(1), the Scottish echo of clause 12 (1). [1]

  The suggested change in the law would, if enacted, have many diverse effects. The following paragraphs concentrate on the basic issue of whether the change is necessary or advisable.

  2.  The writer was for five years until the end of 2002 Clerk of the House of Commons.

THE UNSATISFACTORY STATE OF THE LAW

  3.  As the Explanatory Notes state, the clause springs from a recommendation by the Joint Committee on Parliamentary Privilege of three years ago (HL 43-I, HC 214-I). That Committee reviewed several approaches previously canvassed to the problem of how to deal with attempts to bribe a member of either House or the acceptance of a bribe by such a member. It recorded that it was "not generally believed" that such conduct was a statutory offence. [2]So far as concerns English common law, there was uncertainty whether the offence of bribery of a person holding public office extended to members of Parliament. A judge has indeed ruled that members of Parliament are answerable in court in respect of the common law offence of bribery of a person holding public office, but that ruling has neither been tested on appeal nor relied on elsewhere. Though the relevant statutes extend to Scotland, there is no equivalent common law offence there. In brief, the law is an unsatisfactory state.

  4.  There are those, however, who take a positive view that statute and common law on corruption do apply to members of either House. In an article published as long ago as 1979—in response to the Poulson affair—Mr Graham Zellick argued[3] that the Houses were public bodies and their members consequently amenable to the Public Bodies Corrupt Practices Act 1889, as amended. Members of Parliament were, by any test, public officers, paid by public funds, with duties of a public character. They hold an office of public trust.

  5.  I am not qualified to pass final judgement on these competing arguments. So far as statute law is concerned, however, I should remind the Committee of Lord Chancellor Hatherley's observation in Duke of Wellington v Morris[4] that "a privilege of Parliament, established by common law and recognised by statute, should not be abrogated except by express words in statute". It is a test which has lost none of its cogency over time, and one which is not passed by the Prevention of Corruption Acts. For the rest, even Mr Zellick is not sanguine that his arguments are compelling: " There is certainly nothing in the English authorities which compels the conclusion that a Member of Parliament is not a public officer. Rather is the balance the other way. Of course, the courts might render a decision in accordance with the [Salmon] Royal Commission's view"—in 1975, that the Houses were not caught by statute or common law—"if they were determined to reach that result . . . but many dicta and much common sense would be defied in the process." [5]

  6.  This dubiety is not desirable. The law relating to corruption in Parliament ought to be as enforceable as the offence is reprehensible. The law of Parliament might be employed against the offence: but while parliamentary contempt jurisdiction has in the distant past been used, there are practical reasons for thinking this a less than satisfactory solution in the twenty-first century (paragraphs 7 to 14 below). Alternatively, clarification might be assisted by amendment of the statute law on corruption—but satisfactory amendment would not be straightforward (paragraphs 15 to 21 below). As the Joint Committee on Parliamentary Privilege said: "There is no easy answer and no answer is perfect".[6]

THE CHOICE—CRIMINAL LAW OR THE LAW OF PARLIAMENT?

  7.  A number of public bodies at least since the Royal Commission on Standards in Public Life chaired by Lord Salmon in 1975 have reviewed the two possibilities. [7]Most recently the Joint Committee on Parliamentary Privilege, while "recognising the disadvantages" of their preferred outcome, [8]recommended that "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 IX" of the Bill of Rights 1689, which otherwise would prevent the courts taking cognisance of "proceedings in Parliament." [9]This is the line followed by the draft bill.

  8.  The paragraphs which follow review the advantages and disadvantages of reliance on the parliamentary law of contempt, and then of amendment of the general criminal law.

The law of Parliament

  9.  The offer to or acceptance of a bribe by a member of either House is without question a serious contempt of Parliament. It has been characterised in terms by the House of Commons as a "high crime and misdemeanour". A Speaker who transgressed was expelled. Since the offence is clearly parliamentary in character, it could be argued that it is by Parliament that it ought to continue to be dealt with. Moreover, the essence of contempt is hindrance or damage to the work of the House affected. Very persuasive arguments would be needed before judgements on actions of that character could with justification be removed from the body most affected, and thus best able to assess the degree of hindrance and the significance of damage.

  10.  On the other hand, the expulsion, the condemnation and most of the (not very many) recorded cases are now three centuries old and more. [10]Though over these years neither the need to condemn this corrosive offence against the body politic nor the relevant powers of Parliament has diminished, there are practical reasons why a parliamentary solution fails to carry conviction today. The legislature in the twenty-first century is frankly not capable (if it ever truly was) of trying one of its Members in a manner which both is and can be seen to be fair. Entirely new parliamentary machinery would be needed, confidence in which would be achieved only after exhaustive discussion. Members of both Houses are simply too busy, even if they were qualified, to deliver a verdict which must carry every bit as much authority as that of a court. Surrogates such as former Members, retired judges or the like are, to my mind, likely to give rise to as many problems as solutions.

  11.  There are other reasons for hesitating over the parliamentary solution. Though, given some appropriate mechanism, the Houses could perhaps try one of their number alleged to have received a bribe, it is hard to see how they could convincingly administer justice to the (presumably) non-parliamentary offerer of the bribe. Yet it is even harder to see how the two actions could be separated.

  12.  The difficulties are compounded by the existence of active public interest in and scepticism of parliamentary actions and motives, and public awareness of the importance of guaranteeing safeguards to anyone proceeded against in Parliament fully equivalent to those in the courts. In this, as in other applications, "privilege" ought not to connote some sort of special protection; public opinion expects no less than one law for all.

  13.  Nor is it easy to justify parliamentary action against an offender who, for whatever reason, had by the time the charge was laid ceased to be a Member of the House.

  14.  Any solution along the lines of a revived parliamentary jurisdiction would also have to face up to the issue of the punishments available to Parliament. Until the matter is re-opened (and not only in the area of corruption) by the consideration of the far-reaching recommendations of the Joint Committee on Parliamentary Privilege, the powers of both Houses remain as they were described by a Commons select committee in 1966-67: "inadequate to fulfil their proper role in the necessary protection of Parliament."

The criminal law

  15.  With all these arguments against parliamentary jurisdiction, the draft bill might seem sensible in following the other main option, to turn the criminal prosecution of suspected Members of either House over to the courts. That would at least avoid most of the pitfalls of relying on the law of Parliament.

  16.  Recourse to the criminal law, however, raises what the Home Office consultation paper called "significant questions of constitutional principle." [11]

  17.  Article IX of the Bill of Rights 1689, codifying much older privileges of the legislature, has the effect of preventing "proceedings in Parliament" from being "impeached or questioned in any court or place out of Parliament." Article IX is unlike most other elements of privilege: it is statute law. What is more, if it conveys anything less than complete protection, boundary disputes must be settled in the courts and not in Parliament. The outcome is to vitiate the intention of the statute, which was to withdraw cognisance of parliamentary actions from the courts. [12]Hence the uneasiness generally felt about making inroads into or exceptions from the scope of Article IX, however persuasive the particular case, with section 13 of the Defamation Act 1996 principally in mind. [13]

  18.  For example, if allegations of corruption are to be withdrawn from the law of Parliament, should not other methods of perverting the House's proceedings go with them—molestation or intimidation for example? In short, it may not be sensible to stop at one limitation on the completeness of the assurance currently given by Article IX.

  19.  If moreover the motives of a member of either House in making a speech in the Chamber came under scrutiny in a court, the Houses might not feel confident about the limits the court would put on examination of Members (or officers, or witnesses) other than the individual against whom the charge was laid. Members not under suspicion might find their motives challenged. Such a prospect could have the most chilling effect on every speech every member of both Houses might make. The courts would also be drawn into making their own interpretation of the rules and practices of the Houses—an enterprise as doubtful of success as that of the Houses interpreting the rules of court.

  20.  It is sometimes objected that such a defence of Article IX has the effect of creating a sheltered environment where a corrupt member of either House may find protection from the criminal law, defended by the corporate feeling of the House for one its members and the lack of a satisfactory parliamentary mechanism for hearing and disposing of the charges. Were that to be the case, it would of all outcomes be the least desirable.

  21.  But Article IX is not a roundabout way of making parliamentarians a specially sheltered class. The freedom of speech which it protects serves the highest interests of the people at large, and in that service parliamentarians are not final beneficiaries but only instruments. Even when privilege was at its most aggressive (and often unreasonable) at the beginning of the seventeenth century, Sir Edward Coke said that "the privilege of the House concerns the whole Kingdom." [14]Limiting the completeness of the protection which privilege affords without weighing its rationale would be wholly wrong.

Other solutions

  22.  The suggestion has been made that corruption offences might (by statute) be divided, leaving the more serious ones to the courts, and giving Parliament jurisdiction over the others. The arguments against this course—which I think are conclusive—are that it would affect the exclusive nature of parliamentary freedoms, while not tackling parliamentary inability to undertake the trial of any criminal actions.

  23.  A variant would involve a sifting committee of the relevant House, which would dispose of the trivial or purely disciplinary cases, but might recommend waiver of the Article IX protection in appropriate cases. The objections are that there would be two trials and that the Houses have no investigatory machinery on which a recommendation for or against waiver could rest. The Joint Committee on Parliamentary Privilege found this "a second best solution".[15] I believe they were right.

CAN THE CHOICE BE AVOIDED?

  24.   In dealing with this important public mischief, both criminal and parliamentary law are seen by most commentators to be less than ideal. Yet the UK and its legislature are not the only mature democracy where this problem has arisen. It may therefore be instructive to examine the experience of similar legislatures, in the hope of finding a fresh insight into what might be done without encountering the difficulties identified above.

The United States

  25.  The relevant provision in the American Constitution (article I, section 6) equivalent to Article IX of the Bill of Rights 1689 reads:

    "for any speech or debate in either House, they [sc. Senators and members of the House of Representatives] shall not be questioned in any other Place."

  The relationship with Article IX is obvious. [16]Indeed, the connection is much closer than appears. In the original version of the American Constitution of 1788 this provision echoed the English Bill of Rights exactly, only replacing "Parliament" by "Congress". It was a drafting Committee, doubtless intent on abbreviating language without changing meaning, which is responsible for the present formulation. So the foundation text of the law of privilege in the two legislatures—notwithstanding the fact that the "speech or debate" clause is also seen as reinforcing the American separation of powers—is close enough to make comparison of the jurisprudence in that respect worth while. In both cases, conduct which, if performed in other than a legislative (or parliamentary) context, would in itself be contrary to criminal or civil law, attracts no penalties, and indeed may not even be challenged. [17]

  26.  The "speech or debate" clause was not considered in the context of a Member's criminal liability until the 1960's. For the purposes of this submission, the significant judgement dates from 1972. In US v Brewster[18] a US Senator was charged with accepting a bribe "to be influenced in his performance of official acts in respect to his action, vote and decision" on legislation. The Supreme Court decided that while a prosecution might not inquire into legislative acts or their motivation, [19]taking or agreeing to take money to act in a certain way when participating in a legislative act cannot itself be a legislative act. "Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as part of or even incidental to the role of a legislator". Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution . . . It is the taking of the bribe, and not the performance of any illicit compact that is the criminal act under the statute." The speech or debate clause interposes no obstacle to this type of prosecution. [20]The guilty act is the acceptance of the bribe, and that is complete without performance of the (legislative) act—or "proceeding in Parliament"—which the bribe is intended to procure or influence. [21]

  27.  The decision was upheld in 1979 in US v Helstoski. [22]Neither evidence of nor references to legislative acts of a Member of Congress may be introduced in the course of a prosecution for an offence under the American statute on bribery. [23]Looking at the matter another way, the Supreme Court decided that the protection of the speech or debate clause extended only to acts already performed. "Promises," they said, "are not legislative acts. The compact may be shown without impinging on the legislative function".[24]

  28.  In the US Court of Appeals, in US v McDade, in 1994, the defendant, a member of the House of Representatives, was charged with "directly and indirectly, seeking, accepting and receiving things of value for and because of official acts performed and to be performed by [him] otherwise than as provided by law for the proper discharge of his duties." The court held that "to sustain a conviction [for the offence] it [was] necessary to show that [the defendant] solicited, received or agreed to receive money, with the knowledge that the donor was paying him compensation for an official act. Inquiry into the legislative performance itself [was] not necessary. Evidence of the Member's knowledge of the alleged briber's illicit reasons for paying the money [was] sufficient to carry the case to the jury." [25]

  29.  The American experience is particularly interesting and I will return to its virtues below. Suffice it to say here that it should not be so briskly dismissed as it was in the Home Office's Discussion Paper of December 1996. [26]

The Commonwealth

  30.  According to the standard textbook on the practice of the Parliament of New Zealand, "the acceptance of a bribe or a fee, compensation or a fee to take or refrain from taking certain action in the House or a committee is a clear example of a case in which the House would treat a Member as having committed a contempt".[27] In parallel, the Crimes Act 1961, replacing earlier offences of a general nature which did not mention Members, makes it an offence for a Member to accept or obtain a bribe "in respect of any act done or omitted or to be done or omitted" by the Member in his or her capacity as Member. [28]There does not seem to have been any significant conflict between the two provisions, though the only case of a Member's having been thought to have accepted an improper consideration to vote in the House is nearly a century ago (and the matter was referred to a committee).

  31.  Similarly, in Australia, it is a contempt for a Member of either House of the Commonwealth Parliament to ask for, receive, or obtain any property or benefit on the understanding that the he or she will be influenced in the discharge of his or her duties, or to control or limit his or her freedom of action. [29]The Clerk of the House of Representatives in Canberra told the Joint Committee on Parliamentary Privilege that the (Commonwealth) Crimes Act 1914 contains a provision that a person who in order to influence or affect a Member in the exercise of his duty or authority as such a Member, gives or confers or promises or offers to give or confer any property of any kind to or on the Member or any other person is guilty of an offence. There is no record of any Member having been prosecuted under these provisions. [30]

  32.  It is true that section 16(6) of the Australian Parliamentary Privileges Act 1987 provides that neither the terms of the Act nor those of the Bill of Rights are to be taken to "prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments in relation to proceedings in Parliament to which the offence relates". This provision relates however only to a prosecution for an offence under the Parliamentary Privileges Act itself—for example, unauthorised publication of evidence taken in private or tampering with a witness before a parliamentary committee. It is indeed a "significant modification of the immunity",[31] but it arises only in a very limited context.

  33.  In Canada, statute confers on Members of the House of Commons and Senators the privileges of the British House of Commons, including the provisions of the Bill of Rights. In the authoritative work on privilege in the Parliament of Canada, it is succinctly stated that "the legislature's authority over contempt is independent but not exclusive of the general public law." [32]The offer of money or other advantage to a Member for the promotion of any matter in Parliament is "a high crime and misdemeanour" and acceptance would be a contempt. Again, the tension between the general criminal law and the law of Parliament does not seem to have been resolved. No instances are known, however, where criminal proceedings arising on charges of corruption have strayed into the area protected by article IX.

  34.  In India, article 105(5) of the Indian Constitution confers immunity on Members of Parliament in respect of anything said or any vote given by them in Parliament or any committee thereof. In 1998, the constitution bench of the Supreme Court found that Members of the Lok Sabha who voted against a motion of no confidence in the government (no less) having accepted improper considerations, were not liable for the alleged conspiracy and agreement. Those who offered the bribes, including other Members, were exposed to the criminal law. [33]

HOW THE CHOICE MIGHT BE AVOIDED

  35.  United States and Commonwealth experience has indicated that there are at least two ways of tackling corruption in the legislature without the kind of major constitutional change envisaged in the draft before the Joint Committee. In the former, the Supreme Court has explicitly drawn a line between the improper compact and the performance; the first within the cognisance of the courts, the second not. In the Commonwealth jurisdictions mentioned, where article IX (or something intended to reflect its fundamental intention) is part of constitutional law, members of the legislature are answerable before the general law for corrupt activities even if they are connected with "proceedings in Parliament": the tension between the two is not resolved. What American jurisprudence has spelled out in US v Brewster and other cases may be the unspoken preference of the others. Certainly, the Commonwealth parliaments mentioned have taken no action akin to that contemplated by the bill. As never before, the UK will be deliberately putting itself at odds with those who have modelled their basic parliamentary freedoms on ours.

  36.  In the UK in present circumstances, however, inaction and hope that things can be satisfactorily managed in future will not do. We are faced clearly with the need to decide now what to do about article IX in the context of prosecutions for bribery. We should choose the United States way forward.

  37.  In preference to setting article IX aside in some circumstances, the offence aimed at by the present bill ought to be the improper offer or acceptance of a consideration to do something which falls within the scope of "proceedings in Parliament." In such an offence, it would not be necessary to demonstrate, by reference to what was said in Parliament and what the alleged offender meant by it, that the bargain was completed. The inhibition placed by article IX on the use of the speech or other proceeding to elucidate in evidence the nature and circumstances of the prior bargain would remain: no inferences looking backward at the agreement could be drawn from any "proceeding". And logically, a member of either House who entered into an improper agreement, but failed to perform, would be as guilty as one who carried out his or her illegal bargain.

  38.  I do not claim that this is a perfect solution. One may envisage circumstances where one side or the other might claim that the nature of the bargain could not be fully demonstrated without drawing inferences from the "proceedings in Parliament" which followed the compact. It would be argued that the proposal made here does not go far enough. There are two responses. In the first place, there will be, by common consent, few cases where the attempt to divide compact and performance will have to be made, and at least one similar jurisdiction successfully makes it. Given that, it is surely not appropriate to make such a significant change as a limitation on the freedom of speech in Parliament in this country—or not unless and until it can be shown that the British Parliament is more vulnerable by far than most others. Secondly, the Defamation Act 1996 (see paragraph 17) shows how difficult it is to break into the protected circle of "proceedings" to meet such a difficulty without giving rise to unintended and potentially serious consequences.

  39.  George Canning called in the New World to redress the balance of the Old. US v Brewster is worth further study, to see if the principle is still a good one.

April 2003





1   It is curious that, in applying the proposed change to Scotland, the draftsman chose language clearly intended to set aside the restriction on evidence in court which flows from article IX of the Bill of Rights, since that statute has no effect in Scotland. Back

2   The statute law on bribery is mostly to be found in the Prevention of Corruption Acts, 1898-1916. Neither House is a public body for the purposes of the Public Bodies Corrupt Practices Act 1889, and Members are not agents in terms of the Prevention of Corruption Act 1906. Back

3   Public Law, 1979, page 31: "Bribery of members of Parliament and the Criminal Law." Mr Zellick has since been supported by Professor Anthony Bradley ( Joint Committee on Parliamentary Privilege, Evidence volume 2, page 127). Back

4   (1870) LR HL 4 668. Back

5   art. cit., page 40. Back

6   Paragraph 166 of the Joint Committee's report. Back

7   The Salmon Commission recommended that Parliament should consider bringing bribery, corruption and attempted bribery of a Member, acting in his parliamentary capacity, within the scope of the criminal law. The footnote to paragraph 138 of the report of the Joint Committee on Privilege sets out the details of consideration of the matter subsequently. The bodies concerned include the Committee on Standards of Conduct in Public Life (the Nolan Committee) in 1995, the Home Office (Clarification of the Law relating to the bribery of members of Parliament and The Prevention of Corruption), and the Law Commission (Legislating the Criminal Code: Corruption, a Consultation paper and Legislating the Criminal Code). Back

8   Paragraph 167 of the Joint Committee's report. Back

9   Paragraph 165. Back

10   CJ (1693-97) 331 (1695); and ibid 283. More modern instances are to be found in the footnotes on page 112 of the current (22nd) edition of Erskine May, but in general the more modern findings have rested on "dishonourable conduct "in the nature of bribery" ", or "objectionable but not a contempt". See also the evidence taken by the Joint Committee on Parliamentary Privilege, volume 2, page 8. Back

11   Clarification of the law relating to the Bribery of Members of Parliament, paragraph 16. Back

12   For this reason, I do not find convincing the conclusion of the Joint Committee on Parliamentary Privilege (at paragraph 168) that the impact on Article IX of trying cases involving corruption in Parliament under the general law can be mitigated because there will be few prosecutions and fewer occasions on which "proceedings in Parliament" will need to be traversed. Back

13   The disapproval which greeted and still surrounds that section is evidence of (at the very least) "uneasiness". The Joint Committee on Parliamentary Privilege, at paragraph 68, describes the section as "a fundamental flaw . . . [which] undermines the basis of privilege . . . ". Evidence on which such a conclusion was based no doubt included that given by witnesses as diverse in public responsibilities as the President of the Legislative Council of Western Australia, who hoped that before anyone in his jurisdiction found out what the law was, the UK Parliament would have altered it (Evidence, volume 2, page 93 and Q 376-77); and the Lord President of the Court of Session: "obviously a rather ad hoc measure" (Q663). A further inroad into article IX is the Witnesses (Public Inquiries) Protection Act 1892 which imposes penalties on those who "punish, damnify or injure" witnesses before parliamentary committees on account of their evidence: but no prosecutions under the Act have ever been taken. Back

14   C J (1547-1628) 510. Back

15   See paragraph 165 of the report of the Joint Committee on Parliamentary Privilege. Back

16   All the American colonial legislatures regarded British privilege law as relevant, though none, it seems, so faithfully adopted the text of Article IX as Congress. Perhaps the concept got into the draft Constitution indirectly through Precedents of Proceedings of the House of Commons by John Hatsell, Clerk of the House, 1760-1820. Thomas Jefferson certainly took parts of his Manual of Parliamentary Practice from Hatsell, regarding the latter's work as "most valuable" and "pre-eminent" among his parliamentary sources. Back

17   See Doe v McMillan, 412 US 306 at 312-13 (1973). Back

18   408 US 507. Back

19   "Legislative acts" may be regarded as broadly equivalent to "proceedings in Parliament" in the UK. They include, apart obviously from activity in the Chamber or a committee, matters which are "an integral part of the deliberative and communicative processes by which members participate in committee or House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House" (Gravel v United States, 408 US 606 at 625 (1972). See also Eastland v United States Servicemen's Fund 421 US 491 at 504 (1975). Back

20   United States v Brewster at 511. Back

21   The decision in Brewster limited that in US v Johnson (383 US 169 at 185 (1966))-the first of the "speech or debate" cases involving criminal immunity-where motivation and later action were seen as more closely linked. The Brewster judgement was quoted with approval by Dr Geoffrey Marshall in Joint Committee on Parliamentary Privilege, Evidence volume 2, page 204. Back

22   442 US 477 (1979). Back

23   18 USC 201. Members of Congress are explicitly included within the statutory scope of "public officials" who may not accept a bribe in return for performing an official act. Back

24   US v Helstoski at 489. Back

25   28 F 3d. 283. Back

26   Clarification of the Law relating to the Bribery of Members of Parliament, Annex, paragraph 10:" It is unclear whether there is a read-across from that case [sc US v Brewster] to the position in the United Kingdom." Back

27   Parliamentary Practice in New Zealand, David McGee (1994) page 491. Back

28   Joint Committee on Parliamentary Practice, Evidence volume 3, page 78. Back

29   Odgers, Australian Senate Practice, 9th edition, 1999, page 557. Back

30   Joint Committee on Parliamentary Practice, Evidence volume 3, page 59. The law in the various Australian states is also to be found in that volume. Back

31   Odgers op cit page 40. Back

32   Maingot, Parliamentary Privilege in Canada, 1997, page 84. Back

33   P V Narasimha Rao v State, A I R 1988 Supreme Court 2120. Back


 
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