Joint Committee on The Draft Corruption Bill Minutes of Evidence


Examination of Witness (Questions 226-239)

PROFESSOR SIR WILLIAM MCKAY KCB

21 MAY 2003

  Q226  Chairman: Sir William, thank you very much for coming and for your very helpful paper and your analysis of the issues. Can I start with a rather general question which I would like to clear in my own mind, how broadly should we construe proceedings in Parliament?

  Professor Sir William McKay: I think, my Lord Chairman, the indication given to us from Australia through the Parliamentary Privileges Act, imported for practical purposes into this country by the judgment in Prebble, gets it about right, both in scope and in character. I would expect that were we ever to legislate, as I indeed I suggested to the Joint Committee on Parliamentary Privilege some years ago, our formulation would owe much to, if not replicate the Australian model.

  Q227  Chairman: Have you considered the sort of activities which might set the scene for corruption which were parliamentary activities of a kind very broadly construed which were not proceedings within the definition? What would be a good example?

  Professor Sir William McKay: I can see a contractor who is anxious improperly to secure influence with a contract-awarding department would say to the Member: "Lean on the department", or even, more simply: "Get me a series of interviews with the minister or senior officials and you will have a ticket for Seville".

  Q228  Chairman: Some questions pretty obviously could not be asked, there may be areas which those of us who have not had long experience in the Commons or here might find difficult, what sort of things would be barred? What sort of questions would be barred in a court action as being covered by proceedings in parliamentary defence?

  Professor Sir William McKay: The difficulty, the really hard case would be the prohibition on drawing inferences from something that happened in either House. It is not so much the activity—that is easy enough—but it is the inferences from undoubted parliamentary proceedings which it is vital, it seems to me, should not be contested in the courts. The dog that did not bark, the Member who having being bribed did not rise in his or her place.

  Q229  Chairman: Can you think of a case or preferably cases where perhaps proceedings would have been brought that were not brought because of the embargo on questions about parliamentary proceedings?

  Professor Sir William McKay: I cannot think of any in my own experience of that character. I can think of some which one heard of at various stages of their development and in varying detail, in which we said, the clerks said: "Go away and get your evidence elsewhere". I am not always sure whether the outcome was or was not a prosecution.

  Q230  Chairman: It would be very interesting if there were any statistics or even anecdotal data as to the kind of case and the number of cases in which proceedings had to be brought because you could not prove them without relying on parliamentary evidence.

  Professor Sir William McKay: Nothing comes to mind. I would simply draw the Committee's attention to the remark in the report of the Parliamentary Joint Committee: "These are rare events".

  Q231  Chairman: There are not many of these cases that came to your knowledge—

  Professor Sir William McKay: That is right.

  Q232  Chairman: —as a clerk or in your earlier capacity?

  Professor Sir William McKay: That is right.

  Q233  Chairman: What sort of number over the years?

  Professor Sir William McKay: In my last 10 years in service two, perhaps, maybe a single one. Two if you include the Greenway case, which we were involved in discussing which did in fact result in a prosecution.

  Q234  Chairman: We had the dog that would not bark, what about the sledgehammer that cracked the nut, if we propose the law should be changed in view of a very small number of cases?

  Professor Sir William McKay: You would need a mighty sledgehammer to crack an almost invisible nut. This is the nub of the case which I tried to make to the Committee. The consequences of partial withdrawing of the protection of Article 9 would very, very rarely fall on the corrupt Member of either House. They would be much more likely to fall when the Corruption Bill, in whatever form it is introduced, in the House of Commons in particular on the Member who has got a corruption case going on in his constituency, nothing to do whatever with Parliament, and that Member makes a contribution to debate and either by accident or design says something about the case before the courts. This is not caught by the sub judice rule. The House is legislating. If the law were changed along these lines I would imagine any defence counsel would be anxious to throw a little smoke around and ask for the Member's attendance to discuss what it was he said, how he knew it and what his motives were. This is, it seems to me, exactly what the Bill of Rights is intended to prevent happening. The Member himself is not corrupt but having lost the protection of Article 9 he or she is asked to explain themselves before the courts.

  Q235  Chairman: You say there are very few cases, without giving names or too much detail what sort of area were the cases that you know about? What kind of corruption?

  Professor Sir William McKay: I think one of them I can remember did not involve Members but other participants in the proceedings in Parliament, because as you know Article 9 will cover not only Members but officers, witnesses and petitioners.

  Q236  Chairman: Was that an exchange for money or some other favour?

  Professor Sir William McKay: I do not think I ever knew.

  Q237  Chairman: What is corruption?

  Professor Sir William McKay: I am not qualified to give you an answer I am afraid.

  Q238  Chairman: What would you from your previous incarnation or your role as a professor or as a citizen see as the essence of corruption, what is it all about really?

  Professor Sir William McKay: It is the dissonance between the public responsibility which rests on the Member of either House and the motives following which that public responsibility is acted on. The motives are wrong. There is an advantage to be gained which is not a public advantage but a private advantage.

  Q239  Lord Waddington: Would you agree, Sir William, perhaps some of the problems we are now facing we would not be facing but for what a layman might think are rather strained interpretation that the courts have put on Article 9? On the face of it one would not have thought that one was impeaching or questioning the truth of what was said in Parliament or the accuracy of the record of what was said in Parliament if one was merely adducing evidence of what was said in Parliament as part of one's case against a Member for instance in a corruption case. Have we got ourselves into this terrible mess because the courts have found that Article 9 actually means something which the clear words of Article 9 do not say?

  Professor Sir William McKay: I think, my Lord, this is the view that was taken in the 1980s in Australia, that it was perfectly possible to draw inferences from the parliamentary record as long as you did not expose the participant in the proceedings to a criminal liability.


 
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