Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 240-259)


21 MAY 2003

  Q240  Lord Carlisle of Bucklow: If the parliamentary record is privileged how do you draw inference from it if that cannot go before the board?

  Professor Sir William McKay: The House of Commons, and I suspect also the Lords, has always allowed the record to be brought into court. This is an answer to Lord Waddington. What was objected to was what happened to it when it got there, you were not to draw inferences from it. In the 1980s some Australian courts allowed inferences to be drawn and this was the genesis of the Parliamentary Privileges Act in Australia which has come by a backwater to us, which put back the traditional reading of Article 9, that you cannot impeach or question. You cannot get access to the motives of the Member or anybody else participating in the proceedings.

  Lord Waddington: That really leads straight on to the second question, does it not?

  Q241  Chairman: I was just going to ask you, you mentioned parliamentary privilege, it was amended by the Parliamentary Joint Committee in 1999 that there should be a statutory definition of parliamentary privilege, do you agree with that suggestion?

  Professor Sir William McKay: I certainly agree with the suggestion that we have now reached the stage where statutory definition is on balance a necessary evil.

  Q242  Chairman: Then we would not need to look at Article 9 if there was a statutory definition.

  Professor Sir William McKay: Certainly. My suggestion in that eventuality, were my advice to be asked, would be, to take the Australian model and carry over with the Australian model the ban on the imputation of motives in court.

  Q243  Chairman: What would you suggest is the right definition?

  Professor Sir William McKay: I think I would rest on what the Australians have done, which the Committee will find in the documents.

  Q244  Chairman: In your view would it be a good idea if we were to recommend there should be a definition in this Act for parliamentary privilege or is that a separate Act?

  Professor Sir William McKay: It is no longer my duty to advise Members or the chair.

  Q245  Chairman: I was not asking your advise, but what do you think?

  Professor Sir William McKay: A Bill about corruption cannot, will not, should not include a definition of parliamentary proceedings.

  Q246  Lord Waddington: I am trying to summarise your position and then we will know, you do not see any objection to charges of corruption being brought against Members of Parliament and being tried in ordinary courts of the land but, (a) you do not think it is necessary to attack Article 9 in order to do that and (b), the attack on Article 9 is far wider than would be necessary if it was thought necessary to attack it in order to make it possible to bring prosecutions against Members, because it also allows evidence as to what happens in parliamentary proceedings to be used to support a prosecution of somebody else and it also enables some innocent MP against whom no allegation has been made to be cross-examined about what he said in Parliament. Thirdly, the proposal in this Bill does not actually follow the recommendations of the Joint Committee, which did not recommend that this matter should be tackled in isolation but should be tackled as part of a wider measure defining parliamentary privilege?

  Professor Sir William McKay: Indeed, my Lord, that is the case.

  Q247  Lord Waddington: Is that the summary?

  Professor Sir William McKay: There is a wonderful phrase in the report of the Joint Committee on Parliamentary Privilege that, if you do not buy the whole package privilege will become an amalgam of modern statute and ancient learning.

  Q248  Lord Carlisle of Bucklow: You have accepted what Lord Waddington says that the bar to a prosecution of a Member of Parliament is one thing and you agree should disappear or should go and they should be subject to prosecution but as long as you have Article 9 how do you prove the corruption if it is in any way related to someone who receives a sum of money for the purpose of promoting a particular cause which he otherwise would not promote?

  Professor Sir William McKay: The American experience suggests that you can try the improper agreement to do the thing. I have tried to put in several quotations from Brewster. Chief Justice Burger was saying promises are not legislative acts, promises are not proceedings in Parliament. Try the improper promise, the agreement to do the wrong thing. Their experience in Brewster, in the seventies, and I also quote Helstoski and McDade which happened in the 90s, is that convictions were obtained from entry into an improper contract, although the completion of the bargain in Congress was not shown.

  Q249  Lord Carlisle of Bucklow: Is the completion in Parliament a necessary part of the evidence to show the original agreement?

  Professor Sir William McKay: The Americans have not found it so.

  Q250  Lord Carlisle of Bucklow: You said that you can somehow distinguish between the act of passing the money and the resultant advantage that it was actually given to that person, the ultimate advantage arises out of parliamentary proceedings?

  Professor Sir William McKay: The ultimate advantage would be the proceedings itself. It would in the case of Brewster be postal legislation of the kind that the persons who were bribing Brewster wanted. As I said, I have to confess it was not a unanimous judgment and despite what the majority of the court said, it was a shift in emphasise from the previous jurisprudence, but they got their conviction and they got other convictions.

  Q251  Chairman: The Brewster case, as you rightly point out in your paper, is very relevant to what we are looking at here and very important. Your view is that is as good as we have to look at at the moment. Is there any explanation why Commonwealth countries have not followed Brewster or come to the same result as Brewster?

  Professor Sir William McKay: I think they have not had the necessity to make the difficult judgments.

  Q252  Chairman: Would the result in the United States be very different from Australia, New Zealand or Canada because of the lack of the Brewster judgment or would you think the result would probably be much the same?

  Professor Sir William McKay: I think the result would be much the same. My evidence was saying, and this is only from a lifetime of gossip with colleagues across the Commonwealth, sometimes in conference rooms and sometimes in smoke-filled bars, that the answer would be that we all come to the same conclusion if we could.

  Q253  Mr Stinchcombe: You have said that there would be no need to adduce evidence of parliamentary proceedings because you could attack the agreement itself, how could you if the offender was not corrupt in obtaining an advantage but was corrupt in confirming an advantage through parliamentary activity?

  Professor Sir William McKay: This is not an area where I am an expert, but could you not tackle that by the way you framed the offence?

  Q254  Mr Stinchcombe: Working within the words of the clause as currently drafted the evidence is he confers an advantage, you have to prove the conference of an advantage. If the conference of an advantage was for example promoting a 10 Minute Rule Bill how would you prove that in parliamentary proceedings?

  Professor Sir William McKay: As I said, this parliamentary aspect of the corruption legislation would have to be taken out and dealt with separately.

  Mr Stinchcombe: I see.

  Q255  Vera Baird: There is a disadvantage to an MP against him as an allegation, is there not, in the sense that if the allegations are compact he cannot rely on parliamentary proceedings to show that he said the opposite of what the compact was set up to make him say?

  Professor Sir William McKay: I thought about that. I was anxious to try to meet that possibility. I was on the point of saying, let the courts see as a matter of fact that the 10 Minute Rule Bill went ahead and the member for Tolpuddle did not speak against it. Then, a moment's thought, and I concluded that that is drawing an inference, and you could not do it. Of course, as I say in one of the later paragraphs, yes, there are difficulties with the proposition I am putting forward, I simply measure the loss if we do not get that right against the loss if we bring the sledgehammer down on Article 9. The number of cases where this is likely to arise would be so few and the protection given by Article 9 would be so great there may be some things that we just have to hope do not significantly happen.

  Q256  Baroness Whitaker: I have a really ignorant question, is it really according to natural justice to draw prejudicial inference without the person who is the subject of the adverse inference having an opportunity to be cross-examined? Is that not what ought to happen?

  Professor Sir William McKay: Yes. Hamilton v Al Fayed is a good example of this, and the problems to which that gave rise, not least the Defamation Act. I would suspect that in most cases if the situation which you mentioned arose and a prosecution were brought on the limited front which I am suggesting, those whose reputations were prejudiced would have their day in court.

  Q257  Baroness Whitaker: So what they said in Parliament, which was the nub of the whole matter, could not be cross-examined?

  Professor Sir William McKay: What I am trying to argue for is the nub of the accusation would not be what happened in Parliament, the nub of the allegations would be: "You", the Member for Tolpuddle, "agreed to do a bad thing".

  Q258  Baroness Whitaker: That might be the only evidence of it.

  Professor Sir William McKay: That might be the only evidence of it but it satisfied the Americans.

  Q259  Mr Shepherd: Hamilton v Al Fayed was defamation.

  Professor Sir William McKay: The Defamation Act is limited to a civil action of that kind.

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