Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 260-279)


21 MAY 2003

  Q260  Chairman: Can I go back to the comparison between what we have now in the United States on the one hand and other Commonwealth countries on the other, is the small number of cases we have here replicated in the United States or in the other Commonwealth countries?

  Professor Sir William McKay: Certainly in the other Commonwealth countries we know of very, very few. When I spoke to the Canadians they knew of none at all. Now across the border there are three, the three which I mentioned, two in the Supreme Court and one is the US Court of Appeals since 1970. They are not very prevalent anywhere.

  Q261  Chairman: The agreement, as Lord Carlisle pointed out, is the distinction between the agreement to the act and the actual act which seems to be capable of being very difficult to apply. Where the Americans have drawn this distinction are you aware of any cases where the prosecution has failed or has not been not brought because the evidence of the act could not be admitted, even though the evidence of the agreement could be?

  Professor Sir William McKay: Not in the superior courts, not in the Supreme Court or the Court of Appeals. I cannot answer for state courts.

  Q262  Chairman: This can be brought and prosecuted in the lower courts?

  Professor Sir William McKay: Yes.[34]

  Q263  Chairman: There is no evidence here.

  Professor Sir William McKay: I do not think so.

  Q264  Chairman: That is quite interesting. One of the matters we have already mentioned is the question of parliamentary privilege, I would like your views on what is said by the Clerk of the Parliaments, is he troubled about the erosion of freedom of speech in Parliament? Obviously this is a balance that we have to worry about here, freedom of speech and ensuring that crime does get punished. He says that if we adopt Clause 12 in its present form this will be the third serious erosion of Article 9, the other being Pepper v Hart and Section 13 of the Defamation Act, the present act not being reversed we essentially lose the privilege of freedom of speech altogether. Is Pepper v Hart an erosion of the freedom of speech?

  Professor Sir William McKay: It was felt to be so by myself in my previous incarnation. It would be interesting to know—perhaps research has been done—how far over the years since 1993 the limitations imposed by that decision have been observed in the lower courts. Anecdotal evidence is mixed.

  Q265  Chairman: It would be the interesting to see. As far as the House of Lords are concerned I would not have thought there was much erosion of the freedom of speech, either we do not look at or if we do on the whole we tend not to attach any importance to it because it was not relevant to the case. What do people feel about it? Do people still feel this is an erosion?

  Professor Sir William McKay: Yes, I think so. It is an irritant which like many others you learn to live with.

  Q266  Lord Waddington: Obviously you are very worried about the wholesale attack on Article 9, what would you say if instead of a provision such as appears in Clause 12 of the Draft Bill there was merely a statement that the record of what was said in Parliament could be introduced in evidence but the accuracy of that record could not be challenged? That would not cause any worry, whether it would help very much in bringing a prosecution is another matter, would that cause you any worries?

  Professor Sir William McKay: If I understand you correctly it would still allow one side or the other in court to ask a Member what he meant by what he said. I think that is too high a price to pay for the remedying of a very, very serious but very rare mischief.

  Q267  Lord Waddington: Would it actually be dangerous in reality. Let us get to the reality of it, if the prosecution could say: "This is what Hansard says and the law says" that cannot be challenged, it cannot be alleged that it is an inaccurate record and you, members of the jury, can draw what inferences you think are proper from the fact that this is what appears in the parliamentary record, can that really be said to be a terrible attack on the freedom of speech of the Member of Parliament?

  Professor Sir William McKay: I would say so.

  Q268  Chairman: Would Members be less willing to speak freely in Parliament?

  Professor Sir William McKay: I think they would. The Member who has the floor does not need to be within a million miles of corruption he just needs to be talking about it or an instant case or a case that comes on next year, a constituency problem which at the time the Member speaks he has no conception will fetch up in the courts.

  Q269  Mr Shepherd: You have no examples of this?

  Professor Sir William McKay: No. If I may say so that does not seem to go to the merits of the argument except insofar as it demonstrates the rarity of the mischief.

  Q270  Lord Carlisle of Bucklow: So far we have been discussing it on the basis of whether you had proved a prosecution, let us look it at it from the other side, proving the innocence, the extent that one has to prove innocence. An individual is alleged to have given a corruption bribe to someone to act for them, and he says: "That was not my intention, if you look at the question asked it had no relation to the purpose I am said to have been pursuing", can he not go to the wording in Hansard at least to show that the allegation that is being made against him was not in actual fact true?

  Professor Sir William McKay: You have put your finger on it, this is a very difficult thing to do. It is just that on balance—

  Q271  Lord Carlisle of Bucklow: It might lead to the wrongful conviction of an innocent individual.

  Professor Sir William McKay: One would hope that the evidence which was germane to the alleged compact between the apparent briber and the apparent receiver of the bribe would be sufficient to throw up the character of that agreement.

  Q272  Lord Carlisle of Bucklow: Without reference to parliamentary procedure?

  Professor Sir William McKay: Without reference, exactly.

  Q273  Vera Baird: Sir William, the potential solution to that would be to entitle the Member to waive privilege, the trouble is that people would then draw an inference?

  Professor Sir William McKay: Yes. All you need to do was to bribe two Members and then one of them would waive privilege and the other would not. That is in effect the Defamation Act solution. The Joint Committee of Parliamentary Privilege has summed up very succinctly the arguments against that. It is like trench warfare. If the protection of Article 9 is broken into, your position is very much weaker than if you have untouched protection.

  Q274  Chairman: Going back to the freedom of speech point you made, if Parliament adopted an alternative option that you mentioned, like an investigation by Parliament itself or by a committee would that have less effect on freedom of speech or the same?

  Professor Sir William McKay: I think by reason of the inability of either or both Houses to conduct a fully acceptable and fair trial procedure I think the expedience or reliance on parliamentary law is just a non-starter.

  Q275  Chairman: A Committee of this kind would not be as effective as the court to deal with this?

  Professor Sir William McKay: I do not think it would.

  Q276  Chairman: If it did deal with it or you accepted the idea this might have a less inhibiting effect on the freedom of speech?

  Professor Sir William McKay: Certainly. If the law of Parliament, which has traditionally disciplined Members, could be made effective to do that today, if Members had enough time, enough skills to do this, then all of the problems would be solved

  Q277  Chairman: All?

  Professor Sir William McKay: Yes.

  Q278  Lord Waddington: You cannot have a corruption case without there being two people involved, the chap who offers the bribe and the chap who accepts the bribe. As the person who offers the bribe is an ordinary citizen who is not a Member of Parliament is that inconceivable that you can have a procedure within Parliament whereby an ordinary citizen was tried by a parliamentarian rather than by the ordinary courts of the land?

  Professor Sir William McKay: This is one of the objections.

  Q279  Lord Waddington: It is a non-starter.

  Professor Sir William McKay: It is logically splendid but practically null.

34   Note by witness: I did not intend by this reply to imply that the jurisprudence of US state courts and that of superior courts are in any way different so far as distinguishing between agreement and act concerned. As I said in response to question 261, I have only a limited knowledge of the former. Back

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