Memorandum by the Crown Prosecution Service |
The Crown Prosecution Service (CPS) welcomes
the opportunity to contribute to the Joint Committee's review
of parliamentary privilege. Many of the issues to be considered
by the Joint Committee, however, involve matters that are essentially
the concern of those who formulate public policy; they are not
matters of legal expertise. We have, therefore, restricted our
comments below to the practical aspects of those issues which
are of direct relevance to the prosecution process.
The extent to which Members of Parliament are
presently subject to the criminal law of bribery is unsettled.
The Salmon Report (the report of the Royal Commission on Standards
of Conduct in Public Life 1974-76) concluded that neither statutory
law nor the common law applied to bribery or attempted bribery
of a Member of Parliament. It is clear that a Member of Parliament
cannot be, in that capacity, an agent for the purposes of the
Prevention of Corruption Act 1906. It is equally clear that Parliament
is not a public body for the purposes of the Public Bodies Corrupt
Practices Act 1889. The position at common law, however, is less
clear. Although Mr Justice Buckley ruled during the trial of Harry
Greenway MP in 1992 that the common law offence of bribery covers
bribery of a Member of Parliament, that was a preliminary ruling
at first instance and was not tested by the appellate courts.
The experience of the CPS is that Article 9
of the Bill of Rights acts as a serious impediment in the effective
prosecution of corruption when the allegation is that the defendant
has acted corruptly in connection with his or her duties as a
Member of Parliament. If Members of Parliament are to be successfully
prosecuted for corrupt conduct, the protection conferred by Article
9 must be either narrower in scope, or qualified.
The current position as regards the use of the
Official Report and the published reports and evidence of Committees
(Hansard) provides a good example of the way the restrictions
imposed by Article 9 may presently hamper a proposed prosecution.
By resolutions of the House of Commons on 31
October 1980, leave was given for reference to be made in future
court proceedings to Hansard without a petition for leave. Article
9, however, provides that proceedings in Parliament are not to
be "impeached or questioned" outside Parliament. In
order for evidence of proceedings in Parliament to be probative
of the corrupt circumstances, should they exist, in which, for
example, a question is asked, or a statement made, it will invariably
be necessary to enquire as to the motives behind the question
or statement. The present position is that, if the reason for
adducing Hansard is to invite inferences as to those motives,
the evidence should not be admitted, as to do so would amount
to a breach of Article 9.
Article 9 of the Bill of Rights presently affords
the protection of parliamentary privilege to "proceedings
in Parliament". The evidence supporting an allegation of
corrupt conduct on the part of a Member in connection with his
or her duties in that capacity may come from a wide variety of
documentary evidence, much of which will not necessarily be closely
associated with the primary functions of Parliament. The exact
scope of the phrase "proceedings in Parliament" is far
from clear. Accordingly, it is very difficult to assess the evidential
sufficiency of any particular case.
The situation with regard to the Register of
Members' Interests illustrates the problem. Despite authority
to the effect that the Register does not fall within the scope
of the phrase (Rost v Edwards and Others  WLR 1280 QB),
expert legal opinion is divided on the point.
Clarification of the scope of the phrase would
assist by facilitating a more accurate assessment of the evidence
available to the Crown in any individual case. Naturally, the
narrower the scope of the phrase the less parliamentary documentation
would be afforded the protection of parliamentary privilege and
the easier it would be to prosecute corrupt conduct on the part
of Members acting in that capacity.
6 February 1998