II. CORRUPTION AND IMPROPRIETY
33. Corruption or similar impropriety by
a Member in the performance of his or her duties is a contempt.
It affronts the dignity of the House, and is a perversion of the
parliamentary process: on the metaphysical or the practical level
it merits punishment. Most cases of corruption in which the House
has proceeded in this way, however, are some time in the past.
For decades, the House has usually not invariably
preferred to regard actions of this kind not as classical contempts
but as "conduct unbecoming"
though the disciplinary proceedings to which the wrongful
actions give rise and the sanctions available are broadly the
same whichever description is used. This approach has been substantially
reinforced by recent developments: the Committee of Privileges
has become the Committee on Standards and Privileges, and
reports are made to it by the newly-appointed Commissioner for
Standards. Thorough review of the House's rules and expectations
in the matter of transparency in the declaration of interests
has led to specific changes and to the drawing up of a Code of
This sets out general prescriptions for Members' honesty, integrity
and accountability in all aspects of parliamentary life.
34. Simultaneous with these developments
in Parliament was the growth of concern outside the House that
corrupt behaviour by Members in the exercise of their parliamentary
responsibilities should be within the criminal law (if it was
not already there), and not left to the law of Parliament. The
Royal Commission on Standards of Conduct in Public Life in 1975,
presided over by Lord Salmon, thought that bribery of a Member
should be brought within the ambit of the criminal law.
The Nolan Committee on Standards in Public Life in 1995
believed that the law on the offer to and receiving of a bribe
by a Member ought to be clarified. The Law Commission has provisionally
concluded that the law of corruption (in general) is in an unsatisfactory
state and that the common law and statutory offences of corruption
should be re-stated in a modern statute.
As regards Parliament, the Commission commented:
whether Members of Parliament are subject
to the criminal law of corruption and more particularly whether
they should be are both contentious issues.
35. The case brought recently against a
Member for misuse of public office is mentioned elsewhere (paragraph
11) in the context of the interpretation of "proceedings
in Parliament". In this context, it should be added that
the charge involved whether benefits the Member was alleged to
have received ought to be regarded as improper inducements to
affect his conduct as a Member. The defence argued that what was
alleged was not an offence known to the common law even
the prosecution agreed that there was no precedent in the United
Kingdom and that in any case it was one over which Parliament,
not the court, had jurisdiction. The judge concluded that the
offence was known to the common law; that it would be a common
law offence for a Member to accept a bribe as well as for someone
to offer it; and that in the case before the court, no privilege
under article IX could be claimed. He said: "that a Member
of Parliament against whom there is a prima facie case of corruption
should be immune from prosecution in the courts of law is to my
mind an unacceptable proposition at the present time".
36. Notwithstanding the action taken by
the House in establishing new procedures in 1995 and approving
a Code of Conduct, the difficulty of concurrent jurisdiction remains.
The House's position is not yet fully settled. The Committee on
Standards and Privileges is undertaking further consideration
of its role as an appeal body when the findings of the Commissioner
for Standards are challenged. So far as the courts are concerned,
no case has been brought before them where the judgment in the
case referred to in the preceding paragraph could be applied.
Equally significantly, no case has ever come before the courts
where the actions corruptly procured included "proceedings
in Parliament", specially protected by article IX.
37. The Select Committee on Standards in
Public Life recommended that the Law Commission should review
the common and statute law relating to bribery with specific reference
to Members of Parliament
(see also paragraph 34). The recommendation was accepted in a
slightly different form and the Home Office has asked the relevant
parliamentary committees for their views, on the basis of a consultation
Four options are offered leaving bribery of Members to
be dealt with by privilege and the law of Parliament; leaving
it to the criminal law; dividing objectionable conduct between
the two; and making criminal proceedings subject to the approval
38. Resolution of the concurrent jurisdiction
issue is far from easy. The disadvantages implicit in the first
option leaving offenders to be dealt with in Parliament
are that the House and its Members are unlikely to be
qualified or indeed to wish to turn themselves into a court of
law. Even if a sufficient number were qualified and prepared to
give up the necessary time, and the House adopted for this purpose
the rules of evidence and other protective provisions which obtain
in the courts, there are always by definition at least two parties
involved in a corrupt transaction. How could the House try those
not Members who were accused of having offered the corrupt consideration?
They could hardly be called to account separately from the Member
accused of receiving it. A committee might be appointed which
was thought capable of hearing and determining a serious criminal
charge of this kind against a Member: but could the House as a
whole find the time to consider the evidence in order to give
its judgment in any appeal? Limitations on the House's powers
to award punishment (see paragraphs 31-32) would have to be removed,
so that offenders who were Members could receive the same order
of sentence as those who were not. Finally, even if a parliamentary
means could be devised which would solve these problems, would
it be able to convince public opinion of its even-handedness?
39. The second option the criminal
law would imply that the House would have for the first
time to accept that a court should be able to inquire in detail
into a Member's motives for some activity which is part of proceedings
in Parliament a speech in the Chamber, for instance
but is suspected of having been subject to improper influence.
If corruption trials involving Members' actions as Members were
simply handed over to the courts, there would be natural anxiety
about the possibility of cross-examination challenging the motives
of Members who are not under suspicion. In a major case, it would
be hard to put any limit on the papers the court was entitled
to see, or the number of Members whose evidence might be called.
The courts would be drawn into an interpretation of the rules
and conventions of the House. It might be argued that if the contempt
of bribery were withdrawn from the jurisdiction of the House,
other cognate means of perverting the House's proceedings
intimidation or molestation for example should go with
it. In short, this path would cut directly across the protection
given for three hundred years by article IX, and by pre-statutory
claims for freedom of speech long before that.
40. The third option tries to bridge the
gap by suggesting a prior distinction between conduct which should
fall to the process of the criminal law and that falling to Parliament.
Each House would come to resolutions determining that a particular
kind of conduct ought to be dealt with by the parliamentary and
not criminal law, and if such a case came before the courts their
task would be simply to decide whether the conduct complained
of had been retained by the House. This would diminish but it
would not dispose of the problems associated with the House's
assumption of a criminal jurisdiction mentioned in paragraph 38.
41. Fourthly, it might be for the House
to decide in a particular case whether criminal charges should
be brought or the issue should be dealt with by the House. There
would be a presumption that the House would take responsibility
unless it resolved to the contrary. In assessing this scheme,
the consultation paper itself mentions the possibility that the
public might regard the critical decision as party-politically
motivated; that the decision could not be sensibly taken until
after an investigation and a decision to prosecute; and it might
involve debate over the whole area of the charge, which would
prejudice later proceedings either in court or in the House. Finally,
like the preceding option, it would not solve the difficulties
of the House as a court of law.
42. Members may wish to consider a further
possibility which would bear a resemblance to the nineteenth century
solution adopted to deal with disputed elections, where the House
realised that its age-old privilege of determining these cases
had become unsustainable. The decisions were too difficult and
too politicised. They were therefore turned over by statute (the
Parliamentary Elections Act 1868) to the courts, with an appropriate
residual interest on the part of the House.
43. In principle, allegations of corruption
on the part of a Member would under this proposal be a matter
for the criminal courts. Paragraph 39 has indicated where the
problem with that solution lies in the compromising of
the protection given by article IX. It may be worth considering
whether that compromise has to be accepted. The House cannot preserve
statutory protection of freedom of speech in all its fullness
without also taking steps itself to sift and come to a judgment
on a Member's use of that freedom, when a charge of criminal wrongdoing
has been laid. If, as seems the case, the House cannot take those
steps, logic demands that the exercise of freedom of speech in
such instances must be subjected to some other body. But if concessions
of this sort are to made, they should be made in a way which limits
and minimises the inroads into the right of Parliament.
44. Two possibilities present themselves.
Consideration might be given to a procedure by which, when a charge
of criminal corruption was laid against a Member, and that charge
involved or was likely to involve proceedings in Parliament
not simply actions in the discharge of the Member's functions
in that capacity the House might be invited to apply to
that case a statutory formula relaxing the provisions of article
IX. Such a form of words could be adapted from that used in section
13 of the Defamation Act 1996 (see paragraph 15). It would apply
only to the case and to the Member in question and would give
rise to no presumptions about its subsequent applicability. The
decision whether or not to allow a prosecution to proceed would
be the House's alone: the "waiver" of the statutory
protection would not be in the hands of an individual Member.
Damaging discussion of the case itself on the motion to vary the
effect of article IX could be avoided by the Chair's strict application
for the sub judice rule, which could be reviewed to ensure
its adequacy for this purpose. The rights of those Members and
others covered by article IX against whom charges were not laid,
preservation of which may well be regarded as the touchstone of
a reasonable solution, would not be at risk. A resolution of the
House, reiterating that conduct unbecoming but not criminal
would remain a matter of parliamentary review and decision
and not that of the courts, ought to be respected by judges, given
their many observations over the years, repeated in the most recent
cases, that the courts desire not to upset the "comity"
between themselves and Parliament (see paragraphs 6-7). The Code
of Conduct might need to be reviewed in the light of any such
procedure. Statutory definition of "proceedings in Parliament"
is not a sine qua non of this suggestion, but it would
of course be useful.
45. Alternatively, a definition of "proceedings
in Parliament" might be attempted. Those activities which
fell within it would be distinguished clearly from the "functions
of a Member in that capacity". Corruption in the latter area
would be a specifically defined offence and so without question
a matter for the criminal courts. It is understood that this regime
applies in Canada and Australia, and has not to my knowledge given
rise to problems where allegations are made touching on both "proceedings
in Parliament" (and therefore article IX) and the wider compass
of "functions of a Member". Subject to that, this approach
would preserve the absolute character of the protection of article
IX, though the problem would remain of how the House could adequately
deal with alleged corruption were it to arise as it has
not so far done within the definition of "proceedings".
46. If under either of these schemes a Member
were found guilty of the offence alleged, and it appeared that
questions of conduct (not law) had arisen which were not dealt
with by the courts (see paragraph 44), the House would be able
to take such steps as seemed necessary. If a Member were found
guilty of an offence, it would be of course for the good sense
of the House whether to take these steps or to follow the principle
of not punishing twice for the same offence. If the charge found
proved were a very serious one, the House would of course retain
its right to expel a Member, even if (for example) any term of
imprisonment imposed did not itself imply disqualification. The
corollary of these considerations might be that, where in the
case of investigation of matters of conduct in Parliament it became
clear that an action of a criminally corrupt character might have
been committed, the evidence would have to be turned over to a
competent prosecuting authority which would decide whether or
not to institute an investigation.
42 See Erskine May, pages 112-115. The principal resolution
of the House in this matter dates from 1695, when the House resolved
that "the offer of money or other advantage to any Member
of Parliament for the promoting of any matter whatsoever, depending
or to be transacted in Parliament, is a high crime and misdemeanour"
(CJ (1693-97) 331). Back
Of the three Members whose conduct in connection with the affairs
of an individual convicted for corruption was reported on by a
select committee in 1977, one was held to be guilty of a contempt,
and the other two were judged to have conducted themselves in
a manner inconsistent with the standards the House was entitled
to expect (ibid page 113). Back
HC 688 (1995-96).
Cmnd 6524, pages 96-99. Back
Cm 2850-I, paragraph 2. 104. Back
Law Commission consultation paper No. 145, Corruption,
paragraph 4, 18. Back
First Report, HC 637 (1994-95) at paragraph 52. Back
Clarification of the law relating to Bribery of Members of
Parliament, December 1996. Back