Examination of Witnesses (Questions 180
TUESDAY 27 JANUARY 1998
RIPPENGAL CB QC
Sir Patrick Cormack
180. Is there a case for saying that either
House should deal with its recalcitrant Members and if those Members
are then suspended it automatically should follow that all privilege
is lifted with the suspension and then Members should be subject
to the ordinary criminal law? Would that not be a sensible way
of dealing with it?
(Mr Davies) But at the outset the House would have
to take a decision which I suppose might prejudice any criminal
trial that followed. I imagine that it would also leave the problem
of Article IX of the Bill of Rights to be resolved because the
suspended Member would presumably wish to make reference to the
proceedings in Parliament.
181. As we are on paragraph 24 of the memorandum,
might I raise a question that has been increasingly troubling
me as proceedings have developed. It appears to be regarded as
axiomatic, certainly by the Home Secretary and I think possibly
in various other observations we have had, that if we go down
the route of making corruption a criminal offence, triable primarily
in the courts as far as Members of Parliament are concerned, this
necessarily involves an amendment of some sort to Article IX.
Could I just ask you to think about that for the moment as to
whether that is necessarily so, because it seems to me that in
relation to Members of Parliament there are I suppose four categories
of corruption that might arise. There is a corruption of a person
who happens to be a Member of Parliament but has nothing to do
with his political or parliamentary activities. He might be a
director of a company and might be corrupt in that capacity. That
clearly would be tried in a criminal court if we went down the
criminal route. There is the corruption of a Member of Parliament
that does not involve proceedings in Parliament as laid down by
Article IX and it might possibly require some consideration by
this Committee as to whether we should assist the courts by defining
proceedings in Parliament rather more closely than it is defined,
but that form of corruption would be a form of political corruption
still triable in the criminal courts even though Article IX were
in existence because it would not be proceedings in Parliament.
There is a third category where it would involve proceedings in
Parliament but only in a very limited sense in order to show that
a question was asked or a speech was made without comment or discussion
of the matter, where there is I think some authority to suggest
that that is permissible, despite the terms of Article IX, in
proceedings in the courts. Then there is the final category which
is obviously the most difficult one, where corruption of a Member
of Parliament does involve Article IX head on because it does
relate to something which clearly was due to proceedings in Parliament.
If one had a position in which the criminal courts had jurisdiction
for the offence of bribery as we in due course suggest it should
be defined, then all cases of alleged bribery would go first to
the criminal courts. In relation to the first three categories
the trial would go through. In relation to the fourth category
where Article IX appeared to be on the face of it clearly involved,
there would be discussion of a criminal court and a trial before
it started probably and objection to the jurisdiction on that
basis. It might I suppose take place later in the trial very occasionally
and there would be a certain waste of money involved, I can see
that, but where the objection was taken and the judge held it
to be well founded, he would decline jurisdiction and the case
would then be sent to the relevant House of Parliament for them
to proceed with the matter as part of their ordinary disciplinary
proceedings. Given that there are only probably going to be a
minute number of cases involved where a Member of Parliament is
alleged to have been corrupt, it follows that the number of cases
in the fourth category, where Article IX might be held to apply,
would be even more minute. Given that many of us have a perhaps
illogical and emotional attachment to Article IX and would rather
not see it amended again if we could avoid doing so, would there
be a possibility that we could proceed down the route of making
corruption a criminal offence and giving the criminal courts the
prime jurisdiction while still retaining Article IX in its present
(Mr Davies) I imagine that that is possible but it
would mean referring the matter back in certain cases to one or
other of the two Houses, and I personally have doubts as to whether
either House can properly discharge the trial of that Member,
particularly since the offerer of the bribe or the inducement
was a member of the public and the House would find it even harder
to deal adequately with that person. I accept that the incidence
of corruption in the fourth category is likely to be fairly remote,
particularly after the present spate of publicity. Members of
both Houses are going to be exceptionally careful about their
future behaviour. But it does seem to me that neither House is
properly equipped to conduct a criminal trial of this sort. Take
the case of opposed Private Bills relating to works, of five or
six years ago. Those took the nature of planning inquiries and
Members, particularly of the House of Commons, became more and
more reluctant to undertake that sort of work. The result was
the Transport and Works Act 1992 which transferred the jurisdiction
on the development of bridges and railways and the like to the
planning system. I suspect equally that Members of either House
would be very reluctant to embark on what could be a lengthy trial
of an issue.
182. One of the points made by the Home Secretary
last week was to the effect that the public perception in this
area really matters more than the actual number of cases which
might arise in the fourth of Lord Wigoder's categories. Have you
any comment to make on that?
(Mr Davies) Yes, I think that it is a matter of public
perception and, as Mr Rippengal said at the outset of this meeting,
it is a matter of hard choices. If Parliament wants to be seen
as squeaky clean, I think it has to accept that some of its jurisdiction
will have to be transferred to the courts.
Sir Patrick Cormack
183. It is not quite as simple as that, is it?
There are very profound constitutional implications if we go down
this route. I am not saying we should not go down this route.
I truthfully have not made up my mind yet. Not surprisingly, I
err on the conservative side, I am rather against changing things,
but there are profound constitutional implications and to change
something because of public perception seems to me not a terribly
good reason for making this major change. I am attracted very
much by what Lord Wigoder says and I also feel that it is possible
(and I welcome your comments on this) to deal with members of
the public. Members of the public after all can in other circumstances
be found guilty of contempt of Parliament and can be punished
by the Speaker in the House of Commons putting on the black cap
and delivering the sentence. I am not necessarily suggesting that
we extend that procedure but it can be done, can it not?
(Mr Davies) Yes, of course. I am not an expert on
the powers of the House of Commons to punish for contempt, and
I entirely accept the point you have made that public perception
may not be the best reason for changing a hallowed constitutional
principle, but the Bill of Rights was enacted 300 years ago to
deal with very different constitutional circumstances. One has
to consider therefore whether in the current climate of public
opinion its full rigour is still appropriate.
184. It is difficult enough for the Standards
and Privileges Committee to deal with a Member of Parliament objectively.
Inevitably political considerations are in people's minds, particularly
the nearer you are to an election. Secondly, any recommendations
made by the Privileges Committee itself have then to be endorsed
by a free vote in the House of Commons and the House has turned
recommendations down in the past. Bribery is a two-way process:
to bribe there has to be a briber, but, with respect to Sir Patrick
Cormack, the Privileges Committee has no meaningful power over
a member of the public. I think for example about the recent Hamilton
case. It was difficult enough dealing with the Hamilton side of
it. If we then had to deal with the Fayed side of it as well,
I think it would have been virtually impossible for us to fulfil
that task, particularly given the fact that he would have been
coming with his crop of lawyers and Hamilton with his and so on.
We would have been absolutely floundering there. I think the more
practical consideration is that it does not work very well, as
I said last week. It works all right in minor cases because it
is rough justice. Suspension in our House, you see, includes loss
of pay, so effectively an £850 a week fine is imposed as
well as suspension from the House of Commons. That does not apply
in the House of Lords so there is not the double sanction there.
Having served on both Privileges Committees, much as I would like
to preserve the powers of this House (and I want to as much as
we reasonably can) I think we are deceiving ourselves if we for
one moment think that what we offer in any way compares with what
a court of law offers in terms of a guarantee of even-handed justice.
(Mr Davies) Mr Williams, I think that is encapsulated
in the last sentence of paragraph 24 of the paper which says that
it is unrealistic to suppose that the House could deal at all
with the person offering the bribe.
Mr Williams: That is right.
185. Would a member of the general public have
any recourse elsewhere if he or she felt that they had suffered
as a result of the inquiry of one or other of the Houses into
such a case? I am thinking of the European Commission on Human
Rights for example.
(Mr Rippengal) One cannot rule out that possibility,
I suppose. They certainly would not have any in the courts in
the United Kingdom.
186. This has arisen, has it not, in relation
to the Maltese Assembly?
(Mr Rippengal) Yes.
187. And it has a bearing, does it not, on the
adequacy and fairness of any procedure adopted by the House in
this sort of field, if the person who is in effect making a private
complaint can then sit as a Member of the House adjudicating on
the particular area of which he is complaining and be part of
(Mr Rippengal) That was the precise case in Malta.
Mr Michie: Obviously we have not got a structure
in place at the moment on corruption and how it should be dealt
with. Can you envisage a situation where we do have a set of rules
and at that point it becomes a matter for the courts rather than
for the House, but unless the position is absolutely clear we
could have both Houses arguing for months in a Privileges Committee
whether in fact it is a matter for the courts or the House?
188. Yes. With the helpful division that Lord
Wigoder gave us of the court categories, this is the reverse mechanism
for the courts, which is where we act as a trigger for going into
the court system rather than the court system acting as an almost
mandatory trigger, automatically sending it back to an inadequate
system here. We can deal with people like the two Members who
got fined two pounds each for a question; we could deal with those
reasonably within the House and be seen to have dealt with them.
But with something bigger, and particularly where it involves
a member of the public as a co-conspirator, the Committee could
refer that to the court system. Inevitably, if a briber cannot
be dealt with here, equally he cannot be dealt with in the public
courts, in the general court system, unless he has the ability
to call the Member of Parliament he allegedly bribed to give evidence.
It would seem to me that this is conceivably a very useful development
of the categorisation we have had and might take us forward quite
a bit. We deal with the first three automatically but have a trigger
mechanism on the other side of the court/House of Commons divide.
(Mr Davies) The difficulty that I am in and I think
that Mr Rippengal is in is that we do not have much experience
of these matters because the House of Lords has not been, as far
as we know, affected in this way. We have not had meetings of
the Committee for Privileges in recent times and I am not certain
that we are the best people to advise about the issues of which
Members of the House of Commons, particularly those who have served
on the Standards and Privileges Committee, have had very recent
Lord Mayhew of Twysden
189. Would you be able to envisage the House
exercising a trigger mechanism in Lord Wigoder's fourth category
in a way which was sufficiently comprehensive to enable the full
character of a case to come out without doing it in a way which
prejudiced the future trial in a criminal court?
(Mr Rippengal) One of the problems is that we are
talking of a hard core of really serious corruption cases. It
seems to me that you need the full panoply of police powers, the
dawn raids on people's documents and so on, before you know whether
you are in that situation. Really, in a sense I cannot see how
the parliamentary mechanism is necessarily going to recognise
Sir Patrick Cormack: Taking up Mr Williams'
point, could it not recognise it in this way. There are many offences
which would indeed be offences, such as failure to declare and
so on, which Parliament can properly police and deal with. You
then come to what we are calling the fourth category. As I understand
it, what Mr Williams was saying was, let Parliament be your trigger,
and what would happen then, if I understand him correctly, is
that the Privileges and Standards Committee, or whatever body
was established for the purpose, would say, "This is too
complex"not necessarily that it is too serious"for
us to deal with it and therefore in this particular case we are
recommending to the House the lifting of such privileges or immunities
as might apply so that the courts can deal with it." I hope
I am not misinterpreting what Mr Williams said.
Mr Williams: No. What we are doing is not declaring
anyone guilty or innocent. It is rather like a reference to the
DPP. What you are saying is that this is a case that we are incapable
of investigating adequately, if it needs access to private papers
outside and that sort of thing, so the House can declare its own
incompetence if you like in dealing with it. That could be the
way of dealing with it without a presumption of guilt. We just
say, "We cannot investigate this adequately", such as
I think should perhaps have happened in the Hamilton case where
there was a need to get access to Fayed papers as well as Hamilton
papers. Then we say, "We hand it over to the normal system."
We refer it to the DPP perhaps or get the DPP to take the appropriate
Sir Patrick Cormack
190. And in so doing we would have to waive
privilege. And of course Mr Hamilton himself did get the House,
unwisely in my view, to allow him to have certain immunities,
did he not, so there is a precedent. In this case you would preserve
Article IX more or less intact.
(Mr Davies) The difficulty is that, as a member of
the Committee said, it is a political decision whether the Committee
for Privileges makes a recommendation to the House of Commons.
Then the House of Commons has got to vote on whether to accede
to that recommendation and therefore there is no guarantee that
the matter will be handed over.
191. There is no guarantee but it is less political
in a sense because it is not either party making a declaration
of guilt. It is the Committee making a declaration of competence
on the ability to investigate. That is a matter of fact. In the
Hamilton case clearly there were things we could not do that a
court could do. When we had to decide on whether to go on and
act in an appellate role, there was disagreement. I started off
saying we should do that. I eventually came round the other way
because I recognised that all we could do would be a complete
re-run of what the Commissioner would do. We had no more powers
than the Commissioner had. We would have had the same questions.
We had no extra information, no extra sources, no extra access
to documentation or anything of that sort, and then it seemed
to me that we were possibly entering into a barren exercise, so
the Committee was not able to do what a court would have done,
and that was a matter of observable fact.
(Mr Davies) I think Mr Williams has greater experience
of this issue than either of us does and I am not certain that
we are competent to give an answer on that point. If it is a matter
of just waiving the competence of the House of Commons to deal
with an issue, I suppose that is possible, but you are still in
the difficulty of being subject to the political process to some
extent and the courts not really having the right to make a charge
against the man.
Lord Mayhew of Twysden
192. Can I ask you to help me to pursue this
interesting development a little bit further. Let us suppose we
have a case where the relevant Committee in this House decides,
"It is too difficult; we wish to hand it over." If it
is handed over to the DPP, which was suggested, that would really
put the DPP in the position of what in the French system is called
a "juge d'instruction"; we would hand it over to a magistrate
who is the investigator and he goes and investigates it and at
the end of the day he decides whether there is enough to charge
or not. That would be a novel position for the Director to be
in, would it not? Exclusively the Director takes charge of a case
after a charge has been laid. It is true that the Director is
often consulted by the police as to whether there is enough evidence,
but there is a rather strong element of "juge d'instruction"
in that event. It would have been totally handed over to the police
(Mr Rippengal) Yes, it would have been.
Mr Williams: With respect, there has been a
charge made. A charge has been made to the Privileges Committee
and the Privileges Committee in this scenario considered that
it needed further investigation. It is a different type of charge.
Sir Patrick Cormack: It is not a criminal charge.
Lord Mayhew of Twysden: In the context of our
discussion would it not have to be a charge of offending against
some new criminal privilege which the Home Secretary will have
introduced and Parliament will have passed?
Chairman: I think this is in danger of becoming
a deliberation rather than questions to the witnesses. Lord Mayhew,
is there anything you would like to ask Mr Davies or Mr Rippengal
on the point?
Lord Mayhew of Twysden
193. The Home Secretary said in his modest way,
"I would be very foolish if I were to introduce my Bill without
knowing what this Committee is going to say about the question
of bribery of Members of either House." Supposing this Committee
were to say to itself, "There is obviously a public will
for tougher bribery provisions and there is a public will that
Members of Parliament shall not be altogether excluded from them
at any rate, even if they are excluded at all." Would it
be your view that there is any inherent reason why Members of
the House of Lords, in whatever legislation they had passed there,
should be dealt with differently from whatever legislation might
apply to the House of Commons?
(Mr Davies) No, I do not think there is. I think they
should both be subject to the same provisions. Whether there has
to be a slightly different subsection dealing with the House of
Lords because of the fact that there is some doubt whether they
are holders of public office is a matter for the lawyers concerned.
I do not think I am competent to answer that. But they should
certainly be subject to the same process as the Members of the
House of Commons, yes.
194. To the extent that there are different
standards at the moment in required conduct in each House, is
there any reason why either House should not be able to have as
it were supplementary jurisdiction of a disciplinary kind for
matters which fell outside the criminal provision but which nonetheless
they considered to be improper?
(Mr Davies) Yes.
195. That would be perfectly feasible in your
(Mr Davies) Yes.
196. Just to complete my train of thought, we
asked the Home Secretary last time whether there was not a distinction
that could be practically made between the tightly drawn category
of proceedings in Parliament and other matters which fall within
the duties of a Member of Parliament but do not take place within
that type of category. Would you see any objection to that categorisation
of separation being drawn in the House of Lords if it were going
to be drawn in the House of Commons. In other words to have a
clause that were designed to get a Member of the House of Lords
to behave in a particular way in the Chamber would be within the
type of category, but if it was not germane to the exercise of
his duties here it would be outside it? Would that be a possible
distinction in your view?
(Mr Davies) I think that the difficulty is that Members
of the House of Lords do not have really any other role except
as Members of the House of Lords and in the proceedings of the
House. They are in a different category from a Member of the House
197. That would not be a difficulty. It would
make something rather easier, which would be unusual.
(Mr Rippengal) I think it is suggested in the Commons
paper that one way of proceeding for Members of the Commons would
be for an offence of corruption to relate to their activities
as Members in relation to their constituents and so on, but not
in relation to proceedings in Parliament, but that is a distinction
our memorandum points out is not feasible in the Lords because
a peer's functions as a Member of the House entirely relate to
what he does in Parliament. He does not strictly speaking have
any function outside at all.
Lord Merlyn-Rees: One minute we are talking
about bribery and the next minute we are talking about corruption.
What is the difference? Is it either/or, or does it matter? Does
one carry both?
Lord Mayhew of Twysden: One is an example of
the other, is it not?
Lord Merlyn-Rees: It has been said today that
the number of cases we will have will be very small. I am finding
it very difficult to think of an example of bribery that really
counted in the House of Commons and in the House of Lords in particular.
I find it very difficult to think of a bribery case. It may look
like bribery, and it may be fooling somebody, but real bribery,
I find difficult to conceive it.
198. Would you agree that if we could find a
fourth category or whatever, a trigger point, it would have to
be very carefully drafted, otherwise the perception outside Parliament
would be that the reference to a court to deal with the matter
meant that there was an element of guilt, even before the Crown
prosecution stage, because in the minds of the public there is
no smoke without fire.
(Mr Rippengal) Yes, I think there will be a hard core
of really serious cases that are presumably the cases which would
be the subject of Lord Wigoder's fourth category. I am not quite
sure whether Lord Wigoder was envisaging an offence which covers
a whole series of matters, but where you only reach the point
of proceedings if the House had said yes, or whether you were
envisaging an offence which was so finely tuned that it would
cut out your earlier categories.
Lord Wigoder: I do not claim to have been putting
forward a carefully thought-out proposal. It was a thought which
had been niggling me and I wanted to get it off my chest.
Mr Williams: Very helpful.
Lord Wigoder: I had envisaged that the fourth
category of case, which would have been a case of bribery or corruption
which did clearly involve proceedings of Parliament, would begin
not in the Houses of Parliament, but it would begin with the Director
of Public Prosecutions and he would collect the evidence and he
would present the case in due course, if he thought there was
a case, to the criminal court and it would then be for the criminal
court, if they felt that Article IX clearly did apply, to refer
the matter back to the House of Commons. That was how I envisaged
it. I envisaged the trigger working in the opposite way. I do
want to make it clear that I am not seeking for a moment to put
forward what I would regard as a coherent solution to all of our
Lord Merlyn-Rees: I am most interested in what
you say. Could you give us an example of bribery by a Member of
Parliament in either House that the DPP would investigate?
Lord Wigoder: I would have thought, without
referring to any particular person or any particular scenario,
the offer of a substantial sum of money to ask a particular question
for a particular interest of the person who was offering the sum
of money would, on the face of it, be a prima facie case
of attempted bribery or bribery which the Director of Public Prosecutions
would think it appropriate to investigate.
Sir Patrick Cormack: Or the allegation that
regular substantial payments were illicitly made.
199. You have suggested on a number of occasions
that because you have not had recent experience in the House of
Lords this somehow reduces the value of your contribution. I take
precisely the opposite view. I suspect that Commons Members and
indeed our officers in the House have been proceeding rather too
much ad hominem about the recent cases and I have in mind
the situation where it was far less clear cut, where, for example,
during the examination of the Committee to which Alan Williams
refers a lot more came out, that apparently simple cases started
very straightforward, but a lot more came out. I am worried about
the trigger that can only be triggered half-way through an investigation
with inadequate investigatory and interrogation powers. That is
why I very much prefer Lord Wigoder's suggestion that the trigger
should be external when it is thought it is proper for Article
IX to apply because then you do have the full panoply of the investigatory
and interrogation powers of the criminal law. I think we are all
in danger, because we are all under the shadow of recent experience
in the Commons, of thinking that it is always going to be straightforward
to identify which is the fourth case and I suspect very often
that it will not be. I am asking you really from your rather more
objective point of view, when you have not lived under the shadow
of this investigation over recent months, whether you do not think
perhaps that Lord Wigoder's suggestion that an external trigger
rather than an internal trigger is more likely to be effective?
(Mr Rippengal) I must confess, I do not really see
how it works. Once the thing gets into the criminal courts, it
seems to me inevitable that Article IX is going to be overridden.
They are going to have to ask the Member what he was up to when
he said so and so and was he not speaking with one voice, but
in fact achieving another object. He is going to have to be questioned
about what his motives were, what sort of spin he was putting
on things and so on. This is totally contrary to what we have
called the wider aspect of Article IX and I do not see how the
criminal proceedings could even get under way without breach of