Examination of Witnesses (Questions 100-119)|
QC AND MR
14 MARCH 2003
Q100 Lord Campbell-Savours: How central
is Clause 12, that being the clause that essentially we are discussing,
Proceedings in Parliament, to the prosecution of a corruption?
What scenarios have you considered? Could you perhaps give us
an example where an offence would be committed but a prosecution
perhaps would fail without Clause 12?
Sir David Calvert-Smith: First
of all, our experience is very limited. In my memory, only one
MP has been prosecuted for bribery during my career at the barunsuccessfully.
Q101 Lord Campbell-Savours: Which
one was that?
Sir David Calvert-Smith: It was
the Member for Ealing, Harry Greenway. It was before either of
our times, I should say. I can imagine that it would be very important
in order to secure a conviction of a corrupt elected Member to
be able to adduce in evidence things that he or she had said,
either in a Committee like this or in the House itself, as evidence
of whatever the bribe had been intended to achieve. I would have
thought it was almost essentialand I believe other common
law jurisdictions have found thisthat the Bill of Rights
has to be abrogated to the extent that to prove corruption offences
against elected members one would have to breach parliamentary
Q102 Lord Campbell-Savours: Perhaps
the Greenway case makes the point because right across the spectrum
in here, even amongst those of us who were hunting with the hounds,
we could never understand why that prosecution had been brought.
What I worry is whether we might find ourselves entering into
prosecutions which we should not. I do not know if you are in
a position to comment, but you can reflect on the case now.
Sir David Calvert-Smith: I simply
cannot remember the facts of that case. I was not involved as
counsel. I just remember reading about it in the newspaper. There
is always going to be a risk, and clearly MPs, who are public
figures, are at greater risk probably than other members of the
public of false allegations and attempts to belittle them, reduce
their credibility and so on, from malicious people. So clearly
there are risks. One of the risks can be overcome, I would say,
by a consent provision, whether by the law officers or by the
two of us, and the risk of over-zealous police officers on a crusade,
which I think is your next point, would be very substantially
reduced in Robert's case because he would be directing the investigation
and would therefore have complete control over such officer. In
my case I have to concede that the police have operational responsibility.
They take advice, but they can take or leave that advice; I cannot
direct them. So I accept that there is a potential risk there.
Q103 Baroness Whitaker: It sounds
as if there is less risk if the Serious Fraud Office has the responsibility
than if the DPP has the responsibility.
Mr Wardle: I think that is probably
right, but that would only apply to an offence involving seriously
complex fraud. In the case of a Member of Parliament where Clause
12 might be brought into play, it is probably unlikely that we
would be looking at that. I do not know. I suppose there are circumstances
where it could apply.
Q104 Chairman: In this area perhaps
one of the most important questions is whether Clause 12 goes
too far. Even assuming it is necessary to provide an Act with
something like Clause 12, is it too wide? Could we get away with
a narrower provision which would reduce the anxiety which some
people would certainly feel?
Mr Wardle: It applies, of course,
only to an offence of corruption under the Bill.
Q105 Chairman: The Clerk of the House
in his evidence, for example, has said that you could draft this
more narrowly. Do you have any comment on that?
Sir David Calvert-Smith: It certainly
could be drafted more narrowly. It could, for instance, be limited
to cases where the defendant is the elected representative, because
here this could be evidence in a quite different case against
somebody who is not elected, and that would be one limitation
that could be placed on it. Obviously it could be limited more
than it currently is. It is quite a wide provision at the moment.
Q106 Mr Stinchcombe: Do you think
it should be a criminal offence for a Member of Parliament, for
example, to solicit payment to ask questions or make speeches
or vote in a particular way? If it should be a criminal offence,
do you need to have something like Clause 12 in the Bill in order
to prosecute for it?
Sir David Calvert-Smith: Yes,
Lord Waddington: I do not quite
Q107 Lord Campbell-Savours: Was that
an answer to the first or the second question?
Sir David Calvert-Smith: It was
yes and yes, but cannot conceive of us prosecuting a caseI
am sure we have never done so before, or almost sureunless
this is done in secret. If there is not secrecy, then it is hard
to see how an offence is corrupt. If an MP were to stand up and
say, "I have asked for . . . " then the likelihood of
a jury convicting that MP of corruption, I would have thought,
would be small, whereas if it turns out later that the MP has
asked a question and secretly has asked for, then I would have
thought most juries would probably think that was corrupt.
Q108 Mr Garnier: Except that publicity
by itself is not necessarily a guard against corrupt behaviour.
If you were a very clever person, you would stand up and say,
"I am available for hire," and you could pocket huge
sums of money to vote in a particular way, and because you have
made yourself publicly clear about this, no consent would ever
be given for prosecution. It may be that we are having an argument
about the division between the responsibilities of Parliament
for its own procedures and the responsibility of the criminal
law to deal with criminals. I do thinkand I will ask you
whether you agreethat we need to pay quite close attention
to the advice of Sir William McKay in his memorandum, because
we are not here simply worrying about the prosecution of individual
human beings who happen to be Members of Parliament but we are
here as trustees of the privileges of Parliament. Privilege in
the parliamentary sense is a much misunderstood word, as it is
throughout the entire civil and criminal jurisdiction, and we
are not simply trying to protect ourselves, are we, against being
prosecuted for misconduct? We are seeking to protect the freedom
of speech of Members of Parliament, of either House, to represent
the people of this country fearlessly. If there is any inhibition
put upon us either by your officers or by the criminal law generally,
our jobs as Members of the House of Lords or Members of the House
of Commons are inhibited. I think we need to be quite carefuland
I ask you whether you agree with menot out of a sense of
political correctness or any other perfectly natural feeling,
to place obstacles in the way of Members of either House carrying
out their proper duties.
Mr Wardle: I am sure that is right,
and as far as the competing interests are concerned, I am sure
this Committee will give them very careful consideration, but
I think that David is right; I think there may be cases where
there will be no prosecution if Clause 12, perhaps in a restricted
form, is not enacted.
Q109 Mr Garnier: Could I give you
an example? Mr Robert Maxwell is now dead so we do not need to
worry about his reputation, if ever we did, but if he had been
stealing from the Daily Mirror Group pension fund but also happened
to be a Member of Parliament, I dare say you would have thought
it proper to prosecute him had you got the evidence, and simply
because he was a Member of Parliament for Buckingham for a particular
time would have been wholly irrelevant to your decision.
Mr Wardle: Absolutely.
Q110 Mr Garnier: But we are not talking
about that sort of criminal behaviour, are we? We are talking
about where a Member of Parliament, be they in the Lords or in
the Commons, conducts himself as a legislator in such a way as
to attract moral opprobrium or public criticism verging on crime.
Sir David Calvert-Smith: Is that
right? I am not sure that that is the intention of this clause.
Suppose Robert Maxwell had said something in the House which supported
any allegation that the SFO might have been making against him,
and perhaps was a vital element of the case, in that it admitted
certain facts, shall we say. Then whoever was prosecuting would
want to use the fact of that statement in the House to support
our case, and it would look very odd in that sort of case, because
whatever he said we have been in Hansard anyway so everybody would
have known it, if there were some artificial ban on our using
that statement in any prosecution.
Q111 Baroness Whitaker: Should we
not be uneasy if our elected Member of Parliament fearlessly advocates
particular legislation for which he has taken money with impunity
Sir David Calvert-Smith: I agree.
Lord Campbell-Savours: Can I go
down the route Mr Garnier has gone down and quote from the memorandum
given by the Clerk. You might want to comment on it. He says,
"As drafted, Clause 12 goes far wider than that. As already
mentioned, it would enable evidence given by a person to a Select
Committee to be called in evidence in court in support of a charge
of corruption against that person," which is what you were
just commenting about. Then it says, "If a Member of Parliament
had commented in debate on an individual who was subsequently
charged with corruption, that Member's speech would be admissible
as evidence under Clause 12 and the Member"that is
to say this other Member, uninvolved"might be questioned
about its meaning and the information on which it was based."
It means that I, if I spoke about someone else's actions, might
find myself, arising out of a speech if I had been in Parliament,
being questioned by you and perhaps even involved in the court.
Mr Garnier: It is going to come
more directly on attempts rather than on the actuals. As a Member
of Parliament, if one of my constituents offered to pay me a lot
of money to do a particular thing, but of course I refused it,
is Lord Campbell-Savours saying that that sort of speech would
lead to, or could lead to, prosecution of a member of the public,
based upon a remark made in the Chamber of the Commons or the
Q112 Lord Campbell-Savours: Yes,
as I understand it and that would mean you could be called on
the basis of what you said in Parliament about that because of
evidence in relation to that other person, if that other person
was a Member of Parliament.
Sir David Calvert-Smith: That
is extremely doubtful. The way it is phrased, as you have just
quoted, I cannot see how that would ever be admissible in a criminal
trial. Saying things about people is not evidence. Facts are evidence.
I think that particular bit actually over-states the difficulty.
If a Member of Parliament had commented in a debate on an individual,
that is highly unlikely to be evidence relevant to the commission
of a criminal offence.
Q113 Lord Campbell-Savours: Perhaps
I could finish the sentence. He expresses concern and he says:
"In my view, this"that is what I have just described"amounts
to far more than a minimal encroachment on territory safeguarded
by Article 9, which the Joint Committee on Parliamentary Privilege
originally envisaged". He is obviously very perturbed by
the possibility of that happening.
Sir David Calvert-Smith: All I
would say is that, as phrased, I do not believe that would be
a concern because I do not believe a speech by an individual who
had no personal knowledge of the facts, but merely commented in
debate, could ever be admissible in a criminal trial.
Mr Wardle: I would agree with
that and, having looked at it, I assumed that one was talking
about statements made by a person would only be admissible against
him or her in any criminal proceedings; otherwise, I do not quite
see how they could be got in.
Q114 Mr Garnier: Am I being, as often,
obtuse here? If I stand up in the House of Commons and say, "Mr
Smith came to me in my constituency surgery and offered me £1
million in order to behave in a particular way", which would
be adverse to the public interest, would not the fact that I had
said that amount to material which
Sir David Calvert-Smith: We would
then send a Bobby round to see you at home and say, "We are
interested to see what you said in Parliament yesterday. Is that
true? Will you please sign a statement saying it is true?"
If you said, "I refuse to co-operate", then we could
not use that statement in Parliament in any shape or form; it
simply would not be admissible. You would have to give the evidence
of what Mr Smith had said to you in your surgery in court, obviously.
Q115 Mr Garnier: It would lead you
on to a train of inquiry?
Sir David Calvert-Smith: Yes.
Mr Wardle: That is the case now.
Sir David Calvert-Smith: That
is what happens now. If you were to say such a thing, I am sure
you would have a visit.
Mr Garnier: I look forward to
Chairman: We will not go through
much of this material with you because of the time. We will come
back perhaps to some of these questions. Members have a number
of other question which would in part apply here and also apply
more generally. Perhaps we could revert to those.
Q116 Lord Bernstein of Craigweil:
There is one point in the CPS submission, which referred to the
omission of misuse of public office and trading in influence,
and you say that further consideration and consultation is recommended.
Do you have any specific ideas on how this can best be included
into the Bill and could be enforced?
Sir David Calvert-Smith: The common
law offence of misconduct in public office has made a come-back
in recent years. Having really not been prosecuted for many, many
years, it is now quite common, and its exact scope is still the
subject of debate and has not been pronounced upon recently, for
instance by the House of Lords. There is at least a possibility
that the Court of Appeal, and thereafter perhaps the House of
Lords, may be asked to consider the scope of the offence of misconduct
in public office. Many jurisdictions, as I understand it, do have
a specific offence of that kind in statute. As I said a little
earlier, and Robert actually said first, there is a proposal for
something that looks very much like statutory misconduct in the
proposed fraud legislation, which the Law Commission have come
up with on the subject of fraud. Again, it would be simpler for
prosecutors, were there such an offence; it would be easier, I
believe, for tribunals of fact to understand what it was that
was actually being alleged and it would take out of the corruption
ambit those cases that Lord Waddington was asking about where
perhaps dishonestly is not exactly the right word to describe
it but it is somebody who has actually abused their function as
a public servant.
Q117 Lord Bernstein of Craigweil:
At the moment they are prosecuted under the common law?
Sir David Calvert-Smith: Yes.
Q118 Lord Bernstein of Craigweil:
You think it could be made part of a statutory offence?
Sir David Calvert-Smith: Yes.
Primarily, in CPS terms, it has been limited to behaviour by police
officers which is so far below the standard of what police officers
should do in respect of caring for someone that it amounts to
Q119 Lord Bernstein of Craigweil:
So the problem of making it part of the statute if Parliament
Sir David Calvert-Smith: That
would certainly be a problem, yes.