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74. The complaints summarised
in Section II above fall into two main classes:
- the
acceptance of payments or other financial inducements in return
for promoting certain matters in Parliament, or with Ministers,
which might amount in some cases to bribery;
- a
failure to register and/or declare such payments and other relevant
financial interests in accordance with the rules of the House.
75. These two classes of
allegations differ both in their potential seriousness and in
the extent to which the conduct complained of can be judged against
clear, formalised rules of the House. I have had regard to these
factors in evaluating the evidence - subject to my terms of reference,
which require me to identify any breach of the rules "in
the letter or in the spirit".
1) ACCEPTANCE
OF IMPROPER PAYMENTS OR OTHER FINANCIAL INDUCEMENTS
76. There is no doubt that
bribery of a Member of Parliament is, and for a very long time
has been, against the law of Parliament (though, as the memorandum
from the Attorney General to the Privileges Committee in 1994
made clear, whether it also constitutes a criminal offence remains
uncertain until the position at common law has been considered
at appellate level).[25]
77. Formal expression was
first given to this view in 1695, when the House of Commons 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 and tends to the
subversion of the English constitution."
78. According to Erskine
May[26]
the spirit of this Resolution is interpreted as meaning that "the
offering to a Member of either House of a bribe to influence him
in his conduct as a Member, or of any fee or reward in connection
with the promotion of, or opposition to, any bill, resolution,
matter or thing submitted or intended to be submitted to the House
or any committee thereof, has been treated as a breach of privilege."
79. Nor is there any doubt
that "the acceptance by any Member of either House
of a bribe to influence him in his conduct as such Member, or
of any fee, compensation or reward in connection with the promotion
of, or opposition to, any bill, resolution, matter or thing submitted
or intended to be submitted to the House or any committee thereof
is a breach of privilege."[27]
Indeed, Members of the House of Commons who have been found guilty
of such an offence have been expelled or committed.
80. As the Clerk of the
House's memorandum to the Privileges Committee in 1994 explained,
the great majority of cases of bribing a Member, especially in
its crudest form, are extremely old, dating from the first few
decades after the 1695 Resolution was passed. In modern times
there have been comparatively few examples. This may be due in
part to the evidential difficulties involved in establishing a
clear link between the making, or offering, of a corrupt payment
and the Parliamentary action for which it is alleged to be an
inducement.
81. The essence of the offence
of bribing a Member lies in the attempt, by corrupt means, to
influence him to adopt, or refrain from adopting, a particular
course of action in Parliament. However, the House has also declared
its disapproval of the misuse by a Member of his position in Parliament
to advance a cause in which he has a paid professional interest,
even where no question arises of his being improperly influenced
by others.
82. Thus, in 1858, it was
resolved that:
"it is contrary
to the usage and derogatory to the dignity of this House that
any of its Members should bring forward, promote or advocate in
this House any proceeding or measure in which he may have acted
or been concerned for or in consideration of any pecuniary fee
or reward."
83. Although it is couched
in general terms, the particular concern which gave rise to this
Resolution was the advocacy in Parliament by members of the Bar
of cases in which they had a current interest.
84. More recently, the House
has extended the prohibition on the exercise, or attempted exercise,
of undue influence on Members to cover cases where Members themselves
voluntarily enter into formal relationships with outside bodies
which have the effect of fettering their absolute discretion to
speak or act as they think fit in Parliament.
85. This principle was embodied
in the Resolution of 15 July 1947, which declared that:
"it is inconsistent
with the dignity of the House, with the duty of a Member to his
constituents, and with the maintenance of the privilege of freedom
of speech, for any Member of this House to enter into any contractual
agreement with an outside body, controlling or limiting the Member's
complete independence and freedom of action in Parliament, or
stipulating that he shall act in any way as the representative
of such outside body in regard to any matters to be transacted
in Parliament; the duty of a Member being to his constituents
and to the country as a whole, rather than to any particular section
thereof."
86. This Resolution was
originally aimed at deterring trade unions from seeking to bring
improper pressure to bear on sponsored Members, though the element
of financial reward is not specifically mentioned. But the `offence'
thus created appears nonetheless to be a relatively narrow one
and difficult to prove, depending as it does on the existence
of some form of agreement between the Member concerned and an
outside organisation.
87. As can be seen, therefore,
the House has, over the course of several centuries, expressed
its disapprobation of various kinds of financial relationship
between Members and others, ranging from outright bribery to arrangements
which, whilst not corrupt, are wrong in principle because they
are inconsistent with the duties and independence of a Member
of Parliament.
88. The position is somewhat
clouded, however, by the fact that certain types of financial
arrangements, notably consultancies, involving the provision by
Members of Parliamentary services on behalf of commercial interests
have not, until very recently, been expressly regulated or restricted.
Indeed, the system of registration and declaration of interests
implicitly recognises that some forms of remunerated Parliamentary
activity fall within its ambit. (There can, after all, be no
question of requiring Members to register and declare interests
which are, in themselves, regarded by the House as illegitimate).
89. The Resolution of 6
November 1995,[28]
which amended the 1947 Resolution, codified and updated the general
prohibition on paid advocacy, but left untouched[29]
the status of consultancy agreements involving the provision of
advice. The 1995 Resolution was not retrospective in its
effect; the events with which my inquiry has been concerned all
predate it.
90. Equally, political lobbying
- both of and by Members - has been, and remains, an entirely
legitimate part of the democratic process.
91. Even more problematically,
so far as the approach to this inquiry is concerned, the piecemeal
- and in some respects contradictory - evolution of the Parliamentary
"rule book" and the relative paucity of case law make
it difficult to match allegations within the first category under
examination[30]
to specific offences in existence at the times in question.
92. As it happens, I do
not believe that this matters in practice. The House has never
regarded the absence of precise rules or prohibitions as a barrier
to proceeding against Members on the grounds of conduct regarded
as inconsistent with their Parliamentary status or otherwise judged
to be unacceptable.
93. This fact was most obviously
exemplified by the report of the Privileges Committee in the original
"cash for questions" case in 1995. The Committee explicitly
did not rely, in reaching its findings, on there having been a
breach of any specific rule of the House and, in particular, it
did not regard the actions complained of as falling within the
definition of bribery, either at common law or according to the
law of Parliament.
94. Instead, the Committee
pointed to the "general obligation upon Members not to allow
their conduct to fall below the standards which the House is entitled
to expect of them".[31]
In judging the seriousness of any such failure by Members to
observe the required standard of behaviour, the Committee thought
it appropriate to quote Erskine May's definition of contempt as
"any act or omission which obstructs or impedes either House
of Parliament in the performance of its functions, or which obstructs
or impedes any Member or officer .... in the discharge of his
duty". The Committee continued, again citing Erskine May,[32]
that any act "which has a tendency, directly or indirectly,
to produce such results may be treated as a contempt", at
which point May adds, crucially, "even though there is
no precedent of the offence."[33]
The Clerk of the House's memorandum to the Committee also makes
clear that the definition of a contempt could include acts "which
damage the standing or reputation of the House."[34]
95. I have accordingly adopted
these broad principles as my starting point in examining the first
group of complaints.[35]
The test I have applied is whether the allegations have been
substantiated by the evidence adduced and whether the relevant
conduct matches the criteria set out above. It is for the Select
Committee to determine, if it accepts my conclusions, how seriously
it views any misconduct and what penalty, if any, to recommend
to the House.
2) BREACHES
OF THE RULES RELATING TO REGISTRATION AND DECLARATION OF INTERESTS
96. My task has been somewhat
easier in dealing with those complaints which relate to a failure
to register or to declare relevant interests. This is because,
in this area at least, specific obligations are laid upon Members
within a framework of formal, codified rules - even though there
may be some scope for interpretation at the margins. It is therefore
possible to say with reasonable certainty what the rules were
(or were understood to be) at any given point in time since the
Register and the duty to declare relevant interests were first
introduced in the mid-1970s. But these rules, especially those
relating to registration, cannot be viewed in isolation. They
are intended to be interpreted and applied in the light of the
statement of the Register's purpose which appears at the beginning
of each published edition. This is important as a means of ensuring
that the rules on registration are observed both in the letter
and in the spirit.
97. The House takes seriously
the obligation to comply with the registration and declaration
requirements. Breaches are not a mere technicality, although
where the failure is due to a genuine oversight or misunderstanding
the House normally accepts that in mitigation. But if dishonesty
or deliberate concealment is involved, the offence is viewed especially
sternly - as amounting even to a contempt. Both in the Poulson
case[36]
in 1977 and the John Browne case in 1991, the essence of the offences
lay not in the nature of the relationships entered into with outside
individuals or bodies, but in the use by the Members concerned
of their privileged position in Parliament to promote unavowed
interests. In the Poulson case, the Select Committee appointed
to enquire into the allegations (which dated from the late 1960s
and early 1970s) based its judgements of the conduct of the three
Members on the rules and practice of the House prior to
the two Resolutions agreed in 1974 on declaration and registration
of interests.
98. The rules relating to
registration and declaration, and their development over the period
covered by the allegations against Mr Hamilton and the
other Members, are set out at Annex 5. It is, however, worth
briefly referring here to the central points.
a) Registration
99. The Register was established
in 1975 with the purpose of providing:
"information of
any pecuniary interest or other material benefit which a Member[37]
may receive which might be thought to affect his conduct as a
Member or influence his actions, speeches, or votes in Parliament."
100. The introduction to
the annually published Registers reminded Members that they were:
"required to have this general purpose in mind when determining
what interests should properly be declared".
101. In June 1993, two amendments
were agreed by the House to this statement of the purposes of
the Register, which now reads (changes in italics):
"The main purpose
of the Register of Members' Interests is to provide information
of any pecuniary interest or other material benefit which a Member
receives which might reasonably be thought by others to
influence his or her actions, speeches or votes in Parliament,
or actions taken in his or her capacity as a Member of Parliament."
102. The published Register
also stated:
"It is left to
individual Members, with or without the advice of the Registrar,
to give the required information, and any inconsistencies of style
or content that are apparent in the Register spring from that
fact. Each Member is responsible for what is recorded about himself
here, as each is answerable to his fellow Members and the public."
103. Members are required
to notify any change in their registrable interests within four
weeks of the change occurring.
104. On 17 December 1985
the House passed a Resolution which, while it emphasised:
"that it is the
personal responsibility of each Member to have regard to his public
position and the good name of Parliament in any work he undertakes
or any interest he acquires"
went on to confirm:
"that the scope
of the requirements to register remunerated trades, professions
or vocations includes any remunerated activity in the fields of
public relations and political and parliamentary advice and consultancy;
in particular agrees, [.......] in regard to the registration
and declaring of clients, that the services which require such
registration and, where appropriate, declaration include as
well as any action connected with any proceedings in the House
or its Committees, the sponsoring of functions in the Palace,
making representations to Ministers, Civil Servants and other
Members, accompanying delegations to Ministers and the like".[38]
105. In 1992, in a Report
subsequently approved by the House, the Select Committee on Members'
Interests warned Members against believing "that correct
registration and declaration adequately discharge their public
responsibilities in respect of their private interests".
In an Appendix to the Report, the then Speaker stated: "A
Member must be vigilant that his actions do not tend to bring
the House into disrepute"; and he added: "Members who
hold consultancy and similar positions must ensure that they do
not use their positions as Members improperly".
b) Declaration
106. The rule relating to
declaration of interests (introduced in 1974) is a requirement
separate from, and additional to, registration. The latter is
a permanent and continuous record of Members' interests while
the former is a disclosure, during debate or other proceedings,
of an interest specifically relevant to that debate or those proceedings.
The requirement to declare an interest extends (and has extended
since 1974) to any "transactions or communications which
a Member may have with other Members or with Ministers or servants
of the Crown". The duty covers any "relevant pecuniary
interest or benefit of whatever nature, whether direct or indirect,
that [the Member] may have had, may have, or may be expecting
to have".[39]
107. The definition of "proceedings"
was extended to Early Day Motions in 1993 and to written questions
(and notices of oral questions) in 1995.
25 HC
(1994-95) 351-II, p 155. Back
26 21st
edition, p 128. Back
27 Ibid,
p 119; emphasis added. Back
28 Following
a recommendation by the Select Committee on Standards in Public
Life. Back
29 The
House did, however, agree to a separate Resolution requiring the
lodging of employment contracts and the disclosure, in bands of
£5,000, of any remuneration received by a Member for services
provided in his capacity as a Member. Back
30 See
para 74. Back
31 HC
(1994-95) 351-I, para 8. Back
32 21st
edition, p 115. Back
33 Emphasis
added. Back
34 HC
(1994-95) 351-II, p 159, para 3. Back
35 This
must, of course, be read in the context of the remarks at the
end of para 89. Back
36 The
Members involved were Mr Reginald Maudling, Mr John Cordle and
Mr Albert Roberts. Back
37 The
registration requirements apply equally to Ministers who
are Members of the House of Commons. Back
38 Emphasis
added. Back
39 Emphasis
added. Back
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