1 Introduction
1. This Report deals with matters arising from
a complaint against the Rt Hon Denis MacShane made on 29 June
2009, relating to expense claims made between 2005 and 2008. As
the Committee has reported to the House, on 12 October 2010 the
Committee agreed that the conduct of Mr MacShane should be reported
to the Metropolitan Police Service, and the inquiry should be
suspended until the question of possible criminal proceedings
had been resolved.[1] On
12 October 2010 the Parliamentary Commissioner for Standards wrote
to the Commissioner of the Police of the Metropolis. This was
summarised in his memorandum:
I told the Commissioner that I had been considering
a complaint in relation to claims Mr MacShane had made between
2004 and 2008 in respect of research and translation services
apparently provided by the European Policy Institute. I noted
that I had also been considering a complaint in relation to Mr
MacShane's claims for computers. I said that, during the course
of my inquiries, I had seen invoices produced for the claims in
respect of the services provided through the EPI which I believed
might have been produced in a way which could raise questions
of possible criminality.[2]
The evidence gathered in the course of the Commissioner's
inquiry was not shared with the police. It had been gathered for
another purpose, under different conditions from those applying
in criminal investigations. It was and remains subject to Parliamentary
privilege, as does this Report.
2. It was not until 3 July 2012 that the Metropolitan
Police Service informed the Commissioner that they would take
no action as a result of their inquiries.[3]
As he had previously indicated to us he would in such circumstances,
the Commissioner resumed his inquiry into whether Mr MacShane
had breached the Code of Conduct, which was a matter for the Committee
and the House.
3. The decision as to whether conduct is criminal
and as to whether proceedings should be brought is one for the
police and the CPS. The separation of courts and Parliament is
a fundamental constitutional principle. It is enshrined in Article
9 of the Bill of Rights, which provides that proceedings in Parliament
cannot be impeached or questioned in the courts. It underlies
the sub judice rule, which prevents the House dealing with matters
awaiting adjudication by the courts. It is not for us to decide
whether or not criminal conduct has occurred. We are concerned
with breaches of the Code of Conduct, and a criminal investigation
cannot, by definition, determine whether or not a breach of the
Code has occurred. We approach each case on its own merits, and
have discontinued past cases when former members have been imprisoned,
or have had criminal proceedings discontinued.[4]
In this case, a serving Member of the House faces allegations
of significant breaches of the Code. We endorse the Commissioner's
decision to resume the inquiry.
4. The procedures we follow are inquisitorial,
rather than adversarial, but fairness is paramount. Accordingly
we were concerned by paragraph 114 of the Commissioner's memorandum,
which states:
Having received no response to my letter of 4 July,
my office spoke to Mr MacShane on 30 July. My office reported
to me that Mr MacShane had said that he had not yet responded
to my letter because he had been advised by the Chair of the Committee
on Standards and Privileges to answer via his lawyer.
The Chair's account was that Mr MacShane had approached
him in the Tea Room, saying that he had sent the Commissioner's
correspondence to his lawyer and that he would write to Mr Speaker.
In response the Chair had said that as far as he was concerned
it was a matter for the Commissioner. We considered that if there
were a dispute about the facts of this encounter the Chair should
stand aside from the inquiry, and asked Mr MacShane for more details
of this alleged advice. Mr MacShane gave a fuller account:
The conversation with the Chairman of the Committee
took place in the September session of Parliament. It was brief.
I said I just did not know how to take the matter forward given
the depression I was in. My solicitor will confirm (if necessary
by letter to the Committee) that following my conversation with
Mr Barron I telephoned him to say that Mr Barron had said I had
better go through my solicitor. I am absolutely clear in my mind
that was an exchange between us and my solicitor will confirm
that was what I told him. There was no advice or suggestion from
Mr Barron other than it would be a good idea to talk to my solicitor
and it was my decision to go to my solicitor.
This did not relate to the July phone calls from
the Commissioner's office but was a tea room conversation in September.
I apologise to Mr Barron if I have given the impression that he
was telling me how to respond to the Commissioner. This is absolutely
not the case, simply that Mr Barron agreed that handling the matter
via a solicitor might be advisable in the sense that I needed
some outside advice.[5]
Given this clarification, we saw no reason why the
Chair should stand aside from the inquiry.
- The Commissioner's memorandum is appended to
this Report, and we refer readers to it for a full account of
his investigations. Mr MacShane was supplied with a copy of the
memorandum, and given the opportunity to give evidence. He responded
in writing, and his letter is printed as Appendix 2 of this Report.[6]
1 First Special Report of Session 2010-11, Mr Denis
MacShane, HC 527 Back
2
Appendix 1, paragraph 110 Back
3
Appendix 1, paragraph 112 Back
4
See Sixteenth Report of Session 2010-12, Former Members
Sentenced to Imprisonment, HC 1215 Back
5
Appendix 2 Back
6
We also print the Clerk's letter to Mr MacShane of 23 October
2012 Back
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